1
NO.COA04-22 TWENTY SEVENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA,
Appellee,
V. FROM GASTON COUNTY
NO. 02CRS61702,543342,61701
02CRS19678,61703,61699
Aaron John Leblanc,
Defendant-Appellant,
*****************************
DEFENDANT-APPELLANT’S BRIEF
*****************************
Subject Index
TABLE OF AUTHORITIES...... iii
QUESTIONS PRESENTED...... 1
STATEMENT OF CASE...... 2
STATEMENT OF APPELLATE JURISDICTION...... 4
STATEMENT OF FACTS...... 5
ARGUMENT...... 15
- THE TRIAL COURT VIOLATED THE DEFENDANT’S RIGHT AGAINST DOUBLE JEOPARDY AND THE SEPARATION OF POWERS DOCTRINE IN SENTENCING THE DEFENANT TO CONSECUTIVE SENTENCES ON THE CHARGES OF FIRST DEGREE RAPE AND FIRST DEGREE SEXUAL OFFENSE WHEN THE SAME CONDUCT WAS USED FOR BOTH OFFENSES...... 15
- THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT PROPERLY DISTINGUISHING RAPE FROM FIRST DEGREE SEXUAL OFFENSE WHEN THE COURT INSTRUCTED THE JURY ON THE ELEMENTS OF THE TWO CRIMES...... 21
- THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE ISSUE OF FLIGHT OF THE DEFENDANT WHERE THERE WAS INSUFFICIENT EVIDENCE TO WARRANT SUCH AN INSTRUCTION AND THE DEFENDANT OBJECTED AT THE CHARGE CONFERENCE...... 25
CONCLUSION...... 28
CERTIFICATE OF SERVICE...... 29
TABLE OF AUTHORITIES
Cases
Missouri v. Hunter, 459 U.S. 359, 368 (1983)...... -16-
State v. Anthony, 354 N.C. 372, 425, 555 S.E.2d 557, 591(2001)-25-
State v. Canady, 330 N.C. 398, 410 S.E.2d 875(1991)...... -15-
State v. Ezell, 159 N.C. App. 103, 107, 582 S.E.2d 679, 683 (2003). -15-
State v. Freeland, 316 N.C. 13, 16, 340 S.E.2d 35, 39 (1986), aff’d 321 N.C. 115, 361 S.E.2d 560 (1987); -16-
State v. Grooms, 353 N.C. 50, 80 540 S.E.2d 713, 732 (2000), cert. denied, 534 U.S. 838 (2001) -26-
State v. Hargett, 157 N.C. App. 90, 92, 577 S.E.2d 703, 705 (2003); -15-
State v. Harris, 140 N.C. App. 208, 214, 535 S.E.2d 614, 619 (2000), disc. review denied, 353 N.C. 271, 546 S.E.2d 121 (2001). -23-
State v. Hartness, 326 N.C. 561, 564, 391 S.E.2d 177, 179 (1990) ...... -21-
State v. Johnson, 317 N.C. 417, 434 347, S.E.2d 7, 17 (1986)..-18-
State v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990).-26-
State v. Lucas, 302 N.C. 342, 347, 275 S.E.2d 433, 436 (1981).-22-
State v. Nations, 319 N.C. 318,329 354 S.E.2d 510, 516, aff’d after remand, 319 N.C. 329, 354 S.E.2d 516 (1987) -18-
State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)..-21-
State v. Perry, 305 N.C. 225, 234, 287 S.E.2d 810, 816 (1982).-17-
State v. Prevette, 317 N.C. 148, 158, 345 S.E.2d 159, 166 (1986),... -17-
State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981). -15-
State v. Sweatt, 333 N.C. 407, 419, 427 S.E.2d 112, 119 (1993).... -27-
State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386,392 (1991)...... -25-
Whalen v. United States, 445 U.S. 684, 689(1980);...... -16-
Statutes
N.C. Gen. Stat. § 14-21 (repealed 1979)...... -18-
N.C. Gen. Stat. § 14-27.1 (2003)...... -22-
N.C. Gen. Stat. § 14-27.4 (2003)...... -22-
N.C. Gen. Stat. § 15A-1444 (2003)...... -4-
N.C. Gen. Stat. §14-27.2 (1981)...... -18-
Other Authorities
N.C. Const. art. 1, § 6...... -16-
N.C. R. App. P. 4 (2003)...... -4-
U.S. Const. amend V...... -16-
1
NO.COA04-22 TWENTY SEVENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA,
Appellee,
V. FROM GASTON COUNTY
NO. 02CRS61702,543342,61701
02CRS19678,61703,61699
Aaron John Leblanc,
* * * * * * * * * * * * * * * *
QUESTIONS PRESENTED
- DID THE TRIAL COURT ERR IN FAILING TO ARREST JUDGMENT ON THE CHARGE OF FIRST DEGREE SEXUAL OFFENSE WHEN THE DEFENDANT WAS ALSO CONVICTED OF FIRST DEGREE RAPE AND THE ALLEGED DIGITAL PENETRATION WAS FOR THE PURPOSE OF FACILITATING THE PENETRATION ON THE RAPE OFFENSE?
- DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY ON THE OFFENSE OF FIRST DEGREE SEXUAL OFFENSE WHEN THE COURT FAILED TO ADEQUATELY EXPLAIN THAT NON CONSENSUAL INTERCOURSE INVOLVES ONLY THE CRIME OF RAPE BUT NOT THE CRIME OF FIRST DEGREE SEXUAL OFFENSE?
- DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY ON FLIGHT, OVER THE OBJECTION OF THE DEFENDANT, WHERE THE STATE PRESENTED INSUFFICIENT EVIDENCE THAT THE DEFENDANT EVER ATTEMPTED TO ELUDE THE POLICE OR ATTEMPTED TO CONCEAL EVIDENCE?
STATEMENT OF THE CASE
On March 18, 2002, the defendant was arrested on a warrant for the following charges: First Degree Rape, First Degree Sexual Offense, First Degree Kidnapping, and Breaking and Entering (Rpp. 6-13).
On March 19, 2002, the Gaston County magistrate issued a search warrant on this case (Rpp. 28-43). On April 1, 2002, a First Degree Rape indictment was returned. On August 5, 2002, indictments were returned for First Degree Sexual Offense, Robbery with a Dangerous Weapon, First Degree Kidnapping, and Breaking And Entering (Rpp. 14-23). On October 14, 2002, the defendant was arraigned on all of the indicted charges. The defendant filed a motion to dismiss on July 8, 2002. On December 4, 2002, the defendant filed a motion to dismiss on the issue of discovery violations by the State (Rpp. 61-64). On July 8, 2002, the superior court issued an order that the defendant have access to the victim’s medical records (Rpp. 65-66). On October 28, 2002, the defendant filed a motion in limine regarding acquitted conduct and a request that the State disclose any evidence pursuant to Rules 404(b) and 804 of the North Carolina Rules of Evidence.
On October 28, 2002, the defendant also filed a motion to sequester witnesses and request for use of a jury questionnaire (Rpp. 74-88). On November 7, 2002, the defendant filed a Brady motion (Rpp.89-90). On November 19, 2002, the State gave notice to the defendant of the intent to use his previous statement. Richard Beam represented the defendant at trial. E.J. Kromis and Mikko Red Arrow represented the State (Rp. 25). On December 9, 2002, the jury returned verdicts of guilty to the following charges: Assault with a Deadly Weapon Inflicting Serious Injury, First Degree Rape, First Degree Sexual Offense, Common Law Robbery, Second Degree Kidnapping, and Felony Breaking And Entering (Rpp. 107-12).
On December 9, 2002, Hon. Jesse Caldwell sentenced the defendant to the following sentences all to run consecutive: 29-44 months on the Assault With A Deadly Weapon Inflicting Serious Injury, 288-355 months on the First Degree Rape offense, 288-355 months on the First Degree Sexual Assault, 15-18 months on the Common Law Robbery offense, 29-44 months on the Second Degree Kidnapping offense, 29-44 months on the Breaking And Entering offense (Rpp. 115-26).
