NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

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v. ) From Chatham County

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PATRICK S. FIGURED )

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The Webmaster's summary and commentary on this case, along with the appellate decision.

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1. QUESTIONS PRESENTED
2. STATEMENT OF THE CASE
3. STATEMENT OF THE FACTS
4. ARGUMENT
5. I.THE TRIAL COURT ERRED IN ALLOWING WITNESS EVERSON TO TESTIFY THAT DEFENDANT MOLESTED THE PROSECUTING WITNESSES.
6. II.THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON AN ADMISSION.
7. III.THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENTS AGAINST HIM.
8. IV.THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE OPINION TESTIMONY OF WITNESSES EVERSON, ST. CLAIRE, HERMAN-GIDDENS, BERSON AND BOAT ABOUT THE PSYCHOLOGICAL CHARACTERISTICS OF SEXUALLY ABUSED CHILDREN, AND IN NOT LIMITING THE ADMISSION OF THIS TESTIMONY.
9. V.THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
10. CONCLUSION
11. CERTIFICATE OF SERVICE

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QUESTIONS PRESENTED

I. DID THE TRIAL COURT ERR IN ALLOWING WITNESS EVERSON TO TESTIFY THAT DEFENDANT MOLESTED THE PROSECUTING WITNESSES?

II. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY ON AN ADMISSION?

III. DID THE TRIAL COURT ERR IN NOT DISMISSING THE INDICTMENTS AGAINST HIM?

IV. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE THE OPINION TESTIMONY OF WITNESSES BERSON AND BOAT AND IN NOT LIMITING THE ADMISSION OF THIS TESTIMONY?

V. DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION TO DISMISS?

STATEMENT OF THE CASE

Defendant was originally indicted on January 9, 1989 along with Sonya Hill. (Rp. 35) On March 28, 1989, defendant entered a plea of guilty, without admitting guilt. (Rp. 35) Part of the basis for the plea agreement was that the state would drop all charges against Sonya Hill. (Tp. 35) The charges against Sonya Hill were dismissed in April, 1989. In July, 1990, the charges against Sonya Hill were reinstated, in violation of the plea agreement. (Rpp. 14, 36)

In April, 1991, defendant filed a Motion for Appropriate Relief, asking to withdraw his guilty plea for the failure of the state to keep the plea bargain. On August 26, 1991, the Superior Court of Johnston County found that the state had violated the plea arrangement and allowed defendant to withdraw his plea of guilty. The case was transferred to Chatham County.

On March 9, 1992 the state reindicted defendant in superceding bills of indictment for three counts of first degree sexual offense. On March 25, 1992, defendant moved to have the new indictments dismissed for violation of his constitutional right to a speedy trial. The motion was not heard until trial.

The cases were joined for trial, and came to trial before a jury at the September 28, 1992 Criminal Session of the Superior Court for Chatham County, the Honorable Darius B. Herring, Judge Presiding. Defendant was convicted of all charges. He was sentenced to three consecutive terms of life in prison. Defendant appeals from judgments entered October 13, 1992.

STATEMENT OF THE FACTS

A. Summary.

The defendant was charged with molesting a brother and sister at an unlicensed day care. The girl had complained that her vagina was bothering her. The examining physician's at first thought the child was suffering from some vaginal infection, because she had a history of such problems. When she was taken to Duke Medical Center, however, she was examined by a specialist in sexual abuse. Although the girl's vagina was normal, there were abnormalities in her anal exam. Both of the children were interviewed by a social worker, who thought that they had been sexually abused. A third child was also interviewed and thought to have been abused as well. The children were then seen by psychologists, one of whom testified that he concluded that the children were sexually abused by the defendant. See Issue I. During the course of the interviews with the various adults, the children began to say that a "mean man," who was eventually named "Pat" had put things, including a screwdriver and a candle, in their rectums.

B. The State's Evidence.

Jewell and David Blackmon had two children, John Michael and Marsha Michelle. The children were nine and six respectively at the time of trial, but were only five and two at the time in question. (Tp. 284) Ms. Blackmon testified that the children attended an unlicensed day care in the home of Polly Byrd ("Miss Polly" or "Granny Polly") in 1988. (Tp. 286) Ms. Blackmon testified that Miss Polly kept other children at her house, including Sonya Hill's eleven year old daughter, Brooks.[1] (Tp. 304)

Ms. Blackmon testified that Sonya Hill, Ms. Byrd's adult daughter, lived in the house. Defendant was there occasionally. (Tp. 287) There were other men sometimes at Ms. Polly's when the children were there. (Tp. 309) Ms. Blackmon testified that defendant drove a white Corvette that summer. (Tp. 307)

Ms. Blackmon testified that, in July, 1988, Michelle complained that her "lulu" [vagina] hurt. (Tp. 292) Ms. Blackmon thought this was a symptom of some sort of infection. (Tp. 293) She took Michelle to the doctor several times beginning in August, but the complaints continued. (Tp. 294)

In October, 1988, Ms. Blackmon took Michelle to Duke University to be evaluated for sexual abuse. (Tp. 296) She also brought Michael.

At Duke, the children talked to Social Worker Nancy Berson, who told Ms. Blackmon that the children may have been abused. (Tpp. 298-299) Ms. Blackmon testified that she began to suspect the defendant because "he was the only person that had access" to the children. (Tp. 301)

Ms. Blackmon testified that, in retrospect, the children were acting strangely that summer. She remembered that Michelle was sucking her thumb, and once asked not to go to Miss Polly's. (Tp. 303) She testified that both children had physical complaints that summer. (Tp. 303) She testified that, on one occasion, she picked up Michelle at Miss Polly's and Michelle was feverish. Miss Polly told Ms. Blackmon that Michelle had been "holding herself" and screaming in pain. (Tp. 305) By the time Ms. Blackmon got Michelle to Rex Hospital, Michelle was better. (Tp. 305) No records from the alleged visit to the hospital were introduced. Ms. Blackmon also remembered that Michael broke his foot at Ms. Polly's that summer. (Tp. 305)

David Blackmon, Michelle and Michael's father, testified that he saw defendant at Miss Polly's once in October of 1988. (Tp. 334) He testified that defendant and Sonya Hill asked Michelle and Michael if they wanted to go to the fair, but the children did not want to. (Tpp. 334-335) Mr. Blackmon did not think that Polly was there at the time. (Tp. 336)

Like his wife, Mr. Blackmon testified that he thought defendant had molested his children because there was nobody else "in the picture." (Tp. 340) He testified that nobody else but Ms. Blackmon's parents had "access" to the children. (Tp. 343) Mr. Blackmon denied that he had molested the children. (Tp. 341)

David Blackmon was later recalled to testify that he and Michael went to visit Michelle in Duke Hospital in October, 1988. (Tp. 1188) After Michael talked with Nancy Berson, Michael allegedly said that defendant had hurt him with a screwdriver. (Tp. 1192)

Melinda Holmes testified that her son, Zachary Lynn Byrd, also stayed with Miss Polly during the day. Ms. Holmes testified that, although she was there almost every day, she never saw defendant at the house, but did see a white Corvette there on occasion. (Tp. 351, 371)

Ms. Holmes testified that, on one occasion, she saw Michelle on the porch of Miss Polly's house, acting "lifeless." She testified that, when Jewell Blackmon saw Michelle, she "was all to pieces." (Tp. 356)

Ms. Holmes testified that, on the next week, Zachary began stuttering for the first time. (Tp. 357) She testified that Zachary only stutters now when he talks about "what happened that summer." (Tp. 357)

According to Ms. Holmes, Zachary came home once with his jogging pants ripped. Ms. Holmes noted that the rip had been sewn up during the day. (Tpp. 359-361) Zachary said that his "hiney" hurt. Ms. Holmes noted that it was red. (Tp. 362)[2]

Ms. Holmes took Zachary to be examined at Duke. (Tp. 366) Nancy Berson and psychologist Barbara Boat talked with Zachary. (Tp. 367)

Ms. Holmes testified that Zachary spent weekends with Todd Byrd, his natural father. As far as Ms. Holmes knows, Zachary gets along well with his step-father, Ms. Holmes' present husband. (Tp. 369)

Michael Blackmon, age 9, testified that he used to stay with "Granny Polly." He testified that Sonya Hill and defendant "hurt us" while Granny Polly was out working in the garden. (Tp. 403) Michael testified that defendant stuck a screwdriver in his "behind." He testified that defendant also did this to Michelle and to Zachary. (Tp. 404) Michael also testified that defendant stuck a candle in his "privates." (Tp. 407)

