{ "id": 11920020, "name": "STATE OF NORTH CAROLINA v. ROBERT FULTON KELLY, JR.", "name_abbreviation": "State v. Kelly", "decision_date": "1995-05-02", "docket_number": "No. 933SC676", "first_page": "589", "last_page": "599", "citations": [ { "type": "official", "cite": "118 N.C. App. 589" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "480 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131144 ], "opinion_index": -1, "case_paths": [ "/us/480/0039-01" ] }, { "cite": "343 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] }, { "cite": "89 L. Ed. 2d 898", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "475 U.S. 1098", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6409536, 6410083, 6409734, 6409643, 6410191, 6410000, 6409426, 6409170, 6409874, 6409266, 6410330 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/1098-04", "/us/475/1098-09", "/us/475/1098-06", "/us/475/1098-05", "/us/475/1098-10", "/us/475/1098-08", "/us/475/1098-03", "/us/475/1098-01", "/us/475/1098-07", "/us/475/1098-02", "/us/475/1098-11" ] }, { "cite": "775 F.2d 559", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 41816 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/775/0559-01" ] }, { "cite": "434 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530846 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0551-01" ] }, { "cite": "284 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569232 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0485-01" ] }, { "cite": "441 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "335 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531110, 2526795, 2527021, 2530901, 2528511 ], "year": 1994, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0563-01", "/nc/335/0563-05", "/nc/335/0563-04", "/nc/335/0563-03", "/nc/335/0563-02" ] }, { "cite": "436 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521295 ], "year": 1993, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0280-01" ] }, { "cite": "412 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "330 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509185 ], "year": 1992, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0619-01" ] }, { "cite": "412 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513076 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0808-01" ] }, { "cite": "433 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529857, 2528988, 2532432, 2528433, 2532220 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0437-04", "/nc/334/0437-03", "/nc/334/0437-01", "/nc/334/0437-02", "/nc/334/0437-05" ] }, { "cite": "429 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "110 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525821 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0455-01" ] }, { "cite": "126 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "year": 1993, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "480 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131144 ], "weight": 8, "pin_cites": [ { "page": "49" }, { "page": "58" }, { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/us/480/0039-01" ] } ], "analysis": { "cardinality": 1110, "char_count": 26011, "ocr_confidence": 0.754, "pagerank": { "raw": 4.294458103131633e-07, "percentile": 0.9165090319937572 }, "sha256": "3c855d7d329f7b60f6c87b723022693de85582dca1820a091e59766fda3a98b7", "simhash": "1:836ac3026aa78c5a", "word_count": 4217 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT FULTON KELLY, JR." ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nPretrial Discovery\nDefendant contends, in his first assignment of error, that information of material benefit to his defense was unconstitutionally withheld. Because credibility of the witnesses was crucial in this trial, as it is in most alleged child sexual abuse cases, defendant wanted direct access to, or an inspection by the trial court of any recorded information, whether written or otherwise, taken by the therapists who interviewed the children.\nThis assignment of error originates from a pretrial discovery motion entitled \u201cMotion for Order to Produce Information Essential for Adequate and Competent Preparation of Defendants\u2019 Case for Trial,\u201d which was filed on behalf of all defendants named in the day care cases. Generally, the motion requested production of all information relating to medical, psychiatric, psychological, counselling, and treatment data collected and used with respect to each of the children named in the indictments, as well as any child or children whom the State intended to call either in rebuttal to defense evidence, or evidence they intended to offer pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1988).