Opinion
No. COA10-1007
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgments entered 25 February 2010 by Judge A. Robinson Hassell in Gaston County Superior Court. Heard in the Court of Appeals 27 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Brenda Menard, for the State. Bryan Gates for defendant appellant.
Gaston County Nos. 09CRS002178; 051051; 051052.
On 25 February 2010, a jury convicted Randolph Alexander Watterson ("defendant") of one count of first-degree statutory sexual offense and two counts of first-degree statutory rape. On appeal, defendant contends the trial court erred in (1) finding a violation of a witness sequestration order and (2) excluding the testimony of three witnesses as a sanction for the violation of the witness sequestration order. We find no error.
I. Background
On 2 February 2009, a grand jury indicted defendant for first-degree statutory sexual offense and two counts of first-degree statutory rape. The incidents of sexual abuse for which defendant was indicted involved the daughter of a woman with whom defendant was engaged in a romantic relationship and occurred in 1997, when the victim was approximately six or seven years old. The victim informed her mother, grandmother, and teachers about the abuse.
In 1998, when the victim was approximately seven or eight years old, a child protective services investigator with the Gaston County Department of Social Services ("GCDSS") received a report of the abuse and took the victim to a hospital for examination. The physician's physical examination of the victim revealed injuries consistent with the incidents of sexual abuse related by the victim. GCDSS also forwarded the report of the abuse to the Gaston County Police Department. Shortly after receiving the report from GCDSS, a police detective spoke with the victim about the sexual abuse and received a copy of the results of the physician's medical examination of the victim. After speaking with an assistant in the District Attorney's office about the case, the police detective contacted GCDSS to locate the victim and her family but was informed that the family had moved out of state. No charges were pursued at that time.
Ten years later, in 2008, the State Bureau of Investigation ("SBI") reopened the investigation into the abuse after receiving information of allegations that defendant had raped his seven-year-old daughter. The case was tried by jury on 22 February 2010. At trial, both the State and defense counsel moved for a witness sequestration order. A witness sequestration order was granted, but the State was allowed to keep an investigating SBI agent in the courtroom during the testimony. The trial court did not require separate rooms for the witnesses, nor was supervision of the witnesses required. The trial court ordered counsel for each party to provide an instruction to their witnesses not to discuss the case before they testified.
During the presentation of the defense's case, defendant was his own first witness. Defendant testified regarding a complaint he had made to an SBI Agent regarding alleged police misconduct. Defendant went on to testify about statements made to him by his brother, Jeff Watterson, concerning the report of police misconduct, subject to corroboration when his brother testified.
Jennipher Houser was called as the next defense witness. During Ms. Houser's testimony, she revealed that she had called law enforcement in order to turn in defendant for stealing from coin-operated machines. At the time she spoke with law enforcement, she also notified them that defendant had been accused by the victim of rape. A brief recess followed Ms. Houser's testimony.
Following the break, the prosecution stated that Ms. Houser had been "clearly mingling and talking with" three witnesses for the defense who had not yet testified: Jason Blackman, Jeff Watterson, and Christine Davis. The trial court heard arguments from counsel for both sides regarding the interaction between the witnesses over the break. Defense counsel explained that Ms. Houser was speaking with defense co-counsel approximately ten feet away while defense counsel spoke with the other three witnesses separately to introduce himself. Defense counsel stated that at no time during the interactions was any testimony by any of the witnesses discussed. The prosecution disputed defense counsel's account of the interaction, stating that defense counsel and co-counsel, Ms. Houser, and the other three witnesses were standing around in a circle and were clearly mingling and talking with one another. The trial court refused to put any of the witnesses or counsel on the stand in order to determine what testimony, if any, had been discussed by the witnesses.
After noting that defense counsel had made the request for sequestration of the witnesses, the trial court determined that a violation of the sequestration order had occurred. As a sanction for the violation, the trial court ordered that the three defense witnesses involved — Jason Blackman, Jeff Watterson, and Christine Davis — would not be allowed to testify. Following the order, defense counsel excepted "very strongly" to the determination but did not state a specific basis for the objection nor make a proffer of the excluded testimony. The jury convicted defendant of all three charges. Defendant appeals.
II. Witness Exclusion
Defendant contends that the trial court erred in excluding the testimony of the three defense witnesses as a sanction for a violation of a witness sequestration order. This Court reviews an order excluding witnesses or striking their testimony for an abuse of discretion. State v. Williamson, 122 N.C. App. 229, 233, 468 S.E.2d 840, 844 (1996) ("A ruling on matters involving the sequestration of witnesses is within the sound discretion of the trial judge, and is not reviewable absent a showing of abuse of discretion.").