Michael also testified that defendant made Polly's dog "pee" and made the children drink it (Tpp. 408); that defendant whipped them with a branch from a thorn bush (Tp. 409); that defendant made him shoot a gun (Tp. 409); that defendant made him put his privates in Brooks' (Sonya Hill's daughter) and Michelle's "front private" (Tp. 412); that defendant put white powder on defendant's penis and made Michael lick it off (Tp. 412); that Sonya Hill took pictures of the children naked (Tp. 410); that defendant put his privates in Sonya Hill (Tp. 412); that defendant burned a Bible in a barrel beside the garden, while dressed up like the Devil (Tpp. 414-415); that defendant poured water over Tyler's head and spanked him with a "fly flap" (Tp. 440); and that "[Defendant] peeled a banana peeling and he put the dukey in it and made us eat it." (Tp. 440)

Michael testified that defendant did not put his privates in him. (Tp. 412)

Michael testified that he never told anyone about this until "[Michelle] said her lulu was hurting and we took her to the doctor and then we found out." (Tp. 415) Michael testified that he talked many times thereafter to Mark Everson, "my psychiatrist." (Tp. 415) He made a book for Everson about what he thought defendant had done. (Tp. 417)

Michael had rehearsed his testimony many times. (Tp. 423) When defense counsel asked Michael about whether he played on a swing set at Granny Polly's, Michael replied, "Yeah, and after Pat stopped hurting us, we played ball when we wouldn't tell. Sonya played ball with us when we wouldn't tell and where we'd lie." (Tp. 426) Michael was shown pictures of Granny Polly's house and yard. Michael responded by identifying one picture as the room "we got hurt in." (Tp. 428) When asked if he recognized the house and yard, Michael said, "Yes, she mowed the grass when we got hurt." (Tp. 432) When asked if Polly was always outside in the yard, Michael replied, "When she mowed the grass, he went and hurt us; and when she went to the grocery store, he hurt us, and when she went and picked peas at another person's house, he went and hurt us." (Tp. 433) When asked to remember going to Duke with Michelle, Michael replied that "this woman came in and looked at us and said we got hurt." (Tp. 434) When asked if he liked to take pictures, Michael replied, "Yeah, but like in here I don't like taking pictures of people naked like Pat." (Tp. 438)

Six year old Zachary Byrd testified. According to Zachary, defendant put a screwdriver in his hiney, but did nothing else. (Tp. 445) Zachary testified that he was clothed at the time. (Tp. 446) Zachary testified that he did not see anybody get hurt with candles. (Tp. 451) Zachary testified that defendant wore a mask with spiders and snakes on it. (Tp. 448)

Six year old Michelle Blackmon testified that defendant stuck a screwdriver in her "privates." (Tp. 463) She also testified that defendant squeezed "pee" out of a dog at Polly's. (Tp. 464) Michelle testified that defendant and Sonya both took pictures of her with her clothes off. (Tp. 466)

Dr. Karen Sue St. Claire, a pediatrician from the Duke Medical Center, testified as an expert in pediatrics. (Tp. 479) She testified that she examined Michelle in October, 1988, and Michael in November of that same year. (Tpp. 480)

Dr. St. Claire testified that she assisted Drs. English and Morganlander in the examination of Michelle. Those two doctors thought that Michelle showed signs of anal dilation, and referred Michelle to the Child Protection Team. (Tpp. 497-499) Dr. St. Claire testified that Michelle was complaining of her "bottom" [not vagina] hurting. (Tp. 499) Dr. St. Claire testified that, on November 2, she examined Michelle and found that Michelle's anus was "gaping." (Tp. 502) The doctor testified that many things could cause such a condition, but that she thought there was a "strong possibility" of repeated anal penetration by something. (Tp. 507) There was no evidence that Michelle's "lulu" was injured or abnormal in any way. (Tpp. 532-33) Michelle had a long history of dysuria, infections, and pinworms. (Tpp. 533-535)

Dr. St. Claire testified that she saw Michael on November 4. The doctor noted that her exam of Michael was inadequate, but indicated some "funnelling of anal tissue." (Tp. 511) She testified that she examined Michael again on December 15. On this occasion, she noted some anal dilation. (Tp. 513) Dr. St. Claire testified that the condition of Michael's anus was consistent with repeated penetration, or possibly with constipation. (Tpp. 523, 522) She opined that the scarring she saw in the anus was at least 3-4 weeks old, and perhaps as old as a year. (Tp. 520) She conceded that opinions vary regarding the significance of anal dilation. (Tp. 545)

Marci Herman Giddens, a Physicians Assistant with the Duke Child Protection Team, was qualified as an expert in pediatrics and child abuse. Ms. Herman-Giddens testified that she saw Zachary Byrd on November, 3, 1988. (Tp. 585) Zachary was brought to Duke because he had been at Polly Byrd's house at the same time Michael and Michelle were. (Tp. 586) Ms. Herman-Giddens testified that there was some "abnormality" in the mucosa of Zachary's anus that, in her opinion, was evidence of trauma. (Tpp. 608, 610) She admitted that such a conclusion was subjective. (To, 627)

Social Worker. Berson testified that she first interviewed Michelle on October 25, 1988. She asked Michelle if she had a secret. Michelle said "yes." Ms. Berson recommended that Michelle be admitted to the hospital and that he father be kept away from her. (Tpp. 763-767)

Ms. Berson talked with Ms. Blackmon. Ms. Blackmon told Ms. Berson that "Pat" was the only one who had "access" to the children. (Tp. 772). Ms. Berson then talked again with Michelle. Michelle said that her "lulu" [vagina] had been hurt by an "ugly man" with a screwdriver. (Tp. 770) Ms. Berson asked Michelle who the ugly man was, and Michelle said "Pat." (Tp. 771) After Michelle took a nap, Ms. Berson interviewed her again to see if she would be "consistent." Ms. Berson checked for consistency by asking questions such as "Do you remember telling me who hurt you?" (Tp. 773)

Ms. Berson admitted that Michelle's story was disjointed, but opined that this was a sign of stress. (Tp. 779) She testified that Michelle told her that defendant had lain down on a bed next to her. (Tp. 780) Michelle told Ms. Berson that defendant also hurt Zachary. (Tp. 780)

Ms. Berson testified that she interviewed Michelle again on November 1. (Tp. 782) She encouraged Michelle to talk to her, but Michelle did not want to. (Tp. 783) She urged Michelle to talk about "what we had talked about the week before." (Tp. 783) Ms. Berson used toy telephones to encourage the girl to talk. Michelle slammed down her phone and refused. Ms. Berson showed Michelle two screwdrivers. Michelle picked up the smaller one and said, "Pat done this." Ms. Berson asked Michelle to show what Pat had done. Michelle lifted up her dress and pointed the screwdriver toward her vagina. (Tp. 783) Ms. Berson reported what Michelle had said and done to the Department of Social Services and to the District Attorney's Office. (Tp. 783)

Ms. Berson testified that she needed to encourage Michelle to disclose by directing the conversation toward her having been hurt at Ms. Polly's and having a secret. (Tpp. 821-829) Her techniques included suggestions and leading questions. (Tp. 841) It was Ms. Berson who introduced the suggestion that it was "Pat" who hurt Michelle. (Tp. 840)

As a matter of policy, Ms. Berson interviewed Michael also. Her first interview with Michael was on November 1. (Tp. 785) According to Ms. Berson, Michael said that he was afraid of his father "when my Daddy makes me get in the bed." (Tp. 785)[3]

Ms. Berson recounted her efforts to get information from Michael. She had him draw pictures. She asked him if there was anybody at Granny Polly's that he did not like or that frightened him. Michael allegedly named defendant and Sonya Hill. (Tp. 787) According to Ms. Berson, Michael said that defendant pulled down defendant's pants one time. He also allegedly said that defendant hurt Zachary. Michael drew pictures to illustrate defendant hurting him and Zachary. (Tpp. 789, 790) Ms. Berson testified that Michael was "avoidant." (Tp. 789)

Ms. Berson asked Michael about tools at Polly's house. Michael allegedly said that defendant had hurt him with a screwdriver. Ms. Berson asked Michael where he had been hurt. Michael allegedly pointed to his "anal area." (Tp. 791)

Ms. Berson testified that she interviewed Michael again on November 2. His father sat in on the interview. (Tp. 793) Ms. Berson used anatomical dolls to elicit statements. She told Michael that Michelle was afraid of defendant. (Tp. 800) Michael repeated everything that he had said the day before. In describing the screwdriver he was allegedly hurt with, Michael said it was "a screwdriver like yours, daddy." (Tp. 794)

