State v. Durham

• Decision Date: 16 April 1985
• Docket Number: No. 845SC767,845SC767
• Citation: 74 N.C.App. 159,327 S.E.2d 920
• Parties: STATE of North Carolina v. Harry Douglas DURHAM.
• Court: North Carolina Court of Appeals

Page 920

327 S.E.2d 920

74 N.C.App. 159

STATE of North Carolina v. Harry Douglas DURHAM.

No. 845SC767.

Court of Appeals of North Carolina.

April 16, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Gordon, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Robin E. Hudson, for defendant-appellant.

ARNOLD, Judge.

The defendant is charged with taking indecent liberties with a five-year old child. The defendant argues that the child imagined or fantasized that defendant touched her in an indecent manner.

In this appeal defendant contends first that the trial judge erred by not allowing him to cross-examine the child as to the fact that she had experienced "night terrors" and had been treated for them five times at a mental health clinic. The trial judge allowed the defense counsel to question the child's mother as to these matters for the purposes of attacking the child's credibility. The defendant argues that the trial judge denied his right to confront his accusers by refusing to let him question the child personally on a matter admittedly relevant to her credibility.

Further, defendant objects to the trial judge's refusal to allow him to cross-examine the child and her mother as to the content of the night terrors, and to submit testimony of Becky Baker, who lived in the mother's household, concerning the night terrors and the child's statement that her father also had similar sexual contact with her. The trial judge ruled that the contents of the child's night terrors and the child's accusation of her father were not relevant to defendant's guilt or innocence. The defendant argues that the trial judge by so restricting cross-examination and the presentation of evidence denied defendant his right to confront the witnesses against him and to present his defense.

I.

We consider first defendant's contention that he should have been allowed to put questions to the child personally, which he was allowed to put to her mother, and which concerned a matter relevant to the child's credibility as a witness.

The right to confront one's accusers, guaranteed by the sixth amendment and made applicable to the states by the fourteenth, is central to an effective defense and a fair trial. Pointer v. Texas, 380 U.S. 400, 403-05, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923, 926-27 (1965). At the heart of the right of confrontation is cross-examination. Id. As Professor Wigmore has stated:

The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.

5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940), cited with approval in Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974) (emphasis added).

The right of effective cross-examination, recognized as fundamental by the Supreme Court, Pointer, 380 U.S. at 403-05, 85 S.Ct. at 1068, 13 L.Ed.2d at 926-27; Davis, 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355, is denied when a defendant is prevented from cross-examining a witness at all on a subject matter relevant to the witness's credibility. Snyder v. Coiner, 510 F.2d 224, 225 (4th Cir.1975), cited in State v. Legette, 292 N.C. 44, 53, 231 S.E.2d 896, 901 (1977). Moreover, the denial of that right is a "constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Davis, 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355, citing Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956, 959 (1968) and Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314, 316 (1966).

It has been recognized that the right of cross-examination is not absolute and may, in appropriate cases, be outweighed by other legitimate interests in the criminal process. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) (admission of previously-recorded testimony of unavailable witness not a violation of the confrontation clause if testimony bears sufficient "indicia of reliability"). But see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (state common law "voucher rule," preventing impeachment of one's own witness, does not outweigh right to cross-examine); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (state policy of preventing public disclosure of juvenile offender's record does not outweigh right to cross-examine). Yet, the denial or significant diminution of the right to effective cross-examination "calls into question the ultimate 'integrity of the fact-finding process,' and requires that the competing interest be closely examined," Chambers, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed.2d at 309, quoting Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

Once a defendant has been given the full and fair opportunity guaranteed by the sixth and fourteenth amendments to cross-examine on matters raised in the direct examination and on matters relevant to credibility, the trial judge may in his discretion prevent cross-examination which is repetitious or harassing. When the trial judge commits error in controlling the scope of cross-examination which is within his discretion, the error is harmless if no proof is presented that prejudice resulted, i.e., that "the verdict was improperly influenced thereby." State v. Britt, 291 N.C. 528, 545, 231 S.E.2d 644, 655 (1977).

The problem we face in the present case is whether by foreclosing personal cross-examination of the child on a matter relevant to her credibility the trial judge denied defendant's constitutional right of confrontation, or whether he acted within his discretion to control the scope of cross-examination.

The trial court refused to allow defendant to cross-examine the child as to her treatment for night terrors, while allowing defendant to cross-examine the child's mother as to that subject for purposes of attacking the child's credibility. From the fact that the child had had severe nightmares, or night terrors, and that her mother had taken her to a mental health center five times for treatment it is reasonable to infer that the child might have had some form of mental or emotional illness that might have affected her testimonial capacities. The trial judge correctly concluded that this was a subject relevant to the child's credibility as a witness.

If this was a subject matter relevant to the child's credibility as a witness, then defendant should have been permitted to cross-examine her. Yet, the trial judge only allowed defendant to put these facts into evidence through cross-examination of the child's mother. The rule in North Carolina is that where a trial court erroneously refuses to allow cross-examination of a witness, and then the evidence sought to be admitted by cross-examination is admitted later by another witness, the error is harmless. See State v. Edwards, 305 N.C. 378, 381-82, 289 S.E.2d 360, 363 (1982); see also State v. Smith, 294 N.C. 365, 377, 241 S.E.2d 674, 681 (1978).

While we will abide by that rule in this case, we believe it should be criticized as not in keeping with the underlying purposes of the sixth amendment right to confront one's accusers. The North Carolina rule in practice allows the trial judge to appoint an alternate to answer difficult credibility questions, and denies the defendant the right to question the witness personally in front of the jury, so that the jury can observe the witness's response and judge the witness's credibility. Where the witness is the principal accuser, and the only person except for the defendant who has first-hand knowledge of the crime and related events, the appointment of an alternate might deprive the jury of crucial facts which only the witness himself knows and might reveal on cross-examination.

Further, we take issue with what appears to be the underlying motivation in child witness cases for permitting a relative to testify for the child. It has been argued, as the State did in the present case, that the trial court may appoint a relative to testify "to lessen the emotional trauma of the trial on the young victim." We agree that the State has an interest in protecting the child from further brutalization by the trial process.

Yet, answering the questions put by the defense counsel in cross-examination often is no more traumatic than describing the crime itself, which the child as principal witness must do. Our Constitution requires that a person who has been accused by another has a right to confront his accuser in the flesh, and not through an alternate or substitute. Moreover, this right extends to all subjects relevant to the accuser's credibility, whatever their emotional content. A child witness then, who is also a victim and principal accuser, cannot be insulated entirely from a relevant area of questioning which puts at issue the child's credibility. This is not to say, however, that the trial judge may not in his discretion oversee the cross-examination, as with all witnesses, to prevent the defense counsel from so phrasing his questions as to harass the witness.

On the issue of whether the trial judge's refusal to allow cross-examination of the child on a clearly relevant subject was error, in light of the cross-examination of the mother on the same subject, the rule of State v. Edwards controls, and we will adhere to it. The rule, however, in a case like the present, may be criticized because it obscures and may work against a defendant's sixth amendment rights.

II.

We turn...