{ "id": 4716382, "name": "STATE OF NORTH CAROLINA v. FRANCIS VESPER FEARING", "name_abbreviation": "State v. Fearing", "decision_date": "1985-12-10", "docket_number": "No. 68A85", "first_page": "167", "last_page": "175", "citations": [ { "type": "official", "cite": "315 N.C. 167" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "37 Wash. L. Rev. 303", "category": "journals:journal", "reporter": "Wash. L. Rev.", "year": 1962, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "198 S.E. 2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560841, 8560910, 8560887, 8560827, 8560861 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0758-02", "/nc/283/0758-05", "/nc/283/0758-04", "/nc/283/0758-01", "/nc/283/0758-03" ] }, { "cite": "197 S.E. 2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "57" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550127 ], "year": 1973, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0388-01" ] }, { "cite": "314 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "310 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401091 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0716-01" ] }, { "cite": "150 S.E. 2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "268 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561067 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0225-01" ] }, { "cite": "158 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573490 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0481-01" ] }, { "cite": "317 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683223 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0370-01" ] }, { "cite": "327 S.E. 2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726575 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0297-01" ] }, { "cite": "559 F. 2d 294", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 942237 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/559/0294-01" ] }, { "cite": "337 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] } ], "analysis": { "cardinality": 811, "char_count": 18722, "ocr_confidence": 0.806, "pagerank": { "raw": 5.451586669637648e-07, "percentile": 0.9452962315563571 }, "sha256": "e34395bd59259067e9880ea04674d66b7dc81ff1b44b668d6b1c7df639757deb", "simhash": "1:5b2be46574bbaa7b", "word_count": 3071 }, "last_updated": "2023-07-14T15:13:08.433452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. FRANCIS VESPER FEARING" ], "opinions": [ { "text": "MEYER, Justice.\nThe defendant was charged with first-degree rape, incest, and taking indecent liberties with his three-year-old daughter. A neighbor had discovered the victim wandering outdoors on a cold October morning wearing only a nightgown and panties. A medical examination of the child revealed indications of sexual abuse.\nPrior to the trial of this case, the State filed a motion entitled \u201cMotion in Limine to Allow Witnesses to Testify\u201d seeking to admit the testimony of a social worker, two detectives, a licensed practical nurse, and a medical doctor. A \u201cmotion in limine\u201d is customarily defined as one seeking \u201cto avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial,\u201d and is not usually employed for the purpose of seeking the admission of evidence. Black\u2019s Law Dictionary 914 (5th ed. 1979) (emphasis added). The trial judge correctly treated the motion, pursuant to N.C.G.S. \u00a7 8C-1, Rule 104, as one raising a preliminary question concerning the qualification of witnesses to testify. Each of these witnesses had been present when the child made statements as to the cause of her injuries and the identity of the perpetrator. The State cited N.C.G.S. \u00a7 8C-1, Rule 803 (hearsay exceptions), as its basis for requesting the introduction of the testimony. The State gave defendant written notice of its intention to call these witnesses and provided defendant with copies of affidavits executed by each witness. On the same day, defendant filed a motion in limine to prevent the child victim from testifying at trial.\nThe trial judge, after making written findings of fact and conclusions of law, granted both motions and entered orders allowing the testimony of the State\u2019s witnesses and preventing the child victim from testifying. In the latter order, the trial judge noted that defendant and the State had stipulated that the child should not testify and adopted the stipulation as the court\u2019s own in allowing the motion. The Mixed Findings of Fact and Conclusions of Law were set forth by the trial judge as follows:\nMixed Findings of Fact and Conclusions of law\n(1) The Court has considered defendant\u2019s Motion in Limine pursuant to G.S. 8C-1, Rule 104, as raising a preliminary question concerning the qualification of a person to be a witness and as such has not been bound by the rules of evidence in making its determination.\n(2) The stipulation of the parties that the minor child . . . during all times since January 1984 when this matter might have been called for trial and for at least the rest of 1984 is incapable of understanding and appreciating the meaning of an oath or affirmation and the duty of a witness with regard to testifying under oath or affirmation is hereby accepted and adopted by the court as its own.