Ms. Berson asked Michael if the defendant wore a costume or a mask. She asked him about the devil, and about candles. She asked him about singing or chanting. (Tp. 796) She was interested in finding out if the children had been involved in Satanic ritual. She claimed to have had "previous experience" with such matters. She asked questions designed to elicit information about ritualistic abuse, Satanic symbols, etc. (Tp. 799)[4] Michael allegedly talked about "white powder" and "black poison." (Tp. 794) He said that the defendant put ketchup on a dog to make it look dead. (Tp. 797) Michael also allegedly talked about having to drink a dog's pee, and having to drink Zachary's pee. (Tp. 798)

According to Ms. Berson, Michael said that he saw defendant put a screwdriver in Michelle. (Tp. 797) When Ms. Berson asked Michael if defendant did anything else, Michael allegedly put the "Pat" doll's penis in the "Michelle" doll's anus. (Tp. 797)

Ms. Berson interviewed Michael again on November 4. His father was again present. Michael allegedly repeated statements he had made about black poison, oral sex with defendant, white powder, defendant's cape, the ketchup on the dog, and drinking pee. (Tpp. 800-803)

Ms. Berson testified that she interviewed Zachary Byrd sometime in November, 1988. (Tp. 805) Zachary told Ms. Berson that he was not hurt and did not want to talk to her. (Tp. 805)

Ms Berson interviewed Zachary again on the next day. She asked him about the defendant. Zachary did not say anything about defendant but, according to Ms. Berson began stuttering during the interview session. (Tp. 806)

On November 6, Ms. Berson interviewed Zachary yet again. On this occasion, according to Ms. Berson, Zachary began to talk about a "mean man." He said this man hurt him on his knee and on his genitals with a screwdriver. (Tp. 807) According to Ms. Berson, this man also had put his mouth on Zachary's "dodo." (Tp. 807) According to Ms. Berson, Zachary also said that the man hurt Michelle and Michael.

Ms. Berson interviewed Zachary again on November 9. Zachary did not want to talk in front of his mother. Zachary never identified defendant as the mean man. (Tp. 808) Ms. Berson referred all three children to Dr. Barbara Boat and Dr. Mark Everson. (Tp. 809)

Ms. Berson also recounted her interviews with Michael and Zachary. She described how she attempted to focus the interviews on "Pat," and how she attempted to gain rapport with the children. (Tpp. 842-850) She noted that Michael said that he was afraid of his father. (Tp. 844)

None of the interviews with the children were taped. (Tp. 810) Dr. Mark Everson testified that the Attorney General's Office encouraged him not to videotape his interviews with the children. (Tp. 1058)

On re-direct, Ms. Berson testified over objection to her opinions regarding the nature of sexual abuse and the "behavioral symptoms" of abused children. (Tpp. 852-854)

Pediatrician Steven Edwards testified that he examined Michelle from August 26 through September 13, 1988. Michelle was complaining of pain in her abdomen and grabbing her vulva. She ran a fever. Dr. Edwards and his colleagues thought that Michelle was suffering from some sort of infection. She had no evidence of trauma to her vagina. Ms. Blackmon had a history of kidney stones and the doctor was not able to exclude that or perhaps pinworns as the cause of Michelle's discomfort. Dr. Edwards wanted to do a stool sample to check for parasites. Before he could do so, however, Ms. Blackmon called to say that Michelle was better. (Tp. 752)

Zachary's father, Todd Byrd, testified. Mr. Byrd denied having molesting Zachary. (Tp. 857) He testified that he is separated from Zachary's mother, and has visitation rights. (Tp. 856)

Floyd McGee, Zachary's grandfather, testified that he often visited at Polly's. She was almost always at home. He remembered seeing defendant's car at Polly's on weekends, and saw defendant himself there once. (Tpp. 881, 882) Mr. McGee testified that he sometimes took care of Zachary, but denied that he had abused the boy. (Tp. 815)

Psychologist Barbara Boat testified as an expert in child psychology and abuse. Dr. Boat testified that Zachary was referred to her by Nancy Berson in November, 1988. (Tp. 888) According to Dr. Boat, Melinda Byrd said that Zachary said, "That mean man hurt me with a screwdriver," and "tore my jogging pants." (Tp. 901)

Dr. Boat testified that she first met Zachary on February 20, 1989. (Tp. 904) She employed anatomical dolls to elicit information. According to Dr. Boat, Zachary was "aggressive" toward the "Pat" doll. (Tp. 913) Dr. Boat testified to the course of her sessions with Zachary from February 1989 through November 1991. (Tpp. 916-918, 935) In all that time, she only taped one interview. That tape was sent to the District Attorney. (Tp. 924) She was discouraged from taping the interviews by the Attorney General's Office. (Tp. 925)

Dr. Boat testified to pictures she had Zachary draw about defendant. (Tp. 921) These pictures were done in preparation for trial. (Tp. 933)

Detective Marty Benson of the Johnston County Sheriff's Department, testified that he saw a white Corvette at Ms. Polly's house four or five times during the summer and fall of 1988. (Tpp. 937-938)

Vickie Olive testified that she lived next to Ms. Polly's house. Her son Tyler was kept there. Ms. Olive testified that Tyler was never harmed at Ms. Polly's. (Tp. 948) She testified that she saw defendant at Ms. Polly's house for the first time in October, 1988. (Tp. 953)

Ms. Olive testified that the Blackmon's came to visit her on December 18, 1988. According to Ms. Olive, Michael said that defendant "started messing with me" and threatened him with briars. (Tp. 950)

Neil Olive testified that he was a neighbor of Ms. Polly's. He testified that he never saw defendant there, but did see a white Corvette. (Tp. 957) He testified that Ms. Polly would sometimes be outside cutting the grass, but that this was on weekends or after the children she kept had left for the day. (Tpp. 960, 961) He testified that people were often coming in and going out of Ms. Polly's house during the day. (Tp. 962)

Psychologist Mark Everson testified as an expert in psychology and child sexual abuse. (Tp. 968) Michelle and Michael were referred to him for evaluation in November, 1988. (Tp. 969) Dr. Everson testified to his interview and evaluation techniques, and to various opinions regarding the nature of sexual abuse. (Tpp. 1020-1024, 1030-1033, 1042, 1086) He repeated what Michael told him. (Tpp. 1024-1029)

Dr. Everson testified to the problem of suggestiveness and leading questions and of the tendency for children to tell adult interviewers what they believe the adult wants to hear. (Tpp. 1056, 1060) He testified that the children told some incredible stories. (Tp. 1062) The doctor testified that Michael tended to tell him what Michael thought the psychologist wanted him to say. (Tp. 1060) He testified, for instance, that Michael said that Brooks was at Polly's during the abuse "because he seemed to give me what he thought I wanted." (Tp. 1069) Nonetheless, Dr. Everson testified that, within a month, he made his decision that the children had been abused by the defendant. (Tp. 1053)

Dr. Everson testified that part of his job was "correcting distortions" in the children's thinking. (Tp. 1055) He also testified that his role as therapist was to "correct distortions in their belief systems." (Tp. 1085) Nonetheless, the psychologist testified that the children were incapable of fabricating their stories. (Tp. 1042)

The psychologist testified to the repetitious interviews of the children during therapy, and to the other preparation for court testimony. (Tpp. 1069-1070) He would use information contained in Ms. Blackmon's diary to interview the children during the therapy sessions. (Tpp. 1074-1076) Ms. Blackmon testified that she would talk privately with Dr. Everson before each of his sessions with the children. (Tp. 1213)

Dr. Everson gave his "clinical opinion" that the children were abused during the summer of 1988; that the abuser was not their father; that the abuser was defendant; and that the abuse took place in the presence of Sonya Hill. (Tpp. 1039-1041) See Issue I.

