State v. Deveaux ( 2014 )


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  • THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
    CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
    EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
    THE STATE OF SOUTH CAROLINA
    In The Court of Appeals
    The State, Respondent,
    v.
    Charles M. Deveaux, Appellant.
    Appellate Case No. 2011-202734
    Appeal From Richland County
    G. Thomas Cooper, Jr., Circuit Court Judge
    Unpublished Opinion No. 2014-UP-042
    Heard December 16, 2013 – Filed February 5, 2014
    REVERSED AND REMANDED
    Appellate Defender David Alexander, of Columbia, for
    Appellant.
    Attorney General Alan McCrory Wilson and Assistant
    Attorney General Julie Kate Keeney, both of Columbia,
    for Respondent.
    PER CURIAM: Charles M. Deveaux appeals his conviction for criminal sexual
    conduct with a minor in the first degree. Deveaux contends the circuit court erred
    in: (1) admitting the expert testimony of a forensic interviewer, (2) declining to
    declare a mistrial regarding the forensic interviewer's and the investigating officer's
    testimony, (3) allowing the State to refer to section 16-3-657 of the South Carolina
    Code (2003) and charging this statute to the jury, and (4) declining to declare a
    mistrial regarding an alleged Brady1 violation. We reverse and remand for a new
    trial.
    1.      We find the circuit court erred in admitting the challenged expert testimony
    of the forensic interviewer. "The rules of evidence do not allow witnesses to vouch
    for or offer opinions on the credibility of others, and the work of a forensic
    interviewer, by its very nature, seeks to ascertain whether abuse occurred at all,
    i.e., whether the victim is telling the truth, and to identify the source of the abuse."
    State v. Kromah, 
    401 S.C. 340
    , 357 n.5, 
    737 S.E.2d 490
    , 499 n.5 (2013).
    "[A]lthough an expert's testimony theoretically is to be given no more weight by a
    jury than any other witness, it is an inescapable fact that jurors can have a tendency
    to attach more significance to the testimony of experts." Id. at 357, 
    737 S.E.2d at 499
    . "Further, even though experts are permitted to give an opinion, they may not
    offer an opinion regarding the credibility of others. It is undeniable that the
    primary purpose for calling a 'forensic interviewer' as a witness is to lend
    credibility to the victim's allegations. When this witness is qualified as an expert
    the impermissible harm is compounded." Id. at 358, 
    737 S.E.2d at 499
    . A forensic
    interviewer should avoid making any statement at trial that indirectly vouches for
    the child's believability, any statement to indicate to a jury that the interviewer
    believes the child's allegations in the current matter, or an opinion that the child's
    behavior indicated the child was telling the truth. Id. at 360, 
    737 S.E.2d at 500
    . At
    Deveaux's trial, Daniel Olszewski was qualified as an expert witness in forensic
    interviewing and testified regarding his interviews with the victim. Olszewski
    testified the victim's statements contained details indicating she had not been
    coached; he then described those details and gave his opinion that the victim was
    "better than young children" at providing details of abuse. The victim's testimony
    was the only evidence of abuse presented at trial. The State put forth no physical
    evidence of abuse, nor did any other witnesses testify to having observed the
    abuse. In light of the lack of other evidence presented by the State, the credibility
    of the victim was critical to the jury's determination of Deveaux's innocence or
    guilt. Therefore, we cannot say the improper admission of Olszewski's testimony
    as an expert witness in forensic interviewing was harmless. See id. at 360, 
    737 S.E.2d at 501
     ("An appellate court generally will decline to set aside a conviction
    due to insubstantial errors not affecting the result."); State v. Key, 
    256 S.C. 90
    , 93,
    1
    Brady v. Maryland, 
    373 U.S. 83
     (1963).
    
    180 S.E.2d 888
    , 890 (1971) (holding error is harmless when it "could not
    reasonably have affected the result of the trial"); State v. Watts, 
    321 S.C. 158
    , 165,
    
    467 S.E.2d 272
    , 277 (Ct. App. 1996) ("In applying the harmless error rule, the
    court must be able to declare the error had little, if any, likelihood of having
    changed the result of the trial and the court must be able to declare such belief
    beyond a reasonable doubt.") (citing Chapman v. California, 
    386 U.S. 18
     (1967));
    State v. Ellis, 
    345 S.C. 175
    , 178, 
    547 S.E.2d 490
    , 491 (2001) (finding error was not
    harmless when witness who was erroneously qualified as an expert provided
    improper opinion which went to the heart of the matter); State v. Jennings, 
    394 S.C. 473
    , 480, 
    716 S.E.2d 91
    , 94-95 (2011) (finding circuit court's admission of
    forensic interviewer's reports that vouched for the victims' credibility was not
    harmless when no physical evidence was presented at trial and the victims'
    credibility was the most critical determination of the case).
    2.     Given our decision to reverse and remand for a new trial based on the circuit
    court's improper admission of Olszewski's expert testimony, we need not reach the
    remaining issues. See Futch v. McAllister Towing of Georgetown, Inc., 
    335 S.C. 598
    , 613, 
    518 S.E.2d 591
    , 598 (1999) (finding an appellate court need not address
    remaining issues on appeal when its determination of a prior issue is dispositive).
    REVERSED AND REMANDED.
    SHORT, WILLIAMS, and THOMAS, JJ., concur.
    

Document Info

Docket Number: 2014-UP-042

Filed Date: 2/5/2014

Precedential Status: Non-Precedential

Modified Date: 10/22/2024