In State v. Gillikin, 2011 N.C. App. LEXIS 2424 (N.C. App. Dec. 6, 2011), a North Carolina appellate court ordered a new trial in a rape case because the trial judge unconstitutionally coerced a jury into finding the defendant guilty of raping his on-again, off-again girlfriend. The trial court's actions were especially troublesome to the appellate court because the trial was a classic "he said, she said" rape case, where the entire matter came down to the credibility of the accuser and the accused.
Here is what happened. Defendant Charles Lindberg Gillikin, III and his accuser, Trista Nicole Polk, were involved in an off-and-on consensual sexual relationship from December 2007 until October 2009. They had a baby, and Gillikin often cared for the baby while Polk worked.
Polk claims Gillikin raped her twice on the evening of October 4, 2009 while in a drunken rage. Gillikin continuously denied the charges. He acknowledged that he and Polk had vaginal intercourse that night and contended the sex was part of the couple's normal consensual sexual relationship. Gillikin also testified that he and Polk had consensual sexual relations on both 1-2 October 2009, but that he then spent the night with another woman, named Sarah, on 3 October 2009. Cell phone records showed Polk sent at least seven unanswered text messages to Gillikin before he woke up the next morning.
Gllikin testified that he and Polk continued to communicate by text message on 4 October 2009, and that on the night of 4 October 2009, Polk came to pick him up from a local bar around 8:30 p.m., and the two got into an argument because he couldn't explain to her the reason for the unanswered phone calls and text messages from the previous night. Gillikin testified that he asked Polk to stop the car so he could get out and walk because she was so angry. Gillikin testified that upon arriving at Polk's apartment, Gillikin fed the baby and put the baby to sleep while Polk carried in groceries.
Gllikin testified that he and Polk then talked in the living room, where they started to make up and had consensual sexual relations. Gillikin testified that he and Polk watched some television then started kissing again, which led to consensual sexual intercourse on the couch. Gillikin testified that during the sexual intercourse, he accidentally called Polk by the name of Sarah, to which Polk became extremely angry. Gillikin testified that Polk jumped up, started "ranting and raving," said she "ought to call the cops and say [Gillikin] raped [her]," and maced Gillikin in the face and eyes when Gillikin tried to leave. Gillikin went to a nearby friend's house, told her he had had an argument with his girlfriend and that she had maced him. Gillikin spent the night on his friend's couch, until he was arrested a few hours later.
The jury began their initial deliberations and continued deliberating for approximately three hours. Following a lunch break, the jury again resumed its deliberations. After another hour of deliberations, the jury sent the following note to the court:
"We cannot reach a unanimous decision on 4 of the 5 verdicts."
Upon receiving the note, after consultation with defendant's counsel and the State, the trial judge brought the jury back into the courtroom. The trial judge then proceeded to give the following re-instruction:
"Jury foreperson, I read your note wherein it says your jury was not able to reach a unanimous verdict on four of the five counts so far. I understand that and I've share[d] that note with the parties.
"However, in a case such as this, it's not unusual. It's not unusual, quite frankly, in any case for jurors to have a hard time reaching a unanimous verdict on one charge, much less four or five or more.
"So what the Court is prepared to do is remind you - and if you look at the jury instructions - that it is your duty to find the truth in this case and reach a verdict.
"What I'm going to do is understand that you guys are having some difficulty back there but most respectfully, direct once again you go back into that jury room, deliberate until you reach a unanimous verdict on all charges. You've not been deliberating that long. I understand it's difficult and I understand sometimes it can be frustrating, but what I ask you to do is continue to be civil, professional, cordial with each other, exchange ideas, continue to deliberate and when you've reached a unanimous verdict, let us know.
"Thank you so much. Once again, I ask you retire to your jury room to resume deliberations."
The jury then resumed their deliberations, and after approximately 90 minutes, the jury returned verdicts finding Gillikin guilty of second-degree rape, false imprisonment, and misdemeanor larceny. The trial court ordered lifetime sex offender registration and satellite-based monitoring and sentenced Gillikin to a minimum of 100 months' imprisonment for the rape charge and four months' imprisonment in each of the two misdemeanor offenses, to run consecutively, for a total of 108 months' minimum imprisonment. Gillikin then appealed.
The appellate court said that the judge's instruction to the deadlocked jury was erroneous because a jury charge cannot require a juror to surrender his or her well-founded convictions or judgment to the views of the majority.
Read what the appellate court said: "Given the 'he said, she said' nature of this case, we are not persuaded by the State's contention that there was such overwhelming evidence against defendant as to render the trial court's error harmless."
And: "The State contends the error was harmless given the overwhelming evidence of defendant's guilt. However, the evidence against defendant consisted almost entirely of the prosecuting witness's testimony. Likewise, defendant's own testimony is the bulk of the evidence relied on by him to prove his innocence. Thus, the credibility of the two primary witnesses - prosecutrix Polk and defendant - substantially determined this case, necessarily making this a close case for the jury."
But the appellate court wasn't finished. While it didn't need to say anything more, it took the opportunity to reprimand the prosecutor: "Having ordered a new trial for defendant on this issue, we need not address defendant's remaining arguments on appeal. Nonetheless, we take this opportunity to comment on the grossly improper closing argument given by the prosecutor in this case."
According to the appellate court: ". . . the prosecutor repeatedly engage[d] in abusive name-calling of defendant and express[ed] his opinion that defendant was a liar and was guilty, the entire tenor of the prosecutor's argument was undignified and solely intended to inflame the passions of the jury. Indeed, the trial court recognized the gross improprieties, and we commend the trial court for issuing a curative instruction, ex mero motu, to the jury. Had the trial court not issued a curative instruction in this case, we would have been compelled to order a new trial for defendant on this basis as well."
In our book, Judges J. Douglas McCullough, Robert N. Hunter, Jr., and Cressie H. Thigpen, Jr. are heroes. Too often, appellate courts assume the role of rubber stamps of trial court decisions, often dismissing serious error by finding it "harmless" or somehow "cured" by a jury instruction. This panel is to be commended for recognizing that in "he said, she said" rape cases, the rights of the presumptively innocent need to be especially strenuously guarded. Bravo!