No. COA10-202 JUDICIAL DISTRICT 4-A

NORTH CAROLINA COURT OF APPEALS***************************************

STATE OF NORTH CAROLINA ) DUPLIN COUNTY) 08CRS50531)

VS. ))

ALEXANDER MCKENZIE NEWKIRK, )Defendant. )

***************************************

DEFENDANT-APPELLANT’S BRIEF

***************************************

************************

INDEX

************************

TABLE OF CASES………………………………………………….. iv

OTHER AUTHORITIES…………………………………………….. vi

QUESTIONS PRESENTED…………………………………………. 1

STATEMENT OF THE CASE………………………………… ……. 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW………. 2

STATEMENT OF FACTS……………………………………..……. 2

ARGUMENT:

1. THE FORENSIC EVIDENCE COLLECTED IN THE VICTIM’S HOME, THE LACK OF BIOLOGICAL EVIDENCE IN THE

VICTIM’S BODY AFTER THE ATTACK, AND THE VICTIM’S PHYSICAL INFIRMITIES, INCLUDING INCONTINENCE AND AN INABILITY TO RECOGNIZE FEELING IN CERTAIN PARTS OF HER BODY WARRANTED SUBMISSION OF THE LESSER-INCLUDED OFFENSE OF ATTEMPTED SECOND-DEGREE RAPE FOR THE JURY’S CONSIDERATION. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO INSTRUCT UPON THAT CHARGE. AS SUCH, ALEXANDER NEWKIRK IS ENTITLED TO A NEW TRIAL………………. 9

STANDARD OF REVIEW……………………………………. ……..10

LAW AND ANALYSIS……………………………………….. ……..10

2. THE VICTIM’S AGE AND PHYSICAL INFIRMITY EVOKED FEELINGS OF SYMPATHY FOR HER. THAT SYMPATHY DOES NOT PROVIDE A BASIS UPON WHICH TO URGE THE JURY TO CONVICT. THE TRIAL COURT ERRED WHEN IT DID NOT INTERVENE EX MERO MOTU WHEN THE PROSECUTOR COMMENTED ON ALEXANDER NEWKIRK’S EXERCISE OF HIS CONSTITUTIONAL RIGHTS, EQUATING HIS EXERCISE OF HIS CONSTITUTIONAL RIGHTS WITH ANOTHER ACT, VICTIMIZING MS. HATCHER. …... ……. 14

STANDARD OF REVIEW…………………………………………… 15

LAW AND ANALYSIS……………………………………….. ……. 15

3. WHEN ONE OF THE VETERAN DETECTIVES OFFERED INADMISSIBLE EVIDENCE THROUGHOUT HER TESTIMONY ON DIRECT AND CROSS-EXAMINATION, HER COMMENT THAT SHE “HAD 14 YEARS OF DEALING WITH [THE DEFENDANT]” INJECTED SUCH PREJUDICE IN THE CASE THAT IT DEPRIVED ALEXANDER NEWKIRK OF A FAIR TRIAL.………………………………………………….……. 22

STANDARD OF REVIEW…………………………………………… 22

ii

LAW AND ANALYSIS………………………………………………. 22

CONCLUSION………………………………………………… ……. 26

CERTIFICATE OF COMPLIANCE…………………………………. 27

CERTIFICATE OF SERVICE……………………………………….. 27

iii

TABLE OF CASES

Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)………………………………………………………… 13,14

Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)…………………………………………………………. 18

Doyle v. United States, 426 U.S. 610, 96 S.Ct. 2240, 49 L. Ed. 2d 91 (1976)………………………………………………………….. 17

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed. 2d 799 (1963)………………………………………………………….. 17

Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L. Ed. 2d 931(1957)…………………………………………………………... 17,18

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L. Ed. 2d 368 (1970)………………………………………………………….. 17

State v. Baymon, 336 N.C. 748, 446 S.E.2d 1 (1994)………… 18

State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977)………… 6

State v. Bumgarner, 147 N.C. App. 409, 556 S.E.2d 324 (2001) 10

State v. Davis, 349 N.C. 1, 506 S.E.2d 455 (1998)…………… 15

State v. Davis, 45 N.C. App. 113, 262 S.E.2d 329 (1980)……… 20

State v. Farmer, 158 N.C. App. 699, 582 S.E.2d 352 (2003)… 11,12

State v. Frye, 1 N.C. App. 542, 162 S.E.2d 91 (1968)……….. 12

State v. Hall, 134 N.C. App. 417, 517 S.E.2d 907 (1999), appeal dismissed, disc. rev. denied, 351 N.C. 364, 542 S.E.2d 647 (2000)……… 23,24

State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971)………… 16

State v. Jones, 347 N.C. 193, 491 S.E.2d 641 (1997)………… 24

iv

State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002)…………… 19-21

State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983)………….. 17,18

State v. Langford, 319 N.C. 340, 354 S.E.2d 523 (1987)……… 16

State v. Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978)……….. 19

State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004)……… 19

State v. Mercer, 317 N.C. 87, 343 S.E.2d. 885 (1986)………… 24

State v. Montgomery, 341 N.C. 553, 461 S.E.2d 732 (1995)….. 10

State v. Moore, 311 N.C. 442, 319 S.E.2d 150 (1984)………… 22

State v. Nelson, 298 N.C. 573, 260 S.E. 2d. 629 (1979), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980)…………… 23

