State v. Anderson , 413 S.C. 212 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Isaac Antonio Anderson, Appellant.
Appellate Case No. 2012-212905
Appeal from Richland County
DeAndrea G. Benjamin, Circuit Court Judge
Opinion No. 27558
Heard April 9, 2015 – Filed August 5, 2015
REVERSED
Joshua Shaheen Nasrollahi, of Greenwood, and Chief
Appellate Defender Robert Michael Dudek, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Assistant
Attorney General William M. Blitch, Jr., and Solicitor
Daniel Edward Johnson, all of Columbia, for
Respondent.
JUSTICE PLEICONES: Appellant was convicted of first degree criminal sexual
conduct with a minor, his girlfriend's daughter, and received a life sentence without
the possibility of parole (LWOP).1 On appeal, he challenges the constitutionality
1
Appellant had a 1993 conviction that made him eligible for an LWOP.
of S.C. Code Ann. § 17-23-175 (2014) on Confrontation Clause2 grounds, and
contends the trial court erred in qualifying Witness Smith as an expert in both
forensic interviewing and child abuse assessment. Further, he alleges Witness
Smith's testimony impermissibly bolstered that of the minor. We find the statute
constitutional, but agree with Appellant that the trial court erred in qualifying
Witness Smith as an expert, and in allowing bolstering testimony. We reverse
Appellant's conviction and sentence.
The minor lived with Appellant and her mother for approximately six years from
the time she was five years old until she was eleven. Appellant and the child had a
close relationship, even as her mother's and Appellant's relationship ended. In
November 2009, when she was eleven years old, the victim told her mother that
Appellant had been sexually abusing her, including intercourse, since she was
seven years old. There was no physical evidence of abuse, and Appellant denied
the accusations.
ISSUES
(1) Does S.C. Code Ann. § 17-23-175 (2014) violate the
Confrontation Clause because it does not permit
contemporaneous cross-examination of the individual being
videotaped?
(2) Did the circuit court err in qualifying Witness Smith as an
expert and permitting her to improperly bolster the minor's
credibility?
ANALYSIS
A. Constitutionality of § 17-23-175
Appellant contends that § 17-23-175, which permits the admission of a child's
videotaped forensic interview under certain circumstances,3 violates the Sixth
Amendment's Confrontation Clause. We disagree.
2
See U.S. Const. am. VI.
3
Subsections (A) through (D) of the statute are reproduced here:
SECTION 17-23-175. Admissibility of out-of-court statement of
child under twelve; determination of trustworthiness; notice to
adverse party.
(A) In a general sessions court proceeding or a delinquency
proceeding in family court, an out-of-court statement of a child is
admissible if:
(1) the statement was given in response to questioning
conducted during an investigative interview of the child;
(2) an audio and visual recording of the statement is preserved
on film, videotape, or other electronic means, except as
provided in subsection (F);
(3) the child testifies at the proceeding and is subject to cross-
examination on the elements of the offense and the making of
the out-of-court statement; and
(4) the court finds, in a hearing conducted outside the presence
of the jury, that the totality of the circumstances surrounding
the making of the statement provides particularized guarantees
of trustworthiness.
(B) In determining whether a statement possesses particularized
guarantees of trustworthiness, the court may consider, but is not
limited to, the following factors:
(1) whether the statement was elicited by leading questions;
(2) whether the interviewer has been trained in conducting
investigative interviews of children;
(3) whether the statement represents a detailed account of the
alleged offense;
(4) whether the statement has internal coherence; and
Appellant contends that the statute violates the Confrontation Clause because it
does not afford the accused the opportunity to cross-examine the witness during
the videotaping. Further, he argues that where, as here, the child testifies before
the videotape is introduced, the defendant has no opportunity to cross-examine the
child on the statements made in the videotape since it is not yet in evidence.
Appellant asserts that were the defendant to cross-examine the child about the
videotape prior to its introduction into evidence, he would waive any objection to
the videotape itself. Finally, Appellant argues that because the minor was not
recalled by the State after the playing of the videotape, he was denied his
constitutional right to contemporaneous cross-examination, a right he contends was
established by Maryland v. Craig, 497 U.S. 836 (1990).