Ayden Lee, Jewel Blackmons's employer, testified that he had seen a white Corvette at Polly's. (Tp. 1088) He testified that there were other vehicles at the house when he saw the Corvette. (Tp. 1094)

Social Worker Joe Lansinger testified that he was contacted by Dr. Everson. (Tp. 1095) Dr. Everson gave Mr. Lansinger a report of the acts Michael attributed to defendant. (Tp. 1105) Mr. Lansinger talked with Michael in January, 1990. (Tpp. 1095, 1122-1125) Mr. Lansinger testified to what he was told by Michael. Mr. Lansinger also interviewed Brooks in October, 1989. (Tpp. 1103, 1120)

Thomas McGinnis, one of defendant's co-workers, testified that defendant was an executive with their company. Mr. McGinnis acknowledged that the defendant worked very long hours. (Tp. 1140) He lived in an executive apartment in North Raleigh. (Tp. 1133) Defendant owns a white Corvette. (Tp. 1134)

Mr. McGinnis testified that, on some occasion, he and defendant were discussing videotapes. Mr. McGinnis testified that defendant said he owned a video store in Florida and that migrant workers "really went for that kinky shit." (Tp. 1136)[5]

Gary Holmes, Zachary's stepfather since January, 1989, testified that he saw defendant at Polly's house on one occasion. (Tp. 1143) Mr. Holmes testified that Zachary began stuttering sometime in the summer of 1988. He testified to Zachary's behavior as a two-year-old. On one occasion Zachary tried to open the door of the car they were riding in on the way home from Polly's. (Tp. 1145) On another occasion Zachary damaged the VCR player in the house. (Tp. 1146) Mr. Holmes denied having molested Zachary. (Tp. 1147)

Jewel Blackmon's mother, Evelyn Wheeler, testified that she occasionally picked up Michelle and Michael at Polly's. (Tp. 1151) She remembered having seen defendant at the house on three occasions, but not after July 20. (Tpp. 1151, 1162) Ms. Wheeler testified that, on July 20, when defendant was not there, the children were acting lethargic, as if they were drugged. (Tp. 1153) She never saw anyone abuse either of the children. (Tp. 1156)

Stacy Wheeler testified that, on one occasion in July, 1988, Michelle and Michael were acting "a little crazy." Mr. Wheeler testified that, on further reflection, this incident could have been as early as in May, 1988. (Tp. 1167) Mr. Wheeler denied that he had molested the children. (Tp. 1166)

Debbie Byrd testified that she lived near Polly's house. She testified that she saw a white Corvette at the house on occasion, but never saw defendant. (Tp. 1183) She testified that she picked up Michelle once from Polly's. Michelle was crying and complaining that her "lulu" [vagina] hurt. (Tp. 1181) She took Michelle to a doctor. By the time they arrived, Michelle appeared to be fine. (Tp. 1182)

Dr. Margaret Young testified as an expert in human and animal behavior. Dr. Young described the phenomenon of "submissive urination" by dogs. (Tp. 1256)

Detective Kenneth Eatman testified to the criminal investigation. He procured a warrant for defendant's arrest on November 15. (Tp. 1267) The detective testified that he found defendant's car after his arrest at a relative's house. (Tpp. 1269, 1284)

The detective testified to investigating a video store in Florida. (Tp. 1272) The store had been run by defendant's ex-wife's parents. (Tp. 1295)

The detective testified that he showed Michael seven screwdrivers found at Polly's house. When he asked Michael to pick the one that he told Ms. Berson about, Michael selected State's Exhibit No. 35. (Tp. 1276)

C. The Defendant's Evidence.

Seventy-two year old Polly Byrd testified for the defense. Ms. Byrd testified that she is Sonya Hill's mother and Brooks Hill's grandmother. (Tp. 1317)

Ms. Byrd testified that defendant stayed at her house 6 or 7 nights. (Tp. 1329) She remembered the day that Michelle got sick at her house. Defendant was not there that day. Ms. Byrd called Jewell Blackmon twice to come pick up Michelle. (Tp. 1332) She suggested to Ms. Blackmon that she take the child to the doctor. (Tp. 1336) Michelle was complaining that her "lulu" hurt. (Tp. 1335)

She testified that, although she would mow her grass and work in the yard, this would be after the children had been picked up. (Tp. 1334) Brooks was staying in the house that summer. (Tp. 1334)

Fourteen year old Brooks Hill, Sonya Hill's daughter, testified for the defense. Brooks testified that she lived at Polly Byrd's house during the summer of 1988. (Tp. 1339) She testified that there was a dog named Lisa in the house, but the dog was not afraid of defendant, and did not engage in "submissive urination" in the house. (Tp. 1340) Brooks testified that she never saw any indication of abuse by defendant that summer. (Tp. 1342) Brooks testified that defendant is a nice man, respectful to others, and not fearsome. (Tpp. 1340-1342)

Brooks was interviewed by Detective Eatman and a social worker. She told both of them that defendant never molested her and, as far as she could tell, never molested the other children either. (Tpp. 1346-1350) She testified that she had seen defendant with the other children on occasion, but never alone with them. (Tp. 1350) She testified that, when defendant would spend the night in the house, he would sleep alone in Sonya's bed, and Brooks would sleep with Sonya. (Tp. 1352)

Tom Smart testified that defendant worked with him at Teletek Inc., in Raleigh. Mr. Smart testified that defendant was hired as a manufacturing manager and worked roughly eight to five, five days a week. (Tp. 1372) Defendant was living in an "executive apartment" in North Raleigh. (Tp. 1374)

Deborah Beasly, defendant's secretary at Teletek, testified that defendant usually came in early and worked late. She could only remember one time when defendant came in as late as 8:15. (Tp. 1377) She testified that defendant was rarely away from the office during the day, although he did go out for lunch sometimes. (Tpp. 1378-1379) Ms. Beasley estimated that it would take an hour to get from Teletek to Smithfield. (Tp. 1380)

Ann Lee, Sonya Hill's sister and Polly Byrd's daughter, testified that she and other family members would drop in at Polly's unannounced. (Tpp. 1392, 1394) Defendant would sometimes be there in the evenings and weekends, but never when the children were there. (Tp. 1393, 1395) Ms. Lee testified that she never saw anything unusual going on at the house, including with the dog. (Tp. 1395) Ms. Lee testified that Melinda Byrd and Todd Byrd were separated. She thought Zachary had begun stuttering because of the family discord, and "the instability of their home life." (Tpp. 1479, 1482)

Barbara Taylor was Sonya's supervisor at Taylor Temps during the summer and fall of 1988. Ms. Taylor reads into the record Sonya's work schedule for June through October, 1988. (Tp. 1403)

Social Worker Joe Lansinger was recalled to testify that he investigated the possibility that Brooks had been abused. He interviewed her in October, 1989 at her school. He talked to her teachers and counselors. Brooks denied that she had been abused. (Tp. 1430) Detective Eatman was also recalled to testify that Brooks denied having been molested. (Tp. 1451)

Margaret Baker, one of Sonya Hill's sisters, testified that she often dropped in on Polly Byrd without invitation or prior notification. She testified that she never saw any indication of abuse. She did not remember ever having seen defendant there during the week. (Tpp. 1457-1460)

Lynette Thompson, another of Ms. Byrd's daughters, testified that she would drop-in on her mother from time to time. The children were sometimes there, although defendant was not. (Tpp. 1469-1470)

Christine Figured, one of defendant's former wives, testified that they had a son, Brett. She testified that they separated in 1977 because defendant was having an affair with Sonya Hill. (Tp. 1488) She testified that defendant was not interested in pornography, and that they had a normal sex life, which did not include anal sex. (Tpp. 1489)

Defendant testified on his own behalf. He was a forty-four year old executive for Teletek with no criminal history. He was married and divorced twice. He met Sonya Hill when she was his secretary. The two began an affair that lasted for several years. Defendant separated from his second wife, Mary, in 1986 and moved to Florida. (Tpp. 1493-1510) His affair with Sonya continued there, although defendant was living with Mary in Florida. (Tp. 1513)

In January of 1988, defendant left his job in Florida and began looking for another executive position there. Sonya Hill and her daughter Brooks moved back to North Carolina and moved in with Polly Byrd. (Tp. 1520) Defendant visited Sonya at Ms. Byrd's house on Memorial Day, Independence Day weekend and Labor day weekend. (Tpp. 1524-1536) He used a calender to reconstruct where he was on other days during the summer of 1988. (Tp. 1534)

Defendant testified that he interviewed for a job with Teletek on July 8 and 9, 1988. (Tp. 1539) He saw Sonya some that weekend and went to Concord on Sunday, where his mother lived. (Tp. 1544) He went back to Florida on July 12, but returned to take the Teletek job on July 16. (Tp. 1546) He began working at Teletek on July 18. (Tp. 1547)

Defendant testified that he was a "manufacturing manager" at Teletek. (Tp. 1549) He worked regular working hours during July through October, 1988. (Tpp. 1558-1587) It would have taken him 45 minutes to an hour to get to Ms. Byrd's from his office. (Tp. 1565) The only times during that period that he went to Smithfield were two or three times in the evenings, once to help Sonya's sister move some furniture, and once to meet Sonya at the fair. (Tpp. 1576, 1579, 1583, 1584) He and Sonya were not seeing each other at all during the first half of September. (Tpp. 1580-1582) He did not spend the night at Polly Byrd's house between July 18 and November 15. (Tp. 1594)