After sentencing, the Defendant entered notice of appeal. Judge Caldwell signed the appellate entries on December 9, 2002 (Rp. 130). On January 7, 2003, the Appellate Defender appointed Dean Loven and Julie Lewis of the 26th Judicial District’s Public Defender’s Office (Rp. 132). The transcripts in this matter were delivered on March 19, 2003.
On September 24, 2003, the appellate defender made a superceding appointed to Eric Bach. The defendant received extensions to serve the record until December 11, 2003 (Rpp. 137-150). The record was served on the State on December 9, 2003 (Rp. 172). On December 29, 2003, the parties settled the record by stipulation (Rpp. 177). The record was sent to the Court of Appeals by first class U.S. Mail. The record was filed on January 7, 2004. The printed record was mailed on February 5, 2004. The defendant obtained an extension to file his brief until May 10, 2004.
STATEMENT OF APPELLATE JURISDICTION
This case involves the appeal of judgments entered after the jury returned guilty verdicts against the defendant. The N.C. Court of Appeals has jurisdiction over this matter pursuant to North Carolina General Statute § 15A-1444 and Rule 4 of the North Carolina Rules of Appellate Procedure. N.C. Gen. Stat. § 15A-1444 (2003). N.C. R. App. P. 4 (2003).
STATEMENT OF FACTS
The trial testimony in this matter occurred in five distinct parts. The first part concerned eyewitness testimony. For this portion of the trial, the State called Elisha Little, the complaining witness, and Sybil Derry, who heard the offense over the phone. The second category concerned expert testimony by the treating emergency room physician and scientists employed by the State Bureau of Investigation. The third portion of the trial concerned testimony by members of the Gaston County Police Department. They explained the scope of their investigation and how the physical evidence was found and collected. The fourth portion of the trial concerned testimony by other residents of the apartment complex who had been called by the State. Finally, the defendant called several witnesses. These witnesses included an expert witness and the defendant, himself. Certain testimony is presented out of chronological order for the purpose of better organizing this factual summary.
The State began its presentation of evidence by calling Elisha Little. At the time of the incident, Ms. Little worked as an executive assistant for the J. Stewart Construction Company in Charlotte, North Carolina. She lived at the Ashbrook Village Apartments at 2541 Pineview Lane in Gastonia, North Carolina.
On March 18, 2002, Ms. Little awoke at 5:30 AM. After getting ready for work, Ms. Little called Sybil Derry, a friend who resides near Lake Wylie, in Mecklenburg County, North Carolina, on her cell phone (T. V. 1, p. 62). At approximately 7:00 AM, Ms. Little’s doorbell rang while she was still on the phone. The defendant, Aaron Leblanc, appeared at the door and asked to use her bathroom. Ms. Little allowed him into the apartment. After he used the bathroom, the defendant asked to borrow a cigarette before leaving the apartment. When she reached for the cigarettes, the defendant allegedly rushed her.
After charging her, the defendant put his hand over the victim’s mouth and told her that she would die. When Ms. Little was able to pull the defendant’s hand away from her mouth. She screamed into her phone for Ms. Derry to call 911. She was still on the phone with Ms. Derry when the defendant charged her. Mr. Leblanc then placed a knife to her throat. Ms. Little was able to knock the knife from the hand of the defendant. The defendant retrieved the knife and began to choke her (T. V. 1, pp. 65-75).
Next, the defendant ordered Ms. Little to kneel and put her hands behind her back. Mr. Leblanc then bound her arms with the nylon rope. The defendant then unzipped his pants. After unzipping his pants, the defendant touched her vaginal area with his fingers. Ms. Little felt a slight penetration with a finger shortly before he inserted his penis into her vagina (T. V. 1, pp. 78-82 & T. V. 2, p. 280). The defendant did not ejaculate inside of her. Instead, he removed his penis and masturbated in front of Ms. Little until he ejaculated.
