State v. Simmons

• Decision Date: 27 June 2018
• Docket Number: Appellate Case No. 2016-001934,Opinion No. 27819
• Citation: 423 S.C. 552,816 S.E.2d 566
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. James SIMMONS Jr., Petitioner.

423 S.C. 552

816 S.E.2d 566

The STATE, Respondent,

v.James SIMMONS Jr., Petitioner.

Appellate Case No. 2016-001934

Opinion No. 27819

Supreme Court of South Carolina.

Heard April 17, 2018

Filed June 27, 2018

Rehearing Denied August 2, 2018

Appellate Defender Susan B. Hackett, of Columbia, for Petitioner.

Attorney General Alan Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, for Respondent.

JUSTICE KITTREDGE :

Petitioner James Simmons Jr. was convicted of criminal sexual conduct (CSC) involving two minors (Minor 1 and Minor 2, collectively the "minors"). The minors are Petitioner's twin sons. A key feature of the State's case was the challenged testimony of a pediatrician admitted pursuant to Rule 803(4), SCRE, which provides a hearsay exception for statements made in connection with medical diagnosis or treatment. The court of appeals affirmed, first questioning whether Petitioner's challenge was preserved, and then concluding the pediatrician's testimony was properly admitted. We reverse the court of appeals and remand for a new trial. For the reasons we will explain, Petitioner preserved his objection to the pediatrician's purported Rule 803(4), SCRE, testimony, and the admission of the hearsay statements in this case was blatantly improper. This improper testimony was nothing more than hearsay shrouded in a doctor's white coat, in violation of the South Carolina Rules of Evidence.

Petitioner's twin sons accused him of sexually assaulting them while they were approximately eight years old. Petitioner was convicted by a jury of two counts of criminal sexual conduct (CSC) with a minor. This appeal centers on whether the admission of a pediatrician's testimony, conveying Minor 1's statements, was appropriate under the hearsay exception for statements made for and reasonably pertinent to medical diagnosis or treatment. These statements were made to the minors' regular treating pediatrician two years after the alleged abuse occurred. The statements alleged more than the claim of sexual abuse but also named Petitioner as the perpetrator, alleged that pornography had been viewed and that a secret pact had been made. We further find this error was not harmless beyond a reasonable doubt. Therefore, we reverse the court of appeals and remand to the trial court for a new trial.

I.

The minors were born in 2000. From the time that they were eight months old, the twin minors were cared for by relatives. The minors grew up on the family's land—a property with several houses on it located in Saint Helena Island, South Carolina. Throughout their childhood, the minors were treated by their regular pediatrician, Dr. James Simmons.¹ In 2008, while the minors were staying with their cousin Rose, Petitioner returned to the family property to live in the family house² located next door to Rose's home. The minors spent time at both houses and visited with Petitioner. Petitioner left the family house in the summer of 2009. Near the end of 2009, Rose requested additional assistance with the minors from their granduncle Johnnie and grandaunt Cynthia.³

Cynthia testified that she and Johnnie began watching the minors in 2009. During one of their visits, Cynthia testified that she suspected something was wrong, especially as to Minor 1. Cynthia, however, did not confront Minor 1, bring him to a doctor, or report her concern to law enforcement. Instead, Cynthia returned Minor 1 and his brother to Rose because she was uncertain of what was wrong and did not want to jump to conclusions or wrongly blame someone.

In May 2010, the minors moved to Johnnie and Cynthia's home, which is located in Early Branch, South Carolina. Johnnie and Cynthia eventually adopted the minors in the spring of 2011. Prior to adopting the minors, Cynthia was suspicious that the minors had been sexually abused. Cynthia took the minors to a counselor, who concluded nothing was wrong with them.

Following the adoption, Cynthia confronted the minors in September of 2011, and they allegedly disclosed that Petitioner had sexually abused them at Saint Helena Island approximately two years earlier. The next day, Cynthia made an appointment to take the minors to Dr. Simmons. Cynthia informed Dr. Simmons that the minors had disclosed they were sexually abused.

Dr. Simmons interviewed Minor 1 and, after Minor 1 made several statements regarding the sexual abuse, Dr. Simmons terminated the interview to contact law enforcement and report the disclosure.

II.

Petitioner was charged with two counts of CSC with a minor in the first degree. At trial, the State called several witnesses: Dr. James Simmons, Investigator Jeremiah Fraser, cousin and previous caretaker Rose Simmons, Minor, forensic interviewer Ashley Bratcher, adoptive mother Cynthia Simmons, adoptive father Johnnie Simmons, and Nurse Kristin Dalton.