State v. Oxendine, 150 N.C. App. 670, 564 S.E.2d 561 (2002).. 12

State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985)………. 13

State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993)…………… 18

State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002)………….. 19

State v. Slade, 81 N.C. App. 303, 343 S.E.2d 571, disc. review denied,318 N.C. 419, 349 S.E.2d 604 (1986)……………………………… 11

State v. Smith, 279 N.C. 163, 181 S.E.2d 458 (1971)…………… 20

State v. Smith, 351 N.C. 251, 524 S.E.2d 28, cert. denied, 531 U.S. 862, 121 S.Ct. 151, 148 L.Ed.2d 100 (2000)…………………………….. 13

State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989). …........ 12,13

State v. Thomas, 350 N.C. 315, 514 S.E.2d 486 (1999)………. 15

State v. Thompson, 118 N.C. App. 33, 454 S.E.2d 271 (1995).. 16-18

v

State v. Tucker, 190 N.C. 708, 130 S.E.2d 720 (1925)………… 20

State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980)………… 12

State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001)………… 17

State v. Wyatt, 254 N.C. 220, 118 S.E.2d 420 (1961)………… 20

OTHER AUTHORITIES

North Carolina General Statutes:

§7A-27(b)……………………………………………… 2§8C-1, Rule 401……………………………………….. 23§8C-1, Rule 402……………………………………….. 24§8C-1, Rule 403……………………………………….. 23,24§15-170………………………………………………… 11§15A-979………………………………………………. 2§15A-1232……………………………………………… 12§15A-1442……………………………………………… 2§15A-1446……………………………………………… 2

United States Constitution:

Sixth Amendment………………………………………. 18Fourteenth Amendment………………………………… 16,18

North Carolina Constitution:

Article I, §18…………………………………………… 16Article I, §19…………………………………………… 16,18Article I, §23…………………………………………… 17,18Article I, §24…………………………………………… 16,18

vi

No. COA10-202 JUDICIAL DISTRICT 4-A

NORTH CAROLINA COURT OF APPEALS***************************************

STATE OF NORTH CAROLINA ) DUPLIN COUNTY) 08CRS50531)

VS. ))

ALEXANDER MCKENZIE NEWKIRK, )Defendant. )

***************************************

DEFENDANT-APPELLANT’S BRIEF

***************************************

QUESTIONS PRESENTED

1. DID THE FORENSIC EVIDENCE COLLECTED IN THE VICTIM’S HOME, THE LACK OF BIOLOGICAL EVIDENCE IN THE VICTIM’S BODY AFTER THE ATTACK, AND THE VICTIM’S PHYSICAL INFIRMITIES, INCLUDING INCONTINENCE AND AN INABILITY TO RECOGNIZE FEELING IN CERTAIN PARTS OF HER BODY WARRANT SUBMISSION OF THE LESSER-INCLUDED OFFENSE OF ATTEMPTED SECOND-DEGREE RAPE FOR THE JURY’S CONSIDERATION?

2. DID THE TRIAL COURT ERR IN FAILING TO INTERVENE EX MERO MOTU WHEN THE PROSECUTOR URGED THE JURY TO CONSIDER SYMPATHY FOR THE VICTIM ANDALEXANDER NEWKIRK’S EXERCISE OF HIS CONSTITUTIONAL RIGHTS AS GROUNDS UPON WHICH TO CONVICT?

3. DID THE TRIAL COURT ERR IN FAILING TO INSTRUCT THE JURY TO DISREGARD WHEN ONE OF THE VETERAN DETECTIVES COMMENTED THAT SHE “HAD

1

14 YEARS OF DEALING WITH [THE DEFENDANT]”, INJECTING SUCH PREJUDICE IN THE CASE THAT IT DEPRIVED ALEXANDER NEWKIRK OF A FAIR TRIAL?

STATEMENT OF THE CASE

At the 31 August 2009 Criminal Session of Duplin County Superior

Court, the District Attorney called this criminal case for trial, charging

Alexander Newkirk on a true bill of indictment with second-degree rape and

first-degree burglary. The Honorable Russell J. Lanier, Jr. presided.

The State and the defendant presented evidence. The court denied the

motion to dismiss the charges. The jury returned verdicts finding Alexander

Newkirk guilty of the charges. The trial court sentenced Mr. Newkirk to

consecutive terms of imprisonment of 116 to 149 months followed by 90 to

117 months in the North Carolina Department of Corrections. The

defendant entered timely notice of appeal on 3 September 2009.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This Court has jurisdiction over this appeal by virtue of N.C.G.S.

§7A-27(b) and N.C.G.S. §§15A-979, 15A-1442 and 15A-1446. Alexander

Newkirk entered timely notice of appeal 3 September 2009. (R. p. 19).

STATEMENT OF FACTS

Michelle Pavon-Reyes lived in a mobile home in Teachey, North

Carolina with her husband and four kids Javier, Luis, Jennifer and Stefanie.