If an abuse of discretion is found, this Court reviews the error to determine if the error was prejudicial so as to entitle defendant to a new trial. State v. Bagley, 183 N.C. App. 514, 519-20, 644 S.E.2d 615, 619 (2007). In non-constitutional matters, defendant bears the burden of showing that a reasonable possibility exists that a different result would have been reached at the trial if the error had not been committed. N.C. Gen. Stat. § 15A-1443(a)(2009); State v. Hernandez, 188 N.C. App. 193, 204, 655 S.E.2d 426, 433 (2008). Otherwise, the error is harmless. On the other hand, if the alleged error is a constitutional violation, the prosecution is required to establish, beyond a reasonable doubt, that a rational jury would have found the defendant guilty absent the error in order for the error to be harmless. N.C. Gen. Stat. § 15A-1443(b)(2009); In re L.I., ___ N.C. App. ___, ___, 695 S.E.2d 793, 799 (2010).
In the present case, we review the alleged error under the non-constitutional standard, as defense counsel did not state a constitutional basis for his objection at trial. Constitutional arguments not raised at trial cannot be raised for the first time on appeal. State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005). Accordingly, the defendant must show that any error resulting from the trial court's alleged abuse of discretion in excluding the three defense witnesses from testifying was prejudicial in that a reasonable possibility exists that a different result would have been reached had the three excluded witnesses been permitted to testify.
Assuming, arguendo, that the trial court abused its discretion in either finding a violation of the sequestration order or in ordering the three witnesses excluded, defendant is unable to meet his burden of showing prejudicial error. Defendant did not make an offer of proof at trial so we do not know what the three excluded witnesses would have testified had they been permitted to do so. It is well established in this jurisdiction that "`an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had he been permitted to testify.'" State v. Applewhite, 190 N.C. App. 132, 137, 660 S.E.2d 240, 244 (2008) (quoting State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)); see also State v. Dallas, ___ N.C. App. ___, ___, 695 S.E.2d 474, 478-79, disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2010). "While the principles are usually cited in situations where particular testimony of a witness already on the stand is excluded, they apply with equal vigor when the witness is not permitted to testify at all." State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60-61 (1985). Thus, in order to preserve an argument on appeal which relates to the exclusion of witness testimony, the defendant must make an offer of proof so that the substance and significance of the excluded evidence is in the record. Without knowing the essential content or significance of the excluded witness' testimony, this Court cannot ascertain whether prejudicial error occurred at the trial. State v. Jacobs, 363 N.C. 815, 818, 689 S.E.2d 859, 861 (2010).
In the present case, defense counsel only made a general exception to the exclusion of the three defense witnesses at the time of the ruling. Defense counsel stated no constitutional basis for the objection, nor was an offer of proof made to have the excluded witnesses' testimony preserved in the record for review, despite the fact that the three witnesses were present at the courthouse at that time. Nowhere in the record does it appear what the substance of the three excluded witnesses' testimony would be or what matters the three witnesses would address. At best, the record indicates that the testimony of one of the witnesses, Jeff Watterson, would have been cumulative, as it relates to the motivation of the SBI in reopening the case, about which defendant had already testified. This Court will not speculate as to the significance of the excluded testimony of the three witnesses which should have been preserved in the record. State v. Raines, 362 N.C. 1, 20, 653 S.E.2d 126, 138 (2007), cert. denied, ___ U.S. ___, 174 L. Ed. 2d 601 (2009). "`Without a showing of what the excluded testimony would have been, we are unable to say that the exclusion was prejudicial.'" Applewhite, 190 N.C. App. at 138, 660 S.E.2d at 244 (citation omitted).
We note that, while the trial judge has discretion to exclude witnesses from testifying as a sanction for the violation of a sequestration order, such a sanction is the harshest penalty that may be imposed. Because exclusion of defense witnesses impinges upon the right to present a defense, the use of such an extreme sanction should only be imposed when the violation of the sequestration order is equally severe. Alternative sanctions are available to remedy violations of a witness sequestration order, including sanction of the witness, instructions to the jury that they may consider the violation toward the issue of credibility, limiting the scope of the witness' testimony, or permitting broad cross-examination into the alleged violation. See U.S. v. Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (discussing alternative sanctions at the disposal of the trial court for violations of a witness sequestration order). We encourage the trial courts to impose the severe sanction of witness exclusion only with caution in the face of conditions such as are presented in this case.
III. Conclusion
We hold that the record is insufficient to establish what the essential substance and significance of the three excluded defense witnesses' testimony would have been. Without a showing of what the excluded testimony would have been, we are unable to say that the exclusion was prejudicial.
No error.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).