Chappell v. State ( 2019 )


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  •                       THE STATE OF SOUTH CAROLINA
    In The Court of Appeals
    Frederick Robert Chappell, Petitioner,
    v.
    State of South Carolina, Respondent.
    Appellate Case No. 2016-000283
    ON WRIT OF CERTIORARI
    Appeal from Greenville County
    Perry H. Gravely, Post-Conviction Relief Court Judge
    Opinion No. 5704
    Heard November 5, 2019 – Filed December 31, 2019
    REVERSED
    Deputy Chief Appellate Defender Wanda H. Carter, of
    Columbia, for Petitioner.
    Attorney General Alan McCrory Wilson and Assistant
    Attorney General Taylor Zane Smith, of Columbia, for
    Respondent.
    THOMAS, J.: Petitioner Frederick Robert Chappell appeals the dismissal of his
    post-conviction relief (PCR) application, arguing the PCR court erred in denying
    his claim for ineffective assistance of counsel because his trial counsel did not
    object when the State's expert witness gave improper bolstering testimony. We
    reverse.
    FACTS AND PROCEDURAL HISTORY
    On December 14, 2010, a Greenville County Grand Jury indicted Chappell for
    first-degree criminal sexual conduct with a minor and lewd act upon a child, and
    the State called the case to trial in August 2012. On August 7, 2012, after a
    two-day trial, the jury convicted Chappell of both counts, and the trial court
    sentenced him to life in prison.1 Chappell appealed, arguing this court should
    reverse his convictions because the State's expert witness gave improper vouching
    testimony. However, in June 2014, this court affirmed Chappell's convictions and
    held that Chappell's improper vouching claim was not preserved for review. State
    v. Chappell, Op. No. 2014-UP-272 (S.C. Ct. App. filed June 30, 2014).
    On November 5, 2014, Chappell filed a PCR application, claiming he received
    ineffective assistance of counsel because his trial counsel failed to object when the
    State's expert gave improper bolstering testimony. The PCR court held an
    evidentiary hearing on December 17, 2015. In an order dated January 21, 2016,
    the PCR court dismissed Chappell's application, finding the State's expert did not
    make any improper vouching statements. In May 2018, this court granted a writ of
    certiorari to review the PCR court's ruling.
    At trial, the nine-year-old victim testified her grandmother's former boyfriend,
    Chappell, had sexually abused her several times when she and her siblings visited
    her grandmother's home.2 She alleged that Chappell touched her "private" and
    "bottom" with his hands and mouth and sometimes forced her to touch his
    "private." After the victim testified, the jury watched video of a forensic interview
    in which the victim described the abuse and identified Chappell as the perpetrator.
    The court then held a hearing to determine the admissibility of testimony from the
    State's expert witness, Ms. Shauna Galloway-Williams. During voir dire,
    Galloway-Williams testified that she had never interviewed the victim and had not
    seen the video of the victim's forensic interview. Over trial counsel's objection, the
    1
    The trial court sentenced Chappell to life imprisonment for the first-degree
    criminal sexual conduct with a minor and a concurrent term of fifteen years'
    imprisonment for the lewd act upon a child.
    2
    The victim disclosed the sexual abuse in March 2010. She was seven years old.
    court qualified Galloway-Williams as an expert in child sexual abuse and
    treatment.
    On direct examination, Galloway-Williams testified to why children who are
    victims of sexual abuse might not report the abuse right away. Then, without
    objection from trial counsel, the following exchange occurred between the
    prosecutor and Galloway-Williams:
    Q: . . . Do children lie?
    A: Yes.
    Q: Okay. Do children lie about things like – of a sexual
    nature or abuse? And can you tell us the dynamics of
    lying and sexual abuse?
    A: Children lie. Adults lie. But children are not
    sophisticated liars. And what I mean by that is they
    really – you know, children, generally, lie to keep
    themselves out of trouble, you know. If you ask them if
    they ate the cookie and they have crumbs on their face,
    and they say, no, I didn't eat the cookie, that kind of lie.
    Children don't often lie about sexual abuse incidents.