Defendant denied that he had ever molested the children. He had no guns and no involvement with the video business. (Tpp. 1594-1597, 1601-1602) The only time he had a screwdriver in his hand at the house was to help Ms. Byrd put up ceiling fans. (Tp. 1596) He only saw Michael a few times and was never alone with him or any of the other children. (Tp. 1629) He admitted that he had sex with Sonya at Ms. Byrd's house, but at a time when the children were not there. (Tp. 1601)

On cross-examination, defendant was asked whether he responded, "Who, Brooks?" when he was told by the police that he was being charged with statutory rape. Defendant denied saying that. (Tp. 1634)

Mary Imhoff, defendant's second ex-wife, testified on his behalf. She testified that her parents had a video store in Florida. (Tp. 1640) She testified that she had a normal sexual relationship with defendant, and that he did not appear to be interested in anal sex, pornography or videotaped sex. (Tpp. 1641, 1644) Defendant never molested their son, Justin. (Tp. 1642) She knew about defendant's affair with Sonya. (Tp. 1646)

Constance Figured, defendant's mother, testified that defendant came to North Carolina to look for a job, and moved in with her, on July 2, 1988. (Tpp. 1660-1661)

Sylvia Schmidt, defendant's sister, testified to seeing defendant in July. She also testified that defendant treated children well. (Tp. 1669)

Linwood Byrd, Polly Byrd's son, testified for the defense. Mr. Byrd testified that although he was often at Ms. Byrd's house, he never saw defendant there. (Tp. 1675) He did see the children at the house, but never noticed anything out of the ordinary. (Tp. 1676)

Mr. Byrd testified that, on October 27, the Blackmon's came to talk to him. They accused defendant of having molested Michael and Michelle. (Tp. 1678) He also testified that, when he heard the Blackmon's accusations, he got concerned that defendant may have abused Brooks. (Tp. 1691)

Betsy Byrd, Linwood's wife, testified that she also visited at Ms. Byrd's house but never saw defendant there except on weekends. Ms. Byrd never saw anything unusual about the children at the time. (Tp 1695)

Polly Byrd testified again for the defense. She never saw any indication that the children were being abused at her house. She saw no guns or candles in the house. (Tp. 1698) She did remember having sewed up Zachary' pants on one occasion. (Tp. 1701) Defendant never had occasion to be alone with the children at the house. (Tp. 1704)

Private Investigator Sara Booker testified that the driving distance from Teletek to Polly Byrd's house was 41 miles. The investigator testified that it took her 53 minutes to make the trip. (Tp. 1711)

Roxana Wofford, a co-worker of the defendant, testified that defendant worked long hours at Teletek. (Tp. 1749)

Detective Eatman was recalled to testify that he interviewed Sonya Hill about the allegations. Ms. Hill denied that she had been involved with any misconduct at the house, and said that the defendant would not involve himself with anything like that either.[6]

On the state's rebuttal, Detective Eatman testified that he arrested defendant. He told the defendant that he was being charged with statutory rape. According to the detective, the defendant said, "Who, Brooks?"

David Horrowitz, a pediatrician, testified that, on January 4, 1989 he examined Brooks Hill. Although he only concluded at the time that the vaginal exam was "abnormal," he formed the opinion in March, 1989 that Brooks had been penetrated. However, Brooks repeatedly denied penetration. (Tp. 1800) Indeed, she showed none of the psychological characteristics usually associated with sexual abuse. Moreover, the Department of Social Services was unable to substantiate abuse. (Tpp. 1803-1812)

District Attorney Thomas Locke testified for the defense. Mr. Locke had been Sonya Hill's lawyer in 1989. Dr. Horrowitz told Mr. Locke that he had found nothing abnormal in the examination of Brooks. (Tp. 1816)

ARGUMENT

I. THE TRIAL COURT ERRED IN ALLOWING WITNESS EVERSON TO TESTIFY THAT DEFENDANT MOLESTED THE PROSECUTING WITNESSES.

Assignment of Error No. 18, Rp. 103

A. Introduction.

A state psychologist testified over objection that Michelle and Michael "were sexually abused by Pat Figured." Because this was improper opinion testimony, and was introduced as substantive evidence of defendant's guilt, a new trial is required.

B. Factual Background.

Psychologist Mark Everson testified for the state as an expert in psychology and child sexual abuse. (Tp. 968) Michelle and Michael were referred to him for evaluation. (Tp. 969) Dr. Everson testified to his interview and evaluation techniques, and to various opinions regarding the nature of sexual abuse. (Tpp. 1020-1024, 1030-1033) Defendant objected to the testimony of Dr. Everson on the ground that it was hearsay, and that it was without proper foundation. (Tpp. 970-1020)

Dr. Everson repeated what Michael and Michelle told him. The following interchange then took place:

Q. Based on your contact with both of these children, do you have an opinion as to whether or not Michael and Michelle were sexually abused during the summer of 1988?

A Yes, I do.

Q. And what is that opinion.

[OBJECTION OVERRULED]

A. My clinical opinion is that they both were sexually abused.

Q. And do you have an opinion as to who the abuser was both as to Michael and Michelle?

[OBJECTION OVERRULED]

A. My clinical opinion is that Michael and Michelle were sexually abused by Pat Figured.

Tpp. 1039-1041

C. Applicable Legal Principles.

1. Opinion Testimony Has a Limited Place in Criminal Trials.

A lay witness is ordinarily not allowed to offer opinion testimony. N.C.G.S. [[ordmasculine]]8C-1, Rule 701 (1986). An expert is a person who, by special training or experience, is in a better position than a juror to understand a scientific or technical matter. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984). A witness qualified as an expert is allowed to testify to her opinions if they will assist the jury in its deliberations. N.C.G.S. [[ordmasculine]]8C-1, Rule 702 (1986); see generally, 1 H. Brandis, North Carolina Evidence (3d ed. 1988) at [[ordmasculine]]132.

2. Expert Psychological Testimony in Child Sexual Abuse Cases Has Limited Relevance.

Recognizing the role of the expert witness as assisting the jury to understand what it would not otherwise, all states reaching the issue have held that an expert may not appear in order to testify that the prosecuting witness has been assaulted. See, e.g., State v. Saldana, 324 N.W.2d 227 (Minn. 1988); State v. Black, 109 Wash. 2d 336, 745 P.2d 12 (1987); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d 291 (Cal. 1984); State v. Taylor, 663 S.W.2d 235 (Mo. 1984); People v. Taylor, 552 N.Y.S. 2d 883, 552 N.E.2d 131 (1990); Wheat v. State, 527 A.2d 269 (Del. 1987). At the same time, several states have recognized that the jury may not understand some of the phenomena thought to be related to sexual abuse. See generally McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C.L. Rev. 1143 (1985). For instance, the jury may have a difficult time understanding why a rape victim would cooperate with her assailant, not report the incident immediately, deny having been assaulted or recant her allegations later.

In many states, when - and only when - the defendant has raised one of these issues to impeach the prosecuting witness, the state is allowed to introduce testimony concerning the general nature of PTSD, Rape Trauma Syndrome, or child sexual abuse syndrome. See State v. Ballard, ___S.W.2d___ (Tenn. 1993); State v. Catsam, 148 Vt. 366, 534 A.2d 184 (1987); Allison v. State, 353 S.E.2d 805. No state, including North Carolina, allows an expert witness to testify to his or her conclusion that the child has been abused.

Two reasons are usually cited for not allowing a psychologist to testify that a child has been abused. First, there is no empirical support for the proposition that any witness can accurately determine, on the basis of a child's psychological characteristics, that he or she has been subjected to sexual abuse. See State v. Scheffelman, 820 P.2d 1293 (Mont. 1991). Second, such testimony merely attests to the truthfulness of the child witness. As such, it is the functional equivalent of expert testimony on the truthfulness of a witness and inadmissible as a matter of law. E.g. United States v. Whitted, 994 F.2d 444 (8th Cir. 1993). Therefore, it is universally held, such testimony is not helpful to the jury. See State v. Parker, ___N.C. App. ___, ___S.E.2d___ (filed 3 August 1993); State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987).