In Craig, the child testified at the trial from a remote location on a one-way closed
circuit television: Persons in the courtroom could observe the child, but she could
not see the people, including the defendant. The issue in Craig was whether this
one-way procedure violated the component of the Confrontation Clause that
prefers a face-to-face encounter between the witness and the defendant during the
(5) sworn testimony of any participant which may be
determined as necessary by the court.
(C) For purposes of this section, a child is:
(1) a person who is under the age of twelve years at the time of
the making of the statement or who functions cognitively,
adaptively, or developmentally under the age of twelve at the
time of making the statement; and
(2) a person who is the alleged victim of, or witness to, a
criminal act for which the defendant, upon conviction, would be
required to register pursuant to the provisions of Article 7,
Chapter 3, Title 23.
(D) For purposes of this section an investigative interview is the
questioning of a child by a law enforcement officer, a Department of
Social Services case worker, or other professional interviewing the
child on behalf of one of these agencies, or in response to a suspected
case of child abuse.
testimony. Appellant relies on the following language from Craig upholding the
one-way camera arrangement:
[The] procedure preserves all of the other elements of the
confrontation right: The child witness must be competent to
testify and must testify under oath; the defendant retains full
opportunity for contemporaneous cross-examination; and
the judge, jury, and defendant are able to view (albeit by video
monitor) the demeanor (and body) of the witness as he or she
testifies. Although we are mindful of the many subtle effects
face-to-face confrontation may have on an adversary criminal
proceeding, the presence of these other elements of
confrontation -- oath, cross-examination, and observation of the
witness' demeanor -- adequately ensures that the testimony is
both reliable and subject to rigorous adversarial testing in a
manner functionally equivalent to that accorded live, in-person
testimony.
Craig, 490 U.S. at 851 (emphasis supplied).
Appellant's reliance on Craig as requiring contemporaneous cross-examination
during the statutory videotaping process or at trial immediately following the
playing of the videotape, is misplaced. Here, the minor testified under oath in open
court and was subject to cross-examination. Thus, Appellant's right to the
opportunity for effective cross-examination was satisfied during the minor's actual
trial testimony. That is all the Confrontation Clause requires. Crawford v.
Washington, 541 U.S. 36 (2004). That Appellant would have to recall the child as
an adverse witness in order to examine her about her videotaped statement does not
render the statute or the procedure followed here violative of a defendant's Sixth
Amendment right to cross-examination. See State v. Hill, 394 S.C. 280, 715
S.E.2d 368 (Ct. App. 2011).
B. Expertise and Bolstering
Appellant first contends the trial court erred in qualifying Witness Smith as an
expert in "child abuse assessment." We agree. Prior to the commencement of trial,
an in camera hearing was conducted following which the trial court found Smith to
be an expert in forensic interviewing. When the State called Smith at trial, and
after reviewing her expert qualifications, the State offered her as "an expert in
forensic interviewing and child abuse assessment." Appellant immediately
objected, but the judge overruled the objection, stating the qualification was "as a
forensic interviewer in child abuse assessment." Appellant respectfully renewed
his objection, rightfully pointing out that there had been no previous determination
that Smith possessed expertise in "child abuse assessment." The trial judge
declined to hold a hearing on the existence of this expertise, much less whether
Smith possessed the necessary qualifications.
The trial judge's refusal to determine Smith's qualification as a "child abuse
assessment" expert was patent error. Certainly we recognize that there is such an
expertise: this is the type of expert who can, for example, testify to the behavioral
characteristics of sex abuse victims. See, e.g., State v. Schumpert, 312 S.C. 502,
435 S.E.2d 859 (1993); State v. Weaverling, 337 S.C. 460, 523 S.E.2d 787 (Ct.
App. 1999); see also State v. White, 361 S.C. 407, 605 S.E.2d 540 (2004) (such
witness may be more crucial where alleged victim is a child). The better practice,
however, is not to have the individual who examined the alleged victim testify, but
rather to call an independent expert. To allow the person who examined the child
to testify to the characteristics of victims runs the risk that the expert will vouch for
the alleged victim's credibility.4 Compare State v. Brown, 411 S.C. 332, 768
S.E.2d 246 (Ct. App. 2015) (distinguishing improper bolstering cases because in
Brown the behavioral expert did not examine the victim). Here, Witness Smith
vouched for the minor when she testified only to those characteristics which she
observed in the minor.