\nAfter a hearing on the motion, Judge L. Bradford Tillery, a pretrial judge, issued an order that directed the State to file and present to the court for in camera review, identifying information, medical and psy-chotherapeutic files, and DSS files with respect to the children listed in the indictments (hereinafter \u201cindictment children\u201d). The order also directed the State to prepare orders requesting all such information, including notes, reports and recordings, in the possession of third parties to be turned over to the trial court for in camera review. Furthermore, Judge Tillery\u2019s order instructed the State to prepare similar orders with respect to children not named in the indictments (hereinafter \u201cnon-indictment children\u201d) upon the State\u2019s determination to offer evidence regarding those children. The North Carolina Supreme Court affirmed Judge Tillery\u2019s pretrial order insofar as it ordered the State to produce for in camera inspection the materials the State had in its possession; however, the Court vacated the portions of the order purporting to require the State to obtain from third parties, other than law enforcement agencies, the materials described in the order.\nBefore trial, in apparent compliance with Judge Tillery\u2019s order as affirmed by the Supreme Court, the State turned over a box of files to the trial court, Judge McLelland presiding. The box contained, inter alia, complete medical notes and therapy notes on the twenty-nine indictment children, twelve of whom testified at defendant\u2019s trial and seventeen of whom did not. The trial court refused to review the contents of the box either before trial or during trial except for one file on a non-testifying indictment child, which the court reviewed in camera during trial at the specific request of defense counsel and determined that no material evidence existed to warrant giving the file to the defense.\nAfter trial, defendant\u2019s appellate counsel went to the Office of the Clerk of Court for Pitt County to view the exhibits. He opened several boxes containing trial exhibits, none of which were sealed. One of the boxes counsel opened contained twenty-nine files labeled with the names of the indictment children. Appellate counsel reviewed some of the documents contained in the files before requesting the box to be sealed and transmitted to the Court of Appeals for appellate review. Defendant argues that the files contained undisclosed information that would have been material to the defense.\nJudge Tillery\u2019s pretrial order, as affirmed by our Supreme Court, was consistent with the United States Supreme Court holding in Pennsylvania v. Ritchie, 480 U.S. 39, 94 L. Ed. 2d 40 (1987). In Ritchie, the United States Supreme Court held that a defendant accused of sexual abuse of a child has a right under the Due Process Clause of the Fourteenth Amendment to have confidential records of a child abuse agency turned over to the trial court for in camera review and release of material information. Ritchie, 480 U.S. 39, 94 L. Ed. 2d 40. Before his trial, defendant Ritchie served a Pennsylvania social service agency (CYS) with a subpoena seeking access to records concerning his daughter, the alleged victim of the sexual abuse charges brought against him. CYS acknowledged the existence of such records but refused to produce them, claiming that the records were privileged under Pennsylvania law. Ritchie argued that the records might contain the names of persons who could possibly be favorable witnesses at trial. He also specifically requested a medical report, which he believed CYS compiled during the investigation. The trial court refused to order CYS to disclose the files. At trial, Ritchie\u2019s daughter was the main witness against him. Despite a thorough cross-examination, attempting to rebut her testimony and attack her reasons for not reporting the incidents sooner, Ritchie was convicted. Id.\nA plurality of the United States Supreme Court held that the Confrontation Clause was not violated by withholding the CYS file, and further refused to analyze the case under a Compulsory Process Clause analysis. Rather, the Court determined that Ritchie\u2019s claims were more properly considered under the Due Process Clause of the Federal Constitution. The Ritchie Court acknowledged the rules set forth in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963) and its progeny concerning the State\u2019s obligation to turn over to the defense favorable and material information in its possession; however, it noted that neither the prosecution, the defendant nor the trial court had seen the information in the CYS file. Moreover, the information sought by defendant was privileged, with the exception that the agency may disclose the information to a \u201c \u2018court of competent jurisdiction pursuant to a court order.\u2019 \u201d Id. at 44, 94 L. Ed. 2d at 49 (quoting Pa. Stat. Ann., Title 11, \u00a7 2215(a)(5) (Purdon Supp. 1986)). Therefore, the Court attempted to balance the public\u2019s interest in keeping sensitive information confidential, versus the accused\u2019s right to a fair trial, by fashioning a remedy in the nature of an in camera review of the records by the trial court. It held\nRitchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.