State v. Chandler

• Decision Date: 02 March 1989
• Docket Number: No. 479A87,479A87
• Citation: 324 N.C. 172,376 S.E.2d 728
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Junior CHANDLER.

Page 728

376 S.E.2d 728

324 N.C. 172

STATE of North Carolina v. Junior CHANDLER.

No. 479A87.

Supreme Court of North Carolina.

March 2, 1989.

Lacy H. Thornburg, Atty. Gen. by Ellen B. Scouten, Asst. Atty. Gen., Raleigh, for the State.

Robert G. Karriker and Talmage N. Penland, Asheville, for defendant-appellant.

FRYE, Justice.

Defendant was originally charged in seven bills of indictment with first degree sexual offense against seven children under the age of thirteen years. The State submitted superceding indictments on 20 October 1986 which were returned as true bills by the Madison County Grand Jury charging defendant with seven counts of first degree sexual offense, seven counts of taking indecent liberties with a minor and seven counts of crime against nature. All twenty-one counts were consolidated for trial.

Defendant's first jury trial commenced at the 19 January 1987 Criminal Session of Superior Court, Madison County, Judge James A. Beaty, Jr., presiding. On 2 February 1987, Judge Beaty declared a mistrial because the jury was unable to reach a unanimous verdict. On 13 February 1987, at a Special Session of Madison County Superior Court, Judge Beaty granted the State's Motion for Change of Venue pursuant to N.C.G.S. § 15A-957 and ordered the cases transferred to Buncombe County for trial. The second jury trial commenced at the 30 March 1987 Criminal Session of Buncombe County Superior Court with Judge W. Douglas Albright presiding.

Evidence for the State tended to show that defendant was employed from 1 January to 19 May 1986 by the Madison County Transportation Authority as a driver of a day care van. During the period of January through May 1986, Brandy, Michelle, Quantella, Amanda, Brian, Timmy and Jessica attended the Marshall Day Care Center and rode the van driven by defendant. The ages of the children ranged from two to five years.

Defendant also transported mentally handicapped adult residents of the Mintz Family Care Homes to and from the Madison Sheltered Workshop along with the children attending the Marshall Day Care Center. Defendant picked up the mentally retarded adults from the Sheltered Workshop at 2 p.m. each afternoon, and arrived at the Marshall Day Care Center between 2:15 p.m. and 2:30 p.m.

Brandy lived within three miles of the day care center and her residence was one of the first stops made by defendant after leaving the center. When she began riding the van, Brandy arrived home around 2:45 p.m. but, after riding the van for a few months, she gradually arrived home later each day. On 24 February 1986, Brandy rode the van home from the day care center. She told her mother, Nancy Burgess, "We've been f......." Brandy's mother punished her for using vulgar language, and removed her from the day care center. The child's genital area, which had been red and irritated during the time she rode the van, cleared up and was no longer red. A few weeks later, Mrs. Burgess saw Brandy simulate sexual acts with her teddy bear.

On or about 17 May 1986, Brandy told her mother how "they" had "hurt her butt" on the day care van and threatened to put the kids on the railroad tracks if they told. Subsequently, Brandy was interviewed by Linda King, a social worker with the Madison County Department of Social Services, who made an appointment for a medical examination for Brandy. Dr. Nancy Rice, a child medical examiner, examined Brandy and found a "markedly dilated" vaginal opening. She testified that normally in a little girl the vaginal opening is closed like a flat line and that Brandy's was "gaping" to the point where Dr. Rice could easily have inserted two fingers in the child's vaginal opening.

Based on Brandy's statements to Linda King which indicated that the other children had been abused, the social worker contacted the families of the children and set up interviews and medical appointments for the children. Dr. Rice examined Brandy, Quantella, Amanda and Michelle and testified at trial that she found that each of the little girls had "markedly dilated vaginal openings, wider than normal for girls their age."

On 26 May 1986, Linda King interviewed Brian who told her that defendant had "placed a pen in his butt" and defendant had placed his hand on Brian's penis. On 28 May 1986, Dr. Gravatt interviewed Timmy who told her [ ] "Hurt my pee-pee. Touched my butt." Dr. Gravatt examined Jessica on 29 May 1986 and diagnosed Jessica's condition as "suspicious for child abuse." On 29 May 1986, Dr. Rice and Dr. Gravatt separately examined Brandy, Quantella, Amanda and Michelle. Each of these girls related to the doctors that defendant had penetrated them sexually.