    They don't often lie about things that are beyond their
    real scope of knowledge.
    Chappell argues his trial counsel was ineffective for failing to object when
    Galloway-Williams improperly bolstered the victim's credibility by testifying,
    "Children don't often lie about sexual abuse incidents."
    STANDARD OF REVIEW
    PCR applicants have the burden of proving their allegations by a preponderance of
    the evidence. Tappeiner v. State, 
    416 S.C. 239
    , 248, 
    785 S.E.2d 471
    , 476 (2016).
    "[T]his [c]ourt will uphold the PCR court's factual findings if there is any evidence
    of probative value in the record to support them." Thompson v. State, 
    423 S.C. 235
    , 239, 
    814 S.E.2d 487
    , 489 (2018), reh'g denied, (June 12, 2018). This court
    reviews questions of law de novo and will reverse if the PCR court's decision is
    controlled by an error of law. Smalls v. State, 
    422 S.C. 174
    , 180–81, 
    810 S.E.2d 836
    , 839 (2018), reh'g denied, (March 29, 2018).
    INEFFECTIVE ASSISTANCE OF COUNSEL
    When reviewing a claim for ineffective assistance of counsel, the "court proceeds
    from the rebuttable presumption that counsel 'rendered adequate assistance and
    made all significant decisions in the exercise of reasonable professional
    judgment.'" Smith v. State, 
    386 S.C. 562
    , 567, 
    689 S.E.2d 629
    , 632 (2010)
    (quoting Strickland v. Washington, 
    466 U.S. 668
    , 690 (1984)). To rebut this
    presumption and succeed on an ineffective assistance claim, a PCR applicant must
    show (1) trial counsel's performance was deficient, and (2) trial counsel's deficient
    performance prejudiced the outcome of the trial. 
    Strickland, 466 U.S. at 687
    .
    A. Deficient Performance
    Chappell argues his trial counsel's performance was deficient because she did not
    object to improper bolstering testimony. "To prove trial counsel's performance
    was deficient, a[] [PCR] applicant must show '[trial] counsel's representation fell
    below an objective standard of reasonableness.'" 
    Smalls, 422 S.C. at 181
    , 810
    S.E.2d at 840 (quoting Williams v. State, 
    363 S.C. 341
    , 343, 
    611 S.E.2d 232
    , 233
    (2005)). Thus, this court will find trial counsel's failure to object was deficient
    performance only if it was unreasonable under the prevailing professional norms at
    the time of trial. 
    Strickland, 466 U.S. at 688
    .
    1.   Improper Bolstering Testimony
    The PCR court found Galloway-Williams' testimony did not contain any vouching
    statements. Chappell argues Galloway-Williams improperly vouched for and
    bolstered the victim's credibility by testifying, "Children don't often lie about
    sexual abuse incidents." We agree with Chappell.
    "The assessment of witness credibility is within the exclusive province of the jury."
    State v. McKerley, 
    397 S.C. 461
    , 464, 
    725 S.E.2d 139
    , 141 (Ct. App. 2012).
    Therefore, "even though experts are permitted to give an opinion, they may not
    offer an opinion regarding the credibility of others." State v. Kromah, 
    401 S.C. 340
    , 358, 
    737 S.E.2d 490
    , 499 (2013). Moreover, a witness "may not . . . give
    testimony that improperly bolsters the credibility of the victim." Briggs v. State,
    
    421 S.C. 316
    , 323, 
    806 S.E.2d 713
    , 717 (2017).
    Improper bolstering is "testimony that indicates the witness believes the victim, but
    does not serve some other valid purpose." 
    Id. at 325,
    806 S.E.2d at 718. Improper
    bolstering also occurs when a witness testifies for the purpose of informing the jury
    that the witness believes the victim, or when there is no other way to interpret the
    testimony other than to mean the witness believes the victim is telling the truth. 
