{
  "id": 4700970,
  "name": "STATE OF NORTH CAROLINA v. ANTHONY ELWOOD HEATH",
  "name_abbreviation": "State v. Heath",
  "decision_date": "1986-04-02",
  "docket_number": "No. 702A85",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T16:48:49.336190+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE OF NORTH CAROLINA v. ANTHONY ELWOOD HEATH"
    ],
    "opinions": [
      {
        "text": "MARTIN, Justice.\nThe question dispositive of this appeal is whether the trial court erred in permitting the prosecutor to pose a question to an expert in clinical psychology regarding whether the victim had a mental condition which would cause her to fabricate a story about the sexual assault. Concluding that it so erred, we order a new trial.\nAt trial the state\u2019s evidence tended to show that on 5 February 1983 thirteen-year-old Victoria Ann Purser (Vickie), who had been living with her maternal grandparents in Grifton, was visiting her parents and siblings in Kinston. Vickie had gone to a nearby house to see her friend, Lisa Warren. Vickie testified that while she was sitting alone in the front porch swing waiting for Lisa to finish a phone call, the fifty-six-year-old defendant, who lived next door and whom the neighborhood children sometimes visited, came up the porch steps, spoke to her, and put his arm around her. Afraid, Vickie tried to get up and go back into Lisa\u2019s house, but defendant held her more tightly, turned her around, and began walking her to his house, telling her he had something to show her. Still tightly gripping her, he took her into his house, then into his bedroom, and he shut and locked the bedroom door. Vickie testified that she was scared and crying. She said that as defendant was taking her clothes off, he told her that if she told anybody, he didn\u2019t know what he would do to her, that he loved her, and that what he was going to do to her wouldn\u2019t hurt. Defendant then disrobed, lay down on the bed on top of her, committed cunnilingus on her, had intercourse with her, and forced her to perform fellatio on him. He then dressed, again warned her not to tell anyone, and left. Vickie put on her clothes and ran home, where she took a bath. She stayed in her bedroom the rest of the weekend.\nVickie testified that a similar incident had occurred between defendant and her around Easter 1980, but when she had told her older sister and Lisa about it, they had laughed at her and called her a liar. Thereafter, she began to have insomnia and nightmares, and Vickie asked to live with her grandparents. She did not return to the neighborhood for more than a year. During this time, she experienced nightmares and headaches, she became withdrawn and depressed. She ate excessively and her school grades fell.\nDuring the first week of June 1983, Vickie told two friends, two schoolteachers, and her school principal about the two incidents with defendant. One teacher and the principal notified Vickie\u2019s mother, who took her daughter to the Lenoir Memorial Hospital Mental Health Center for counseling. The sheriffs department was called, and Vickie related both incidents to Lt. Rickie Pearson. She was examined by Dr. Rudolph I. Mintz, Jr., a gynecologist and obstetrician, on 10 June 1983 and by a psychologist, Dr. Stevenson, on 13 June 1983.\nDefendant was arrested on 8 June 1983 and later indicted for rape in the second degree and two counts of sexual offense in the second degree. He denied assaulting or having sexual contact with Vickie. He was found guilty by a jury on all charges and was sentenced to a total of ten years in prison.\nDefendant assigns as error the trial court\u2019s admitting the testimony of clinical psychologist Deborah Broadwell, who testified as the state\u2019s expert as to whether Vickie had a mental condition which would cause her to fabricate her story. On direct examination, Mrs. Broadwell, who had been treating Vickie since August 1983, said Vickie was diagnosed as suffering from major depression, with symptoms such as difficulty in sleeping and in concentrating in school, low self-esteem, side ideations, nightmares, depression and withdrawal, which were consistent with the reaction of a child who had been sexually assaulted. She said that other than the sexual attack Vickie described, there were no other reported situations sufficiently traumatic to cause such a major depression.\nDefense counsel, who had earlier asked Vickie if her sister had thought she was lying about the attack because Vickie \u201chad lied about so many other things\u201d and had asked Vickie\u2019s mother if she\u2019s experienced difficulties with Vickie's \u201cmaking up stories,\u201d cross-examined Mrs. Broadwell about alleged discrepancies in statements made by Vickie to personnel in the hospital emergency room and at the mental health clinic. On redirect examination, the following exchange occurred:\nQ. Mrs. Broadwell, do you have an opinion satisfactory to yourself as to whether or not Vickie was suffering from any type of mental condition in early June of 1983, or a mental condition which could or might have caused her to make up a story about the sexual assault?