State v. Baymon

Judge WALKEK

dissenting.

The majority concludes that Dr. Everett’s statements that she had “not picked up on anything” to suggest that someone had “coached” Christina were inadmissible because they related directly to Christina’s credibility. I believe, however, that there is a distinction between testimony from a witness such as Dr. Everett that a child victim was truthful or untruthful, which is inadmissible, and testimony that the expert discerned no evidence that the child had been “coached.” In this case, Dr. Everett’s testimony concerned the question of whether, in her opinion, there was any evidence that some individual might have told Christina what to say. In my opinion, the fact that a child may have been “coached” does not necessarily indicate that the child was more or less truthful pursuant to the instructions of that “coach,” but a child such as Christina who is knowledgeable of the difference between the truth and a lie may speak truthfully or untruthfully of her own volition. Thus, I cannot conclude that these statements by Dr. Everett related directly to Christina’s credibility. Additionally, Dr. Everett had been extensively cross-examined by defendant and the responses here were on redirect examination. In any event, I find no prejudicial error and would uphold the trial court’s admission of these statements into evidence.

Additionally, the majority holds that the trial court erred in allowing Christina’s teacher, Susan Everett, to testify as to specific instances of Christina’s conduct, which it concludes tended to establish Christina’s truthfulness. Ms. Everett testified over defendant’s objections:

Q. Have you had an opportunity to, during the course of a year, to observe her in terms of relating factual happenings to you?

A. There have been many times we talk a lot about what we do over the weekends, they relate things to me, and she would come and say things like she had been to church, and in a couple of weeks, she’d come and she would be singing a song I know she had learned in church, so I knew she hadn’t made that up.

She might would come she had been shopping. She’d have on some new clothes so I knew that it was true.

She could go outside, they go outside with my assistant, and she could come in and tell me things that went on and I know that they are true.

I have never had any reason to doubt that what she tells me is not true.

In the context of this question, I do not agree that Ms. Everett’s testimony constituted specific instances of Christina’s conduct elicited for the purpose of bolstering Christina’s credibility, in violation of Rule 608, North Carolina Rules of Evidence. The question posed to Ms. Everett made no reference to Christina’s veracity and did not seek Ms. Everett’s opinion on this matter. Instead, I find Ms. Everett’s testimony to bear more directly on Christina’s ability to communicate and her level of understanding, not her veracity. The instances recited by Ms. Everett were given as examples in order for her to better explain Christina’s ability to communicate with and understand others, and as evidence that Christina functioned better than her I.Q. of forty-eight would indicate, all of which were in issue and highly relevant since Christina is classified as mentally handicapped.

Therefore, having concluded there was no prejudicial error in the trial court’s admission of this testimony, I dissent.