In State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992), the Court reviewed the problems with expert testimony on the psychology of abuse. It noted that therapists are not in a position to determine whether or not a person has been abused. They generally assume that their clients are being truthful in claiming to have been molested, and, after verifying that assumption to their own satisfaction, "diagnose" the child as having been abused:

It is this lack of critical inquiry into the factual accuracy of the complainant's story that renders this evidence's probative value slight, and its helpfulness to the jury minimal.

330 N.C. at 820; see also Kilpatrick, Rape Victims: Detection, Assessment and Treatment, Clinical Psychologist (Summer 1983) 92, 94 (warning psychologists to accept their clients' stories, and not "make a judgment about whether a 'real' rape occurred").

In spite of the problems inherent in this sort of testimony, the Court did not ban it entirely. It took the majority view that there are some characteristics of abuse victims that a jury would not understand. A defendant should not be allowed to exploit the jury's ignorance. Although experts are not in a position to determine whether or not a child has been abused, they can clear up certain alleged misconceptions about the psychological effects of sexual assault.

The Court held that the decision to admit or exclude evidence of the psychological effects of abuse will be in the discretion of the trial court, which must determine whether its probative value in the case at hand outweighs its inherent prejudicial impact. The guiding principle will be the demonstrable helpfulness of the testimony to the jury. The burden is on the proponent of the evidence to show a need for it in that case to dispel some misconception about the psychological consequences of abuse. If the prosecuting witness behaves in a way that members of the jury would already understand, no expert assistance is needed. 330 N.C. at 822. The trial court must instruct the jury that the evidence is not being introduced as evidence that the prosecuting witness has been assaulted. See also State v. Stallings, 107 N.C. App. 241, 419 S.E.2d 586 (1992)(error for state to rely on evidence of Child Abuse Accommodation Syndrome); State v. Hutchens, 110 N.C.App. 455, 429 S.E.2d 755, rev. denied, ___N.C.___ (1993)(error for state to introduce evidence of psychological characteristics of abuse victim as substantive evidence).

If there is an insufficient foundation, opinions regarding sexual abuse are improperly admitted. Thus, in State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987), the Supreme Court found reversible error where a physician diagnosed abuse solely on absence of hymen, and a statement by the witness four years after the alleged incident.

Very recently, in State v. Parker, a pediatrician "diagnosed" a child as having been sexually abused based on her "history." This Court awarded the defendant a new trial, holding that the question of whether or not the prosecuting witness had been abused was one for the jury, not the doctor.

D. Discussion.

1. Dr. Everson's Testimony Was Not Helpful to the Jury.

The Hall Court expressed concern that the jury would give too much weight to the testimony of an expert in deciding whether a person has been assaulted. It is the jury, not the expert, that is in the better position to determine whether a complainant's symptoms are the result of sexual assault or something else:

When the complainant testifies at trial that she has been sexually assaulted, the jury is given the unique and exclusive opportunity to access [sic] the credibility of her story, both on direct and cross examination. This is accomplished in a manner which is not usually available to the treating physician who generally assumes the veracity of the patient's account in formulating a diagnosis and treatment. The jury is also able to evaluate her story in light of other evidence adduced at trial. These factors ameliorate the lack of critical inquiry by therapists and may put the jury in an improved position to determine the complainant's credibility.

330 N.C. at 822.

The reasoning of Hall applies here with even greater force. The testimony went far beyond the existence or non-existence of psychological characteristics. It drew the conclusion for the jury that the children were sexually abused, and that the perpetrator was not their father but the defendant. There is no empirical support for the proposition that Dr. Everson, or anyone else, can determine with any greater accuracy than the jury, whether or not a particular child has been abused, much less the identity of the alleged abuser. This testimony was certainly helpful to the prosecution, but not to the jury. As such, it should have been excluded. See State v. Parker, State v. Trent.

2. The Testimony Was Not Admissible as Substantive Evidence.

Even if it had been proper for Dr. Everson to testify to his opinion that the defendant molested the children, his opinion should not have been admitted as substantive evidence. Allowing the jury to use the opinion as substantive evidence of defendant's guilt was reversible error. See, e.g., State v. Hutchens; State v. Hall.

Dr. Everson's conclusion opinion was not even admissible for some limited purpose. Had the psychologist confined himself to testifying to the psychological characteristics of the children, that testimony might have been properly admitted for the limited purpose of corroborating their sworn testimony. However, the psychologist's opinion on the ultimate question did not corroborate the children's testimony, but merely attested to their veracity. This is a matter our law entrusts to jurors, not psychologists.

3. There Was An Insufficient Foundation for Dr. Everson's Opinion that the Defendant Had Committed the Charged Offense.

The notion that there is a common set of identifying characteristics displayed by abused children has been largely discredited as being without empirical support. See People v. Beckley, 456 N.W.2d 391, 406 (Mich. 1990)("Although syndrome evidence may be appropriate as a tool for purposes of treatment, we would hold that it is unreliable as an indicator of sexual abuse."); McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 O.L. Rev. 19, 41 (1986)("Researchers have been unsuccessful in their attempts to find common reactions that children have to sexual abuse. In fact, research has indicated that children react in incredibly diverse ways to sexual abuse."); Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Georgetown L. R. 429, 440 (1985)("It should be kept in mind that those who write about sexual abuse of children are normally child advocates who research and write with the paramount goal of protecting abused children."). For this reason, some states have excluded any evidence of such syndromes. Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992)(evidence of child sexual abuse syndrome not reliable enough to be relevant).[7] Increasingly, psychologists themselves are calling for limits on the use to which their testimony should be put in criminal trials. See, .e.g., Melton and Limber, Psychologist's Involvement in Cases of Child Maltreatment: Limits of Role and Expertise, 44 Am. Psychol. 1225 (1989).

The testimony admitted in this case went far beyond that disapproved in Trent and Parker. The testimony was not just that the children had been abused, but that they had been abused by a particular person: the defendant. His opinion was based on the same evidence that the jury heard: the children's statements, equivocal physical evidence, and corroborative testimony. He was in no better position than the jury to determine 1) whether the children had been abused, or 2) who the perpetrator of any abuse might be. Because there was an insufficient foundation for Dr. Everson's conclusions, his testimony was improperly admitted.

4. The Testimony Was Essentially Expert Testimony on the Credibility of the State's Witness.

Most states, like North Carolina, do not allow expert testimony on the credibility of witnesses. State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986); State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299, rev. denied, 319 N.C. 625 (1987). In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), the state introduced evidence of rape trauma syndrome to explain why the victim of a rape might not be able to identify her assailant. The Supreme Court of Pennsylvania reversed defendant's conviction:

The crux of the testimony appears to be that the victim's failure to identify the appellant two weeks after the rape is unremarkable, as she was in the acute phase of RTS in which the victim has difficulty performing even normal functions, and the in-court identification five years later is particularly credible, as it results from a flashback, with the mind operating like a computer. It is clear that the only purpose of the expert testimony was to enhance the credibility of the victim.

547 A.2d at 358 (emphasis in original).

The Supreme Court of Tennessee expressed similar concerns in a very recent opinion. The court awarded the defendant a new trial where the state's expert testified that the prosecuting witness suffered from PTSD as the result of having been sexually abused. The court was of the opinion that "[e]xpert testimony of this type invades the province of the jury to decide on the credibility of witnesses. Ballard at 1289.

Given the fact that Dr. Everson was basing his opinion on the statements of the children, his was an opinion on the reliability of those statements, in other words, on the credibility of the children. As such the opinion had no place in a criminal trial. Cf, State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

5. The Admission of the Testimony Requires a New Trial.

Many have recognized that expert testimony in this area carries great, and often undue, weight with the jury:

Permitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the victim was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness.

Saldana, 324 N.W.2d at 230.

Our Supreme Court has likewise recognized the danger of the jury giving too much weight to the testimony of experts in this area:

[T]he potential for prejudice looms large because the jury may accord too much weight to expert opinions stating medical conclusions which were drawn from diagnostic methods having little merit as fact-finding devices.

Hall, 330 N.C. at 820.

In this case, the evidence against the defendant was weak. There was little opportunity for him to have committed these acts, and no evidence of motive. The physical evidence was equivocal and inconsistent with the initial statements by the children. For instance, the investigation began with Michelle complaining of discomfort in her vagina. However, the vaginal exam showed no physical signs of penetration or abuse of any kind. It was her rectal exam that, according to Dr. St. Claire, showed some abnormality. The significance of the evidence of such examinations is, according to both Dr. St. Claire and Ms. Herman-Giddens, the subject of debate in the medical community.