2

Michelle’s mother, Gerline Hatcher, lived in a double-wide trailer in front

of Michelle’s trailer and her sister Sharon Servin, her boyfriend Daniel, and

her son, Cody, lived next door in a single-wide. Two storage buildings were

between Michelle’s trailer and Gerline Hatcher’s trailer. In March 2008,

Gerline Hatcher lived alone.

Michelle and her family grew up with Alexander Newkirk. By 2008,

she had known Alex for about 18 years. He used to come to Michelle’s

sister’s house and play with “T.J.” T.J., or Timothy Joshua, was one of

Sharon’s three kids and was 27 years old at the time of trial. Her other kids

were Cody and Jonathan Perman. Jonathan, or “Little J,” was 21 years old

and Cody was 15 in August 2009. T.J. and Alex Newkirk met when they

were about 8 or 10 years old. On the night of 3 March 2008, Michelle

helped her mother get to bed, as she usually did at night.

Sharon would help Ms. Hatcher get ready in the mornings and

Michelle would help get her ready for bed in the evenings. The evening

routine consisted of Michelle putting new pads on the bed so that her mother

did not soil the mattress with urine. Michelle would also help Gerline

Hatcher get to her bedroom and up into her bed to sleep. The morning

routine consisted of Sharon getting her mother up and removing the bed pad.

The evening of 3 March 2008, Michelle put a new pad on her mother’s bed

3

at about 10 p.m., got her mother into bed, turned off all of the lights in the

trailer and locked the back door before returning to her own home. Michelle

always used the back door to her mother’s house when entering and leaving.

(T. pp. 131-141, 154, 203, 226).

Michelle then put her children and herself to bed. At about 12:33

a.m., Michelle heard somebody knocking on her door. She grabbed a

baseball bat because her husband was not home at the time. Michelle looked

out of her living room window and saw someone in a white hat and black

coat walking away from her own house toward her sister’s trailer. She could

not see the individual’s race because it was so dark outside. In response,

Michelle tried to call Sharon. Sharon would not answer, so Michelle called

the police. Michelle also asked if Sharon’s son Jonathan had gotten out of

jail. Jonathan had been picked up by the police earlier that day on a failure

to appear warrant. At one point, Michelle saw that the door to her mother’s

trailer was open. When she looked out later, the door was closed. Michelle

again called the police.

In the meantime, Michelle reached her sister Sharon on the telephone.

While talking on the phone, Michelle saw the same individual in the white

hat and black coat coming out of the back door to her mother’s trailer. They

closed the door slowly. Michelle called the police once again, who again

4

advised that they were on their way. Michelle heard a car start and drive

away. At that point, Gerline Hatcher called Michelle and stated she had

been raped. (T. pp. 141-145, 155, 206).

Gerline Hatcher was 67 years old at the time of trial. Her husband

was deceased. Ms. Hatcher lived by herself after the death of her husband.

She had spinal deterioration and problems walking. Gerline Hatcher had

had 3 disc plates put into her back in 1999 to help her back problems. While

at Social Services in November 2007, Ms. Hatcher blacked out and her head

hit a wall. As a result, Gerline Hatcher had problems with her hands and

could only walk with a walker. Ms. Hatcher usually used a wheelchair. Her

condition required the assistance of her daughters with bathing, cooking,

cleaning, and laundry. Gerline Hatcher used bed pads because she

sometimes soiled her sheets. She was not able to get out of bed to use the

bathroom without assistance.

Gerline Hatcher knew Alex Newkirk because he was friends with two

of her grandsons. Mr. Newkirk did not live across the street from Gerline

Hatcher. Alex Newkirk had been inside of Ms. Hatcher’s trailer probably

six times prior to 3 March 2008 but Ms. Hatcher did not recall him ever

going into her bedroom. Gerline Hatcher had not left her trailer for about

two months prior to 3 March 2008 and knew that Alex Newkirk had not

5

been in her home during that time. On the night of 3 March 2008, after

falling asleep, she heard her back door open. (T. pp. 166-177, 191, 195-

196).

A short time later, Gerline Hatcher saw someone standing in her

bedroom. When she asked who he was, the man replied “[y]ou don’t need

to know.” Ms. Hatcher asked what the man wanted and he just told her to

let him do what he had to do. Her bedroom was dark and Gerline Hatcher

could not determine his race. The individual left Ms. Hatcher’s room for a

while and she believed he was going to steal something. Shortly thereafter,

the man returned to the door, pushed her walker out of the way and got onto

her bed.

Next, the man tore off her underwear, put her legs on top of his legs

and inserted his penis into her vagina. Gerline Hatcher told the man that he

was hurting her. She did not resist because she feared for her safety. The

man had a white hat and a quiet voice. He revealed to her that he was a

neighbor, living across the street. When she pleaded with the man that he

was hurting her, he immediately got up and left.

Ms. Hatcher did not know if the man had ejaculated inside of her.

Ms. Hatcher waited a few minutes before working her way to the bottom of

the bed. She retrieved her walker, went into her bathroom, and called

6

Michelle. Then, Gerline Hatcher went to the living room and sat down,

waiting on the police to arrive. Ms. Hatcher was in pain and bleeding from

her vagina. (T. pp. 177-183, 187, 195-197).