    Id. at 324,
    806 S.E.2d at 717; State v. Jennings, 
    394 S.C. 473
    , 480, 
    716 S.E.2d 91
    , 94
    (2011); 
    McKerley, 397 S.C. at 465
    , 725 S.E.2d at 142. However, an expert's
    testimony is not improper bolstering "when the expert witness gives no indication
    about the victim's veracity . . . ." State v. Perry, 
    420 S.C. 643
    , 663, 
    803 S.E.2d 899
    , 910 (Ct. App. 2017), cert. granted, (April 19, 2018).
    In support of his ineffective assistance claim, Chappell cites several improper
    bolstering cases involving a witness who interviewed or treated the victim before
    trial. See State v. Chavis, 
    412 S.C. 101
    , 108, 
    771 S.E.2d 336
    , 340 (2015) (finding
    a forensic interviewer improperly bolstered the victim's credibility when she
    testified that she recommended the defendant not be allowed around the victim);
    
    Kromah, 401 S.C. at 359
    , 737 S.E.2d at 500 (stating a forensic interviewer's
    testimony her interview with the victim led to a "compelling finding" of abuse was
    improper bolstering because it was equivalent to stating the victim was telling the
    truth); 
    Jennings, 394 S.C. at 480
    , 716 S.E.2d at 94 (finding a forensic interviewer
    improperly bolstered the victim's credibility by noting in her report that the victims
    "provide[d] a compelling disclosure of abuse . . ."); 
    Smith, 386 S.C. at 564
    , 
    568, 689 S.E.2d at 631
    , 633 (stating a forensic interviewer improperly bolstered the
    victim's credibility by testifying that the victim was believable and had no reason
    to lie); State v. Dawkins, 
    297 S.C. 386
    , 393–94, 
    377 S.E.2d 298
    , 302 (1989)
    (stating the victim's treating psychiatrist improperly bolstered the victim's
    credibility by testifying that the victim's symptoms were genuine); State v.
    Dempsey, 
    340 S.C. 565
    , 569–71, 
    532 S.E.2d 306
    , 308–09 (Ct. App. 2000) (finding
    the victim's counselor improperly vouched for the victim's credibility by testifying
    that ninety-five to ninety-nine percent of allegations of child sexual abuse are true).
    Although we find these cases informative, we note that Galloway-Williams was an
    independent expert who had no contact with the victim before trial.
    This court first considered whether an independent expert's testimony was
    improper bolstering in State v. Brown, 
    411 S.C. 332
    , 
    768 S.E.2d 246
    (Ct. App.
    2015), abrogated on other grounds by State v. Jones, 
    423 S.C. 631
    , 
    817 S.E.2d 268
    (2018). There, the independent expert testified regarding the general behavioral
    characteristics of child sexual abuse victims. 
    Id. at 345,
    768 S.E.2d at 253. The
    court held there was no improper bolstering testimony because the independent
    expert "(1) [did] not testify[] as a forensic interviewer, (2) never interviewed the
    victims, (3) did not prepare a report for her testimony, (4) did not express an
    opinion or belief regarding the credibility of child sex[ual] abuse victims'
    allegations, and (5) did not express an opinion regarding the credibility of the
    minor victims in th[e] case." 
    Id. at 345,
    768 S.E.2d at 252–53.
    Later, in State v. Anderson, the supreme court warned that the State "runs the risk
    that the expert will vouch for the alleged victim's credibility" when it calls an
    expert who interviewed or treated the victim before trial. 
    413 S.C. 212
    , 218–19,
    
    776 S.E.2d 76
    , 79 (2015). The court advised, "[t]he better practice[] . . . is . . . to
    call an independent expert." 
    Id. at 218,
    776 S.E.2d at 79.
    Since Brown and Anderson, our supreme court has considered whether the
    testimony of an independent expert was improper bolstering and held that an
    independent expert does not improperly bolster the victim's credibility by testifying
    to only general behavioral characteristics of child sexual abuse victims. See State
    v. Cartwright, 
    425 S.C. 81
    , 96–97, 
    819 S.E.2d 756
    , 764 (2018) (finding the
    independent expert's testimony was not improper bolstering because she testified in
    general terms and "never interviewed the victims and never stated she believed the
    victims were telling the truth"); 
    Jones, 423 S.C. at 637
    n.2, 817 S.E.2d at 271 
    n.2
    (finding the independent expert's testimony was not improper bolstering because
    she gave only "generalized testimony" and did not "evaluate or interview the
    victims").
