Opinion
No. 07-1040.
Filed March 18, 2008.
Harnett County No. 06CRS052420.
Appeal by defendant from judgments entered 1 March 2007 by Judge Richard T. Brown in Harnett County Superior Court. Heard in the Court of Appeals 21 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Calloway-Durham, for the State. M. Alexander Charns, for defendant-appellant.
James Howard McKoy ("defendant") appeals from judgments entered after a jury found him to be guilty of: (1) first-degree rape of a child pursuant to N.C. Gen. Stat. § 14-27.2(a)(1); and (2) taking indecent liberties with a child pursuant to N.C. Gen. Stat. § 14-202.1(a)(1) and (2). We find no prejudicial error.
I. Background
On 9 April 2006, S.D.B., age twelve, was at defendant's residence following a funeral. S.D.B. was defendant's niece by marriage. At approximately 3:00 p.m., S.D.B. excused herself to go to the bathroom to change her clothes. While S.D.B. was in the bathroom, defendant burst through the door, put a knife to her throat, told her to lie down, and inserted his penis into her vagina. During the attack, defendant threatened to kill S.D.B. if she told her father about the incident.
On 11 April 2006, S.D.B.'s guidance counselor contacted the Dunn Police Department. Detective Regina Autry ("Detective Autry") responded to the call and interviewed S.D.B. at Dunn Middle School. S.D.B. was subsequently transferred to a hospital and a rape kit was administered.
On 13 April 2006, defendant was arrested and transported to the Dunn Police Department. Detective David Whittenton ("Detective Whittenton") and Detective Autry read defendant his Miranda rights and interviewed him. Initially, defendant vehemently denied having any sexual contact with S.D.B. After approximately one hour, defendant admitted to having consensual sexual intercourse with S.D.B., but denied he had raped her.
On 8 May 2006, defendant was indicted for first-degree statutory rape and taking indecent liberties with a child. On 1 March 2007, a jury found defendant to be guilty of both charges. The trial court determined defendant was a prior record level I and sentenced defendant to a minimum of 240 months and a maximum of 297 months imprisonment for first-degree rape. Defendant was also sentenced to a consecutive term of a minimum of sixteen months and a maximum of twenty months imprisonment for taking indecent liberties with a child. Defendant appeals.
II. Issues
Defendant argues the trial court erred by: (1) denying defendant's multiple motions for a mistrial and (2) allowing the State's expert witness to testify regarding the truthfulness of the victim's prior statements. Defendant also argues he received ineffective assistance of counsel.
III. Motions for a Mistrial
Defendant argues the trial court erred by denying his motions for a mistrial when: (1) a prospective juror cried during jury selection; (2) the victim's mother testified she told S.D.B. not to worry because defendant was in jail; and (3) Detective Whittenton testified defendant had lost custody of an adopted child over allegations of sexual activity.
A. Standard of Review
The standard of review for denial of a mistrial is whether the trial court abused its discretion. State v. Hagans, 177 N.C. App. 17, 25, 628 S.E.2d 776, 782 (2006) (citing State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992)). "[D]efendant must show the trial court's ruling was `so arbitrary that it could not have been the result of a reasoned decision' to warrant a new trial." Id. (quoting Upchurch, 332 N.C. at 453, 421 S.E.2d at 585).
B. Analysis
N.C. Gen. Stat. § 15A-1061 (2005) states:
Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.
1. Prospective Juror
Defendant argues the trial court erred by denying defendant's motion for a mistrial when a prospective juror, who had been a rape victim, cried during jury selection. We disagree.
Our Supreme Court has addressed and expressly rejected defendant's argument. In State v. Anderson, the defendant argued that the jury pool had been tainted when a prospective juror "`broke down' and wept upon recalling her experience as a rape victim." 355 N.C. 136, 148, 558 S.E.2d 87, 95 (2002). Our Supreme Court held:
defendant's argument would require individual voir dire in every . . . case to avoid the potential of a prospective juror saying something unexpected. We conclude that defendant has failed to demonstrate any prejudice in the manner in which the jury was selected and how the trial court abused its discretion in denying defendant's motion.
Id. (citation and quotation omitted).
As in Anderson, defendant has failed to make any showing that the trial court abused its discretion by denying defendant's motion for a mistrial when a prospective juror cried during jury selection. 355 N.C. at 148, 558 S.E.2d at 95.
2. Testimonial Evidence
Defendant argues the trial court erred by denying defendant's motion for a mistrial when: (1) the victim's mother testified she told S.D.B. defendant was in jail and was not going to "get her" and (2) Detective Whittenton testified defendant stated he had lost custody of an adopted child because of allegations of sexual activity. We disagree. Defendant immediately objected to the challenged testimony. The trial court sustained both objections and granted defendant's motions to strike. The trial court instructed the jury that these statements were inadmissible and were not to be considered by the jury for any purpose.
"It is well established in this jurisdiction that if the court properly withdraws incompetent evidence from jury consideration, and instructs the jury not to consider it, this cures error in its admission in all but exceptional circumstances." State v. Miller, 26 N.C. App. 190, 192, 215 S.E.2d 181, 182 (1975) (citing State v. Carnes, 18 N.C. App. 19, 195 S.E.2d 588 (1973)). Defendant has not made any showing that he was in fact prejudiced by the testimony, after this testimony was stricken and curative jury instructions were given. The trial court did not err by denying defendant's motions for a mistrial based upon testimonial evidence that was objected to and stricken from the record. This assignment of error is overruled.