\n(3) In granting defendant\u2019s motion the court notes that the special meaning of \u201ccompetency\u201d with regard to Rules 601(b)(2) and 603 relates to the qualifications of a witness to testify at trial and not the ability of the declarant to intelligently and truthfully relate personal information. Thus, the court\u2019s ruling in this case is based on the finding that the child ... is incapable pursuant to Rules 601(b)(2) and 603 to understand the theological implication and ethical considerations of testifying under oath or affirmation and the court\u2019s ruling in no way addresses the qualification of [the child] as a declarant out of court to relate truthfully personal information and beliefs.\nWherefore, the Court allows that portion of Defendant\u2019s Motion and Orders that the child . . . may not testify in the trial of these matters.\nThis the 3 day of August, 1984.\nsi Anthony Brannon Anthony M. Brannon Judge Presiding\nAlthough it appears from his order that the trial judge carefully considered the contents of the case file and the arguments of attorneys in open court on this matter, it is clear that th\u00e9 trial judge never personally examined the four-and-one-half-year-old child or observed the child being examined by counsel on voir dire to determine her competency as a witness. The child did not testify at trial, although four of the State\u2019s five \u201chearsay\u201d witnesses did testify.\nIn his order allowing the State\u2019s \u201chearsay\u201d witnesses to testify, the trial judge determined that the testimony of the licensed practical nurse and the medical doctor were admissible, upon a proper foundation, pursuant to N.C.G.S. \u00a7 8C-1, Rule 803(4) (statements made for purposes of medical treatment or diagnosis). After setting out the text of Rules 803(24) and 804(b)(5) (residual hearsay exceptions), the following findings appear:\n11. That the statements of [the child] in the aforementioned affidavits are statements of a material fact; and that the statements are more probative on the point than any other evidence which the State can procure through reasonable efforts; and that the general purposes of the rules of \u00a7 8C and the interest of justice will best be served by admission of the statements, upon a proper foundation being laid at trial by the State; and\n12. That there are sufficient circumstantial guarantees of trustworthiness of the statements of [the child] to the five persons named in the affidavits to satisfy Rule 803(24) and 804(5) [sic] and the federal and state constitutional requirements as well as the previous North Carolina evidence law.\n13.That there is no federal or state constitutional impediment to the admission of these statements. The two-pronged test of Ohio v. Roberts, 448 U.S. 56 (1980), unavailability/necessity and reliability has been met, the child not being allowed to testify and reliability being inferred from the statements, falling within the firmly established hearsay exception of statements for purposes of medical diagnosis and treatment and perhaps also as being statements described in Rule 803(3), and there being sufficient circumstantial guarantees of trustworthiness of the statements, which factors also satisfy the State constitutional requirement of necessity and a reasonable probability of truthfulness. . . .\n(Citations omitted; emphasis added.)\nAlthough the order specifies Rule 803(4) as the basis for admitting the testimony of the doctor and the nurse, it does not state the basis for admitting the testimony of the social worker and the detectives. It is apparent, however, from the above-quoted findings that the trial judge admitted at least some of the \u201chearsay\u201d testimony pursuant to the residual hearsay exceptions, Rules 803(24) and 804(b)(5).\nExcept for the requirement of Rule 804(b)(5) that the witness be \u201cunavailable,\u201d Rules 803(24) and 804(b)(5) are worded identically:\nOther Exceptions. \u2014 A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.\nThe availability of a witness to testify at trial is a crucial consideration under either residual hearsay exception. Although the availability of a witness is deemed immaterial for purposes of Rule 803(24), that factor enters into the analysis of admissibility under subsection (B) of that Rule which requires that the proffered statement be \u201cmore probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.\u201d If the witness is available to testify at trial, the \u201cnecessity\u201d of admitting his or her statements through the testimony of a \u201chearsay\u201d witness very often is greatly diminished if not obviated altogether. State v. Smith, 315 N.C. 76, 337 S.E. 2d 833 (1985). See also United States v. Mathis, 559 F. 2d 294 (5th Cir. 1977); 4 D. Louisell & C. Mueller, Federal Evidence \u00a7 472 (1980).