State v. Jones

• Decision Date: 19 April 1988
• Docket Number: No. 8715SC674,8715SC674
• Citation: 89 N.C.App. 584,367 S.E.2d 139
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James William JONES.

Page 139

367 S.E.2d 139

89 N.C.App. 584

STATE of North Carolina v. James William JONES.

No. 8715SC674.

Court of Appeals of North Carolina.

April 19, 1988.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Debra K. Gilchrist, Raleigh, for the State.

Daniel H. Monroe, Graham, for defendant-appellant.

ORR, Judge.

I.

Defendant contends the trial court erred in excluding him from the voir dire hearing during the victim's testimony to determine her competency to testify.

Prior to examining the victim, the judge heard the testimony of the victim's psychologist, Dr. Betty Gordon. Dr. Gordon, a clinical child psychologist specializing in sexual abuse, testified that the victim exhibited an intense fear of the defendant and that she could suffer emotional harm if forced to testify in his presence.

Based upon Dr. Gordon's testimony, the judge secluded defendant in the judge's chambers with a closed circuit television, when the victim was examined.

The television allowed defendant to see and hear the victim's testimony. In addition, defendant and his attorney were authorized to confer after the victim's direct-examination and prior to culmination of the victim's cross-examination. Defendant's attorney was present in the courtroom throughout the victim's testimony and had an unrestricted opportunity to cross-examine her.

After the voir dire hearing, the trial court concluded the victim was incompetent to testify at trial, and declared her to be an unavailable witness.

A. Defendant argues his exclusion from the courtroom violated his Sixth Amendment right to confrontation under the United States Constitution, and his rights under Article I, §§ 18, 19 or 23 of the North Carolina Constitution.

The legality of excluding a defendant from the courtroom during a competency hearing is an issue of first impression in North Carolina. However, this issue was recently addressed by the U.S. Supreme Court in Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).

In Stincer the defendant was excluded from a hearing determining the competency of a young girl and a young boy the defendant was charged with sexually abusing. The Stincer court did not provide the defendant with either a closed circuit television or the opportunity to confer with his attorney while excluded. The trial court in Stincer found the children competent to testify; therefore, the defendant had an opportunity to effectively cross-examine the children at trial. This opportunity to cross-examine, the U.S. Supreme Court held, prevented defendant's Sixth Amendment right to confrontation from being violated by his exclusion from the courtroom during voir dire.

The U.S. Supreme Court discussed the purpose and protections of the Sixth Amendment Confrontation clause in Stincer, saying:

The Court has emphasized that 'a primary interest secured by [the Sixth Amendment Confrontation Clause] is the right of cross-examination.' Douglas v. Alabama, 380 US 415, 418, 13 L Ed 2d 934, 85 S Ct 1074 [1076] (1965). The opportunity for cross-examination, protected by the Confrontation Clause, is critical for ensuring the integrity of the fact-finding process. Cross-examination is 'the principal means by which the believability of a witness and the truth of his testimony are tested.' Davis v Alaska, 415 US 308, 316, 39 L Ed 2d 347, 94 S Ct 1105 [1110] (1974).

Stincer, 482 U.S. at ----, 107 S.Ct. at 2662, 96 L.Ed.2d at 641.

Of course, the Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' Delaware v. Fensterer, 474 US , at 20, 88 L Ed 2d 15, 106 S Ct 292 [295 (1985) ] (emphasis in original). This limitation is consistent with the concept that the right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial.

Id. at ----, 107 S.Ct. at 2664, 96 L.Ed.2d at 643.

Based on the decision in Stincer, we conclude the determinative question in the present case is whether defendant's exclusion from the courtroom interfered with his opportunity for effective cross-examination.

The record shows that after direct examination of the victim ended, defendant's attorney cross-examined her. When the attorney had completed his own cross-examination, he left the room briefly, conferred with defendant and then returned to ask the victim several more questions before ending all cross-examination.

