State v. King

• Decision Date: 14 June 2012
• Docket Number: No. 385A11.,385A11.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Melvin Charles KING.

733 S.E.2d 535

STATE of North Carolina

v.Melvin Charles KING.

No. 385A11.

Supreme Court of North Carolina.

June 14, 2012.

Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 713 S.E.2d 772 (2011), affirming an order entered on 23 April 2010 by Judge John O. Craig, III in Superior Court, Moore County. Heard in the Supreme Court on 13 March 2012.

Roy Cooper, Attorney General, by Anne M. Middleton, Assistant Attorney General, for the State-appellant.

VanCamp, Meacham & Newman, PLLC, Pinehurst, by Patrick M. Mincey, for defendant-appellee.

EDMUNDS, Justice.

In this case we consider whether the trial court abused its discretion when it granted defendant's motion to suppress expert testimony regarding repressed memory. Although we affirm the holding of the Court of Appeals majority that the trial court properly granted defendant's motion, we disavow the portion of the opinion that, relying on an earlier opinion of that court, requires expert testimony always to accompany the testimony of a lay witness in cases involving allegedly recovered memories.

On 12 September 2005, defendant was indicted for first degree rape in violation of N.C.G.S. § 14–27.2(a)(1). Four years later, on 21 September 2009, he was indicted for additional charges of felony child abuse by committing a sexual act on a child, in violation of N.C.G.S. § 14–318.4(a2); incest, in violation of N.C.G.S. § 14–178; and indecent liberties with a child, in violation of N.C.G.S. § 14–202.1. Averments in pretrial motions filed in the case indicate that the victim, who is defendant's daughter and was born in 1988, began suffering panic attacks and pseudoseizures in March 2005. As these episodes continued, the victim began acting as if she were a young child, speaking of a “mean man” she worried would hurt her. During one episode, she identified a photograph of her father as the “mean man.” After several visits to a variety of doctors and other medical providers, the victim was diagnosed with conversion disorder and referred to therapy.

Although the victim initially denied having experienced any sexual abuse, she recounted during a therapy session an event that occurred when she was seven years old and visiting defendant for the weekend in accordance with the custody arrangement between defendant and the victim's mother. The victim told the therapist that she recalled getting out of the bathtub and hurting herself in her “private area.” She did not remember the exact facts of the incident or how the injury occurred, though she did remember her father telling her she had fallen. She also remembered bleeding and being taken to the emergency room by her mother, where she was treated for a superficial one-centimeter laceration to her vagina. When the therapist asked the victim what she would think about the incident if a friend had told her about it, the victim responded that she would “wonder about abuse,” but added that she did not believe her father would do such a thing to her. The therapist then discussed with the victim how the mind can protect itself by “going somewhere else when something very difficult or painful might be happening.”

About three weeks after this therapy session, the victim experienced her first “flashback” to the alleged events underlying the charges in this case. She said that when her boyfriend's arm brushed against her neck, the memory “hit” her that as she had been getting out of the bathtub, defendant entered the bathroom, lifted her up against the wall, threw her on the floor, put his arm across her chest to hold her down, and raped her. The victim also recalled that her father had threatened to hurt her if she told anyone. After reporting this memory to her therapist, the victim was referred to the Moore County Department of Social Services, which initiated an investigation that resulted in the 2005 and 2009 indictments.

Defendant was scheduled to be tried on 1 February 2010. On 28 January 2010, he filed a motion to exclude testimony about “ ‘repressed memory,’ ‘recovered memory,’ ‘traumatic amnesia,’ ‘dissociative amnesia,’ ‘psychogenic amnesia’ or any other synonymous terms the witnesses may adopt.” ¹ In his motion and in two memoranda submitted to support the motion, defendant argued that the phenomenon of repressed memory has generated significant controversy in the scientific community and thus is not sufficiently reliable to meet this Court's requirements for admission of expert testimony, as set out in Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004). Defendant contended that the theory of repressed memory is based upon “untested and flawed methods and unproved hypotheses” and is analogous to hypnotically refreshed testimony or polygraph test results, both of which this Court has found lack sufficient reliability to be admissible. See State v. Peoples, 311 N.C. 515, 532, 319 S.E.2d 177, 187 (1984) (rejecting hypnotically refreshed testimony); State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983) (same for lie detector tests).

