The State v. Hill
| Decision Date | 27 July 2011 |
| Docket Number | No. 4856.,4856. |
| Citation | 394 S.C. 280,715 S.E.2d 368 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent,v.Leon HILL, Appellant. |
OPINION TEXT STARTS HERE
Appellate Defender M. Celia Robinson, South Carolina Commission on Indigent Defense, of Columbia, for Appellant.
Attorney GeneralAlan Wilson, Chief Deputy John McInosh, Assistant Attorney GeneralSalley W. Elliott, Assistant Attorney GeneralWilliam M. Blitch, Jr., Office of the Attorney General, of Columbia, Daniel E. Johnson, Solicitor, Fifth Judicial Circuit Court, for Respondent.HUFF, J.
Appellant, Leon Hill, was convicted of two counts of criminal sexual conduct (CSC) with a minor in the first degree and two counts of lewd act upon a child.Hill appeals, asserting the trial judge erred in (1) denying his motions concerning the jury pool on the grounds that the pool was not random and it failed to constitute a fair cross section of the community, (2) admitting into evidence a DVD of the child victim's forensic interview because the defense was deprived the opportunity to cross-examine the victim in regard to the making of the video or the victim's statements made during the interview, (3) allowing the State to question an expert witness regarding the content of the video so as to elicit the expert's opinion that the child had not been coached and was therefore presumably truthful, (4) denying defense counsel's motion for a mistrial based upon the State's failure to disclose information that constituted impeachment evidence of the State's lead investigator, and (5) charging the jury the victim's testimony need not be corroborated and allowing the State to inform the jury of such where the statement of law was unduly emphasized in the State's opening and closing arguments.We affirm.1
FACTUAL/PROCEDURAL BACKGROUND
Victim, who was eleven years old at the time of trial, testified to his subjection to acts of fellatio and anal intercourse with his uncle, Leon Hill.These acts occurred in Hill's basement room, as well as in a house that Hill and Victim were painting, during which time a man named “Tony” was present in the house.Victim's mother testified the matter was first brought to her attention by Tony Smith, and she then immediately questioned Victim.As a result, Victim's mother contacted the police, took Victim to the emergency room for an examination, talked to Investigator Livingston, and took Victim to the Assessment Resource Center for an interview.Investigator Roy Livingston, who was subsequently assigned this case, met with Victim and his mother for an interview, and then referred Victim to the Assessment Resource Center to be interviewed by professionals.Investigator Livingston also interviewed Tony Smith, but did not take a written statement from Smith.He stated he did not write down what Smith told him, other than what he put in some typed notes.
Dr. Joseph Campbell, the emergency room physician who saw Victim in the hospital, testified Victim indicated to him that he had been subjected to anal penetration with someone's “privates” and that Victim had been instructed to perform oral sex on someone's “privates,” with the latest incident having occurred roughly five days prior to the examination.Dr. Campbell found a small abrasion during his rectal exam of Victim that could have been consistent with sexual trauma, but acknowledged it could have also been consistent with other non-sexual causes.
The State also presented the testimony of Ray Olszewski, who worked at the Assessment and Resource Center and was qualified as an expert in the field of forensic interviewing in child abuse assessments.Olszewski testified he interviewed Victim following referral from the Sheriff's department.Over defense counsel's objection, the trial court admitted into evidence a DVD recording of Olszewski's forensic interview of Victim, which was played for the jury.Olszewski explained that one of the tools he used in trying to discern whether a child was coached in his accusations was to look for the level of detail provided by the child, noting that children who are coached often lack detail.He then described some of the specific types of details he looked for, and stated he looked for these details in Victim's interview.Over objection of defense counsel, Olszewski was allowed to testify that he saw those details in Victim's interview.
Tony Smith also testified for the State.Smith, who was a friend of Hill's, testified to incidents he observed while Hill and Victim were working with him, in particular two occasions where he found Hill behind locked doors with Victim, and Victim emerged on one of those occasions with his pants unzipped.Smith later spoke with someone in Victim's family about his concerns.