\nObjection.\nCOURT: Overruled.\nQ. What is your opinion?\nA. There is nothing in the record or current behavior that indicates that she has a record of lying.\nDefendant contends that this was improper expert testimony in that it was elicited to bolster the victim\u2019s credibility and was thus admitted in violation of North Carolina Rules of Evidence 608 and 405. We agree that the question and the response were improper.\nRule 608(a), which is addressed to impeachment and rehabilitation of the credibility of a witness or the witness\u2019s propensity for truth, provides, in pertinent part:\n(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.\nThe official commentary to Rule 608 emphasizes that \u201c[t]he reference to Rule 405(a) is to make it clear that expert testimony on the credibility of a witness is not admissible.\u201d The relevant portion of Rule 405, which governs methods of proving character, provides:\n(a) Reputation or Opinion.In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. Expert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.\n(Emphasis added.) The commentary to Rule 405(a) makes it clear that \u201c[s]ince Fed. R. Evid. 405 opens up the possibility of proving character by means of expert witnesses, the last sentence was added to subdivision (a) to prohibit expert testimony on character as it relates to the likelihood of whether or not the defendant committed the act he is accused of.\u201d\nWe would be confronted with an entirely different situation had the assistant district attorney in the case sub judice asked the psychologist if she had an opinion as to whether Vickie was afflicted with any mental condition which might cause her to fantasize about sexual assaults in general or even had the witness confined her response to the subject of a \u201cmental condition.\u201d However, we find that both the question, which addressed itself to \u201ciAe sexual assault,\u201d and the answer, which concerned a \u201crecord of lying,\u201d were fatally flawed.\nFirst, the prosecutor\u2019s question was propounded to the witness in terms of whether the victim could have been suffering from \u201ca mental condition which could or might have caused her to make up a story about the sexual assault.\u201d (Emphases added.) A reasonable interpretation of the word \u201cthe\u201d is that it refers to the particular incident in question, i.e., the sexual assault defendant allegedly committed on Vickie on 5 February 1983. Although the inquiry was disguised in the form of a query into Vickie\u2019s \u201cmental condition,\u201d in essence it was a question designed to elicit an opinion of the witness as to whether Vickie had invented a story, or lied, about defendant\u2019s alleged attack on her. In short, the question was designed to extract the witness\u2019s opinion as to whether the defendant actually assaulted Vickie Purser on 5 February 1983 and in effect was aimed at divining Mrs. Broadwell\u2019s opinion as to the guilt of defendant. This was clearly improper under the criterion set forth in State v. Brown, 300 N.C. 731, 733, 268 S.E. 2d 201, 203 (1980), and reiterated in State v. Keen, 309 N.C. 158, 163, 305 S.E. 2d 535, 538 (1983), which prohibits an expert\u2019s expression of an opinion as to the defendant\u2019s guilt or innocence. In addition, the question was impermissible under the mandate of Rule 405(a) against the use of expert testimony on character or a character trait as circumstantial evidence of behavior and it also violated the prohibition of Rule 608 of using expert testimony to show the propensity of a witness for truth and veracity. It is one thing to ask an expert in psychology or psychiatry whether a victim fantasizes, but it is another thing altogether to ask whether a witness has made up a story, or lied. One who fantasizes can honestly and subjectively believe in the reality of the fantasized-about occurrence, but \u201cmaking up a story,\u201d or lying, denotes an affirmative or conscious intent to deceive, invent, or not tell the truth. As mentioned earlier, Rules 608 and 405(a), read together, forbid an expert\u2019s opinion as to the credibility of a witness. See also United States v. Binder, 769 F. 2d 595, 602 (9th Cir. 1985).\nThese same rules were violated when the witness\u2019s response was addressed to a \u201crecord of lying.\u201d Such expert testimony on Vickie\u2019s character \u2014 here, her propensity or past history (or lack thereof) for lying \u2014 was not admissible since it related to the likelihood of whether Vickie was telling the truth about the alleged sexual assault and thereby to the likelihood that defendant committed the rape and sexual offenses of which he was accused. Keen, 309 N.C. 158, 305 S.E. 2d 535.