Appellant also contends the circuit court erred in qualifying Witness Smith as an
expert in forensic interviewing, arguing that South Carolina courts do not
recognize this type of expertise, and that a forensic interviewer is restricted to
testifying to facts. We agree. See State v. Douglas, 380 S.C. 499, 671 S.E.2d 606(2009); State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013) fn. 5; see also State
v. Baker, 411 S.C. 583, 769 S.E.2d 860 (2015) (Toal, C.J., dissenting) (finding
error in qualifying forensic interviewer as an expert harmless). Having found error
in qualifying Witness Smith as an expert in child abuse assessment and in forensic
4
The separate writing erroneously equates the testimony of an expert who offers
his opinion on a fact in issue, such as whether a product was defectively designed
or manufactured, with that of an expert whose testimony may intrude upon the
jury's sole province to determine the credibility of a witness. E.g., State v. Taylor,
255 S.C. 268, 178 S.E.2d 244 (1970).
interviewing, the critical question becomes whether these two errors so prejudiced
Appellant that we must reverse his conviction. We find that they did.
This case turned solely on the credibility of the minor and of Appellant. The minor
testified to abuse by Appellant over a course of three to four years, while Appellant
denied any improper conduct. There was no physical evidence of sexual abuse.
We note that the solicitor and Witness Smith (a very experienced witness)
repeatedly pushed the boundaries of the parties' common understanding of the
permissible limits of Smith's trial testimony. For example, when testifying about
the interview guidelines, Smith testified "[w]e will have a conversation with the
children about the importance of truth-telling and how important it is that we . . . if
we make a mistake we want . . . ." Appellant objected, and after a bench
conference, his objection was overruled. There were two other objections and
bench conferences before the jury was excused. At this juncture, Appellant moved
for a mistrial based, in part, on the volume of the solicitor's voice at the bench
hearings. The judge denied the mistrial, but not before remarking "I did have to
tell [the solicitor] a couple of times to hold her voice down."
The State introduced the video through Witness Smith, then asked her what was
meant by the terms delayed reporting or delayed disclosure. Appellant
immediately objected, a bench conference was held, and Smith was permitted to
begin explaining the terms' meaning. Appellant again objected, and the trial judge
agreed to dismiss the jury in order to have the objection placed on the record. The
judge overruled this objection, yet found herself sustaining Appellant's objections
as the solicitor continued to elicit improper vouching testimony, and Smith
continued to offer it. The prejudice on this record is overwhelming.
The record in this case and in the child sex abuse cases that have come before us in
recent years demonstrate that the common practice is to present the forensic
interviewer to jurors as a "human lie-detector." See State v. Kromah, supra, at fn.
4. In order to alleviate the prejudice inuring from this type of improper testimony
and to clarify the procedure to be used at trial, we take this opportunity to set forth
the appropriate scope of the testimony of a forensic interviewer who has conducted
a videotaped interview pursuant to § 17-23-175.5
5
Much of what we say today would apply to an "electronically recorded
statement" under § 17-23-175(F).
First, the statute requires that the interviewer be called to testify in camera. See §
17-23-175(A)(4). At that in camera hearing, the interviewer must testify to
establish the types of factors set forth in § 17-23-175(B), such as her training and
background, whether she utilized the RATAC procedure or the ChildFirst protocol,
as well as any other testimony that will assist the trial court in determining whether
the child's statement possesses the "particularized guarantees of trustworthiness"
and thus the admissibility of the video. § 17-23-175(B). Assuming the court
determines that the interview is admissible under the statute, the forensic
interviewer will be called to testify before the jury. The sole purpose of her jury
testimony is to lay the foundation for the introduction of the videotape, and the
questioning must be limited to that subject. There is to be no testimony to such
things as techniques, of the instruction to the interview subject of the importance of
telling the truth, or that the purpose of the interview is to allow law enforcement to
determine whether a criminal investigation is warranted. This type of testimony,
which establishes the "particularized guarantees of trustworthiness," necessarily
conveys to the jury that the interviewer and law enforcement believe the victim and
that their beliefs led to the defendant's arrest, these charges, and this trial, thus
impermissibly bolstering the minor's credibility. We hold none of the evidence
necessary for the trial court's determination of "whether a statement possesses
particularized guarantees of trustworthiness" and thus admissible under § 17-23-
175(A)(4) and (B) is to be presented to the jury, as such evidence necessarily
vouches for the credibility of the alleged victim. 6
We recognize the difficulty of the work performed by the dedicated employees of
Child Advocacy Centers,7 and nothing in our opinion today should be read as
critical of the important service they provide for the children of the State. We
simply hold that the testimony of the factors that are relevant to the trial court's
determination whether the interviewee's statement is trustworthy is not appropriate
for the jury, which is charged with determining for itself the credibility of each
witness.