The police arrived and spoke to Ms. Hatcher. EMS took Gerline

Hatcher to the hospital. Gerline Hatcher identified the assailant that night

when she spoke with Detective Forster, telling him that she “thought he

smelled like a Spanish guy and she asked him if he lived across the road.”

She knew that some Spanish people lived across the road. She described her

attacker as heavyset with a “fat face”. The man asked Gerline Hatcher for

her name but she did not provide that for him.

Meanwhile, Michelle and Sharon checked on their children. Sharon

learned that Alex Newkirk had called her house at 12:33 a.m. (T. pp. 145-

147, 215-216). Cody recalled that Alex came over to their house on 3

March 2008 after his mother, Sharon, had gone to bed. Alex Newkirk asked

Cody where his mother was. When Cody told him she was in bed, Alex

asked if she was alone. Cody told Alex that Daniel was in bed with her.

Then, Alex asked if Brianna, Jonathan’s girlfriend was at their house and

Cody advised that she was not. Alex then asked if Michelle was home and

who was with her. Cody told Alex that he did not know if Michelle’s

7

husband was home with her at the time. After this conversation, Cody heard

Alex Newkirk’s very loud car start and drive away.

Cody told his mother Sharon about speaking with Alex after the

police had come and left her mother’s house late on the night of 3 March

2008 and before she noticed that Alex called her house at 12:33 a.m. (T. pp.

236-240). Michael Ezzell recalled, after midnight, driving Alex Newkirk to

Jonathan’s mother’s trailer so that he could talk to Brianna.

Someone answered the door and Alex spoke with him. Then, he

returned to Ezzell’s car, told him to wait, and that he was going to go next

door as well. Ezzell could not see where Alex went at that point. A short

time later, Alex returned to Ezzell’s car and they drove back to the party

where they had been earlier that evening. (T. pp. 243-247).

Investigators interviewed Alexander Newkirk on 4 March 2008. Alex

confirmed that he stopped at Jonathan Perman’s house to speak to his

girlfriend, Brianna. Alex spoke to Cody who was crying because Jonathan

had been put in jail earlier that day. Alex added that he knew Ms. Hatcher,

describing her immobility and her need for assistance.

Alex told the officers that he did not attack Ms. Hatcher and that he

had known her most of his life. He voluntarily provided his DNA to prove

that he did not rape Gerline Hatcher. Alex also voluntarily provided the hat

8

and coat he wore on the night of 3 March 2008 – a white North Carolina Tar

Heel baseball cap and a camouflaged not black, coat. (T. pp. 269-285, 505,

512).

Investigators found bodily fluid on a bed pad from Ms. Hatcher’s bed.

Among other pieces of evidence, this bed pad and the Depends

undergarment worn by Ms. Hatcher at the time of the incident were

collected. The sperm found on the bed pad matched the DNA sample

submitted by Alex Newkirk in all statistical probability. (T. pp. 352, 360,

438-439).

ARGUMENT

1. THE FORENSIC EVIDENCE COLLECTED IN THE VICTIM’S HOME, THE LACK OF BIOLOGICAL EVIDENCE IN THE VICTIM’S BODY AFTER THE ATTACK, AND THE VICTIM’S PHYSICAL INFIRMITIES, INCLUDING INCONTINENCE AND AN INABILITY TO RECOGNIZE FEELING IN CERTAIN PARTS OF HER BODY WARRANTED SUBMISSION OF THE LESSER-INCLUDED OFFENSE OF ATTEMPTED SECOND-DEGREE RAPE FOR THE JURY’S CONSIDERATION. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO INSTRUCT UPON THAT CHARGE. AS SUCH, ALEXANDER NEWKIRK IS ENTITLED TO A NEW TRIAL.

(Assignment of Error No. 2: T. p. 518, lines 1-p. 519, line 5; p. 567, line 10-p. 569, line 24; R. pp. 9-11)

9

STANDARD OF REVIEW

Whether the trial judge correctly refused to submit a lesser included

offense is a question of law fully reviewable on appeal, since the trial judge

is required to submit all lesser included offenses supported by the evidence

regardless of whether there is a specific request. State v. Montgomery, 341

N.C. 553, 461 S.E.2d 732 (1995).

A trial court must provide jury instructions on all lesser-included

offenses supported by the evidence, even in the absence of a special request

for such an instruction; and the failure to so instruct constitutes reversible

error that cannot be cured by a verdict finding the defendant guilty of the

greater offense. State v. Bumgarner, 147 N.C. App. 409, 417, 556 S.E.2d

324, 330 (2001).

LAW AND ANALYSIS

The court denied Alexander Newkirk’s request to instruct the jury on

the lesser included offense of attempted second-degree rape. The evidence

supported the submission of the offense of attempt, which included Ms.

Hatcher’s description of the assault, and the forensic evidence such as the

bed sheets and pad and the lack of semen or sperm inside Ms.Hatcher’s

vagina.