In response, the State submitted a memorandum in which it argued that dissociative amnesia is a legitimate scientific diagnosis that has been recognized by several other jurisdictions and by numerous highly respected scientific organizations, including the American Psychiatric Association, World Health Organization, and American Psychological Association. The State indicated that it intended to call as expert witnesses James A. Chu, M.D., an associate clinical professor of psychiatry at Harvard Medical School, and Desmond Runyan, M.D., a professor of Social Medicine and of Pediatrics at the University of North Carolina at Chapel Hill. Dr. Chu testified at the suppression hearing, as detailed below, and Dr. Runyan was expected to testify at trial that neither falling in the bathtub nor straddling its rim would be likely to cause the type of injury the victim suffered, and that sexual abuse was a more plausible explanation.

The trial court conducted an evidentiary hearing on defendant's motion to suppress on 12 and 13 April 2010. Defendant presented Harrison G. Pope, Jr., M.D., a professor of psychiatry at Harvard Medical School, who was qualified as an expert in psychiatry, specifically on the issue of repressed memory. The State presented Dr. Chu, who also qualified as an expert in repressed memory. Each expert described his extensive experience and background in psychiatry and the field of repressed memory. Each also presented lengthy and detailed testimony about the nature of memory and the acceptance and status of the theory of repressed memory within the medical community. They disagreed about almost everything.

Although Dr. Pope has treated patients who report memory problems, the majority of his work has consisted of research. His testimony regarding repressed memory focused on his review of and opinion about studies that have been conducted on the topic, articles that he has authored assessing the methodologies of these studies, and a description of the frequency of reports of repressed memories. His study, which reviewed articles published between 1984 and 2003, found “practically no articles about repressed memory or dissociative amnesia up until 1992.” A surge of reports followed, peaking in 1997, then falling off to “a fraction of their previous level.” Although Dr. Pope acknowledged that some reputable scientists disagree with him, he was deeply skeptical of the existence of repressed memory as the term was used in this proceeding and testified that the theory of repressed memory is not generally accepted in the scientific community.

In contrast, Dr. Chu is primarily a clinician. He testified that in his clinical practice he frequently observed cases of repressed memory. Citing instances in which repressed memories of sexual abuse have been corroborated by family members who either committed or knew of the abuse, he stated that the condition, which he described generally as a conversion disorder, can be genuine and unfeigned. He testified that the “vast majority” of those in the scientific community,including academics and clinicians, accept the theory of repressed memory.

After hearing arguments from the State and from defendant, the trial court granted defendant's motion to suppress in an extensive oral order issued from the bench on 13 April 2010. On 23 April 2010, the trial court entered a written order making findings of fact and conclusions of law. In its written order, the court began by citing North Carolina Rule of Evidence 702, which controls admission of expert testimony. N.C.G.S. § 8C–1, Rule 702 (2009). ² The court then reviewed the three-step inquiry set out in Howerton to determine whether expert testimony is admissible under Rule 702. See Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (citing State v. Goode, 341 N.C. 513, 527–29, 461 S.E.2d 631, 639–41 (1995)). The three prongs of the inquiry are: (1) whether the expert's proffered method of proof is sufficiently reliable; (2) whether the witness presenting the evidence qualifies as an expert in the applicable area; and (3) whether the testimony is relevant. Id. At the outset, the trial court readily concluded that the State's witness was an expert in the area of repressed memory, meeting the requirements of the second prong.

Turning then to the first prong, the judge reviewed case law from other jurisdictions pertaining to admission of expert testimony on repressed memory theory and summarized the expert testimony presented at the hearing on defendant's motion to suppress. The court found as fact that other jurisdictions have been inconsistent in whether, and on what bases, they have admitted expert testimony on repressed memory. The court further found that, while a significant dispute in the scientific community over the validity of the concept of repressed memory foreclosed a conclusion that the theory of...