\nWe also find that Mrs. Broadwell\u2019s answer was not responsive to the question asked by the prosecutor. The inquiry ostensibly was addressed to a \u201cmental condition,\u201d but the psychologist\u2019s answer concerned a \u201crecord of lying.\u201d The evidence adduced under this answer was thus incompetent under N.C.R. Evid. 702 (formerly N.C.G.S. \u00a7 8-58.13) which provides:\nRule 702. Testimony by Experts\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\nState\u2019s witness Broadwell was qualified by virtue of her knowledge as a psychologist specializing in child abuse cases and as Vickie\u2019s treating mental health professional to render her opinion as to Vickie\u2019s mental condition. However, her reply went beyond the scope of her expertise and was irrelevant to the topic of mental state or condition, going instead to the victim\u2019s credibility or record for truth and veracity.\nHaving found error, it remains for us to determine whether the trial court\u2019s failure to sustain defendant\u2019s objection to the prosecutor\u2019s question was prejudicial to defendant. We hold that it was. Our review of the transcript reveals on the one hand, inter alia, that Vickie\u2019s recountings of her story to numerous persons generally were consistent; medical opinion was that Vickie had at some point been sexually penetrated; psychologist Broadwell presented strong evidence indicating that Vickie\u2019s various symptoms were consistent with those of a child who had been sexually assaulted; Vickie\u2019s sister testified to Vickie\u2019s good reputation for truthfulness. On the other hand, however, Lisa Warren and a telephone company representative testified that the Warrens\u2019 telephone was not operational on 5 February 1983 and thus Vickie\u2019s memory of waiting on the Warrens\u2019 porch while Lisa took a call was not accurate; Lisa testified that Vickie had \u201cbeen known not to always tell the truth\u201d; the doctor\u2019s examination indicating penetration of Vickie was performed more than four months after the alleged assault; a number of witnesses testified on behalf of defendant in support of his propensity towards honesty and his good character and reputation in the community; the evidence showed that neighborhood children often visited and watched television with this retired, physically disabled defendant in his home.\nThe standard of harmless error is whether \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C.G.S. \u00a7 15A-1443(a) (1977); State v. Sills, 311 N.C. 370, 378, 317 S.E. 2d 379, 384 (1984). In this case, in which the evidence was fairly evenly divided between both sides, the basic issue was whether the jury believed Vickie Purser or the defendant. Consequently, the jury probably gave considerable weight to the testimony of Mrs. Broadwell. Thus, we must conclude that there is a reasonable possibility that without this question and answer the jury would have reached a different conclusion as to the guilt of the defendant. The defendant is entitled to a new trial.\nThe decision of the Court of Appeals is\nReversed.",
        "type": "majority",
        "author": "MARTIN, Justice."
      }
    ],
    "attorneys": [
      "Lacy H. Thornburg, Attorney General, by Tiare B. Smiley, Assistant Attorney General, for the state.",
      "Malcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ANTHONY ELWOOD HEATH\nNo. 702A85\n(Filed 2 April 1986)\nCriminal Law \u00a7 89.1\u2014 rape of child \u2014 examination of victim\u2019s psychologist about victim\u2019s truthfulness \u2014 error\nThe trial court erred in a prosecution for second degree rape and second degree sexual offense by permitting the prosecutor to ask an expert in clinical psychology whether the victim had a mental condition which would cause her to fabricate a story about the sexual assault. The question addressed itself to the sexual assault rather than fantasizing about sexual assaults in general, and the answer was not responsive in that it was addressed to a record of lying rather than a mental condition. N.C.G.S. 8C-1, Rules 405(a), 608, and 702; N.C.G.S. 15A-1443(a).\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, reported in 77 N.C. App. 264, 335 S.E. 2d 350 (1985), which found no error in the trial of defendant before Barefoot, J., at the 16 July 1984 session of Superior Court, LENQIR County, but remanded the case for a new sentencing hearing. Heard in the Supreme Court 13 March 1986.\nLacy H. Thornburg, Attorney General, by Tiare B. Smiley, Assistant Attorney General, for the state.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant."
  },
  "file_name": "0337-01",
  "first_page_order": 365,
  "last_page_order": 372
}