    As an initial matter, we disagree with the State's claim that Galloway-Williams'
    testimony was not improper bolstering simply because she was an independent
    expert. Instead, the testimony of an independent expert, like the testimony of any
    witness, is improper bolstering if (1) the witness directly states an opinion about
    the victim's credibility, (2) the sole purpose of the testimony is to convey the
    witness's opinion about the victim's credibility, or (3) there is no way to interpret
    the testimony other than to mean the witness believes the victim is telling the truth.
    Briggs, 421 S.C. at 
    325, 806 S.E.2d at 718
    ; 
    Jennings, 394 S.C. at 480
    , 716 S.E.2d
    at 94; 
    McKerley, 397 S.C. at 465
    , 725 S.E.2d at 142.
    The State also argues Galloway-Williams' testimony was not improper bolstering
    because she did not indicate that the victim was telling the truth and gave only
    general testimony about the behavior of child sexual abuse victims. We disagree.
    We note that much of Galloway-Williams' testimony was proper general
    behavioral testimony necessary to explain the often unexpected behavior of child
    sexual abuse victims. See, e.g., 
    Jones, 423 S.C. at 636
    , 817 S.E.2d at 271 ("[T]he
    law in South Carolina is settled: behavioral characteristics of sex[ual] abuse
    victims is an area of specialized knowledge where expert testimony may be
    utilized."). We find, however, that Galloway-Williams improperly commented on
    the victim's credibility when she testified, "Children don't often lie about sexual
    abuse incidents," because a comment on the credibility of a class of persons to
    which the victim belongs is a comment on the credibility of the victim. See
    Wiseman v. State, 
    394 S.W.3d 582
    , 586–87 (Tex. App. 2012) ("An expert who
    testifies that a class of persons to which the victim belongs is truthful is essentially
    telling the jury that they can believe the victim in the instant case as well." (quoting
    Yount v. State, 
    872 S.W.2d 706
    , 711 (Tex. Crim. App. 1993) (en banc))); 
    id. at 586
    ("[It] is settled that an expert cannot give an opinion as to whether a person—or a
    class of persons to which the [victim] belongs—is truthful." ).
    Galloway-Williams' statement not only had the effect of improperly bolstering the
    victim's credibility; it also improperly invaded the province of the jury to
    determine the only issue in this case: whether Chappell sexually abused the victim.
    See 
    McKerley, 397 S.C. at 464
    , 725 S.E.2d at 141 ("The assessment of witness
    credibility is within the exclusive province of the jury."). Further, the State offered
    no permissible purpose for this testimony, and we see none. Thus, we find
    Galloway-Williams' statement cannot reasonably be interpreted to have served any
    purpose other than to improperly bolster the victim's credibility. Briggs, 421 S.C.
    at 
    325, 806 S.E.2d at 718
    (stating improper bolstering testimony "indicates the
    witness believes the victim, but does not serve some other valid purpose").
    Accordingly, we find the PCR court erred in finding Galloway-Williams' testimony
    contained no vouching statements.
    The dissent would affirm Chappell's conviction because it would find that
    Galloway-Williams' statement was proper testimony regarding a general
    behavioral characteristic of child sexual abuse victims. But the practical result of
    Galloway-Williams' statement that "Children don't often lie about sexual abuse
    incidents" was to convey to the jury that the victim's allegations must be true and
    to encourage the jury to supplant their own credibility determination with that of
    Galloway-Williams. Both results are impermissible; thus, the statement was
    improper.
    2.   Law at the Time of Trial
    The State alternatively argues that under the law existing at the time of trial,
    Chappell's trial counsel could not have known to object to Galloway-Williams'
    statement as improper bolstering. We disagree.
    For an ineffective assistance claim, the PCR court must "determine whether
    counsel was ineffective at the time of the alleged error." Pantovich v. State, 
    427 S.C. 555
    , 562–63, 
    832 S.E.2d 596
    , 600 (2019), reh'g denied, (September 27,
    2019). Thus, the court must consider the law as it existed at the time of trial and
    "not as it has evolved today . . . ." 