6
Of course, like any other fact witness, the forensic interviewer may testify to her
observations. This fact-based testimony can include, despite the concerns
expressed in the separate writing, the "particulars of their examinations, and their
personal observations." Since the interviewer is not an expert, however, she cannot
testify to "issues of delayed reporting." See In re Thomas S., 402 S.C. 373, 741
S.E.2d 27 (2013). This improper expression of expert opinion by a lay witness is
prohibited by Rules 602 and 701, SCRE.
7
S.C. Code Ann. § 63-11-310 (2010).
CONCLUSION
For the reasons given above, Appellant's conviction and sentence are
REVERSED.
BEATTY and HEARN, JJ., concur. TOAL, C.J., concurring in a separate
opinion in which KITTREDGE, J., concurs.
CHIEF JUSTICE TOAL: I concur in Part A of the majority's
opinion, as I agree that section 17-23-175 is constitutional. Further, I agree with
the majority that the expert in child abuse assessment may have committed
reversible error in this case by attesting to the veracity of the minor child.
However, I disagree strongly with the majority's suggestion in Part B that there is
no place for expert testimony by child abuse experts who actually examined the
victim in child sex abuse trials.
While the State is not permitted to use experts in RATAC or other methods
of forensic interviewing to bolster the minor child's testimony, it is my opinion that
forensic interviewers have a legitimate role to play in these cases, and may be
qualified as experts in child abuse assessment.8 In this setting, forensic
interviewers may testify about the particulars of their examinations and their
personal observations, and may also testify as experts regarding matters in their
expertise, such as delayed disclosure of the abuse. Nothing in our Rules of
Evidence or jurisprudence prohibits this type of testimony by qualified experts. As
I have noted in previous cases, the majority has again taken our line of cases
limiting this kind of expert testimony too far. See State v. Chavis, 412 S.C. 101,
112–14, 771 S.E.2d 336, 342–43 (2015) (Toal, C.J., concurring in part, dissenting
in part). Thus, I especially disagree with the majority's suggestion that the better
practice in these cases is to hire an independent expert who has never interviewed
the child.9 Again, the only testimony our cases prevent is testimony that bolsters
the minor child's testimony. The only error here is that Smith's testimony did just
that. However, the trial court did not err in qualifying Smith as an expert in child
8
It is well-established across the country that an expert in child abuse assessment
may testify regarding behavioral characteristics, such as delayed disclosure of the
abuse. I fear that the majority is creating dangerous precedent, whereby a forensic
interviewer may not be qualified as an expert in child abuse assessment, for the
mere fact that the witness is either a practicing forensic interviewer or the person
who examined the victim.
9
In other contexts, we have refused to approve of the qualification of an expert
who lacked sufficient knowledge about the facts of the particular matter in which
the expert was requested to render an opinion. See, e.g., Watson v. Ford Motor
Co., 389 S.C. 434, 699 S.E.2d 169 (2010) (finding certain experts should not have
been qualified where they lacked sufficient knowledge about the area in which
they were called to testify). In this case, we are condemning the proposed expert
because she has too much knowledge about the case.
abuse assessment, and I am gravely concerned with the majority's curtailment of
this type of expertise.
Although I agree that Appellant's conviction should be reversed, I disagree
strongly with these points in the majority's reasoning.
KITTREDGE, J., concurs.