After the sex act was completed, the defendant untied Ms. Little. He then told her that she was bleeding. After looking in the mirror, Ms. Little realized that she had substantial blood emanating from the left side of her face. The victim then left to go to her friend Sybil’s apartment near Lake Wylie. While on the way to Ms. Derry’s residence, she called 911. They requested that she pull to the side of the road, and they would dispatch an ambulance to her location. The ambulance arrived shortly and transported her to Carolina’s Medical Center (T. V. 1, pp. 85-99).
The State’s next witness was Sybil Derry. Ms. Derry was on the phone with Ms. Little when the assault occurred. While on the phone with Ms. Little, she heard her open the apartment door and converse with a male. Ms. Little told Ms. Derry that a neighbor was using her bathroom because his toilet would not work. After about ten minutes, Ms. Derry heard a man’s voice and then heard Ms. Little scream.
Ms. Derry called 911 but did not have the correct address. She then called her mother in order to get the address. Ms. Deery had gotten into her car and headed towards Gastonia. She then called 911 back. While calling 911, Elisha Little called her. After talking to Elisha, she contacted Gastonia 911 dispatch with the correct address of the residence. The dispatch later called her back concerning Ms. Little being taken to Carolina’s Medical Center. She then turned her car around and met Ms. Little at the hospital (T. V. 2, pp. 351-367).
The State then called Dr. Mark Jeffrey Bullard. Dr. Bullard is an emergency room physician at Carolina’s Medical Center. He testified to the mental and physical condition of Ms. Little when she received medical treatment. Dr. Bullard believed that Ms. Little’s injuries were consistent with both a sexual and physical assault (T. V. 1, pp. 127-140).
The State’s next witness was Jed Taub of the State Bureau of Investigation. Mr. Taub works in the field of forensic serology. Mr. Taub examined the evidence collected by the police. He did not find the presence of semen but found substantial blood samples. He had the blood samples submitted to Special Agent Brenda Bissette in order to have them processed for DNA evidence (T. V. 1, pp. 150-169).
After Agent Taub testified, the State called Jennifer Remy. Ms. Remy is a forensic hair examiner for the SBI’s Trace Evidence Section. Agent Remy testified that several of Ms. Little’s head hairs had been removed by force (T.,V. 2, pp. 288-293).
After Agent Remy completed her testimony, the State called Special Agent Brenda Bissette, a molecular geneticist and forensic DNA analyst (294-298) Agent Bissette arranged for the blood samples for Elisha Little, Aaron Leblanc, and Eric McLaughin to be drawn. Agent Bissette found a DNA match to the defendant on several items that she examined. These items included: the victim’s underwear, a cutting from the couch, the sweater found in a wooded area, the nylon rope, and swab taken from the victim’s knee. Agent Bissette also found several DNA matches to the victim. These items included: the cutting from the couch, the sweater found in the woods, and the swab taken from the victim’s knee.
The State next called Officer L.D. Hunsucker of the Gaston County Police Department. Officer Hunsucker was one of the first responders at the apartment complex. Downstairs from Ms. Little’s apartment, he observed a white male carrying a trash bag. However, the man’s dress and appearance did not match the description of the assailant that he received from dispatch. Next, he tried to enter Ms. Little’s apartment, but the door was locked. He then obtained Ms. Little’s phone number and called her.
Officer Hunsucker instructed her to stop at the next gas station and that he would have her met by EMS and the York County Sheriff’s Department. He called Ms. Little back in about ten minutes and verified the EMS was on the scene. After verifying this, Detective Anderson arrived on the scene to take charge of the investigation (T. V.2, pp. 378-388).
The remainder of the State witnesses testified to the actions of Mr. Leblanc after Ms. Little left her apartment as well as the collection of evidence by the police.
The State next called Michael Garrett. Mr. Garrett resided at the apartment complex. On the morning of March 18, he was cleaning out his car when he ran into Mr. Leblanc. Later in the morning, Mr. Leblanc knocked on his apartment door. He let Leblanc into the apartment and smoked a cigarette with him. While watching TV with Mr. Leblanc, he noticed that Leblanc had several cuts and scratches about his face (T. V. 3, pp. 1-15).