10

In making this determination, the court had to conclude that there was

no evidence to support the submission of the lesser-included offense. In

other words, the trial court made factual determinations and credibility

decisions that should have been submitted to the jury. By that action, the

trial court erred in failing to instruct the jury on the lesser-included offense

of attempted second-degree rape.

“Upon the trial of any indictment the prisoner may be convicted of the

crime charged therein or of a less degree of the same crime, or of an attempt

to commit the crime so charged, or of an attempt to commit a less degree of

the same crime.” N.C.G.S. §15-170. This Court has held that an indictment

charging a substantive offense also allows for a conviction for an attempt to

commit the crime charged.

By statute in North Carolina, an indictment charging a completed offense is deemed sufficient to support a conviction for an attempt to commit the crime charged.... This statute applies even though the completed crime and the attempt are not in the same statute.

State v. Slade, 81 N.C. App. 303, 306, 343 S.E.2d 571, 573, disc. review

denied,318 N.C. 419, 349 S.E.2d 604 (1986)(citations omitted).

“To obtain a conviction for attempted second-degree rape, the State

must prove beyond a reasonable doubt that (1) the accused had the specific

intent to commit rape; and (2) the accused committed an overt act for the

purpose, which goes beyond mere preparation, but falls short of the

11

complete offense.” State v. Farmer, 158 N.C. App. 699, 702, 582 S.E.2d

352, 354 (2003). “[T]he element of intent as to the offense of attempted

rape is established if the evidence shows that defendant, at any time during

the incident, had an intent to gratify his passion upon the victim. Intent to

rape may be ‘proved circumstantially by inference, based upon a defendant's

actions, words, dress, or demeanor.’” State v. Oxendine, 150 N.C. App. 670,

674, 564 S.E.2d 561, 564 (2002) (citations omitted).

In this case, this elderly woman had severe physical problems,

including incontinence. She wore adult diapers at night and also had a pad

placed on her bed to avoid soiling her sheets. Whether her injuries from the

attack resulted from penetration or the attempt to penetrate is a question for

the jury to resolve.

The trial court has the statutory duty to instruct the jury on all

elements of the crime. N.C.G.S. §15A-1232; State v. Frye, 1 N.C. App. 542,

162 S.E.2d 91 (1968). Failure to instruct upon a substantive or “material”

feature of the evidence and the law applicable thereto will result in

reversible error, even in the absence of a request for such an instruction.

State v. Ward, 300 N.C. 150, 155, 266 S.E.2d 581, 585 (1980). In

determining whether the evidence requires an instruction on the lesser

offense, “[t]he test is whether there is the presence, or absence, of any

12

evidence in the record which might convince a rational trier of fact to

convict the defendant of a less grievous offense.” State v. Thomas, 325 N.C.

583, 594, 386 S.E.2d 555, 561 (1989).

The trial court may refrain from submitting the lesser offense to the

jury only where the “evidence is clear and positive as to each element of the

offense charged” and no evidence supports a lesser-included offense. State

v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985). Where the

State's evidence is sufficient to fully satisfy its burden of proving each

element of the greater offense and the defendant's denial that he committed

the offense is the only evidence to negate those elements, the defendant is

not entitled to an instruction on the lesser offense. State v. Smith, 351 N.C.

251, 267-268, 524 S.E.2d 28, 40, cert. denied, 531 U.S. 862, 121 S.Ct. 151,

148 L.Ed.2d 100 (2000). In this case, the evidence supported an instruction

on the lesser-included offense of attempted second-degree rape.

When the evidence supports an instruction on a lesser included

offense, the failure to instruct the jury on the lesser offense violates the

defendant’s constitutional due process rights. Beck v. Alabama, 447 U.S.

625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)(reversing death sentence where

jury not permitted to consider guilt of lesser-included offense). The

Supreme Court reasoned that “[w]here one of the elements of the offense

13

charged remains in doubt, but the defendant is plainly guilty of some

offense, the jury is likely to resolve its doubts in favor of conviction.” Id. at

634, 100 S.Ct. at 2388. In the case sub judice, the trial court committed

reversible error in failing to instruct the jury on the charge of attempted

second-degree rape.

The State’s evidence was not “clear” and “positive” with regard to all

of the elements of the charge of second-degree rape. Ms. Hatcher’s

testimony about the assault presented a question of fact for the jury to

resolve. In addition, the forensic evidence from the bed supported the

submission of the lesser-included offense of attempt. Finally, the lack of

semen in the victim’s body did not lead to the exclusion of the offense of

attempt.

As such, the trial court committed reversible error in failing to submit

the lesser-included offense of attempt to commit second-degree rape.

This Court should order a new trial in this matter.

2. THE VICTIM’S AGE AND PHYSICAL INFIRMITY EVOKED FEELINGS OF SYMPATHY FOR HER. THAT SYMPATHY DOES NOT PROVIDE A BASIS UPON WHICH TO URGE THE JURY TO CONVICT. THE TRIAL COURT ERRED WHEN IT DID NOT INTERVENE EX MERO MOTU WHEN THE PROSECUTOR COMMENTED ON ALEXANDER NEWKIRK’S EXERCISE OF HIS CONSTITUTIONAL RIGHTS, EQUATING HIS EXERCISE OF HIS CONSTITUTIONAL RIGHTS WITH ANOTHER ACT, VICTIMIZING MS. HATCHER.