Dr. Susan Luberoff, who was qualified as an expert in child sexual assault examinations, testified that she examined Victim and found an anal area that was abnormal and appeared to be a healed injury from some type of force applied outside Victim's body, consistent with a penetrating injury.Dr. Luberoff distinguished the abnormality she observed from the abrasion noted in the emergency room physician's chart.She did not observe the abrasion in the area noted by the emergency room doctor, but explained that the abrasion was described as very small and she would have expected that to have healed rather quickly such that she would not expect to be able to see it when she performed her exam six days after the emergency room exam.She did note that an abrasion is the type of injury that may be seen in a sexual assault examination.The abnormality she observed on Victim was an old, healed injury that, in her opinion, was from a force applied from the outside of Victim's body.
Following submission of the matter to the jury, Hill was found guilty of two counts of lewd act upon a child and two counts of CSC with a minor in the first degree.The trial court sentenced Hill to thirty years on each of the CSC charges and a consecutive sentence of ten years for the lewd act convictions, for a total of forty years.This appeal follows.
ISSUES
1.Did the trial judge err in denying defense objections to the jury pool and voir dire process made on the grounds that the pool was not random and did not constitute a fair cross-section of the community?
2.Did the trial judge err in allowing in evidence, over defense objection, a DVD of a forensic interview with the child victim pursuant to S.C.Code Ann. section 17–23–175, where the defense was deprived of an opportunity to cross-examine the child victim about the making of the video or about the statements made during the interview in violation of the statute and in violation of appellant's right to confront the witnesses against him in violation of the confrontation and due process guarantees in the federal and state constitutions?
3.Did the trial judge err in allowing the prosecution to question the expert witness regarding the content of the interview so as to elicit his expert opinion that the child had not been coached and was therefore presumably truthful where such inquiry clearly invaded the jury's exclusive role of determining credibility, exceeded the time and place limitation on such testimony, and constituted impermissible bolstering?
4.Did the trial judge err in overruling the defense motion for a mistrial, made on the basis of the State's non-disclosure of information which would have been material to the defense in that it constituted powerful impeachment evidence of the State's lead investigator in violation of Rule 5, SCRCrimP and Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963)?
5.Did the trial judge err in charging the jury that the victim's testimony need not be corroborated and in allowing the prosecutor to inform the jury that the victim's testimony need not be corroborated where that statement of the law was unduly emphasized by the prosecution on opening and closing?
LAW/ANALYSIS
I.Jury Pool
When the case proceeded to trial, defense counsel raised an issue with the jurors available for selection in Hills' trial.Counsel maintained, because other juries had already been selected prior to his opportunity to draw from the pool, those available did not represent a jury of his peers, but were an extreme group of society left after jurors for the other trials had been selected.In particular, counsel asserted that four of the remaining prospective jurors were chaplains, pastors or in seminary school, and that sixteen of the first twenty-four of the remaining jurors were female.He argued, because two other juries were drawn before his, the randomness afforded to Hill had been significantly reduced.He therefore made a motion for a new jury pool.After taking testimony from the jury coordinator regarding the general manner in which juries are drawn and the jury pools that are available, and in particular as to this case, the trial judge found the jury selection process in this case was fair and adequate and did not affect Hills' right to a fair trial.Accordingly, she denied Hill's motion for a new jury pool.
On appeal, Hill asserts that the right to trial by jury contemplates a jury drawn from a pool broadly representative of the community and impartial in a specific case.He contends the trial judge erred in overruling defense counsel's objections to the jury pool as not representing a broad cross section of the community where he was required to select his jury after the other juries had been selected, such that his jury pool did not represent a fair cross section of the community.We find no error.
“The sixth amendment right to a trial by jury has been made applicable to the states via the fourteenth amendment.”State v. Warren,273 S.C. 159, 162, 255 S.E.2d 668, 669(1979).“The right to trial by jury contemplates a jury drawn from a pool broadly representative of the community and impartial in a specific case.”Id.
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