State v. Dempsey, 3179.
| Decision Date | 05 June 2000 |
| Docket Number | No. 3179.,3179. |
| Citation | 340 S.C. 565,532 S.E.2d 306 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Cecil Heyward DEMPSEY, Appellant. |
Assistant Appellate Defender M. Anne Pearce, of SC Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Walter L. Bailey, Jr., of Summerville, for respondent.
A jury convicted Cecil "Tray" Dempsey of first degree criminal sexual conduct with a minor and the trial court sentenced him to thirty years imprisonment. Dempsey appeals, arguing the trial court erred in denying his mistrial motion. We affirm.
In June 1997 Victim, then 10 years old, informed his aunt that his mother's boyfriend had been sexually assaulting him for the past year.1 The boy's aunt, Patsy Yocum, immediately took Victim to a physician to be examined for sexual abuse. At the time, Victim lived with his mother and her boyfriend, Tray Dempsey. When Yocum told her sister (Victim's mother) about the abuse, she moved out of Dempsey's house for a short time but returned within days. Victim now lives with his father in North Charleston. Yocum filed a police report and Victim described the assaults to an investigator and a DSS social worker. Victim also told his father and his father's fiancee about the assaults.
An Orangeburg County grand jury subsequently indicted Dempsey for first degree criminal sexual assault with a minor. The case was tried before a jury on April 20-21, 1998. At trial, Victim testified the abuse occurred in his room, Dempsey's room, the kitchen, and in a camper at Dempsey's house. Victim testified he put toilet paper in his underwear to ease the pain from the rapes. Victim further testified appellant "jacked me up against the wall and said if I told anybody that he would hurt me." Victim's aunt also testified and stated she once overheard Dempsey yell at Victim to "shut his d___ sucking lips."
Dr. Donald Elsey, a child sexual abuse counselor, testified for the State as an expert in child sexual abuse. Before trial, the defense moved to exclude Elsey's testimony, arguing it was more prejudicial than probative and lacked a proper foundation. The trial judge reserved ruling on the motion. Elsey testified he conducted approximately thirteen counseling sessions with Victim and concluded Victim had been repeatedly sexually abused. The solicitor then asked Elsey about the methods used to determine a victim's credibility:
During cross examination, Elsey reiterated: "As I mentioned, very, very rarely does a child say that they've been sexually abused when they haven't been...." The trial court, sua sponte, then sustained Dempsey's previous objection:
I'm going to sustain at this time the defense's objection to this witness's previous testimony as to ninety-five percent, I believe, a rate you gave as being truthful, as being unfair corroboration and prejudicial to this defendant. Ladies and gentlemen, you are to disregard the witness's testimony as to the percentage of truthfulness in these kinds of cases.
At the conclusion of Elsey's testimony, defense counsel moved for a mistrial, claiming Elsey's testimony usurped the province of the jury and that the resulting prejudice could not be overcome. The court denied the motion but gave a curative instruction to the jury. The judge then explained that Elsey improperly commented on whether or not he believed Victim:
The last question put to Dr. Elsey solicited a response from him which ... was not permissible. And ... it lent itself to whether or not the victim in this case was being truthful. To paraphrase the question from the solicitor ... did you perform certain tests of the victim. Was there anything to indicate that he was not being truthful? That type of questioning, we call it corroboration, is not allowed in a case such as this .... The witness who testified as an expert is also allowed to testify to what we call trauma or rape syndrome, if you will. Now, his testimony should have been limited to that. However, in the last questioning to this particular witness, he was allowed to comment on whether or not he believed the victim, and that's not allowed.
The judge struck Elsey's last answer from the record and informed the jury that "his last answer to the State's question that lent itself to whether or not there was any indication that the victim was being untruthful, I want you to disregard that."
Following a short break, Dr. Elizabeth Baker testified that she examined Victim for signs of physical trauma and found none. She further testified this was not unusual, however, stating that
Victim's mother, on the other hand, testified for the defense. She stated she loved Dempsey, was still living with him at the time of trial, and intended to stay with him. She also claimed Victim had told her "that he loves Tray and he wants to come home to me and Tray both."
The jury convicted Dempsey and the trial court imposed a 30-year sentence. This appeal followed.
Dempsey argues the trial court erred in refusing to grant a mistrial following Elsey's testimony. We disagree.
The decision to grant or deny a mistrial is within the sound discretion of the trial judge and will not be overturned on appeal absent an abuse of discretion. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998). Accordingly, a mistrial should not be ordered in every case where incompetent evidence is received and later stricken from the record. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996). An instruction to disregard incompetent evidence usually is deemed to have cured any error in its admission unless on the facts of the particular case it is...
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Mangal v. Warden, Perry Corr. Inst.
...of another witness" is inadmissible, "incompetent evidence." State v. Dawkins, 377 S.E.2d298, 302 (S.C. 1989); State v. Dempsey, 532 S.E.2d 306, 309-10 (S.C. Ct. App. 2000) (recognizing Dawkins stands for the principle that a witness cannot "improperly vouch[] for the victim's credibility")......
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Mangal v. Warden, Perry Corr. Inst.
...of another witness" is inadmissible, "incompetent evidence." State v. Dawkins, 377 S.E.2d 298, 302 (S.C. 1989); State v. Dempsey, 532 S.E.2d 306, 309-10 (S.C. Ct. App. 2000) (recognizing Dawkins stands for the principle that a witness cannot "improperly vouch[] for the victim's credibility"......
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