14

(Assignment of Error No. 5: T. p. 559, lines 12-17; R. p. 26)

STANDARD OF REVIEW

Absent objection, the proper standard of review is whether the closing

argument was so grossly improper as to require the trial court to intervene ex

mero motu. State v. Thomas, 350 N.C. 315, 360-361, 514 S.E.2d 486, 514

(1999). “[D]efendant must show that the prosecutor's comments so infected

the trial with unfairness that they rendered the conviction fundamentally

unfair.” State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998).

LAW AND ANALYSIS

The prosecutor stated, in his closing argument, that:

Her [Ms. Hatcher’s] dignity has been taken again during this trial. She’s had to tell 14 complete strangers about someone violating her in the most intimate way. She’s had to sit here and listen to a doctor talk about her vagina. She’s had to talk about her past sexual history and hear it discussed by Dr. Naji.

With those words, the prosecutor was commenting on Alexander

Newkirk’s exercise of his right to plead not guilty in this matter. The

message is that Alexander Newkirk has victimized Ms. Hatcher by

exercising his Constitutional right to trial. Mr. Newkirk’s right to confront

his accuser, his right to enjoy the presumption of innocence, and his right to

have a jury of his peers determine the true facts of the case were

15

compromised in that argument focused on urging the jury to convict based

upon sympathy for Ms. Hatcher.

The prosecutor’s argument rendered this trial fundamentally unfair

and a violation of due process guarantees of the Fourteenth Amendment to

the U.S. Constitution and Article I, §§18 and 19 of the North Carolina

Constitution, and constituted reversible error.

At the heart of the right to procedural due process is the right to a jury

trial: “No other right of the individual has been so zealously guarded over

the years and so deeply embedded in our system of jurisprudence as an

accused’s right to a jury trial.” State v. Boone, 293 N.C. 702, 712, 239

S.E.2d 459, 465 (1977). In North Carolina, the right to a jury trial cannot be

waived by a person who pleads not guilty. N.C. Const. Art. I, § 24; State v.

Hudson, 280 N.C. 74, 80, 185 S.E.2d 189, 193 (1971). “[A] criminal

defendant possesses an absolute constitutional right to plead not guilty and

be tried before a jury, and ‘should not and [can] not be punished for

exercising that right.” State v. Thompson, 118 N.C. App. 33, 41, 454 S.E.2d

271, 276 (1995) (quoting State v. Langford, 319 N.C. 340, 345, 354 S.E.2d

523, 526 (1987).

Inherent in the right to a jury trial are the rights to a presumption of

innocence and to be convicted only upon guilt beyond a reasonable doubt:

16

The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. . . . The standard provides concrete substance for the presumption of innocence – that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’

In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L. Ed. 2d 368,

374 (1970). Further, in order that the jury trial right is not rendered an

empty formality, it is essential that a criminal defendant be provided with

the assistance of counsel if he is unable to afford it. Gideon v. Wainwright,

372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L. Ed. 2d 799, 805 (1963); N.C.

Const. Art. I, §23.

It is inherently unfair for a prosecutor to attempt to use a defendant’s

exercise of these rights to convince a jury to convict him. See Doyle v.

United States, 426 U.S. 610, 618, 96 S.Ct. 2240, 2244-2245, 49 L. Ed. 2d

91, 98 (1976); State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273

(2001); Thompson, 118 N.C. App. at 41, 454 S.E.2d at 276. Indeed, “there

are ‘no special circumstances that would justify use of a constitutional

privilege to discredit or convict a person who asserts it. The value of

constitutional privileges is largely destroyed if persons can be penalized for

relying on them.’” State v. Ladd, 308 N.C. 272, 284, 302 S.E.2d 164, 172

17

(1983) (quoting Grunewald v. United States, 353 U.S. 391, 425, 77 S.Ct.

963, 984-985, 1 L. Ed. 2d 931, 955 (1957) (Black, J., concurring)).

Accordingly, an improper comment on a defendant’s exercise of his

constitutional rights violates the due process and jury trial guarantees of the

Federal and State Constitutions. U.S. Const. amends. VI & XIV; N.C.

Const. Art. I, §§19, 23 & 24; State v. Baymon, 336 N.C. 748, 446 S.E.2d 1

(1994); Ladd, 308 N.C. at 284, 302 S.E.2d at 172; Thompson, 118 N.C. App.

at 41, 454 S.E.2d at 276. “The error is not cured by later instruction in the

court’s jury charge upon the right impermissible referred to.” Thompson,

118 N.C. App. at 42, 454 S.E.2d at 276 (citing State v. Reid, 334 N.C. 551,

556, 434 S.E.2d 193, 197 (1993)).

Jurors tend to believe that prosecutors do not use “improper methods

calculated to produce a wrongful conviction” and they tend to accord “much

weight” to improper prosecutorial closing arguments “when they properly

should carry none.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629,

633, 79 L.Ed. 1314 (1935). “It is as much his [the prosecutor’s ] duty to

refrain from improper methods calculated to produce a wrongful conviction

as it is to use every legitimate means to bring about a just one.” Id. In the

case at bar, the prosecutor overstepped the bounds of proper closing

argument to obtain a conviction.