While the two watched television, someone had knocked on the door. Mr. Leblanc answered the door. When the door was opened, Detective Anderson of the Gaston County Police Department was standing outside. After entering the apartment, the police searched the apartment for a bag and appeared to be looking for Mr. Leblanc (T. V. 3, pp. 16-23).
The next witness was William Howard Seat, an employee of the apartment complex. He described the assistance that he provided to the police in locating a bag of clothes. While he was with the officers, he climbed a chain link fence that was behind building 2528. While on top of the fence, he observed a plastic grocery bag. The police not Mr. Seat made the actual recovery of these items (T. V. 3, pp.30-32).
The State’s next called a series of law enforcement officers: Detective Chambers, Detective Anderson, and Sgt. Firantello. The three officers had substantial involvement in the investigation as well as the collection of evidence. The three men were present when Mr. Leblanc was found at Michael Garrett’s apartment. Detective Chambers first knocked on the door of Mr. Garrette’s apartment (T. V. 3, p. 137). All three entered the apartment and observed that Mr. Leblanc had an injury to his hand (T. V. 3, p. 141, T. V. 4, p. 34).
After Mr. Leblanc was taken into custody, the three officers performed different duties. Detective Anderson traveled to Carolina’s Medical Center and interviewed Elisha Little.
Detective Chambers led several portions of the investigation. First, he interviewed Ms. Derry about what she heard while on her cell phone. Second, he executed the search warrant for Aaron Leblanc’s apartment. While conducting the search, he took custody of the defendant’s sweater, which appeared to have a bloodstain, the knife, and the nylon rope (T. V. 3, p. 152-60) In addition, he assembled a photographic lineup and showed the lineup to Ms. Little after she had recovered from her injuries.
Sergeant Firrantello’s primary responsibility involved the collection of all evidence. He coordinated the collection of evidence regarding: the defendant’s backpack, the search of the grounds, the rape kit, and the search of the defendant’s apartment (T,V. 3, p.30-50, T. V. 4, pp. 76-83).
After the officers testified, the State called two other residents of the defendant’s apartment, Kimberly Concepcion and Joey Leblanc. Joey Leblanc, the defendant’s brother, was at work when the incident occurred. However, he recalled that the bathroom plumbing was in working order when he left.
Kimberly Concepcion was the fiancé to Joey Leblanc. She recalled the defendant leaving the apartment with his backpack at approximately 7:30 AM. Later in the morning, two police officers knocked on the door. The police were looking for the defendant and wished to search the house. The defendant was not present when the police arrived. Ms. Concepcion did not oppose the search and was present at the apartment when the police arrived. At trial, Ms. Concepcion identified the knife, containing bloodstains. She had found the knife, unwashed, in the dishwasher. She also identified the sweater with a bloodstain as belonging to the defendant (T. V. 3, pp. 88-100).
In this case, the defendant elected to present evidence. The first witness to testify was Aaron Leblanc. Mr. Leblanc claimed that he had fought with Ms. Little but did not rape her. He recalled that the argument began as a verbal altercation outside the apartment that escalated into a violent struggle. During the fight, Ms. Little began using her car keys as a weapon. Mr. Leblanc sustained several large cuts from her keys (T. V. 5, pp. 435-460).
The defendant’s final witness was Brad Fisher PhD. PhD. Fisher practices in the field of forensic psychology. He testified as an expert witness on the issue of reliability of a witness’ memory over time. He emphasized that the longer it was after an event the more likely that intervening factors may influence the memory of the witness. He did not address his opinion to specific witnesses in the current case but spoke of witness recollections generally (T. V. 5, p.548-551).
After the State presented several rebuttal witnesses. They and the defendant rested. During the charge conference, the defendant objected to giving a flight instruction (T. V. 5, p. 587). The trial court gave the flight instruction over the defendant’s objection (T. V. 6, p. 684).