On 29 May 1986, after the medical examinations, Linda King took Brandy, Michelle, Amanda and Quantella to the Redmon Dam area of Madison County where the children directed her to the locations where the events occurred. In their statements to the doctors and the social worker, the children mentioned the mentally retarded adults as being involved in the sexual assaults. SBI Special Agent Lloyd Crisco talked to Pam Coli and Buddy Norton, two of the retarded adults who rode the van. Both independently corroborated the children's statements concerning the abuse and the locations where the incidents of abuse occurred.

At trial, Brandy, Brian, Amanda and Quantella each testified that defendant had touched them in their private parts or penetrated them sexually. Michelle was declared unavailable and her former testimony from the first trial was admitted as substantive evidence. Dr. Gravatt testified that she had examined all seven children and found markedly dilated vaginas in Brandy, Quantella, Amanda and Michelle, and redness in the vaginal area of Jessica. All seven children had described to her how they were sexually penetrated by defendant. Dr. Rice corroborated the medical findings of Dr. Gravatt and testified that she had referred the children to therapy.

Brandy, Brian, Quantella, and Amanda were referred to therapist Phyllis Wells. She testified that each of the four children exhibited behavior which was consistent with that of a sexually abused child. Becky Lasher was the therapist for Michelle and Jessica. Michelle's statement to Ms. Lasher during therapy that defendant had "messed with her butt" and drawings of defendant made by Michelle during therapy were introduced into evidence.

Defendant denied having molested the children, and testified that he never stopped the day care van anywhere around Redmon Dam. Two workers at the Carolina Power and Light Power Plant at the Redmon Dam testified that they had seen the yellow van parked in the road going into the power plant in the same area earlier witnesses had indicated on photographs.

The jury convicted defendant of five counts of first degree sexual offense, six counts of taking indecent liberties with a minor and one count of crime against nature. On 15 April 1987, Judge Albright consolidated three counts of first degree sexual offense for a sentence of life imprisonment; consolidated two counts of first degree sexual offense for an additional sentence of life imprisonment, to be served after the first life sentence; and imposed consecutive sentences of three years for each charge of crime against nature and taking indecent liberties with a minor, for a total of twenty-one years to be served concurrently with the life sentences.

Defendant appeals from the 15 April 1987 judgments, assigning error to one hundred fifty-two (152) rulings of the two trial judges. These assignments of error are brought forward in seven numbered arguments, the first of which is divided into two parts. We shall consider the arguments seriatim.

Defendant first contends that the trial court erred by allowing Michelle Chandler, a key witness for the State, to be withdrawn as a witness and by admitting her testimony from the first trial into evidence. Defendant contends the admission of the former testimony violated his sixth amendment right of confrontation. We find no error in the ruling of the trial court and we hold that defendant's right of confrontation was not violated by the admission of the former testimony.

During the presentation of the State's case, the district attorney called one of the victims, Michelle Chandler, four years of age, as a witness. After the child failed to respond to several questions, the trial judge noted that she appeared to be overcome with fear to the extent that she could not communicate. The court allowed the witness' mother to come to the stand to sit with her. The witness answered several introductory questions but failed to respond to further questioning. The trial judge directed the witness to be withdrawn because of her inability to respond to questions, noting that he did not find her to be an incompetent witness. He later permitted the State to introduce into evidence the transcript of the child's testimony from the first trial.

The sixth amendment to the United States Constitution guarantees an accused the right to confront and cross-examine the witnesses against him. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The sixth amendment right of confrontation is made applicable to the states through the due process clause of the fourteenth amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). A similar guarantee is included in the North Carolina Constitution in article I, section 23.

An exception to the confrontation requirement will be recognized where a witness is unavailable to testify but has testified at a former proceeding subject to cross-examination. Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255, 258 (1968); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); State v. Grier, 314 N.C. 59, 331 S.E.2d 669 (1985); State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967)....