State v. Legg , 416 S.C. 9 ( 2016 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Ronald Lee Legg, Appellant.
Appellate Case No. 2014-000568
Appeal from Horry County
Edward B. Cottingham, Circuit Court Judge
Opinion No. 27628
Heard February 9, 2016 – Filed April 20, 2016
AFFIRMED
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Jennifer Ellis Roberts, both of
Columbia, and Solicitor Jimmy A. Richardson, II, of
Conway, for Respondent.
CHIEF JUSTICE PLEICONES: Appellant was convicted of lewd act on a
minor. He was sentenced to twelve years' imprisonment, ordered to be placed on
the sex offender registry, and subjected to GPS monitoring. Appellant argued at
trial and before this Court that South Carolina Code Annotated section 17-23-175
(2014)—permitting a videotaped forensic interview of an alleged child abuse
victim to be played before a jury—arbitrarily allows an alleged victim to testify
twice therefore violating his Due Process1 right to a fair trial under the Fourteenth
Amendment.2 The trial judge ruled the videotape at issue met the statutory
requirement for admission, and that in his view, its admission was constitutional;
therefore, the videotape was permitted to be played before the jury. Because we
find the statute is not facially unconstitutional on procedural Due Process grounds,
we affirm appellant's conviction and sentence.
ISSUE
Is section 17-23-175 (2014), unconstitutional in that it
arbitrarily allows an alleged victim's testimony to be
presented twice, depriving a defendant of his Due
Process right to a fair trial under the Fourteenth
Amendment?
ANALYSIS
Appellant contends section 17-23-175 offends Due Process because it arbitrarily
allows an alleged victim's "testimony" to be heard twice by the jury, thereby
bolstering the testimony of the alleged victim, where no other type of criminal case
allows this procedure.3 We disagree.
1
See U.S. Const. amend. XIV, § 1.
2
Appellant also raises a secondary issue which is not preserved for appellate
review; therefore, it will not be addressed in this opinion. See Foster v. Foster,
393 S.C. 95, 99, 711 S.E.2d 878, 880 (2011) (finding issues and arguments are
preserved for appellate review only when they are raised to and ruled on by the
lower court).
3
Appellant's argument before this Court is novel; however, section 17-23-175 has
been challenged myriad times in the appellate courts of this state, and has in each
instance withstood scrutiny. See, e.g., State v. Anderson, 413 S.C. 212, 776 S.E.2d
76 (2015) (holding section 17-23-175 did not violate the Confrontation Clause of
the Sixth Amendment); State v. Whitner, 399 S.C. 547, 732 S.E.2d 861 (2012)
(holding section 17-23-175 "is a valid legislative enactment," and does not permit
improper bolstering); State v. Stahlnecker, 386 S.C. 609, 690 S.E.2d 565 (2010)
(holding section 17-23-175 merely authorizes the introduction of new evidence and
"does not alter substantial personal rights; therefore, it does not violate ex post
Section 17-23-175 provides, in pertinent part:
(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;
facto laws); State v. Bryant, 382 S.C. 505, 675 S.E.2d 816 (Ct. App. 2009)
(holding section 17–23–175 did not violate the Savings Clause and did not
constitute an ex post facto violation).
(3) whether the statement represents a detailed
account of the alleged offense;
(4) whether the statement has internal coherence;
and
(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 . . . .
....
S.C. Code Ann. § 17-23-175.
Although not posited in these precise terms, appellant brings a facial challenge to
section 17-23-175 under procedural Due Process.
Due Process is not a technical concept with fixed parameters unrelated to time,
place, and circumstances; rather, it is a flexible concept that calls for such
procedural protections as the situation demands. Mathews v. Eldridge, 424 U.S.
319, 334 (1976) (citation omitted). Procedural Due Process contemplates a fair
hearing before a legally constituted impartial tribunal. Daniels v. Williams, 474
U.S. 327, 337 (1986) ("[A] guarantee of fair procedure, sometimes referred to as
'procedural due process': the State may not execute, imprison, or fine a defendant
without giving him a fair trial" (footnoted citation omitted)); Vitek v. Jones, 445
U.S. 480, 500 (1980); State v. Houey, 375 S.C. 106, 113, 651 S.E.2d 314, 318
(2007).
A facial challenge is an attack on a statute itself as opposed to a particular
application. City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2449 (2015).
When a party challenges a statute arguing it can never be applied constitutionally,
the party is bringing a facial challenge. Id. at 2450 (citing United States v. Salerno,
481 U.S. 739, 745 (1987)); Black's Law Dictionary 261 (9th ed. 2009) (defining
facial challenge as "[a] claim that a statute is unconstitutional on its face—that is,
that it always operates unconstitutionally."). A facial challenge is "the most
difficult . . . to mount successfully," as it requires the challenger show the
legislation at issue is unconstitutional in all its applications. Id. (quoting Salerno,
481 U.S. at 745);4 Sabri v. United States, 541 U.S. 600, 604 (2004).
Because we find appellant's challenge fails to meet the Salerno standard, we find
section 17-23-175 is not facially unconstitutional as a violation of procedural Due
Process. In making this decision, we find persuasive the rationale articulated by
the Texas Criminal Court of Appeals in Briggs v. State, 789 S.W.2d 918 (Tex.
Crim. App. 1990) (en banc). Relying on Salerno, the Briggs court overturned its
prior holding that the statute allowing at trial both live testimony of an alleged
child sexual abuse victim, and the videotaped forensic interview, unfairly
permitted the State to present its case in chief twice thereby violating Due Process.
Id. (overruling Long v. State, 742 S.W.2d 302 (Tex. Crim. App. 1987) (en banc)).