The statements of the children were the result of lengthy, repeated interviews by zealous interrogators. The children were either reluctant to talk to the interviewers, or tried to tell the adults what they thought the adults wanted to hear. They denied as much as they admitted. The eventual statements, as remembered by the interviewers four years later, were tainted with improbability. It was not helpful to the jury to have Dr. Everson state his personal belief in the significance of this evidence. The testimony quite likely satisfied the jury that defendant is guilty, despite the confusion in the state's case.

Nor was the opinion cumulative. The psychologist enjoyed a special relationship with the children, having provided them therapy over a long time. He was allowed to sit with them before the jury as they testified. His opinion would be expected to carry an enormous weight with the jury. Moreover, the other expert witnesses largely confined themselves to educating the jurors about the physical and psychological symptoms of abuse. None of the other experts attempted to draw for the jury the conclusion that the children were abused. Much less did anyone else presume to testify to the identity of the alleged abuser.

E. Conclusion.

The testimony of Dr. Everson was inadmissible opinion testimony. It was error to admit it for any purpose, much less for the substantive purpose of establishing the defendant's guilt. Given the weakness of the state's case, the error in admitting this testimony had a likely effect on the verdicts.[8]

II. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON AN ADMISSION.

Assignment of Error No. 33, Rp. 106

Assignment of Error No. 28, Rp. 105

A. Introduction.

According to Detective Eatman, when the defendant was arrested and informed that he had been accused of sexual conduct with a minor, he allegedly responded, "Who, Brooks?" Defense counsel objected to this testimony. Defendant testified that he did not ask this question.

The trial court instructed the jury, over objection, that the defendant had made an admission:

There is some evidence which tends to show that the defendant may have admitted a fact relating to the crime charged in this case. If you find that the defendant made any admission, then you should consider all the circumstances under which it was made in determining whether or not it was truthful and in determining what meaning and what weight you will give it.

Tp. 1963; Rp. 55.

Because there was no evidence that could fairly be characterized as an admission by the defendant, it was error for the trial court to have given this instruction. Given the weakness of the state's case, the error requires a new trial.

B. Applicable Legal Principles.

A judge may not express his opinion as to whether the state has proved a fact in contention. N.C.G.S. [[ordmasculine]]15A-1232 (1987 Cum. Supp.). Even the slightest intimation as to the weight to be given evidence or the inferences to be drawn from the evidence is prohibited. E.g. State v. Holden, 280 N.C. 426, 185 S.E.2d 889 (1972); State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1966); State v. Woolard, 227 N.C. 645, 44 S.E.2d 29 (1947).

A judge is permitted, but not required, to set out the contentions of the parties. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980); .State v. Halway, 8 N.C. App. 340, 174 S.E.2d 54 (1970). If the judge decides to set out the contentions, he has two duties. First, he must not inadvertently express his opinion as to the merits of the contentions. State v. Benton, 226 N.C. 745, 40 S.E.2d 617 (1946). Second, he must balance his presentation by setting out the contentions of both parties. E.g. State v. Hewett, 295 N.C. 640, 247 S.E.2d 886 (1978); State v. Vail, 26 N.C. App. 73, 214 S.E.2d 796, cert. denied, 288 N.C. 251, 217 S.E.2d 676 (1975); State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). Any expression of judicial opinion, whether intentional or not, is error. State v. Hoskins, 36 N.C. App. 92, 242 S.E.2d 900, cert. denied, 295 N.C. 469, 246 S.E.2d 11 (1978).

C. Discussion.

1. The Instruction Was Not Supported by the Evidence.

As a preliminary matter, the question attributed to the defendant should not have been introduced. The testimony by Detective Eatman on this point was given in violation of defendant's state and federal constitutional rights not to have his own words used against him. U.S. Const. Amend. V.; N.C. Const. Art. I, [[ordmasculine]][[ordmasculine]]19, 23, 24. Moreover, because the defendant denied making the statement, the detective's testimony was improper impeachment on a collateral matter through extrinsic evidence. See State v. Minter, ___N.C. App. ___, 1993 WL 273879 (7 July 1993);; State v. Jerrells, 98 N.C. App. 318, 390 S.E.2d 722 (1990); rrev. denied, 326 N.C. 802, 393 S.E.2d 901 (1990);.

Assuming arguendo that the question was properly admitted, it was no admission. Brooks has consistently denied that defendant molested her. The state presented no substantial evidence to the contrary, and indeed never indicted defendant for any such misconduct. Even if defendant's alleged comment "Who, Brooks?" were an admission of anything, it would have been related to another hypothetical charge, not this case.

Moreover, the comment could not fairly be characterized as an admission of any sort. Defendant had just been told he was being accused of statutory rape. The only minor that he had any contact with at all was Sonya Hill's daughter. The only reasonable inference he could have drawn from the officer's accusation was that he was being charged with a crime against that girl. His asking for clarification of that point did not constitute an admission of a fact in issue.

2. This Was an Expression of Judicial Opinion on the Evidence.

The words "Who, Brooks?" are not, in themselves, an admission of anything. However, the state may argue that the jury could infer from these words that the defendant was admitting to having had sex with Sonya's daughter. Assuming arguendo that this would be a possible inference, it was not the only inference to be drawn from these words. A more reasonable inference would be that the defendant was asking th officer who had made accusations against him, naming the only minor girl that he had spent any time with. If the court were inclined to characterize the defendant's question as an "admission," it should have at least set out the contrary position: that the words were not an admission. If the court were inclined to draw the jury's attention to this statement as evidence of guilt, it should have also instructed that the defendant denied that the statement had been made at all.

3. Defendant Was Prejudiced

This case was very weak. Defendant had virtually no opportunity to commit the offenses. The childrens' stories were incredible, inconsistent and the result of repeated interviewing by persons of questionable qualifications and impartiality.

The state emphasized defendant's "admission" to the jury:

[S]o they go to him and they say you're under arrest for a sexual act with a minor as he said, as Detective Eatman said that's all he said. And what's the defendant say? If it was you or me, sexual act with a minor I've never done. What's he say, "Who, Brooks?" "Who, Brooks?" Mr. Innocent.

Tpp. 1952-53.

The trial court added to the impression created by the prosecutor that defendant had acknowledged some degree of guilt. The court's instructions suggested to the jury that the state's position was supported by the evidence. Worse, it suggested that the defendant's position -- that he did not say the words -- was not supported by the evidence. To have the court tell the jury that defendant had admitted some misconduct was devastating to the presumption of innocence that should have surrounded and would have protected the accused.

D. Conclusion.

Because the trial court's instruction was not supported by the evidence, it should not have been given. Because there is a reasonable probability that the instruction affected the verdict, a new trial is required.

III. THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENTS AGAINST HIM.

Assignment of Error No. 1, Rp. 100

A. Introduction.

Defendant moved to have the charges against him dismissed for a violation of his constitutional right to a speedy trial. This motion was denied. Because this ruling denied defendant his constitutional rights to a fundamentally fair trial, a new trial is required.

B. Factual Background.

Defendant was originally indicted on January 9, 1989 along with Sonya Hill. (Rp. 35) The indictments alleged that the crimes were committed in July, 1988. On March 28, 1989, defendant entered a plea of guilty, without admitting guilt. (Rp. 35) The basis for the plea agreement was the state's unwritten promise to drop all charges against Sonya Hill. (Tp. 35) The District Attorney was John Twisdale. Ms. Hill's lawyer was Thomas Locke. (Rp. 35) The charges against Sonya Hill were dismissed in April, 1989.

Mr. Twisdale ran for re-election in the spring of 1990. His opponent in the primary was Tom Locke. The dismissal of the charges against Sonya Hill became controversial. Mr. Twisdale was also involved during the campaign in a controversial dispute with the Highway Patrol over his attempts to bring charges against supporters of Mr. Locke. (Rpp. 36-37)

Mr. Twisdale was defeated by Mr. Locke in the May, 1990 primary election. In June, 1990, Mr. Twisdale told Attorney Richard Rosen that he thought defendant and Ms. Hill might both be innocent. (Dunne Tp. 31) Nonetheless, in July, 1990, the charges against Sonya Hill were reinstated by Mr. Twisdale in violation of the plea agreement. (Rpp 14, 36)

In April, 1991, defendant filed a Motion for Appropriate Relief, asking to withdraw his guilty plea for the failure of the state to keep the plea bargain. On August 26, 1991, the Superior Court of Johnston County found that Mr. Twisdale's conduct had been retaliatory, vindictive and politically motivated. (Rp. 39) It held that the state had violated the plea arrangement and allowed defendant to withdraw his plea of guilty. The case was transferred to Chatham County.