\nThe trial judge clearly admitted at least some of the State\u2019s \u201chearsay\u201d witness testimony pursuant to one or both of the residual hearsay exceptions, Rules 803(24) and 804(b)(5). As we have seen, the \u201cavailability\u201d of the declarant to testify at trial unavoidably enters into the determination of admissibility of a \u201chearsay\u201d witness\u2019 testimony as to out-of-court statements made by the declarant pursuant to either residual hearsay exception. The testimony admitted by the trial judge here was extremely prejudicial to the defendant because it included statements in which the victim allegedly described the cause of her injuries and identified the defendant as the perpetrator. Since the order allowing the State\u2019s motion to admit this testimony was apparently based in large part upon the trial judge\u2019s determination that the victim herself was \u201cunavailable\u201d to testify to these allegations at trial, we find it necessary to review the process by which the trial judge reached his conclusion that the child victim was incompetent and therefore \u201cunavailable.\u201d\nAlthough the parties have not raised an issue before this Court concerning the trial judge\u2019s entry of the order declaring the child witness incompetent to testify without ever having examined or observed the examination of the child on voir dire to determine her competency, we find that the interests of justice require that we review this order for possible error because it formed the basis upon which highly prejudicial testimony was admitted and affects substantial rights of the defendant in this matter. N.C.G.S. \u00a7 8C-1, Rule 103(d) (\u201cNotwithstanding the requirements of subdivision (a) of this rule, an appellate court may review errors affecting substantial rights if it determines, in the interest of justice, it is appropriate to do so.\u201d).\nOur research has revealed a paucity of reported cases in this State wherein the testimony of a child witness has been denied admission on the basis of the child\u2019s incapacity to understand the obligation of testifying under oath. By far, the vast majority of cases in which a child witness\u2019 competency has been addressed have resulted in the finding, pursuant to an informal voir dire examination of the child before the trial judge, that the child was competent to testify. See, e.g., State v. Price, 313 N.C. 297, 327 S.E. 2d 863 (1985); State v. Sills, 311 N.C. 370, 317 S.E. 2d 379 (1984); State v. Bowden, 272 N.C. 481, 158 S.E. 2d 493 (1968); State v. Turner, 268 N.C. 225, 150 S.E. 2d 406 (1966).\nThe law in this State regarding a child\u2019s competency to testify was recently reiterated in State v. Jones, 310 N.C. 716, 314 S.E. 2d 529 (1984):\n\u201cThere is no age below which one is incompetent, as a matter of law, to testify. The test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide. This is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness''\nId. at 722, 314 S.E. 2d at 533 (quoting State v. Turner, 268 N.C. 225, 230, 150 S.E. 2d 406, 410 (1966)) (emphasis added).\nThe obligation of a trial judge to make a preliminary determination of a witness\u2019 competency is embodied in Rules 104(a) and 601(a) and (b) of the new North Carolina Evidence Code. These rules are in accord with the traditional North Carolina practice and the case law on the subject. See Commentary to N.C.G.S. \u00a7 8C-1, Rule 104(a), and 1 Brandis on North Carolina Evidence \u00a7 8 (1982); Commentary to N.C.G.S. \u00a7 8C-1, Rule 601, and 1 Brandis on North Carolina Evidence \u00a7 55 (1982). Underlying the evidence rules as codified and the traditional case law analysis is the assumption that, in exercising his discretion in ruling on the competency of a child witness to testify, a trial judge must rely on his personal observation of the child\u2019s demeanor and responses to inquiry on voir dire examination. See, e.g., State v. Roberts, 18 N.C. App. 388, 391, 197 S.E. 2d 54, 57, cert. denied, 283 N.C. 758, 198 S.E. 2d 728 (1973); Stafford, The Child As a Witness, 37 Wash. L. Rev. 303, 308 (1962); 3 D. Louisell & C. Mueller, Federal Evidence \u00a7 251 (1979). Obviously, there can be no informed exercise of discretion where a trial judge merely adopts the stipulations of counsel that a child is not competent to testify without ever having personally examined or observed the child on voir dire. The competency of a child witness to testify at trial is not a proper subject for stipulation of counsel absent the trial judge\u2019s independent finding pursuant to his opportunity to personally examine or observe the child on voir dire.\nWe find error in the trial judge\u2019s adopting counsel\u2019s stipulation in concluding that the child victim was incompetent to testify, he never having personally examined or observed the child\u2019s demeanor in responding to questions during a voir dire examination. Because highly prejudicial testimony was erroneously admitted pursuant to Rule 803(24) and Rule 804(b)(5) on the basis of this improperly based conclusion, we arrest judgment on each of the convictions here and remand the matter to the Superior Court, Wake County, for a new trial.