discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
780 S.E.2d 846 (2015), reversing judgments entered on 17
February 2012 by Judge Cy A. Grant in Superior Court, Dare
County, and ordering that defendant receive a new trial,
after the Supreme Court of North Carolina remanded the Court
of Appeals' prior unpublished decision in this case,
State v. Walston, 239 N.C.App. 468');">239 N.C.App. 468, __ S.E.2d __,
2015 WL 680240 (2015). Heard in the Supreme Court on 13
H. Stein, Attorney General, by Sherri Horner Lawrence,
Assistant Attorney General, for the State-appellant.
Montgomery for defendant-appellee.
case we consider whether the trial court abused its
discretion in excluding defense expert testimony regarding
repressed memory and the suggestibility of memory. We find
that the trial court did not abuse its discretion, and we
reverse the decision of the Court of Appeals and reinstate
November 2011, Robert Timothy Walston, Sr. (defendant) was
indicted for a number of child sex offenses. After a trial in
February 2012, the jury found defendant guilty of one count
of first-degree sexual offense, three counts of first-degree
rape of a child, and five counts of taking indecent liberties
with a child. Defendant appealed his convictions arguing,
inter alia, that the trial court erred in excluding
his expert's testimony. See State v. Walston, __
N.C.App. __, __, 780 S.E.2d 846, 849-50 (2015). The Court of
Appeals agreed with defendant and granted him a new trial.
Id. at__, __, 780 S.E.2d at 857-58, 862.
The State petitioned this Court for discretionary review,
arguing that the trial court did not abuse its discretion in
excluding defendant's proffered expert testimony and that
exclusion of the expert testimony was not prejudicial. We
agree, and thus, we reverse the Court of Appeals.
trial defendant notified the State that he planned to
introduce expert testimony from Moina Artigues, M.D.
regarding repressed memory and the suggestibility of
children. The State successfully moved to suppress Dr.
Artigues's testimony. The State argued that the testimony
was not relevant or admissible pursuant to Evidence Rules 702
and 403 because the case did not involve
"repressed" or "recovered" memories; that
the expert was not qualified under Rule 702 to testify
regarding "false" memories, specifically because
she had not examined or evaluated the two alleged victims;
and that the testimony should be excluded under Rule 403
because its potential to prejudice or confuse the jury would
substantially outweigh its probative value.
pretrial hearing, the trial court expressed doubt that this
case concerned repressed or recovered memories and indicated
that if the case did not concern repressed or recovered
memories, Dr. Artigues's testimony about that subject
would be irrelevant or misleading. In response, defense
counsel contended that even if Dr. Artigues was not permitted
to testify about repressed or recovered memories, she should
be allowed to testify about the suggestibility of memory in
children based on certain statements the victims made during
discovery, which indicated the children's relatives may
have pressured them to say they had been abused. The State
countered this argument by asserting that the trial court
should exclude the expert testimony because, inter
alia, the expert had not interviewed or examined the
victims or anyone else involved in the case. The State relied
on State v. Robertson, 115 N.C.App. 249, 260-61, 444
S.E.2d 643, 649 (1994), for this proposition. The State noted
that Robertson was similar to the case at bar in
that the defendant in Robertson sought to introduce
expert testimony concerning suggestibility of children; there
the trial court excluded the expert testimony on grounds that
its probative value was outweighed by the potential to
prejudice or confuse the jury because the expert had never
examined or evaluated the victims in any way. Id. at
261, 444 S.E.2d at 649. The State also argued here that
defendant's expert testimony should be excluded because
there was no basis for Dr. Artigues's opinion.
trial court ruled that Dr. Artigues could not testify, but
allowed voir dire to preserve Dr. Artigues's testimony
for appellate review. After the conclusion of voir dire,
defense counsel requested that the court reconsider its
suppression ruling. Defense counsel asserted that Dr.
Artigues's opinion was relevant in relation to scientific
opinions regarding repressed memory and suggestibility of
memory, was relevant to assist the jury in determining
credibility, and was not unfairly prejudicial to the State.
