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Date: 01-30-2018

Case Style:



Case Number: COA16-1244

Judge: Phil Berger, Jr.


Plaintiff's Attorney: Assistant Attorney General Kimberly N. Callahan

Defendant's Attorney: Jim Glover

Description: D.K. was sixteen years old in 1985, and lived with her mother in a Charlotte
apartment. n September 6, 18, while ..s mother was out of town, .., who
was fifteen years old at the time, stayed in the apartment with D.K. At 4:30 a.m.,
they were awakened when the doorbell rang. They spoke with a man named ”Tony‘
through the door, who claimed to be looking for the property managers apartment.
Tony left when the girls told him he had the wrong apartment.
The girls were awakened again at 7:30 a.m. to their dog barking and a man
entering the room with a crowbar. He removed their clothing, tied their hands, and
placed pillowcases over their heads. The man was later identified as Defendant.
Defendant fondled the girls and inserted his fingers into their vaginas. He began
having sexual intercourse with D.K, then forced her to perform oral sex on him,
threatening to hurt .. if she refused. efendant ejaculated into ..s mouth and
wiped her face off with a pillowcase. Subsequently, he had sexual intercourse with
Defendant apologized to the girls and left the room. D.K. heard Defendant
walk downstairs and exit through a sliding glass door. After he left, D.K. managed
to get her hands free, but could not free D.N. D.K. called her brother, who came to
the apartment and used a knife to free ..s hands. The police were called at that

Opinion of the Court

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D.K. and D.N. submitted to a sexual assault examination by Dr. Carey Ziemer
at Charlotte Memorial Hospital. r. iemer determined that the results of ..s
examination was consistent with the information she had provided. For D.N., Dr.
Ziemer observed a laceration to the base of her vulva that was still bleeding. Dr.
Ziemer believed this injury occurred during a recent struggle. With the aid of a
pediatric speculum, Dr. Ziemer observed that D..s vagina had a whitish mucoid
fluid with a reddish tinge. Dr. Ziemer collected additional evidence from the girls and
provided the rape kits to law enforcement.
Pillowcases, sheets, clothing, and other items were collected from the
apartment by crime scene investigators. Semen was found on ..s panties and
vaginal swabs, ..s shorts, and a bed sheet. However, DNA testing was not
available in 1985, and the case went unsolved for nearly thirty years.
In January 2006, the Charlotte-Mecklenburg Police Department (”CP‘)
created a sexual assault cold case unit because the department had approximately
5,000 open rape cases. In 2013, Detective Troy Armstrong reviewed the evidence. He
submitted the physical evidence to a crime lab in Beaufort County, South Carolina
for DNA analysis. DNA analyst Timothy French examined physical evidence for
biological fluids and DNA. DNA from one male individual was located on ..s
panties, vaginal swabs and shorts, a pillowcase, and bedsheets. The South Carolina
crime lab established a DNA profile from the evidence collected in 1985. Defendant

Opinion of the Court

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was developed as a suspect by the CMPD. Detective Armstrong discovered that
efendant lived within three and a half miles of ..s apartment comple in 18.
On September 24, 2014, Defendant was arrested by CMPD. Defendant was
read his Miranda rights, and signed a waiver before speaking with Detective
Armstrong. Defendant informed officers he did not recall the details of that night.
Detective Armstrong obtained buccal swabs from Defendant in a search incident to
his arrest and sent the samples to the Beaufort County, South Carolina facility for
testing. efendants A profile matched the male A profile on the evidence
collected in 1985.
On October 13, 2014, Defendant was indicted by a Mecklenburg County grand
jury for one count of first degree burglary, two counts of first degree rape, three counts
of first degree sexual offense, and two counts of first degree kidnapping.
In May 2016, Defendant was tried in Mecklenburg County Superior Court. At
trial, efendant stated that he had a ”memorable‘ consensual seual encounter with
two girls on September 6, 1985 despite not recalling that night while being
interrogated by Detective Armstrong. The jury found Defendant guilty of two counts
of second degree rape, three counts of second degree sexual offense, and two counts
of second degree kidnapping. Defendant was sentenced pursuant to the Fair
Sentencing Act to five consecutive forty year maximum sentences, and two
consecutive thirty year maximum sentences which were to begin at the expiration of

Opinion of the Court

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efendants federal imprisonment. Defendant was also ordered to register as a sex
offender upon release for a period of thirty years. Defendant timely appealed.
Defendant contends that the prosecutor improperly cross-examined him
regarding his post-arrest silence when he testified at trial in violation of Rule 607 of
the North Carolina Rules of Evidence. Defendant further contends that this allegedly
improper impeachment resulted in prejudicial error, requiring a new trial. We
”[]ur standard of review for rulings made by the trial court pursuant to Rule
607 of the North Carolina Rules of Evidence is abuse of discretion.‘ State v. Banks,
210 N.C. App. 30, 38, 706 S.E.2d 807, 814 (2011) (citation omitted).
The United States Constitution protects an individual from being ”compelled
in any criminal case to be a witness against himself.‘ U.S. Const. amend. V. Under
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), individuals are guaranteed
protections under the Fifth and Fourteenth Amendments of the U.S. Constitution
during a custodial police interrogation. A criminal defendants eercise of his right
to remain silent cannot be used against him ”to impeach an explanation subsequently
offered at trial.‘ Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 98 (1976). The
United States Supreme Court has given latitude to the several states to ”formulate
[their] own rules of evidence to determine when prior silence is so inconsistent with