    Id. at 564,
    832 S.E.2d at 601. Accordingly, trial
    counsel will not be found deficient for failing "to be clairvoyant or anticipate
    changes in the law . . . ." Gilmore v. State, 
    314 S.C. 453
    , 457, 
    445 S.E.2d 454
    , 456
    (1994), overruled on other grounds by Brightman v. State, 
    336 S.C. 348
    , 
    520 S.E.2d 614
    (1999).
    Chappell's trial was held in August 2012. At that time, our courts had not yet
    considered an improper bolstering case involving an independent expert. But as
    the State conceded at oral argument, in 2015, when this court decided the first
    improper bolstering case involving an independent expert, the court did not
    establish a new legal principle or change the existing law.3 See 
    Brown, 411 S.C. at 332
    , 768 S.E.2d at 246. Instead, the Brown court applied the existing law to a new
    set of facts. Accordingly, we find the law at the time of Chappell's trial indicated
    an independent expert, like any other witness, may not testify whether another
    witness is telling the truth. See 
    McKerley, 397 S.C. at 464
    , 725 S.E.2d at 141
    ("[W]itnesses are generally not allowed to testify whether another witness is telling
    the truth."); see also Briggs, 421 S.C. at 
    324, 806 S.E.2d at 717
    ("[A] witness may
    not give an opinion for the purpose of conveying to the jury . . . that [the witness]
    believes the victim."); 
    Jennings, 394 S.C. at 480
    , 716 S.E.2d at 94 ("For an expert
    to comment on the veracity of a child's accusations of sexual abuse is improper.");
    
    McKerley, 397 S.C. at 464
    , 725 S.E.2d at 141 ("The assessment of witness
    credibility is within the exclusive province of the jury."); State v. Hill, 
    394 S.C. 280
    , 294, 
    715 S.E.2d 368
    , 376 (Ct. App. 2011), overruled on other grounds by
    State v. Stukes, 
    416 S.C. 493
    , 
    787 S.E.2d 480
    (2016) ("The law is clear that it is
    improper for a witness to give testimony as to his or her opinion about the
    credibility of a child victim in a sexual abuse matter."). Thus, Chappell's trial
    counsel should have known to object when Galloway-Williams testified, "Children
    don't often lie about sexual abuse incidents." Accordingly, we find the PCR court
    erred in finding Chappell's trial counsel was not deficient for failing to object.
    B.   Prejudice
    Chappell argues he was prejudiced by trial counsel's failure to object to improper
    bolstering testimony because the outcome of his trial hinged on the jury's
    assessment of the victim's credibility. We agree.
    3
    At oral argument, the State asserted, "The Brown case [wa]s not necessarily a
    change in law as much as it [wa]s an application of the vouching line of cases to a
    new factual situation."
    In an ineffective assistance case, "trial counsel's deficient failure to object to
    [improper bolstering] testimony does not remove a[] [PCR] applicant's burden to
    prove prejudice." 
    Thompson, 423 S.C. at 246
    , 814 S.E.2d at 492. To establish
    prejudice, a PCR applicant must show "there is a reasonable probability that, but
    for [trial] counsel's [deficient performance], the result of the trial would have been
    different." Ard v. Catoe, 
    372 S.C. 318
    , 331, 
    642 S.E.2d 590
    , 596 (2007). "A
    reasonable probability is a probability sufficient to undermine confidence in the
    outcome." 
    Strickland, 466 U.S. at 694
    .
    "The determination whether a bolstering error [prejudiced the outcome of a trial]
    depends on whether the case turn[ed] on the credibility of the victim." 
    Chavis, 412 S.C. at 110
    , 771 S.E.2d at 341. The outcome of a trial turns on the credibility of
    the victim when the State presents no physical evidence or "relie[s] solely upon the
    victim's testimony to establish the details of the crime . . . ." 