The State reasserted its arguments that this case does not
involve repressed memories and that, as to suggestibility,
"this type of expert testimony does not come in when the
expert has not evaluated the victim . . . [which] didn't
take place in this case." The court stated it was
"not inclined to change [its] ruling."
appeal, as to whether the trial court erred in excluding
defendant's proffered expert testimony from Dr. Artigues,
defendant argued to the Court of Appeals that Rule 702 does
not require that a witness personally interview the person
about whom she will testify. Defendant cited to previous
cases from this Court and the Court of Appeals in which
witnesses were allowed to testify without having interviewed
or examined the person about whom they were testifying.
See State v. Daniels, 337 N.C. 243, 268-71, 446
S.E.2d 298, 314-15 (1994) (concluding that the trial court
did not abuse its discretion in allowing an expert who had
not personally interviewed a defendant to testify about that
defendant's mental condition), cert. denied, 513
U.S. 1135, 115 S.Ct. 953, 130 L.Ed.2d 895 (1995); State
v. Jones, 147 N.C.App. 527, 541-44, 556 S.E.2d 644,
653-55 (2001) (concluding that the trial court did not abuse
its discretion in allowing a developmental and forensic
pediatrician to testify about her knowledge of the medical
records and behavior of the deceased victim), appeal
dismissed and disc. rev. denied, 355 N.C. 351, 562
S.E.2d 427 (2002). Defendant also argued that he was
prejudiced by the erroneous exclusion of Dr. Artigues's
testimony; he asserted that there was a reasonable
possibility the jury would have reached a different result
had the trial court admitted Dr. Artigues's testimony.
State's argument to the Court of Appeals largely relied
on the similarities between this case and Robertson.
The State argued that Dr. Artigues did not examine or
evaluate the victims or anyone else involved but rather based
her opinion only on an analysis of the discovery material and
defense counsel's trial notes. Thus, the State asserted
that Dr. Artigues's testimony was properly excluded in
compliance with Robertson. Additionally, the State
noted that Dr. Artigues did not generate a formal report
outlining her opinion and the basis of her opinion regarding
the suggestibility of child witnesses. The State also argued
that Dr. Artigues's testimony was irrelevant.
Court of Appeals reversed the trial court and remanded for a
new trial. The Court of Appeals found that "the trial
court improperly excluded Dr. Artigues'[s] testimony
based upon the erroneous belief that her testimony was
inadmissible as a matter of law" under Robertson.
Walston, __ N.C.App. at __, 780 S.E.2d at 857-58. The
Court of Appeals reasoned that the discussion of
Robertson during the pretrial motions hearing
implied that the trial court relied on Robertson to
prohibit Dr. Artigues's testimony because Dr. Artigues
had not interviewed the prosecuting witnesses.
Court of Appeals clarified that Robertson did not
recognize or create a "per se rule that expert
opinion concerning the general suggestibility of children may
only be given at trial if the testifying expert has examined
the child or children in question." Id. at__,
780 S.E.2d at 853. Rather, "expert opinion regarding the
general reliability of children's statements may be
admissible so long as the requirements of Rules 702 and 403 .
. . are met." Id. at__, 780 S.E.2d at 853.
Thus, Dr. Artigues's expert opinion should not be
excluded as a matter of law on grounds that she did not
examine the children and may be admissible if in compliance
with the Rule 702 and Rule 403 requirements.
Court of Appeals noted that the trial court did not make
"any findings of fact or conclusions of law explaining
the rationale" for "excluding Dr. Artigues'[s]
testimony." Id. at__, 780 S.E.2d at 857.
Specifically, there was no evidence in the record that the
trial court had conducted a Rule 702 analysis, id.
at__, __, __, 780 S.E.2d at 858, 860, 862, nor did the trial
court "make any findings or conclusions related to Rule
403, " id. at__, 780 S.E.2d at 862. Therefore,
the Court of Appeals panel found itself unable to "make
any determination concerning whether the trial court would
have abused its discretion in excluding Dr. Artigues'[s]
testimony pursuant to either Rule 702 or Rule 403."