noting that a witness identification based on a newspaper photo does "not result from state action [and therefore does] not violate defendant's due process rights"
How later courts described this case
- noting that a witness identification based on a newspaper photo does "not result from state action [and therefore does] not violate defendant's due process rights"
- even though defendant had notice that the State had evidence of blood samples seized in a warrantless search, defendant did not have notice of the State’s intent to use that evidence
Written by the judges who cited it.
The opinion
Justice MARTIN
dissenting in part.
I continue to adhere to my dissent in State v. Belton, 318 N.C. 141 , 347 S.E. 2d 755 (1986), on the double jeopardy issue; therefore, I respectfully dissent as to part I of the majority opinion.
Furthermore, even under Belton , a close reading of the evidence and the charge of the trial judge demonstrates that defendant’s double jeopardy rights were not violated. Here, as in Belton , there was substantial evidence of a sexual assault on little Jean Fewel separate and apart from the attempted rape in the first degree. Dr. Deborah L. Radisch, a pathologist who performed the autopsy on Jean Fewel, testified that she found male sperm inside the vulva and vagina of the victim, as well as inside her anus. This testimony was also supported by the physical findings introduced into evidence. It is inescapable that at least two sexual assaults were committed on the victim. Dr. Radisch testified that the semen could have been placed in the vagina by being transferred to the vagina on some object smaller than an adult penis. There is no way that this semen could have been placed inside the vagina and inside the anus of this eight-year-old child without the acts being sexual offenses in violation of N.C.G.S. § 14-27.4. By so doing, defendant committed two sexual assaults on this child.
*30 In the charge on attempted rape, the trial judge stated the testimony with respect to defendant’s ejaculating in the pubic area of Jean Fewel, based upon the finding of semen in her vulva and vagina, as evidence of that charge. Nowhere in the charge on attempted rape did the trial judge mention the evidence of semen found in her anus.
Had the trial judge charged the jury, in part, on the kidnapping charge, as follows, there would be no question that the judgments would be proper:
. . . and fifth, that Jean Fewel had been sexually assaulted. In determining this fifth element you may not consider the alleged attempted first degree rape. You must find the existence of another sexual assault on Jean Fewel separate and apart from the alleged attempted first degree rape. If the state has satisfied you beyond a reasonable doubt that defendant deposited semen inside the anus of Jean Fewel, aged eight years, by use of his penis or otherwise, that would constitute a sexual assault.
In charging the jury on kidnapping the trial judge said, in part:
Fourth, that this removal was a separate, complete act, independent of and apart from the felony of attempted first degree rape; and fifth, that Jean Fewell [sic] had been sexually assaulted.
So I charge that if you find from the evidence beyond a reasonable doubt that on or about January the 30th, 1985, George Fisher unlawfully put Jean Fewell into his car and carried her from near her home to the Old Mason Farm Road, Chapel Hill, and that Jean Fewell had not reached her 16th birthday and that her parents did not consent to this removal, and that this was done for the purpose of facilitating George Fisher’s commission of the felony of attempted first degree rape, and that this removal of Jean Fewell was a separate, complete act, independent of and apart from the felony of attempted first degree rape, and that Jean Fewell had been sexually assaulted, it would be your duty to return a verdict of guilty of first degree kidnapping.
*31 This part of the charge was repeated in the instructions on felony murder.
It was thus clear to the jurors that they must find that the taking and removal of the child was a separate and complete act, independent of and apart from the attempted rape. It was also clear to the jury that it must find that defendant committed a sexual assault on the victim in order to convict him of kidnapping in the first degree. With these two requisites presented side by side to the jury, any rational juror would know that there must be proof of a sexual assault upon the victim other than the attempted rape. Evidence of such additional sexual assault was overwhelming. Under these instructions, this Court is not required to make the assumptions complained of in Belton . There is no ambiguity to be construed in favor of the defendant. Under these circumstances, I do not find any violation of double jeopardy principles.
I concur in the remainder of the majority opinion.
Justice Meyer joins in this dissenting opinion.