    Thompson, 423 S.C. at 248
    , 814 S.E.2d at 494; see also Gilchrist v. State, 
    350 S.C. 221
    , 228, 
    565 S.E.2d 281
    , 285 (2002) (finding a PCR applicant was prejudiced by improper
    bolstering testimony because "believing [the bolstered witness] was the only way
    the jury could convict . . . .").
    Here, we find the outcome of Chappell's trial hinged on the jury's assessment of the
    victim's credibility because the State presented no physical evidence, and the only
    evidence against Chappell was the victim's uncorroborated testimony. See
    
    Gilchrist, 350 S.C. at 228
    , 565 S.E.2d at 285 (stating the witness's credibility was
    essential to the decision to convict because the witness's testimony was the only
    evidence of guilt). Because the outcome hinged on the victim's credibility, we find
    there is a reasonable probability that the outcome of Chappell's trial would have
    been different had trial counsel objected when Galloway-Williams improperly
    bolstered the victim's credibility.
    The dissent states that even if Galloway-Williams' statement that "Children don't
    often lie about sexual abuse incidents" was improper bolstering, it would find
    Chappell failed to show the outcome of his trial would have been different had trial
    counsel objected. However, our courts have found improper bolstering testimony
    was prejudicial in every South Carolina case in which the State presented no
    physical evidence of the defendant's guilt or relied solely on the victim's testimony
    to establish the details of the crime. See 
    Thompson, 423 S.C. at 249
    , 814 S.E.2d at
    494 (stating the PCR applicant was prejudiced by improper bolstering because the
    outcome of the trial "hinged on [the] [v]ictim's credibility, and there was otherwise
    an absence of overwhelming evidence of [the applicant]'s guilt"); 
    Briggs, 421 S.C. at 333
    –34, 806 S.E.2d at 722–23 (finding improper bolstering testimony prejudiced
    the PCR applicant's trial because there was no physical evidence any sexual abuse
    occurred); 
    Anderson, 413 S.C. at 219
    –21, 776 S.E.2d at 79–81 (finding improper
    bolstering testimony constituted reversible error because the trial turned solely on
    the credibility of the victim and there was no physical evidence of abuse);
    
    Jennings, 394 S.C. at 480
    , 716 S.E.2d at 95 ("Because the children's credibility
    was the most critical determination of this case, we find the admission of the
    [forensic interviewer's] written reports was not harmless."); 
    Smith, 386 S.C. at 569
    ,
    689 S.E.2d at 633 (finding the PCR applicant was prejudiced by improper
    bolstering testimony because "the outcome of the case hinged on the [v]ictim's
    credibility regarding identification of the perpetrator, and there was otherwise an
    absence of overwhelming evidence of [] guilt."); 
    Gilchrist, 350 S.C. at 228
    , 565
    S.E.2d at 285 (finding a PCR applicant was prejudiced by improper bolstering
    testimony because "believing [the bolstered witness] was the only way the jury
    could convict . . ."); State v. Barrett, 
    299 S.C. 485
    , 487, 
    386 S.E.2d 242
    , 243
    (1989) (finding the admission of improper bolstering testimony mandated reversal
    because "the State relied solely upon [the] [v]ictim's testimony to establish the
    details of the crime and the identity of the perpetrator"). We see no reason to
    depart from those rulings.
    CONCLUSION
    For the foregoing reasons, we find evidence does not support the PCR court's
    dismissal of Chappell's PCR application. We reverse and remand for a new trial.
    REVERSED.
    GEATHERS, J., concurs.
    SHORT, J., dissenting: Respectfully, I dissent and would affirm the PCR
    court. First, I find the State's independent expert's statements were not
    comments on the victim's credibility but were statements regarding a general
    behavioral characteristic of child sexual abuse victims; thus, there was no
    bolstering. Even if the comments were bolstering, I find Chappell has failed
    to establish the prejudice necessary for relief in a PCR action, which requires
    a showing that the result of the trial would have been different. In this case,
    although there was no physical evidence of abuse, the State produced a
    forensic video interview of the victim, the victim's own testimony before the
    jury, and the mother's testimony. In my view, the jury would have reached
    the same conclusion with or without the expert's statements. Thus, Chappell
    is unable to establish prejudice. I would affirm.