On March 9, 1992 the state reindicted defendant in superceding bills of indictment. The allegations in the new indictments substantially expanded the dates for which the defendant would have to defend himself. In the new indictments the allegations are that the offenses occurred sometime in a five month period between June and October, 1988. (Rp. 36)

Two weeks later, on March 25, 1992, defendant filed a motion seeking either a speedy trial or dismissal, arguing that his state and federal constitutional rights to due process of law were being violated by the state's conduct. The motion was not calendered by the District Attorney until September 28, the first day of trial.

C. Applicable Legal Principles.

In Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101 (1972) the United States Supreme Court set out a four-part test for determining if a defendant has been denied his federal constitutional rights to a speedy trial. These factors include (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant. Such a test is also employed to determine if the analogous state constitutional right has been violated. See, e.g., State v. Artis, 31 N.C. App. 193, 228 S.E.2d 768, cert, denied, 291 N.C. 449, 230 S.E.2d 766 (1976); N.C. Const. Art. I, [[ordmasculine]]24.

D. Discussion.

As a preliminary matter, it is not clear that the trial court applied the four-part Wingo test in making its findings of fact and conclusions of law. There is no reference to this test or to the substance of the four parts of the test, in the Order. The only reference to a legal standard in the Order is the finding that the state acted in bad faith, and the conclusion that the defendant was not prejudiced. To the extent that the trial court did not apply the correct legal standard, its ruling is not the result of a proper exercise of discretion. See, e.g., State v. Holman, 107 N.C. App. 472, 421 S.E.2d 400 (1992).

Had the court properly applied the four-part Wingo test, it would have concluded that the defendant has been denied his state and federal constitutional rights to due process of law.

1. The Length of the Delay.

Defendant was arrested on November 15, 1988. (Rp. 39) He was indicted on January 9, 1989. His trial began on September 28, 1992. (Rp. 1) He has been continuously in custody. The delay of almost four years is attributable to the state.

2. The Reason For the Delay.

Defendant pled guilty in March, 1989 in order to keep Sonya Hill from being indicted and tried. Ms. Hill was reindicted in July, 1990. Defendant moved for appropriate relief in April, 1991. The trial court found that District Attorney Twisdale was engaged in various acts of bad faith, and that he had re-indicted Ms. Hill in violation of the plea arrangement he had agreed to. The court essentially found that the District Attorney had been "playing politics" with the freedom of Sonya Hill and Pat Figured. This delay should be attributed to the state.

From August, 1991 through March, 1992, defendant was still in custody under the original indictments. This delay should not be viewed as a waiver of his speedy trial complaint.

The delay from March, 1992 through trial should also be attributed to the state, who has the exclusive control over the motions calender.

3. Assertion of the Right.

As soon as Ms. Hill was re-indicted in July, 1990, defendant attempted to assert his right to trial. First, he had to have his guilty plea set aside. He secured counsel, who filed a Motion for Appropriate Relief on his behalf in April, 1991. The motion was granted in August, 1991. Defendant was not reindicted until March 9, 1992. (Rp. 1) He moved on March 25, 1992 to dismiss for a lack of speedy trial and due process of law. (Tp. 34) The motion was not calendered until September 28, 1992, the first day of trial.

Defendant did not sit by idly as time passed, or otherwise contribute to the delay. Rather, he took steps to assert his right to trial as soon as he could.

4. Prejudice.

There are very few ways to defend oneself against allegations of child sexual abuse. The most common defenses are alibi and identity. The inordinate delay in this trial compromised defendant's attempts to present either defense.

When defendant was originally indicted, he was put on notice that the alleged abuse took place in July, 1988. Had he been tried on those indictments, he would have had a reasonable chance of convincing a jury that he could not have committed the offenses. Moreover, the evidence was that the children never made any complaints against the defendant until late fall and early winter of that year. Under this state of affairs, defendant had a good chance of an acquittal. As it was, he was unable to realistically account for his whereabouts for a five month period. Moreover, by extending the dates on the indictments to October, the state could better explain why the children did not complain until that time. Finally, the four year delay in bringing this case to trial presented the defendant with an enormous burden in establishing, through other witnesses, that he was not in a position to have committed the alleged offenses.

As to identity, the defendant was able to suggest that other men besides himself had access to the children, as did several women. Had he been tried promptly, he would have been in a position to effectively cross-examine the children about who, if anyone, had molested them. The prosecuting witnesses were two and five years old when defendant was first indicted. They were involved in weekly therapy sessions with psychologists who, over three years, were able to "lock in" the children's story.[9] By the time the children got to trial they were six and nine, well-practiced in telling their tale of abuse, and indubitably believing that what they told was the truth. The interviewers, who did not record their repeated interviews, had to rely on memories from four years in the past. Dr. Everson's memory of what the children said initially was certainly affected by his continuing contact with the children. Ms. Berson's was unable to sort out at trial what she learned from the children, and what she gathered from other sources.

E. Conclusion.

Under the totality of the circumstances in this case, the only proper conclusion of law is that the defendant was denied his state and federal constitutional rights to a speedy trial and to due process of law. The judgments against him should be vacated.

IV. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE OPINION TESTIMONY OF WITNESSES EVERSON, ST. CLAIRE, HERMAN-GIDDENS, BERSON AND BOAT ABOUT THE PSYCHOLOGICAL CHARACTERISTICS OF SEXUALLY ABUSED CHILDREN, AND IN NOT LIMITING THE ADMISSION OF THIS TESTIMONY.

Assignment of Error No. 9, Rp. 101

Assignment of Error No. 11, Rp. 102

Assignment of Error No. 13, Rp. 102

Assignment of Error No. 15, Rpp. 102-103

Assignment of Error No. 18, Rp. 103

Defendant has argued elsewhere that the testimony of witness Everson that the children were abused by the defendant were not helpful to the jury and should not have been admitted. See Issue I. Defendant argues now that the testimony of witnesses Mark Everson, Nancy Berson and Barbara Boat should likewise have been excluded or, at least, restricted by the trial court to show some psychological characteristic of the complaining witnesses placed at issue by the defense. See State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992). Moreover, the portions of the testimony of these witnesses containing statements of the children should have been stricken as inadmissible hearsay, not falling within any "firmly rooted" exception to the rule against hearsay. N.C.G.S. [[ordmasculine]]8C-1, Rule 802 (1988); State v. Stafford, 77 N.C.App. 13, 334 S.E.2d 799 (1985), aff'd, 317 N.C. 568, 346 S.E.2d 463 (1986) U.S. Const. Amend. VI; N.C.Const. Art.I, [[ordmasculine]][[ordmasculine]]19, 23, 24. The admission of this testimony was error. Because some of the acts alleged against the defendant were not even testified to by the children, but only by these witnesses, the error requires reversal.

V. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.

Assignment of Error No. 24, Rp. 104

A conviction based on less than substantial evidence violates both state and federal constitutions. U.S. Const. Amend. XIV; N.C. Const. Art. I, [[ordmasculine]][[ordmasculine]]19, 23, 224;. Evidence giving rise only to a suspicion of defendant's guilt, no matter how strong a suspicion, cannot support a conviction. State v. Hood, 79 N.C. App. 170, 334 S.E.2d 421, rev. denied 314 N.C. 671 (1985).

The evidence in this case was not substantial. The very young children had been subjected to repeated, suggestive interviewing over four years prior to trial. The physical evidence was equivocal. Most of the state's case was based on hearsay from adults who, while believing the children to have been abused, were in no better position than the jury to determine the truth. Although it must be admitted that there is some evidence of each element, in the context of this investigation and prosecution, that evidence cannot be deemed substantial.

CONCLUSION

Because defendant was denied his constitutional rights to a speedy trial and to be convicted only on substantial evidence, his convictions must be set aside. Otherwise, defendant must be re-tried on all issues.

Respectfully submitted, this 23d day of August, 1993.

__________________________
Mark D. Montgomery
Assistant Appellate Defender

Malcolm Ray Hunter, Jr.
Appellate Defender
Office of the Appellate Defender
Post Office Box 1070
Raleigh, North Carolina 27602

(919) 733-9490

ATTORNEYS FOR DEFENDANT-APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing Defendant-Appellant's Brief has been duly served by State Courier Service upon Ellen Scouten, Assistant Attorney General, North Carolina Department of Justice, Raney Building, Raleigh, NC, by depositing same in a depository designated for that purpose.

This is the 23d day of August, 1993.

________________________________

Mark D. Montgomery

Assistant Appellate Defender