IV. Expert Testimony
Defendant argues it was plain error for the trial court to allow an expert witness to testify concerning the truthfulness of prior statements made by the victim.
A. Standard of Review
Plain error review applies only to challenges of jury instructions and to evidentiary matters. State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Under plain error review, "the appellate court must be convinced that absent the error the jury probably would have reached a different verdict." State v. Hartman, 90 N.C. App. 379, 383, 368 S.E.2d 396, 399 (1988) (citing State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).
B. Analysis
Rule 702(a) of the North Carolina Rules of Evidence provides, "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702(a) (2005). The general rule is an expert's opinion testimony may not be used to bolster the credibility of a witness. State v. Heath, 316 N.C. 337, 342, 341 S.E.2d 565, 568 (1986).
"In a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim's credibility." State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (emphasis original) (citation omitted).
At defendant's trial, Dr. Laura Gutman ("Dr. Gutman") qualified and was accepted by the court as an expert witness in child maltreatment, pediatric infectious diseases, and pediatric sexually transmitted diseases. Dr. Gutman testified regarding the results of a medical evaluation she conducted on S.D.B. on 16 May 2006.
Dr. Gutman's physical examination revealed S.D.B. had contracted bacterial vaginosis, a sexually transmitted disease, in addition to chlamydia trichomycosis. Dr. Gutman also found a notch in S.D.B.'s hymen between two and three millimeters in depth and opined the notch was likely to have resulted from "penetrative trauma of the vaginal area."
As part of the evaluation, Dr. Gutman also interviewed S.D.B. and her mother. During S.D.B.'s medical evaluation interview, S.D.B. gave descriptive accounts of: (1) defendant's heavy breathing and change in voice during the assault; (2) how it felt "different" when she urinated after the assault; and (3) defendant's penis feeling "hot" and changing from "soft to hard." Dr. Gutman testified the major sensory details S.D.B. provided while reciting her version of the events were "very credible." Dr. Gutman stated, "[t]hat's [the] sort of thing that — children don't make up unless its actually happened to them." Based on her medical evaluation and the sensory details provided by S.D.B., Dr. Gutman testified she felt strongly that S.D.B. had been sexually assaulted. Defendant failed to object to this testimony.
Substantial physical evidence supported Dr. Gutman's diagnosis S.D.B. had "in fact" experienced a sexual assault. Id. However, Dr. Gutman's testimony that: (1) S.D.B.'s level of sensory detail was "credible" and (2) S.D.B. would not "make up" the assault unless it actually happened to her, impermissibly bolstered the victim's credibility. Heath, 316 N.C. at 342, 341 S.E.2d at 568. See State v. Blizzard, 169 N.C. App 285, 293-94, 610 S.E.2d 245, 251-52 (2005) (holding the trial court committed error in admitting a medical expert witness's opinion testimony that the victim was "believable" in her allegation that defendant raped her).
Having found portions of Dr. Gutman's expert testimony impermissibly bolstered the victim's credibility, we consider whether this admission rose to the level of plain error. At trial, the State presented other testimonial evidence from S.D.B.'s mother, Detective Whittenton, Detective Autry, and Dr. Gutman, each of which detailed very similar accounts of the events that allegedly occurred at defendant's residence on 9 April 2006. Detective Whittenton also testified defendant admitted to having sexual intercourse with his twelve-year-old niece. In light of this other testimonial evidence, we hold the jury would not have reached a different verdict if Dr. Gutman's impermissible testimony had been excluded. Hartman, 90 N.C. App. at 383, 368 S.E.2d at 399. This assignment of error is overruled.
V. Ineffective Assistance of Counsel
Defendant argues he received ineffective assistance of counsel because his defense counsel failed to request recordation of jury selection, bench conferences, and opening and closing arguments. We disagree.
"To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense." State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)), cert. denied, ___ U.S. ___, 166 L. Ed. 2d 116 (2006).
N.C. Gen. Stat. § 15A-1241(a) (2005) specifically exempts certain items from mandatory recordation including: (1) jury selection in non-capital cases; (2) opening and closing statements to the jury; and (3) arguments of counsel on questions of law. Our Supreme Court and this Court have repeatedly held a defense counsel's failure to request recordation of items exempted from the recording statute does not constitute ineffective assistance of counsel. State v. Hardison, 326 N.C. 646, 661-62, 392 S.E.2d 364, 373 (1990); State v. Sutton, 169 N.C. App. 90, 94-95, 609 S.E.2d 270, 273-74, disc. rev. denied, 359 N.C. 642, 617 S.E.2d 658 (2005); State v. Price, 170 N.C. App. 57, 67, 611 S.E.2d 891, 898 (2005); State v. Crawford, 163 N.C. App. 122, 128-29, 592 S.E.2d 719, 723-24, disc. rev. denied, 358 N.C. 734, 601 S.E.2d 867 (2004). This assignment of error is overruled.
VI. Conclusion
The trial court did not abuse its discretion by denying defendant's multiple motions for a mistrial. The trial court's admission of Dr. Gutman's impermissible opinion testimony regarding S.D.B.'s credibility did not constitute plain error to award defendant a new trial. Defense counsel's failure to request recordation of non-mandatory items under the recording statute does not constitute ineffective assistance of counsel. Defendant received a fair trial, free from prejudicial errors he preserved, assigned, and argued.
No prejudicial error.
Judges GEER and STROUD concur.
Report per Rule 30(e).