{
  "id": 8359441,
  "name": "STATE OF NORTH CAROLINA v. DONALD GENE HOLLOWAY",
  "name_abbreviation": "State v. Holloway",
  "decision_date": "1986-08-19",
  "docket_number": "No. 8615SC157",
  "first_page": "586",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Whichard and Martin concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DONALD GENE HOLLOWAY"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nDefendant was convicted of taking indecent liberties with his five-year-old stepdaughter in violation of G.S. 14-202.1 and requests a new trial because of inadmissible and prejudicial testimony that was received into evidence against him. The evidence was not objected to, however, and our consideration of the request is controlled by the \u201cplain error\u201d doctrine adopted by our Supreme Court in State v. Black, 308 N.C. 736, 303 S.E. 2d 804 (1983) and State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). Under that doctrine a \u201cplain error,\u201d which justifies relief on appeal though not objected to in the trial court, is more than an obvious error that adversely affects a defendant. A \u201cplain error\u201d is \u2014\na \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d (Emphasis theirs.)\nUnited States v. McCaskill, 676 F. 2d 995, 1003 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L.Ed. 2d 513, 103 S.Ct. 381 (1982), quoted with approval in both State v. Black, supra, and State v. Odom, supra.\nThe evidence erroneously used to convict defendant clearly meets that test in our opinion and we order a new trial. Our decision does not require an extended statement of facts or even a recital of the melancholy and sordid details of the charge involved. It is sufficient to say that: The child testified to the facts alleged in the indictment; the defendant testified to the contrary and presented evidence tending to show a normal relationship between him and the child; no one but the child and defendant was present when the alleged offense occurred; the child was not physically injured and did not report the alleged incident to her father and stepmother until more than four weeks later; and two witnesses for the State, a pediatrician and a child psychologist, testified that in their opinion the child had testified truthfully. The evidence did not meet the requirements for expert testimony as it concerned the credibility of a witness, a field in which jurors are supreme and require no assistance, rather than some fact involving \u201cscientific, technical or other specialized knowledge.\u201d G.S. 8C-1, Rule 702, N.C. Evidence Code. And as character evidence the testimony violated the provisions of G.S. 8C-1, Rules 405(a) and 608 of the N.C. Evidence Code, as well as the holding in State v. Heath, 316 N.C. 337, 341 S.E. 2d 565 (1986). That this grossly improper testimony unfairly affected defendant\u2019s trial seems obvious to us. For a jury trial to be fair it is fundamental that the credibility of witnesses must be determined by them, unaided by anyone, including the judge. Yet, though the State\u2019s case depended almost entirely upon the child\u2019s credibility as a witness, her credibility in the eyes of the jury was inevitably increased, we believe, by these two learned and prestigious professionals declaring that her testimony was true.\nNew trial.\nJudges Whichard and Martin concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General John R. Come, for the State.",
      "Appellate Defender Hunter, by Assistant Appellate Defender Leland Q. Towns, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DONALD GENE HOLLOWAY\nNo. 8615SC157\n(Filed 19 August 1986)\nCriminal Law \u00a7 89.1\u2014 indecent liberties with a child \u2014 testimony of pediatrician and psychologist that victim truthful \u2014 erroneous\nThe trial court committed plain error in a prosecution for taking indecent liberties with a child where the child testified to the facts alleged in the indictment; the defendant testified to the contrary and presented evidence tending to show a normal relationship with the child; no one but the child and defendant was present when the alleged offense occurred; the child was not physically injured and did not report the alleged incident to her father and stepmother until more than four weeks later; and two witnesses for the State, a pediatrician and a child psychologist, testified that in their opinion the child had testified truthfully. N.C.G.S. \u00a7 8C-1, Rule 702.\nAppeal by defendant from Farmer, Judge. Judgment entered 16 September 1985 in Superior Court, CHATHAM County. Heard in the Court of Appeals 10 June 1986.\nAttorney General Thornburg, by Assistant Attorney General John R. Come, for the State.\nAppellate Defender Hunter, by Assistant Appellate Defender Leland Q. Towns, for defendant appellant."
  },
  "file_name": "0586-01",
  "first_page_order": 614,
  "last_page_order": 616
}