\nId. at 58, 94 L. Ed. 2d at 58.\nJudge Tillery\u2019s order directed the State to turn over privileged information for the court\u2019s in camera review in compliance with the holding in Ritchie. The order stated that the trial court should \u201cbegin the examination process as quickly as possible so as not to delay the trial of this case,\u201d and further directed the State to provide to the court information concerning the non-indictment children which the State may attempt to introduce \u201cwell before trial so that the Court may have an opportunity to review it.\u201d\nJudge Tillery\u2019s order was consistent with Ritchie, and Judge McLelland was bound by the order as affirmed by our Supreme Court. Upon defendant\u2019s several requests for in camera review of these materials, Judge McLelland refused to look at the materials in the box. Failure to conduct an in camera inspection of the files contained therein was error. Therefore, in the event of a retrial, the presiding judge shall comply with the order and review in camera the materials in the box according to Judge Tillery\u2019s order.\nImproper Lay Opinion\nDefendant contends that it was error to allow into evidence opinion testimony from several lay witnesses, most of whom were parents of testifying children. Specifically, he says these witnesses gave improper lay opinion by (1) testifying about child abuse and particular behaviors resulting from that abuse, (2) testifying about the motives, intentions and opinions of the children, (3) testifying that the children were not fantasizing or making up abuse allegations, (4) testifying about others\u2019 opinions, and (5) testifying that the children knew more than they said. Much of defendant\u2019s argument focuses on the fact that many of the opinions expressed by the parents were those of non-testifying therapists. Defendant concludes that \u201c[t]here is a reasonable likelihood that, had the parents not been allowed to give their opinions on the significance of their children\u2019s behavior, the jury would have remained unconvinced that the children had been abused by the defendant.\u201d\nThe State responds that the trial court did not abuse its discretion in allowing the evidence because the testimony was based on the parents\u2019 actual experience and knowledge of their own children. Moreover,, the State denies that parents gave improper lay opinion, and argues that because they testified as parents, rather than non-expert professionals, there was no danger that the jury confused their testimony with that of an expert.\nThe \u201cstate of a person\u2019s health, the emotions he displayed on a given occasion, or other aspects of his physical appearance are proper subjects for lay opinion.\u201d State v. Jennings, 333 N.C. 579, 607, 430 S.E.2d 188, 201, cert. denied, - U.S. -, 126 L. Ed. 2d 602 (1993). Lay opinion on the emotional state of another is permissible if rationally based on the perception of the witness and helpful to a clear understanding of the witness\u2019s testimony. State v. Hutchens, 110 N.C. App. 455, 429 S.E.2d 755, disc. review denied, 334 N.C. 437, 433 S.E.2d 181 (1993). When a lay witness testifies to the behavioral patterns and symptoms exhibited by a child (i.e., the characteristics of a sexually abused child), however, she or he has gone outside the perception of the non-expert. Id.\nExplanations of the symptoms and characteristics of sexually abused children are admissible only through expert testimony for the limited purpose of assisting the jury in understanding the behavior patterns of abused children. Furthermore, evidence of a particular child\u2019s symptoms, and their consistency with established characteristics of abused children, can come in only through an expert. Id.; see also State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992).\nThis argument encompasses review of over one hundred specific objections, all of which we have reviewed. Many of the objections have merit. In the interest of brevity, we highlight some that appeared most troubling to this Court, and which best illustrate the nature of the errors we found.\nOn redirect examination, a mother was asked whether, at the time her child exhibited particular behaviors, she had knowledge of the behaviors seen in a sexually abused child. After acknowledging that she did not, the prosecutor asked whether she subsequently gained that knowledge, and why that knowledge made the behaviors she saw in her child make more sense. She testified that \u201cfrom everything I was reading and learning, ah, it fit right into what [my child]\u2014 the pattern of what had been going with [my children].