State v. Legg
Decision Date | 20 April 2016 |
Docket Number | Appellate Case No. 2014–000568.,No. 27628.,27628. |
Court | South Carolina Supreme Court |
Parties | The STATE, Respondent, v. Ronald Lee LEGG, Appellant. |
Chief Appellate Defender, Robert Michael Dudek, of Columbia, for appellant.
Attorney General, Alan McCrory Wilson and Assistant Attorney General, Jennifer Ellis Roberts, both of Columbia, and Solicitor Jimmy A. Richardson, II, of Conway, for respondent.
.
Appellant was convicted of lewd act on a minor. He was sentenced to twelve years' imprisonment, ordered to be placed on the sex offender registry, and subjected to GPS monitoring. Appellant argued at trial and before this Court that South Carolina Code Annotated section 17–23–175
(2014)—permitting a videotaped forensic interview of an alleged child abuse victim to be played before a jury—arbitrarily allows an alleged victim to testify twice therefore violating his Due Process1 right to a fair trial under the Fourteenth Amendment.2 The trial judge ruled the videotape at issue met the statutory requirement for admission, and that in his view, its admission was constitutional; therefore, the videotape was permitted to be played before the jury. Because we find the statute is not facially unconstitutional on procedural Due Process grounds, we affirm appellant's conviction and sentence.
Is section 17–23–175 (2014)
, unconstitutional in that it arbitrarily allows an alleged victim's testimony to be presented twice, depriving a defendant of his Due Process right to a fair trial under the Fourteenth Amendment?
Appellant contends section 17–23–175
offends Due Process because it arbitrarily allows an alleged victim's “testimony” to be heard twice by the jury, thereby bolstering the testimony of the alleged victim, where no other type of criminal case allows this procedure.3 We disagree.
provides, in pertinent part:
S.C.Code Ann. § 17–23–175
.
Although not posited in these precise terms, appellant brings a facial challenge to section 17–23–175
under procedural Due Process.
Due Process is not a technical concept with fixed parameters unrelated to time, place, and circumstances; rather, it is a flexible concept that calls for such procedural protections as the situation demands. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)
(citation omitted). Procedural Due Process contemplates a fair hearing before a legally constituted impartial tribunal. Daniels v. Williams, 474 U.S. 327, 337, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ( ); Vitek v. Jones, 445 U.S. 480, 500, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) ; State v. Houey, 375 S.C. 106, 113, 651 S.E.2d 314, 318 (2007).
A facial challenge is an attack on a statute itself as opposed to a particular application. City of Los Angeles, Calif. v. Patel, –––U.S. ––––, 135 S.Ct. 2443, 2449, 192 L.Ed.2d 435 (2015)
. When a party challenges a statute arguing it can never be applied constitutionally, the party is bringing a facial challenge. Id. at 2450 (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ); Black's Law Dictionary 261 (9th ed.2009) (defining facial challenge as “[a] claim that a statute is unconstitutional on its face—that is, that it always operates unconstitutionally.”). A facial challenge is “the most difficult ... to mount successfully,” as it requires the challenger show the legislation at issue is unconstitutional in all its applications. Id. (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095
);4
Sabri v. United States, 541 U.S. 600, 604, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).
Because we find appellant's challenge fails to meet the Salerno standard, we find section 17–23–175
is not facially unconstitutional as a violation of procedural Due Process. In making this decision, we find persuasive the rationale articulated by the Texas Criminal Court of Appeals in Briggs v. State, 789 S.W.2d 918 (Tex.Crim.App.1990) (en banc). Relying on Salerno, the Briggs court overturned its prior holding that the statute allowing at trial both live testimony of an alleged child sexual abuse victim, and the videotaped forensic interview, unfairly permitted the State to present its case in chief twice thereby violating Due Process. Id. (overruling Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987)
(en banc)). The Briggs court first established that duplication of the state's evidence did not ipso facto render a trial fundamentally unfair. Id. at 922. The Briggs court noted that the State could choose to call the minor during its case in chief, limit its questioning strictly to the creation of the videotape, and then tender the minor to the defense for cross-examination. Id. The Briggs court determined that such a scenario in no respect “ duplicated” evidence, or bolstered the State's version of the facts. Id. The Briggs court further found that although the statute at issue allowed for duplicative statements by the minor, the defendant could benefit from inconsistencies presented between the videotape and the live testimony, meaning the statute could be applied without offending Due Process; therefore, it was not facially unconstitutional. Id. at 923–24
(citing Salerno, 481 U.S. at 745, 107 S.Ct. 2095 ).
We agree with the Texas court's finding that there would be no grounds for a Due Process duplication of testimony argument if the State only questioned the minor as to the creation of the videotape prior to its publication to the jury and cross-examination. Therefore, we find the statute can be applied constitutionally and appellant's facial challenge is without merit. See Salerno, 481 U.S. at 745, 107 S.Ct. 2095
(. ) Moreover, we find it notable that in the instant case, appellant extensively cross-examined the minor as to prior inconsistent statements given during the videotaped interview, and during closing statements, argued those inconsistencies damaged the minor's credibility.5 We find appellant's utilization of the prior inconsistent statements made on videotape demonstrates he may have actually strengthened his defense from its use by impeaching the only witness to the alleged sexual abuse besides himself. See Salerno, 481 U.S. at 745, 107 S.Ct. 2095
; see also
Folks v. State, 207 P.3d 379, 383 (Okla.Crim.App.2008) . Accordingly, because section 17–23–175 can be applied without offending procedural Due Process, it is not facially unconstitutional. See
For the foregoing reasons, we affirm the trial judge's ruling, and hold section 17–23–175
is not facially unconstitutional as a violation of procedural Due Process.
BEATTY
1 See U.S. Const. amend. XIV, § 1
.
2 Appellant also raises a secondary issue which is not preserved for appellate review; therefore, it will not be addressed in this opinion. See Foster v. Foster, 393 S.C. 95, 99, 711 S.E.2d 878, 880 (2011)
(. )
State v. Anderson, 413 S.C. 212, 776 S.E.2d 76 (2015) ( ); State v. Whitner, 399 S.C. 547, 732 S.E.2d 861 (2012) (...
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