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Our appellate courts have expressed concerns about the frequency of

complaints regarding the propriety of prosecution closing arguments in

criminal cases and the failure to heed warnings that certain kinds of argument

are improper. See, e.g. State v. Matthews, 358 N.C. 102, 110-111, 591 S.E.2d

535, 541 (2004); State v. Rogers, 355 N.C. 420, 464, 562 S.E.2d 859, 886

(2002); and State v. Jones, 355 N.C. 117, 126-127, 558 S.E.2d 97, 103-104

(2002).

In Jones, the North Carolina Supreme Court said that the "wide

latitude" that is given to counsel in jury arguments "has its limits," 355 N.C. at

128-129, 558 S.E.2d at 105, and outlined categories of improper argument,

holding that a closing argument must:

(1) be devoid of counsel's personal opinion; (2) avoid name-calling and/or references to matters beyond the record; (3) be premised on logical deductions, not appeals to passion or prejudice; and (4) be constructed from fair inferences drawn only from the evidence properly admitted at trial.

355 N.C. at 135, 558 S.E.2d at 108. Moreover, “[i]t is improper for a lawyer

to assert his opinion that a witness is lying.” State v. Locklear, 294 N.C.

210, 217, 241 S.E.2d 65, 68 (1978).

The Supreme Court said the prosecutor’s references to the Columbine

school shootings and the Oklahoma City bombing "cannot be construed as

anything other than a thinly veiled attempt to appeal to the jury's emotions"

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and were improper because they (1) "referred to events and circumstances

outside the record," (2) urged the jury to "compare defendant's acts to the

infamous acts of others," and (3) led the jury "away from the evidence by

appealing instead to their sense of passion and prejudice." Jones, 355 N.C. at

132, 558 S.E.2d at 107. On the matter of prejudice, the Court noted its prior

decisions where it reversed convictions based upon prejudicial arguments

calling the defendant names.1 Id. The Court noted that although some

prosecutors “intentionally ‘push the envelope’ with their jury arguments in

the belief that there will be no consequence for doing so,” closing arguments

containing statements of personal opinion and belief are “improper,” and

such arguments “cannot be countenanced by this or any other court in the

State.” Id. at 128-35, 558 S.E.2d 103-108.

There was a great deal at stake in this trial. The jury’s verdicts should

have been based upon the evidence presented, not upon the jurors’ aroused

1    ? Specifically, the Court cited, State v. Smith, 279 N.C. 163, 181 S.E.2d 458 (1971) (reversing a rape conviction where the prosecutor said the defendant was "lower than the bone belly of a cur dog"); State v. Wyatt, 254 N.C. 220, 222, 118 S.E.2d 420, 421 (1961) (reversible error to describe the defendants as "two of the slickest confidence men"); State v. Tucker, 190 N.C. 708, 709, 130 S.E.2d 720 (1925) (prejudicial error to argue that the defendants "looked like . . . (professional) bootleggers"); and State v. Davis, 45 N.C. App. 113, 114-115, 262 S.E.2d 329, 329-330 (1980) (calling the defendant a "mean S.O.B." prejudicial).

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emotions. The State’s advocate has a duty to seek justice, not merely to

convict. That duty was not met in this case.

As for the effect of a defendant's failure to object to improper remarks, this Court is mindful of the reluctance of counsel to interrupt his adversary and object during the course of closing argument for fear of incurring jury disfavor. Thus, it is incumbent on the trial court to monitor vigilantly the course of such arguments, to intervene as warranted, to entertain objections, and to impose any remedies pertaining to those objections. Such remedies include, but are not necessarily limited to, requiring counsel to retract portions of an argument deemed improper or issuing instructions to the jury to disregard such arguments.

Jones, supra, at 129, 558 S.E.2d at 105.

Ms. Hatcher is a sympathetic victim. She is an elderly widow with

serious health problems and severe physical limitations. It is not proper,

however, to have urged the jury to convict Alexander Newkirk based upon

sympathy for Ms. Hatcher. It is also not proper to have urged the jury to

convict Mr. Newkirk based upon the fact that he exercised his Constitutional

rights.

As such, this Court should reverse the convictions and order a new

trial.

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3. WHEN ONE OF THE VETERAN DETECTIVES OFFERED INADMISSIBLE EVIDENCE THROUGHOUT HER TESTIMONY ON DIRECT AND CROSS-EXAMINATION, HER COMMENT THAT SHE “HAD 14 YEARS OF DEALING WITH [THE DEFENDANT]” INJECTED SUCH PREJUDICE IN THE CASE THAT IT DEPRIVED ALEXANDER NEWKIRK OF A FAIR TRIAL.

(Assignment of Error No. 1: T. p. 285, lines 8-24; R. p. 25)

STANDARD OF REVIEW

The North Carolina Supreme Court has defined plain error as:

[E]rror is ‘plain error’ if ‘fundamental’ or where it ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings’ or where ‘the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.’

