State v. Hewett

• Decision Date: 21 February 1989
• Docket Number: No. 8813SC499,8813SC499
• Citation: 376 S.E.2d 467,93 N.C.App. 1
• Parties: STATE of North Carolina v. Harry Bert HEWETT.
• Court: North Carolina Court of Appeals

Page 467

376 S.E.2d 467

93 N.C.App. 1

STATE of North Carolina v. Harry Bert HEWETT.

No. 8813SC499.

Court of Appeals of North Carolina.

Feb. 21, 1989.

Ramos and Lewis by Michael R. Ramos, Shallotte, for defendant-appellant.

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

BECTON, Judge.

On 10 September 1987, a jury convicted the defendant, Harry Bert Hewett, Jr., of two counts of first degree rape, two counts of first degree sex offense, two counts of incest, and two counts of taking indecent liberties with a minor. The victims of these crimes were defendant's daughters, whom we shall refer to as "A.H." and "T.H." The trial judge sentenced defendant to four consecutive life terms for the rape and sex offense convictions, to consecutive terms of four and one-half years for the incest convictions, and to consecutive three-year terms for the indecent liberties offenses. From this judgment, defendant appeals. We find no error.

The State's evidence tended to show that A.H. and T.H. were the natural daughters of defendant. Between January and June of 1987, the children resided with their grandmother, defendant's mother. On 14 February 1987, defendant, defendant's mother, his girlfriend, and the children went to a shopping center in Shallotte. A.H. testified that she and T.H. remained in the car with defendant while the women shopped. Defendant told A.H. to remove her clothing, and she did so. Defendant then touched A.H. on her vagina with his penis and hand. T.H. testified that she took down her panties, and defendant touched her on her vagina and on her "titty." She further testified that she and A.H. touched defendant's penis with their lips.

The State's evidence also showed that on 29 March 1987, defendant took A.H. and T.H. to his home. Both children testified that no one besides themselves and defendant were at defendant's residence at the time. A.H. and T.H. testified that they and defendant removed their clothing, and defendant got onto the bottom bunk of the children's bunk beds. A.H. testified that defendant penetrated her vagina with his penis and with his finger. T.H. testified that she and her sister took turns "getting up on Daddy" and that each child took turns "ke[eping] an eye out to see if anybody would come." T.H. testified that defendant penetrated her vagina with his penis.

At the time of the incidents on 14 February and 29 March, A.H. was nine years old, and T.H. was eight.

Defendant testified that he had never been alone with the children in the automobile on 14 February. Defendant's mother and his girlfriend gave corroborative testimony on this point. Defendant also testified as to his whereabouts with the children on 29 March; at no time did he testify to taking them to his home on that date. Again, defendant's mother and his girlfriend offered corroborative evidence.

On appeal, defendant has brought forward 19 assignments of error. Additional facts relevant to issues defendant has raised will be set out as needed.

I

Defendant assigns error to the trial judge's denial of his pretrial motion for an independent medical examination of the A.H. and T.H.

A

On 10 April 1987, Dr. James Forestner, the child medical examiner for Brunswick County, examined the children at the request of the Brunswick County Department of Social Services. At the examinations, Dr. Forestner asked the children to describe what their father had done to them. He also conducted physical examinations. Dr. Forestner made two written reports--one report per child--of his findings. Defendant received copies of Dr. Forestner's reports through discovery.

Dr. Forestner wrote that A.H.'s hymeneal ring, her vaginal opening, "f[ell] open to some 8 m[illemeters] and ha[d] a thickened internal edge." The ring "appear[ed] to have been injured and healed." T.H.'s vagina "gape[d] to 7 or 8 m[illemeters and the] edge of the hymeneal ring [was] somewhat thickened and g[ave] the impression of having been irritated and healed." On both reports, Dr. Forestner wrote that the physical findings were consistent with, but not diagnostic of, the kind of sexual abuse the children had described to him. Dr. Forestner testified that according to the "consensus group" of the American Medical Association, a vaginal gaping of ten millimeters is "pretty much proof of penetration" while "[a]nything over four millimeters ... is very suggestive of penetration." On both of his reports, Dr. Forestner wrote that he believed the children had been sexually abused. He wrote, and repeated at trial, that he based his conclusion upon the physical findings coupled with what the children had told him.

