State v. Walston

• Decision Date: 01 December 2015
• Docket Number: No. COA12–1377–3.,COA12–1377–3.
• Citation: 780 S.E.2d 846,244 N.C.App. 299
• Parties: STATE of North Carolina v. Robert T. WALSTON, Sr., Defendant.
• Court: North Carolina Court of Appeals

244 N.C.App. 299

780 S.E.2d 846

STATE of North Carolina

v.Robert T. WALSTON, Sr., Defendant.

No. COA12–1377–3.

Court of Appeals of North Carolina.

Dec. 1, 2015.

Attorney General Roy Cooper, by Assistant Attorney General Sherri Horner Lawrence, for the State.

Mark Montgomery for Defendant–Appellant.

McGEE, Chief Judge.

Robert T. Walston, Sr. ("Defendant") was indicted for offenses involving two sisters, E.C. and J.C. (together "the children"),¹ alleged to have occurred between June 1988 and October 1989, when J.C. was three to four years old and E.C. was six to seven years old. In 1994, the children were interviewed by "law enforcement and/or Social Services[.]" The children did not report the offenses for which Defendant was later convicted. The children testified at Defendant's 2012 trial, stating that each had informed the other in January 2001 of having been sexually assaulted by Defendant during the June 1988 to October 1989 time period. They also informed their parents at that time, but law enforcement was not contacted.

J.C. decided to contact law enforcement to report the alleged offenses "near the end of 2008." Indictments against Defendant were filed on 12 January 2009, with superseding indictments filed on 14 November 2011. At the time of Defendant's trial, E.C. was twenty-nine years old, and J.C. was twenty-seven years old.

Defendant was convicted on 17 February 2012 of one count of first-degree sex offense, three counts of first-degree rape, and five counts of taking indecent liberties with a child. Defendant appealed, and this Court reversed and remanded for a new trial in part, and found no error in part. State v. Walston, 229 N.C.App. 141, 747 S.E.2d 720 (2013) ("Walston I ").

In Walston I, we also determined that the trial court, in making its determination whether to admit certain expert testimony, had applied a version of N.C. Gen.Stat. § 8C–1, Rule 702 that had been superseded by amendment. Walston I, 229 N.C.App. at 151–52, 747 S.E.2d at 728. Although this issue was not argued by Defendant on appeal, we instructed the trial court to apply the amended version of Rule 702 upon remand should it again need to rule on the admissibility of expert testimony. Id.

The State petitioned our Supreme Court for discretionary review and review was granted, but only on the issues for which this Court had granted Defendant a new trial. The Supreme Court reversed the portions of Walston I wherein this Court granted Defendant a new trial, and remanded for this Court to address one specific issue. State v. Walston, 367 N.C. 721, 732, 766 S.E.2d 312, 319 (2014) ("Walston II "). In Walston II, our Supreme Court directed: "On remand the Court of Appeals should address fully whether the trial court's application of the former expert witness standard [ Rule 702 ] was prejudicial error." Id.

Defendant filed a motion on 5 January 2015 to withdraw our Supreme Court's opinion in Walston II, arguing that the Walston II opinion "fail [ed] to address properly presented issues, [was] based on an incomplete review of the record and interpret[ed] the Rules of Evidence so as to violate the Constitution." Our Supreme Court denied Defendant's motion to withdraw Walston II and this Court conducted the review directed by our Supreme Court. We determined, by opinion filed 17 February 2015, that Defendant had not been prejudiced by the application of the former expert witness standard. State v. Walston, ––– N.C.App. ––––, ––– S.E.2d ––––, 2015 WL 680240 (Feb. 17, 2015) ("Walston III ").

Defendant petitioned our Supreme Court for discretionary review on 23 March 2015, arguing:

This Court granted the State's Petition for Discretionary Review of the two issues the Court of Appeals granted relief on. It reversed the Court of Appeals on both issues. It denied [D]efendant's Petition for Discretionary Review of the defense expert testimony issue. It remanded the case to the Court of Appeals to address an issue never raised at trial: whether the trial judge employed the "old" Rule 702 or the amended one. The lower court held that, because the judge excluded the evidence under the old, more lenient rule, he would have excluded it under the new, more stringent one.

The issue not reached by the Court of Appeals was the one raised at trial: whether an expert who has not examined the complaining witness is excludable as a witness on that basis. Neither appellate court has addressed that issue.

The opinion of the Court of Appeals is also flawed in that it found no error because the trial court would have excluded the proffered evidence under either version of Rule 702. However the issue on appeal is not what the trial court would have done but whether it committed error. The opinion of the Court of Appeals does not address, much less explain, why it was not error for the trial court to exclude [D]efendant's evidence. [Emphasis added, footnote omitted].