State v. Moore, 311 N.C. 442, 459, 319 S.E.2d 150, 163 (1984). In this case,

the trial court committed plain error when it permitted the State’s witness

Rita Wood to repeatedly interject the fact that she had known Alexander

Newkirk for many years and had arrested him many times on the grounds

that this testimony denied Mr. Newkirk a fair trial.

LAW AND ANALYSIS

The trial court committed plain error in failing to strike Rita Wood’s

response on cross-examination to defense counsel’s question about whether

she knew that Alex Newkirk was illiterate, “I can tell you on my past

experience and I have got 14 years of dealing with Alex Newkirk,”

[referencing his arrest history] because this prejudicial information was not

22

responsive to the question and it was an effort by that detective to

improperly advise the jury that Mr. Newkirk had been arrested many times.

The “test” of relevance is whether an item of evidence tends to shed

any light on the inquiry or has as its only effect the exciting of prejudice or

sympathy. State v. Nelson, 298 N.C. 573, 594, 260 S.E. 2d. 629, 645(1979),

cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980). Our

Supreme Court in Nelson specifically noted that the link between proffered

evidence and the issue in controversy may be so "attenuated" as to render the

evidence inadmissible. Id. at 595, 260 S.E.2d at 645 (finding evidence

technically incompetent but holding that defendants failed to demonstrate

prejudice by its admission). Even if relevant under Rule 401, the evidence

that the detective had been “dealing with Alex Newkirk for 14 years” should

have been excluded pursuant to Rule 403 of the North Carolina Rules of

Evidence.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

N.C.G.S. § 8C-1, Rule 403. Generally, “exclusion of evidence under Rule

403 is left to the sound discretion of the trial court.” State v. Hall, 134 N.C.

App. 417, 427, 517 S.E.2d 907, 914 (1999), appeal dismissed, disc. rev.

23

denied, 351 N.C. 364, 542 S.E.2d 647 (2000). A trial court’s ruling will be

reversed on appeal “only upon a showing that the ruling was so arbitrary that

it could not have been the result of a reasoned decision.” State v. Jones, 347

N.C. 193, 213, 491 S.E.2d 641, 653 (1997); Hall, 134 N.C. App. at 427, 517

S.E.2d at 914.

Rule 403 calls for a balancing of the proffered evidence's probative value against its prejudicial effect. Necessarily, evidence which is probative in the State's case will have a prejudicial effect on the defendant; the question, then, is one of degree. The relevant evidence is properly admissible under Rule 402 unless the judge determines that it must be excluded, for instance, because of the risk of ‘unfair prejudice.’ See N.C.G.S. 8C-1, Rule 403(Commentary)(‘Unfair prejudice’ within in its context[Rule 403] means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.) (emphasis added)

State v. Mercer, 317 N.C. 87, 93-4, 343 S.E.2d. 885, 889 (1986).

In this case, Detective Wood wanted to inform the jury that she had

“14 years of dealing with Alex Newkirk”. She had already testified that she

had been working in law enforcement for that amount of time. Earlier in her

testimony, she had added inadmissible information to her responses to direct

examination and continued those efforts during cross-examination. With her

years of work experience and experience testifying, her responses can only

be viewed as efforts to place inadmissible evidence in front of the jury.

24

While the trial court sustained counsel’s objection to the comment,

there was no curative instruction offered. The jury was not told to disregard

the comment or in any other way guided about the significance of the trial

court’s action in sustaining the objection.

As such, this prejudicial comment came out in court. The jury heard

it. They received no guidance on its exclusion. Instead, they were left to

speculate as to how this veteran detective had spent her career encountering

Alexander Newkirk.

The comment left the jury with the desired perspective that Alexander

Newkirk was a problem for law enforcement. It injected such prejudice that

it deprived him of a fair trial.

As such, this Court should reverse the convictions and order a new

trial.

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CONCLUSION

For all of the foregoing reasons, the defendant-appellant respectfully

requests that this Court reverse and vacate Alexander Newkirk’s judgments

of conviction and order a new trial on all charges in this matter.

Respectfully submitted, this the 5th day of April, 2010.

ELECTRONICALLY SUBMITTED Geoffrey W. HosfordAttorney for Defendant-AppellantState Bar No. 21239P.O. Box 1653Wilmington, NC 28402(910)251-8333geoffrey_hosford@yahoo.com

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CERTIFICATE OF COMPLIANCE WITH RULE 28

Undersigned counsel hereby certifies that this brief is in compliance

with N.C.R. App. 28(j)(2) in that it is printed in 14-point Times New Roman

font and contains no more than 8,750 words in the body of the brief,

footnotes, and citations included, as indicated by the word-processing

program used to prepare the brief.

CERTIFICATE OF SERVICE

The undersigned counsel for defendant-appellant, Alexander Newkirk,

hereby certifies that a copy of the foregoing Defendant-Appellant’s Brief

was served upon the State of North Carolina on the 5th day of April, 2010, at

the following address:

Kathleen WaylettAssistant Attorney GeneralP.O. Box 629Raleigh, NC 27602-0629

ELECTRONICALLY SUBMITTED Geoffrey W. HosfordAttorney for Defendant-Appellant

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