On 8 July 1987, defendant filed a motion for additional medical examinations of the children, these to be done by an expert of defendant's choosing. Defendant claimed Dr. Forestner's conclusion that the children had been sexually abused did not follow from the physical findings which the doctor said were merely "consistent with" but not "diagnostic of" abuse. Defendant alleged that the findings and the conclusion were inconsistent with one another.

The court heard defendant's motion on 8 September. Defendant's brother, the court-appointed custodian of the children, testified that he did not object to the examinations taking place. The judge denied defendant's motion in a written order on 9 September. The judge found that the requested examinations "could compromise the mental health and well-being of the ... children," that Dr. Forestner's findings were not inconsistent but were "simply a statement that the results of the physical examination could have several origins, one of which is consistent with sexual abuse," that defendant had made no showing to the court of a need for the additional examinations, and that the examinations would serve only to place the children in "a potentially embarrassing and traumatic situation without [producing] any benefit to defendant."

B

Defendant argues that the children's bodies are "physical evidence ... susceptible to objective tests and examinations like any other physical evidence which is to be used at trial." He contends that this "evidence" is therefore discoverable under N.C.Gen.Stat. Sec. 15A-903(e) (1988), which in part provides that "upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence ... available to the prosecutor if the State intends to offer the evidence...." Defendant contends that the trial judge's refusal to grant him the opportunity to have the children examined by a second expert denied him the right "to have available evidence which he might legitimately offer" to rebut or impeach Dr. Forestner's testimony.

Defendant argues that had he been arrested for possessing white powder, which the State subsequently tested and concluded to be cocaine, he would plainly have a right to have his own expert conduct a second test upon the substance. He argues that the examinations he requested in this case are no different. We reject defendant's analogy. Powder does not have dignity, and courts are rightly solicitous when a human being's privacy faces invasion. At the same time, we recognize that this defendant has been convicted of some of our most serious non-capital offenses, and our concern for his due process rights is, likewise, very strong. See State v. Jones, 85 N.C.App. 56, 65, 354 S.E.2d 251, 256 (1987), disc. rev. denied, 320 N.C. 173, 358 S.E.2d 62 (1987), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) (because Sec. 15A-903(e) does not specify type of testing procedures to be allowed, question must be decided by reference to due-process principles).

We have carefully reviewed the record, and we do not find that defendant made a credible showing to the trial judge that the additional examinations he requested would have been probative. The last alleged incidence of abuse was 29 March; the new examinations would have taken place some six months later. Defendant made no showing that dilations, in September, of less than four millimeters would demonstrate that no penetration had occurred in February and March. He made no showing that normal measurements would not have been the result of vaginal constriction rather than non-abuse.

Additionally, defendant made no showing that the new examinations were necessary. Had defendant submitted Dr. Forestner's report to a second physician, and had the physician opined that Dr. Forestner's conclusion was inconsistent with the physical findings, and had the physician indicated he needed to conduct additional examinations to effectively testify on defendant's behalf, then defendant would have made a strong showing of necessity both to the trial judge and on appeal. In this case, however, defendant never gave Dr. Forestner's report to a second expert. Consequently, it was merely defendant's opinion that the first examinations had produced inconsistent results, and it was merely defendant's opinion that additional examinations were needed. We hold, therefore, that the trial judge properly found that the interests of the children required that defendant's motion be denied.

We do not imply that a defendant charged with offenses such as these is precluded, in all cases, from receiving an independent medical examination of the alleged victim. On appeal, both the State and defendant have focused on North Carolina cases in which criminal defendants have asked trial judges to compel witnesses to undergo psychiatric examinations. The law in this State is that a judge has no discretionary power to require an unwilling witness to submit to such an examination. See State v. Looney, 294 N.C. 1, 240 S.E.2d 612 (1978); State v. Clontz, 305 N.C. 116, 286 S.E.2d 793 (1982). In our view, a trial judge would have the discretionary power to permit a second physical examination of an alleged...