Opinion of the Court

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present statements that impeachment by reference to such silence is probative.‘
Jenkins v. Anderson, 447 U.S. 231, 239, 65 L. Ed. 2d 86, 95 (1980).
The orth Carolina Constitution guarantees ”[i]n all criminal prosecutions,
every person charged with crime has the right to . . . not be compelled to give self
incriminating evidence.‘ .C. Const. art. I, . ”Prior statements of a witness which
are inconsistent with his present testimony are not admissible as substantive
evidence because of their hearsay nature.‘ State v. Mack, 282 N.C. 334, 339, 193
S.E.2d 71, 75 (1972) (citations omitted) (emphasis added). However, our Supreme
Court has established longstanding precedent that ”such prior inconsistent
statements are admissible for the purpose of impeachment.‘ Id. at 340, 193 S.E.2d
at 75 (citing State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Britt, 225
N.C. 364, 34 S.E.2d 408 (1945); Stansbury, N.C. Evidence, § 46 (2d ed. 1963)). ”If the
former statement fails to mention a material circumstance presently testified to,
which it would have been natural to mention in the prior statement, the prior
statement is sufficiently inconsistent, and is termed an indirect inconsistency.‘ Id.
(citations, internal quotation marks, and brackets omitted).
” ’The credibility of a witness may be attacked by any party, including the party
calling him. ‘ State v. Williams, 355 N.C. 501, 533, 565 S.E.2d 609, 628 (2002) (citing
N.C.G.S. § 8C-1, Rule 607 (2001)), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808
(00). ”However, etrinsic evidence of prior inconsistent statements may not be used

Opinion of the Court

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to impeach a witness where the questions concern matters collateral to the issues.‘
Id. (citing State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757 (1989)).
On cross-examination, impeachment of a witness is proper if it ”merely
inquires into prior inconsistent statements.‘ State v. Fair, 354 N.C. 131, 156, 557
S.E.2d 500, 519 (citation and internal quotation marks omitted), reconsideration
denied, 354 N.C. 576, 558 S.E.2d 862 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed.
2d 162 (2002). Further, our Supreme Court has held ”[s]uch questioning makes no
unfair use of silence, because a defendant who voluntarily speaks after receiving
Miranda warnings has not been induced to remain silent.‘ Id. at 156, 557 S.E.2d at
518-19 (citation and internal quotation marks omitted).
Here, Defendants testimony on direct eamination highlighted many specific
details of the night of September 6, 1985. Defendant recounted driving an unknown
man home from a local nightclub to an apartment complex, meeting two young women
in the comples parking lot, and having a consensual sexual encounter with the two
young women. Defendant explained that the two women offered him ”white liquor,‘
marijuana, and invited him to their apartment. However, Defendant failed to
mention any of these details when questioned by Detective Armstrong. Instead,
Defendant stated he did not recall the details of that night.

Opinion of the Court

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On cross-examination, the prosecutor asked Defendant why he had not
disclosed this detailed account to the detective during his interview two years prior
to trial. The following transpired:
THE STATE: Now, when Detective Armstrong interviewed you on September 24th, [2014], . . . he gave you all the warrants and let you have plenty of time to read over the warrants; correct? Because you asked to see them because you wanted to read them.

DEFENDANT: Yeah, that sounds right.

THE STATE: And he sat there with you maybe thirty minutes or so while you went over and read them in detail. So you knew exactly what you were being charged with, and the address and the names of the victims, and everything that you were being accused of doing; isnt that right?

DEFENDANT: Yes, maam.

Defendant stated that he was unable to recall the account because he was medicated
at the time of the interview due to a recent series of operations, and that the
medication affected his memory during the interview.
The prosecutors cross-examination was directly related to the subject matter
and details raised in Defendants own direct testimony, including the nature of the
sexual encounter itself, the police interrogation, and his prior convictions. Further,
the inquiry by the prosecutor was not in an effort to proffer substantive evidence to
the jury, but rather to impeach Defendant with his inconsistent statements. See Fair,
354 N.C. 131, 557 S.E.2d 500; State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996).

Opinion of the Court

- 9 -
efendants post-Miranda silence is within the eceptions since ”no governmental
action induced petitioner to remain silent before arrest.‘ Westbrooks, 345 N.C. at 63,
478 S.E.2d at 495 (citation and internal quotation marks omitted).
Defendant failed to mention his story of a consensual sexual encounter to the
detective which he later recalled with a high level of particularity during direct
examination. Such a ”memorable‘ encounter would have been natural for Defendant
to recall at the time Detective Armstrong was conducting his investigation; thus, his
prior statement was an ”indirect inconsistency.‘ Further, the prosecutor did not
exploit Defendants right to remain silent, but instead merely inquired as to why he
did not remain consistent between testifying on direct examination and in his
interview with the detective two years prior. Accordingly, the trial court did not err
when it allowed the prosecutor to impeach Defendant with his inconsistent
statements made at trial and two years prior to the detective.

Outcome: The trial court did not err in allowing the cross-examination of Defendant in
regards to his prior inconsistent statements. We conclude Defendant received a fair trial, free from error.

Plaintiff's Experts:

Defendant's Experts:


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