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State v. Finney2/6/2004
PUBLISHED
On 22 January 2001, Steven Mark Finney (defendant) was indicted for first-degree rape. The indictment alleged that on 23 November 2000, defendant raped his wife, Virginia Finney (victim). Defendant was tried before a jury at the 15 October 2001 Criminal Session of Superior Court, Henderson County. The evidence at trial tended to show the following: On the night in question, defendant came home late. Defendant was drunk and a quarrel occurred between defendant and his wife. After a lengthy and emotional argument, defendant forced his wife into having sex against her wishes.
On 16 October 2001, the jury found defendant guilty of first-degree rape. The trial court sentenced defendant to 307-378 months in prison. On appeal, a unanimous panel of the Court of Appeals found no error in defendant's trial and sentence. State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764 (2003). On 15 May 2003, defendant filed a notice of appeal in this Court based on defendant's constitutional right to confrontation. We granted the State's motion to dismiss the notice of appeal, but acted ex mero motu to allow discretionary review of three issues presented in this case.
First, defendant argues that the trial court erred in admitting the hearsay testimony of Detective W.C. Harper as to statements allegedly made to him by the victim, who the trial court deemed "unavailable" to testify. Harper's testimony was admitted under the "residual" exception to the hearsay rule. See N.C.G.S. ยง 8C-1, Rule 804(b)(5) (2003). During the trial, the prosecutor, Corey Ellis, called the victim, Virginia Finney, to testify on behalf of the State. Finney testified as follows:
Q: Will you please tell us your name.
A: (No response)
Q: Are you able to hear my question?
A: (No response)
Q: Can you understand what I'm trying to ask you?
A: (No response)
Q: Are you Virginia Vaughn Finney?
A: (No response)
THE COURT: Sheriff, take the jury to the jury room for just a moment, please.
(JURY OUT)
THE COURT: Ms. Finney. Ms. Finney, are you able to hear me? Answer up, yes or no. The jury is out of the courtroom now, Ms. Finney. I need to know from you, are you going to testify in this case, or not.
A: I do not wish to, to testify.
MR. ELLIS [PROSECUTOR]: May I ask a few questions in an attempt, Your Honor?
THE COURT: You may try.
VOIR DIRE EXAMINATION OF MS. FINNEY BY MR. ELLIS:
Q: Ms. Finney, do you not wish to testify because you have problems recalling what happened to you.
A: Yes.
Q: I have a --
A: I've been threatened by the D.A. (Inaudible)
THE COURT: You've been threatened by whom?
A: The D.A., Corey Ellis. (crying)
THE COURT: You've been threatened by the D.A.
A: Yes.
THE COURT: How has the D.A. threatened you, Ms. Finney?
A: I was doing good.
THE COURT: Do what?
A: I was doing a lot better.
THE COURT: You're going to have to slow down here.
A: (Crying) And I don't want to talk about it no more please. I just don't want to remember anything anymore. I don't want to go through this. I've been informed by the D.A. if I did not then I would be arrested, and I've been arrested at my work; and I lost my job and everything (inaudible). I was trying to go on with my life until Corey Ellis started aggravating me and my family constantly. They put me in a room, closed the door and would not let me out. I don
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