\nNew trial.\n. \u201c(a) Questions of admissibility generally. \u2014 Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.\u201d\n. \u201c(a) General rule. \u2014 Every person is competent to be a witness except as otherwise provided in these rules.\n\u201c(b) Disqualification of witness in general. A person is disqualified to testify as a witness when the court determines that he is (1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.\u201d", "type": "majority", "author": "MEYER, Justice." }, { "text": "Justice BILLINGS\nconcurring.\nI concur in the opinion of the Court but wish to expand on the reasons for concluding that admission of the hearsay evidence was highly prejudicial in this case.\nThe suspicions of the medical personnel who first examined this child were aroused by observation of redness of her external genitalia. However, the family of the child testified to and the medical personnel observed a \u201csevere masturbation problem\u201d which may have explained the redness. Upon physical examination of the child, medical personnel discovered a hair in her vagina. However, this turned out to be an animal hair.\nAfter concluding that the child had been sexually molested, one of the witnesses asked her who had hurt her, and she identified the defendant. When asked what the defendant had hurt her with, she replied with a word that different people interpreted differently. The State\u2019s witnesses who heard her response understood her to say \u201chis dick.\u201d When the child repeated the statement to her mother in the presence of the State\u2019s witnesses, the mother understood the child to say, \u201chis stick.\u201d She immediately explained to the people present that her husband had spanked the child on the previous evening with a switch which the child referred to as a stick.\nFinally, the State allowed the witnesses to testify regarding the child\u2019s placement of anatomically correct dolls, placing the male doll face down on top of the female doll. However, there also was evidence that the child asked \u201cWhat\u2019s that\u201d when she first saw the external genitalia of the anatomically correct male doll, casting further doubt on the interpretation as \u201cdick\u201d of the word previously used by the child.\nThe above is, of course, not all of the State\u2019s evidence, but it does point up the questionable reliability of the hearsay testimony. Even if we were to find that the statements of a three-year-old child have \u201cequivalent circumstantial guarantees of trustworthiness,\u201d N.C.G.S. \u00a7 803(24), because a child of that age lacks the cognitive ability to fabricate (evidence offered by the State), we would be reluctant to rely on the evidence in cases where, as here, the actual content of the statement was subject to interpretation.", "type": "concurrence", "author": "Justice BILLINGS" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State.", "Gerald L. Bass for defendant-appellant.", "Adam Stein, Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, amicus curiae.", "INTERACT, Inc., by Lou A. Newman and Thomas W. Jordan, Jr., amicus curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRANCIS VESPER FEARING\nNo. 68A85\n(Filed 10 December 1985)\nWitnesses \u00a7 1.2\u2014 child ruled incompetent to testify by stipulation of parties \u2014 no examination of child by judge \u2014error\nThe trial court erred in a prosecution for first degree rape, incest, and taking indecent liberties with a child by adopting counsel\u2019s stipulation in concluding that the child victim was incompetent to testify without personally examining or observing the child\u2019s demeanor in responding to questions during a voir dire examination. Underlying the evidence rules as codified and the traditional case law analysis regarding the competency of a child witness to testify is the assumption that a trial judge must rely on his personal observation of the child\u2019s demeanor and responses to inquiry on voir dire examination. N.C.G.S. 8C-1, Rules 104(a) and (b)2, 803(24), 804(b)(5).\nJustice Billings concurring.\nDefendant was convicted of first-degree rape, incest, and indecent liberties with a minor at the 17 September 1984 Criminal Session of Superior Court, WAKE County, Brannon, J., presiding. Defendant was sentenced to life imprisonment for the rape conviction, to four and one-half years for the incest conviction, and to three years for the indecent liberties conviction. The latter two sentences were ordered to run concurrently with the life sentence. Defendant appeals the life sentence as of right pursuant to N.C.G.S. \u00a7 7A-27(a); his motion to bypass the Court of Appeals as to the other convictions was allowed 4 April 1985. Heard in the Supreme Court 9 September 1985.\nLacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State.\nGerald L. Bass for defendant-appellant.\nAdam Stein, Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, amicus curiae.\nINTERACT, Inc., by Lou A. Newman and Thomas W. Jordan, Jr., amicus curiae." }, "file_name": "0167-01", "first_page_order": 195, "last_page_order": 203 }