The first witness that the State called was Dr. Simmons, who was qualified as an expert in pediatric medicine. It is a portion of his testimony that is at issue in this appeal. After qualifying him, the State questioned Dr. Simmons about his examination of the minors:⁴

Q: And Doctor, can you tell me what—in talking to Minor 1 what he told you happened?

[Defense Counsel]: Your Honor, I object. It's hearsay. It's objectionable under 803 . And certainly, he could limit it to the child's disclosure of date and time, and that's it.

[The State:] Judge, we'd say that this is under the hearsay exception, 803 . Excuse me, let me pull it up. 803 .

The Court: For medical diagnosis?⁵

[The State]: For medical—purpose of medical diagnosis, exactly.

The Court: You can go ahead.

[The State:] Thank you.

[Defense Counsel:] I did—well—

Q [by the State] : Dr. Simmons, can you tell me what Minor 1 told you happened?

....

A: Yeah. He said, basically—basically, he said his—his father, that he'd been watching porn, and that they [sic] had told him not to tell anybody because of their secret pact. And that I believe that his daddy had—his father had touched his private area.

Q: Touched his private area. Do you recall more specifically what Minor 1 said?

A: I believe—I believe he said his penis.

....

A: ... I asked him what happened, and he said that—I talked with them separately, and that Dad made them, and I have in quotations, quote/unquote, Dad made them suck his penis ; and that the episode ended when he was—when the custody of Mr. Johnnie Simmons. And that, also, they had been watching porno, and he said not to tell them because of the secret pact with Dad.

Dr. Simmons further testified that he performed physical examinations on both minors and found no physical signs of trauma or abuse.

On cross-examination, Dr. Simmons admitted that he did not suspect abuse until Cynthia brought the minors to him with the sexual abuse allegation, even though he had treated them for most of their lives—from approximately eight months old until eleven years old, which was a year and a half before the trial. Furthermore, Dr. Simmons acknowledged that the minors had exhibited physical and behavioral issues prior to Petitioner re-entering their lives, while Petitioner resided next door to them, and after his departure.⁶ Moreover, at least months prior to the disclosure, Dr. Simmons had made a referral to a psychiatrist or therapist—Dr. Payne—for the minors; however, the State did not call Dr. Payne to testify.

After the State finished presenting its case, Petitioner called several witnesses to the stand. A few of these witnesses had lived in the family house during a portion of the time that the minors alleged they were abused. For example, Petitioner's sister, Paulette Crockett, lived in the family house with Petitioner, her husband, and her three kids for approximately one year and Petitioner's ex-girlfriend, Mahogany Washington, resided at the family house with Petitioner and her minor son for a period of time. These witnesses testified that they did not see Petitioner sexually abuse the minors. In addition, they did not believe anything inappropriate had occurred during the time they resided in the family house.

After deliberating for several hours, the jury informed the trial court that it was deadlocked. The trial court gave an Allen⁷ charge and sent the jury back to continue deliberating. Ultimately, the jury returned guilty verdicts on both counts. Petitioner was sentenced to two concurrent life sentences.

On appeal, Petitioner argued his convictions and sentences should be reversed because Dr. Simmons' testimony was improperly admitted and the error was not harmless beyond a reasonable doubt. The court of appeals affirmed Petitioner's convictions and sentences in an unpublished opinion. State v. Simmons , Op. No. 2016–UP–182, 2016 WL 1589222 (S.C. Ct. App. filed Apr. 20, 2016). The court of appeals questioned whether Petitioner's objection to Dr. Simmons' testimony was preserved but held, "[e]ven on the merits," that the trial court did not err in admitting the testimony and cited cases regarding harmless error. This Court granted Petitioner's petition for a writ of certiorari regarding Dr. Simmons' testimony.

III.

"The admission or exclusion of evidence is a matter addressed to the sound discretion of the trial court and its ruling will not be disturbed in the absence of a manifest abuse of discretion accompanied by probable prejudice." State v. Kromah , 401 S.C. 340, 349, 737 S.E.2d 490, 494–95 (2013) (quoting State v. Douglas , 369 S.C. 424, 429, 632 S.E.2d 845, 847–48 (2006) ). "An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." Id. at 349, 737 S.E.2d at 495 (quoting Douglas , 369 S.C. at 429–30, 632 S.E.2d at 848 ).

There are three main issues before this Court. First, is Petitioner's objection regarding Dr. Simmons' testimony preserved for appellate review? Second, was Dr. Simmons' testimony concerning Minor 1's statements improperly admitted? Third, if improperly admitted, was Dr. Simmons' testimony harmless beyond a...