\u201d Similar statements were made by other parents. Now the State claims that this testimony was not objectionable because it occurred on redirect examination in response to defense questions regarding why the parents did not think the behaviors were unusual at the time they first occurred. We disagree. While \u201c[i]t is permissible on redirect examination to ask questions designed to clarify the witness\u2019 testimony on cross-examination, even if the resulting testimony would have been inadmissible otherwise,\u201d State v. Felton, 330 N.C. 619, 633, 412 S.E.2d 344, 353 (1992), we cannot approve testimony from a non-expert where such testimony is reserved exclusively for experts. See Hall, 330 N.C. 808, 412 S.E.2d 883.\nAnother parent testified that after his child was examined by a physician who found physical evidence of abuse, he knew \u201cwithout a shadow of a doubt Bob Kelly raped my daughter.\u201d \u201c[W]hile opinion testimony may embrace an ultimate issue, the opinion may not be phrased using a legal term of art carrying a specific legal meaning not readily apparent to the witness.\u201d State v. Najewicz, 112 N.C. App. 280, 293, 436 S.E.2d 132, 140 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994) (emphasis in original). \u201c \u2018[R]ape\u2019 is a legal term of art.\u201d Id. Moreover, even an expert witness is not permitted to express his opinion that it was defendant who raped an alleged victim. State v. Galloway, 304 N.C. 485, 284 S.E.2d 509 (1981).\nAnother parent, when asked about night terrors versus nightmares, testified that\nI mean, nightmares is one thing, but night terrors you have to \u2014 for a child to have a night terror she\u2019s had to experience something terrible, just devastating to psychologically generate that activity. And we would never have dreamt that when we first experienced it, but now, now that we have gone through it and gone through the therapy and helped her, we do realize that it is a common occurrence with children that are sexually or physically abused.\nThis testimony clearly oversteps the boundaries of permissible opinion for a lay witness. See Hall, 330 N.C. 808, 412 S.E.2d 883; Hutchens, 110 N.C. App. 455, 429 S.E.2d 755.\nWhen asked about her son\u2019s memory regarding the day care, another mother surmised that he \u201chas repressed ... a lot of what must have happened.\u201d She added that \u201c[h]e has disclosed as much as, I think, he\u2019s capable of doing in handling it. He has pushed it away and has actually forgotten things because it was so traumatic. And those have been his coping skills.\u201d Again, this is illustrative of a non-expert testifying to matters reserved for expert testimony. Moreover, this statement was not even based on the parent\u2019s personal knowledge and was nothing more than speculation. See N.C. Gen. Stat. \u00a7 8C-1, Rule 602 (1988).\nWhile we call attention here to the admission into evidence of improper opinions, we in no way minimize the importance of parental observations and perceptions in this type of case. Nor do we in any .way limit or restrict admission of such testimony. For example, testimony that a child seemed embarrassed, frightened or displayed other emotions is indeed appropriate. Similarly, testimony about statements and complaints the children made, as well as the childrens\u2019 reactions to events, are all appropriate subjects for parental testimony. Many of defendant\u2019s objections in this case fell within these constraints and were properly overruled by the trial court.\nChris Bean Testimony\nDefendant, according to the State, failed to preserve the following issue for review. However, the State did not present this argument in its brief, but raised it for the first time in a Memorandum of Additional Authorities. Pursuant to Rule 28\n[additional authorities discovered by a party after filing his brief may be brought to the attention of the court by filing a memorandum thereof with the clerk of the court and serving copies upon all other parties. The memorandum may not be used as a reply brief or for additional argument, but shall simply state the issue to which the additional authority applies and provide a full citation of the authority.\nN.C.R. App. P. 28(g) (1995) (emphasis added). The State did not raise its preservation argument in a timely manner.\nIn January of 1989, defendant hired Chris Bean to act as his attorney in this matter. Bean remained his attorney until April of 1989 when he learned that his son had been named as a potential victim of sexual abuse. Bean formally withdrew as counsel in June of 1989. During the period of representation, Bean met with the district attorney and investigating officer and performed other services for defendant. Upon withdrawal, he became a vocal proponent for the prosecuting witnesses. Prior to trial, defendant moved to prohibit Bean and his wife from testifying for the prosecution, or, at a minimum, to prohibit reference to the attorney-client relationship. The trial court denied the motion. Defendant renewed his motion during Grace Bean\u2019s testimony and before Chris Bean\u2019s testimony.