4
As this Court has noted, the viability of Salerno is a topic of debate in facial
challenge cases. See Town of Mount Pleasant v. Chimento, 401 S.C. 522, 543–44,
737 S.E.2d 830, 843–44 (2012) (Hearn, J., dissenting) (citations omitted)
(concluding Salerno applied). Indeed, in 2010, the United States Supreme Court
openly acknowledged it "is a matter of dispute" in a "typical case" whether
Salerno’s no-set-of-circumstances test, or whether overbreadth's plainly-legitimate-
sweep test, is the proper facial challenge standard. See United States v. Stevens,
559 U.S. 1577, 1587 (2010) (declining to address which standard applies, finding
free speech facial challenges are distinguishable as "a second type of facial
challenge"); see also United States v. Comstock, 627 F.3d 513, 518–19 (4th Cir.
2010) (recognizing, "In the years since Salerno, some members of the Court have
expressed reservations about the applicability of this stringent standard . . . . But at
the very least, a facial challenge cannot succeed if a 'statute has a plainly legitimate
sweep'"(citations omitted)). The United States Supreme Court has not overruled
Salerno, which notably addressed a Due Process facial challenge, and state and
federal courts continue to apply Salerno in the context of Due Process facial
challenges. See, e.g., United States v. Ruggiero, 791 F.3d 1281, 1285–86 (11th
Cir. 2015); New York State Rifle and Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242,
265–66 (2nd Cir. 2015); Morrison v. Peterson, 809 F.3d 1059, 1064–69 (9th Cir.
2015); Neely v. McDaniel, 677 F.3d 346, 349–50 (8th Cir. 2012); United States v.
Pendleton, 658 F.3d 299, 305 (3rd Cir. 2011); Gilbert v. State, -- So.3d -- (Ala.
Crim. App. 2016); People v. Mosley, 33 N.E.3d 137, 159 (Ill. 2015); Montana
Cannabis Industry Ass's v. State, -- P.3d -- (Mont. 2016).
The Briggs court first established that duplication of the state's evidence did not
ipso facto render a trial fundamentally unfair. Id. at 922. The Briggs court noted
that the State could choose to call the minor during its case in chief, limit its
questioning strictly to the creation of the videotape, and then tender the minor to
the defense for cross-examination. Id. The Briggs court determined that such a
scenario in no respect "duplicated" evidence, or bolstered the State's version of the
facts. Id. The Briggs court further found that although the statute at issue allowed
for duplicative statements by the minor, the defendant could benefit from
inconsistencies presented between the videotape and the live testimony, meaning
the statute could be applied without offending Due Process; therefore, it was not
facially unconstitutional. Id. at 923–24 (citing Salerno, 481 U.S. at 745).
We agree with the Texas court's finding that there would be no grounds for a Due
Process duplication of testimony argument if the State only questioned the minor
as to the creation of the videotape prior to its publication to the jury and cross-
examination. Therefore, we find the statute can be applied constitutionally and
appellant's facial challenge is without merit. See Salerno, 481 U.S. at 745 ("A
facial challenge to a legislative Act is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid" (emphasis supplied)).
Moreover, we find it notable that in the instant case, appellant extensively cross-
examined the minor as to prior inconsistent statements given during the videotaped
interview, and during closing statements, argued those inconsistences damaged the
minor's credibility.5 We find appellant's utilization of the prior inconsistent
5
Appellant cross-examined the minor regarding: discrepancies between the
sequence of abuse she provided on direct examination versus the video interview;
ambiguous responses she gave during the videotaped interview; why she continued
to return to appellant's home if he were abusing her; why she delayed disclosing
the abuse; the circumstances surrounding her disclosure, and whether she was
really just upset because appellant had told her to "shut the F up"; whether some of
her recollections mentioned in the interview were in fact based on a movie;
whether games mentioned during the interview were actually played with her uncle
as opposed to being played with appellant; and whether she had been coached or
discouraged from using certain words while testifying at trial. As to discrepancies
between her statements during the videotaped interview and her trial testimony, the
minor stated she was "a little bit confused today."
During closing argument, appellant relied on the videotaped interview to argue the
statements made on videotape demonstrates he may have actually strengthened his
defense from its use by impeaching the only witness to the alleged sexual abuse
besides himself. See Salerno, 481 U.S. at 745; see also Folks v. State, 207 P.3d
379, 383 (Okla. Crim. App. 2008) (noting the alleged victim was impeached on
cross-examination after her videotaped interview was played for the jury and
stating, "We recognize that while this interpretation of § 2803.1 may allow the
State to present its principal witness twice, it does not invariably operate to allow
the State to bolster its version of the facts." (citing Briggs, 789 S.W.2d at 922)).
Accordingly, because section 17-23-175 can be applied without offending
procedural Due Process, it is not facially unconstitutional. See Salerno, 481 U.S.
at 745.
CONCLUSION
For the foregoing reasons, we affirm the trial judge's ruling, and hold section 17-
23-175 is not facially unconstitutional as a violation of procedural Due Process.
BEATTY, KITTREDGE, HEARN, JJ., and Acting Justice Alison Renee
Lee, concur.
minor's conduct of repeatedly returning to appellant's home on her own volition
was inconsistent with her allegations, stating, "If you want to, that video is
available to look at if you don't believe or trust me." Appellant further referenced
the videotape when pointing out that the minor's testimony at trial regarding which
instance of abuse was most traumatic, was an event the victim did not mention in
the videotape until almost the conclusion of the interview, long after discussing
numerous other instances of inappropriate touching. Finally, appellant challenged
the minor's demeanor during the interview, stating, "You look at that video and I
would submit to you that child was happier then than she is now, and if she were
traumatized, it would have shown on that video."