Defendant heard the complete testimony of the victim during her direct examination and her initial cross-examination. After the initial cross-examination, defendant was able to confer with his attorney and bring to his attorney's attention any discrepancies in the victim's testimony or any crucial unaddressed issues requiring further cross-examination. Thus, defendant, although absent from the courtroom, was able to hear all testimony, interact freely with his attorney, and through his attorney confront the victim, thereby accomplishing effective cross-examination.

We conclude the procedures enacted by the trial court under the facts of this case did not violate defendant's Sixth Amendment right to confrontation.

B. We also conclude the exclusion of defendant did not violate Article I, §§ 18, 19 or 23 of the North Carolina Constitution.

Specifically, we address Article I, § 18, which states in pertinent part, "All court shall be open...." Prior case law in North Carolina holds a defendant has a constitutional right to be present at all stages of a court proceeding so that he may hear the evidence and have an opportunity to refute it. State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1962); Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782 (1957).

We find the trial court's use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim's testimony, were sufficient to permit defendant to hear the evidence and to refute it. Therefore, defendant's rights under the North Carolina Constitution were also fully protected.

II.

Defendant next contends the hearsay evidence rule prohibited Deborah Matthews, Randell Matthews, and Nancy Berson from testifying as to statements made by the victim.

At trial the victim's mother, Deborah Matthews, and father, Randell Matthews, testified that on 19 July 1986 at approximately 8:00 p.m. the victim told the mother in the presence of the father that "Poppy pulled my pants down and touched my pee patch again." The parents further testified that the victim, when asked what she meant by again, responded that Poppy had touched her another time, "And he wiggled his finger around in my pee patch and hurt me." The victim's mother also testified that the victim described her vaginal area as her "pee patch."

In addition, Nancy Berson, a social worker and Coordinator and Child Evaluator for the Duke Child Protection Team, testified she had interviewed the victim on 16 and 17 October 1986 at the Duke Medical Center Pediatric Clinic. During the interview, the victim told Ms. Berson that she had been sleeping with Nanny, her grandmother, when Poppy, her step-grandfather, "snuck up and got [her]" and took her to another room, where he hurt her pee patch with his hand. Ms. Berson also testified that the victim "pulled down her bottom lip just like this to demonstrate the gums, and she said, 'Poppy hurt me here,' and I said, 'Well, how did he hurt you?' and she said he put his peter in her mouth. While saying this, before I could say anything else, she said to me, 'It made me sick, it made me heave.' "

To introduce hearsay evidence in a criminal trial, the prosecution must meet two requirements: (1) it must show the necessity for using hearsay testimony, and (2) it must establish the inherent trustworthiness of the original declaration. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984); State v. Gregory, 78 N.C.App. 565, 338 S.E.2d 110 (1985), appeal dismissed and disc. rev. denied, 316 N.C. 382, 342 S.E.2d 901 (1986).

In the present case, the trial court, after holding a N.C.G.S. § 8C-1, Rule 601(b) competency hearing, found the victim incompetent to testify at trial. Since the State's case against defendant consisted mainly of the victim's statements, "[t]he unavailability of the victim due to incompetency and the evidentiary importance of the victim's statements adequately demonstrate[d] the necessity" requirement of the two-part hearsay test. State v. Gregory, 78 N.C.App. at 568, 338 S.E.2d at 112-13.

The second part of the test, a showing that the hearsay statement is inherently trustworthy, is established when the evidence falls within a statutory hearsay exception. N.C.G.S. § 8C-1, Rule 802 (1986); accord, Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.

Therefore, to determine the admissibility of the State's evidence, we must examine the facts underlying each of the victim's statements, testified to by the witnesses, to see if they fall within an exception to the hearsay evidence rule.

A. Testimony of mother, Deborah Matthews.

The State contends Mrs. Matthews' testimony was admissible under Rule 803(4), the statutory exception for statements made for purposes of medical diagnosis or treatment. N.C.G.S. § 8C-1, Rule 803(4) (1986); State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985); State v. Gregory, 78 N.C.App. 565, 338 S.E.2d 110.

Rule 803(4) permits admission of:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

In State v. Smith, 315 N.C. 76, 337 S.E.2d 833, the Supreme Court found Rule 803(4) permitted admission of hearsay on facts similar to those in the present case. In...