\nDefendant contends that attorney Bean \u201cparticipated in the prosecution of a former client\u201d to his detriment. We disagree. Bean did not participate in the prosecution as that phrase is used in State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993), and United States v. Schell, 775 F.2d 559 (4th Cir. 1985), cert. denied, 475 U.S. 1098, 89 L. Ed. 2d 898 (1986), cited by defendant. Both Reid and Schell dealt with former defense attorneys who became members of the prosecutor\u2019s staff, a situation not presented in this case.\nNonetheless, defendant\u2019s motion should have been granted, at least in part. While an order preventing the Beans from testifying in toto would have been overly broad, since the Beans, as parents, could corroborate their child\u2019s testimony, the trial court erred in allowing reference to the attorney-client relationship and its effect on the Beans. This error becomes apparent upon review of that part of Mr. Bean\u2019s testimony that refers to the attorney-client relationship.\nChris Bean testified at trial as follows:\nI had believed adamantly and completely in Bob Kelly\u2019s innocence. And for all of those months, ah, from January through that day had believed in his total innocence. And for me, I\u2019ve never been so shattered, I don\u2019t think, in my life as I was on that Saturday, that to face the possibility that the allegations \u2014 whatever they were because we still didn\u2019t know the specific allegations \u2014 could be true. It\u2019s the first time that I had admitted to myself that it might be true. And then to think that my own child had been abused. I didn\u2019t know whether he had been. I \u2014 I selfishly prayed that he hadn\u2019t been, but thought some of the others had been. But I thought maybe he has escaped it. And I know Grace and I stood in the kitchen and \u2014 and we cried.\nBean also testified to a conversation he had with his child regarding his representation of defendant. He stated, \u201cI just told him that I had been, ah, Bob\u2019s attorney and, um, that I had believed that \u2014 that Bob was innocent and that Bob had told me he was innocent. And then when I found out about [his child], that I was no longer Bob\u2019s attorney.\u201d He testified to a similar conversation as follows:\n[Child] said out of the clear blue sky after a whole year, um, he asked me whether I had been Mr. Bob\u2019s lawyer. And I then explained to him again that, ah, I had been Mr. Bob\u2019s lawyer; Mr. Bob had told me that he hadn\u2019t done anything to the children, and that when I found out that he had then I wasn\u2019t Mr. Bob\u2019s lawyer anymore. Um, then [child] said to me that \u2014 that Mr. Bob had been lying to me, and he asked me how I had found that out.\nThe State argues the relevancy of Bean\u2019s testimony lies in showing that (1) the Beans did not talk to others about the case, (2) they did not go out and investigate because of the attorney-client relationship, and (3) their child did not disclose earlier because of the attorney-client relationship. Indeed, the defense theorized that the children did not disclose until after being subjected to improper therapy sessions. Chris Bean testified, however, that his child did not learn he represented defendant until after the child had entered therapy. Given the defense of community hysteria, the State argued that it was critical to show that parents, like the Beans, were thoughtful, educated and reasonable people.\nTestimony relating to representation was, if at all, minimally relevant and of scant probative value. \u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1992). Rule 403 requires balancing the proffered evidence\u2019s probative value against its prejudicial effect. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986). The question is one of degree. Id. In this case, the minimal probative value of the evidence is clearly outweighed by its prejudicial impact. It should have been excluded. Moreover, highly prejudicial statements like \u201cI\u2019ve never been so shattered\u201d and \u201cI had believed in his total innocence\u201d have no probative value whatsoever. It was error to allow such testimony.\nIt is untenable to assert that this error did not prejudice defendant. The prejudice inherent in having your former attorney, once your champion and defender, announce his knowledge of your guilt to the jury is blatantly obvious. In this case, Bean\u2019s testimony about his representation of defendant was unnecessary and added nothing to the State\u2019s case.\nDefendant presents additional assignments of error that may or may not arise in the event this case is retried. In light of our determination that prejudicial error was committed necessitating a new trial, we do not deem it necessary to address those arguments.\nNew trial.\nJudges JOHNSON and JOHN concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Ellen B. Scouten and Associate Attorney General Nancy B. Lamb, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT FULTON KELLY, JR.