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State v. Walston

Supreme Court of North Carolina

May 5, 2017

STATE OF NORTH CAROLINA
v.
ROBERT TIMOTHY WALSTON, SR.

         On 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that defendant receive a new trial, after the Supreme Court of North Carolina remanded the Court of Appeals' prior unpublished decision in this case, State v. Walston, 239 N.C.App. 468');"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 February 2017.

          Joshua H. Stein, Attorney General, by Sherri Horner Lawrence, Assistant Attorney General, for the State-appellant.

          Mark Montgomery for defendant-appellee.

          BEASLEY, Justice.

         In this 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 defendant's convictions.

         On 14 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.[1] 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.

         Before 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.[2]

         At the 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.

         The 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."

         On 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.

         The 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.

         The 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.

         The 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.

         The 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." Id ...


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