In its response to Defendant's 23 March 2015 petition, the State noted that the issue of the trial court's exclusion of Defendant's expert witness was not one included in the State's 9 September 2013 petition for discretionary review in response to Walston I, and that our Supreme Court denied Defendant's 23 September 2013 conditional petition for discretionary review seeking review of that issue. The State further argued that Defendant had not articulated any proper basis for discretionary review as mandated by N.C. Gen.Stat. § 7A–31(c) and that, because this Court answered the question it was directed by our Supreme Court to answer, there was no error.

By order entered 24 September 2015, our Supreme Court declined to address the merits of Defendant's petition itself and ruled:

[D]efendant's petition for discretionary review is allowed for the limited purpose of remanding this case to the Court of Appeals to (1) determine, in light of our holding and analysis in State v. King, 366 N.C. 68, 733 S.E.2d 535 (2012) (applying North Carolina Rules of Evidence 403 and 702 ), and other relevant authority, if the trial court's decision to exclude the expert testimony was an abuse of discretion and, if so, (2) determine if the erroneous decision to exclude the testimony prejudiced [D]efendant.

In response to our Supreme Court's 28 September 2015 order, this Court vacated the certification of Walston III. We now address our Supreme Court's new mandate.

I.

Relevant to the issue currently before us, Defendant argues that the trial court, based on the erroneous belief that the excluded testimony was not admissible as a matter of law, improperly excluded Defendant's testimony of his expert witness, Dr. Moira Artigues ("Dr. Artigues"), who would have given expert testimony concerning the suggestibility of children. We agree.

" ‘[O]rdinarily, whether a witness qualifies as an expert is exclusively within the discretion of the trial judge.’ However, where an appeal presents questions of statutory interpretation, full review is appropriate, and a trial court's conclusions of law are reviewable de novo. " FormyDuval v. Bunn, 138 N.C.App. 381, 385, 530 S.E.2d 96, 99 (2000) (citations omitted); see also Cornett v. Watauga Surgical Grp., 194 N.C.App. 490, 493, 669 S.E.2d 805, 807 (2008). Defendant argues that the trial court erroneously concluded that this Court's opinion in State v. Robertson, 115 N.C.App. 249, 444 S.E.2d 643 (1994), held that Dr. Artigues' testimony was inadmissible pursuant to Rule 702 as a matter of law because Dr. Artigues had not personally interviewed the children. Unfortunately, in the present case the trial court made no findings of fact or conclusions of law; it simply ruled that Dr. Artigues would not be allowed to testify, so we have no conclusions of law to review.

In the present case, Defendant attempted to show that statements made by the children showed that there was a period of years following the alleged abuse when the children had no recollection of that alleged abuse. For instance, in an email to a family friend with counseling experience, E.C. stated that she had blocked out all memory of the alleged abuse for years:

[DEFENSE COUNSEL:] [Reading from E.C.'s email:] Third paragraph [from email exchange]. Have you ever had this incident blocked out? Yes. I don't remember when it was blocked out or exactly what I remember—or when I remembered it but I know it came back to me in eighth grade. With the block I forgot many other childhood memories from this time. I have no other memories of [Defendant] either.

[DEFENSE COUNSEL:] And was that true what you wrote there ... ?

[E.C.:] At the time I wrote it, it was true.

Concerning J.C., clinical records from a September 2001 session J.C. had at Albemarle Mental Health Center stated: "[J.C.] then reveal[ed] the fact that she was raped at age five and she did not remember this until she was in the seventh grade." J.C. testified regarding statements she had given to an investigator, as follows:

[DEFENSE COUNSEL:] Do you recall telling [the investigator] during that first interview that you were sitting in science class and that you were learning how to use the microscope and that's what you believe started the memories was seeing a boy moving his legs in a chair in the way that [Defendant] used to do, is that what you told her?

[J.C.:] Yes.

[DEFENSE COUNSEL:] And how [long] had those memories been gone from your consciousness?

[J.C.:] I knew—I don't know exactly how long.

J.C. argued at trial that she had not actually blocked out memories of the alleged abuse, but had simply decided not to think about it. E.C. admitted that she had probably completely forgotten about the alleged abuse for up to two years. In any event, the question of whether the children had "lost" all memory of the alleged abuse for some period of time was, at a minimum, a contested issue at trial.

Prior to trial, the State filed a motion to suppress Dr. Artigues' testimony, arguing:

5. Due to the late disclosure, it is impossible for the State to secure an expert witness in less than 5 working

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