\nNo. 933SC676\n(Filed 2 May 1995)\n1. Constitutional Law \u00a7 248 (NCI4th)\u2014 sexual abuse case\u2014 file of medical and therapy notes \u2014 failure to conduct in camera review \u2014 due process\nIn a prosecution of defendant for sexual abuse of children in a day care center, the trial court erred in refusing defendant\u2019s request to conduct an in camera review of files of medical and therapy notes on the children involved in order to determine if any material evidence existed in the files where a pretrial order had been entered in accordance with Pennsylvania v. Ritchie, 480 U.S. 39, directing the State to file and present to the trial court for in camera review medical, psychotherapeutic and DSS files with respect to the children listed in the indictments and any other day care children about whom the State would offer evidence, and this order was affirmed by the North Carolina S\u00fcpreme Court.\nAm Jur 2d, Criminal Law \u00a7 774.\n2. Evidence and Witnesses \u00a7 2068 (NCI4th)\u2014 sexual abuse case \u2014 opinion testimony of parents \u2014 admission prejudicial error\nIn a prosecution of defendant for sexual abuse of children in a day care center, the trial court erred in allowing into evidence improper lay opinion testimony of the testifying children\u2019s parents about child abuse and particular behaviors resulting from that abuse, the motives, intentions and opinions of the children, that the children were not fantasizing or making up abuse allegations, the opinions of others, and that the children knew more than they said, since explanations of the symptoms and characteristics of sexually abused children are admissible only through expert testimony for the limited purpose of assisting the jury in understanding the behavior patterns of abused children, and evidence of a particular child\u2019s symptoms and their consistency with established characteristics of abused children can come in only through an expert.\nAm Jur 2d, Criminal Law \u00a7 774.\n3. Evidence and Witnesses \u00a7 2594 (NCI4th)\u2014 sexual abuse case \u2014 former attorney testifying against defendant \u2014 reference to attorney-client relationship \u2014 error\nIn a prosecution of defendant for sexual abuse of children in a day care center, the trial court erred in allowing defendant\u2019s former attorney, who withdrew as counsel after his son was named as a potential victim, to refer to his former attorney-client relationship with defendant, since the minimal probative value of the testimony was clearly outweighed by its prejudicial impact. Furthermore, the attorney\u2019s statements that \u201cI\u2019ve never been so shattered\u201d and \u201cI had believed in his innocence\u201d had no probative value and were improperly admitted.\nAm Jur 2d, Witnesses \u00a7\u00a7 97 et seq.\nAppeal by defendant from judgments entered 23 April 1992 by Judge D. Marsh McLelland in Pitt County Superior Court. Heard in the Court of Appeals 9 January 1995.\nIn 1988 defendant and his wife were operating a day care center. Defendant assisted with remodelling the day care and occasionally filled in for teachers over lunch breaks. Allegations of sexual abuse at the day care arose in January 1989. Beginning 18 January 1989 and continuing over the next several months, the Department of Social Services (DSS) and Officer Brenda Toppin, a former police department dispatcher and investigator of sexual abuse cases, interviewed children named as sexual abuse victims and the day care employees. Officer Toppin\u2019s investigation consisted, in part, of additional interviews with children and parents. She instructed the parents to keep a diary of disclosures and other relevant facts for use at trial and suggested that many of the children see one of four therapists. There is disagreement over whether or not these people were actually therapists, but for convenience we refer to them as therapists throughout this opinion. Ultimately twenty-nine children were the subject of indictments returned against defendant, and at least twenty-five additional people had been accused of sexual abuse.\nThe State\u2019s evidence consisted primarily of the testimony of parents, teachers, and relatives who corroborated the children and described behavioral changes. Only twelve of the indictment children testified. The therapists did not testify.\nFollowing a nine month trial, defendant was convicted of ninety-nine charges, including first degree sexual offense, first degree rape, taking indecent liberties, and crime against nature. He was found not guilty of one charge of crime against nature. The trial judge sentenced defendant to twelve consecutive life sentences. Defendant appeals.\nAttorney General Michael F. Easley, by Assistant Attorney General Ellen B. Scouten and Associate Attorney General Nancy B. Lamb, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant appellant." }, "file_name": "0589-01", "first_page_order": 621, "last_page_order": 631 }