Defendant was indicted by the Chowan County Grand Jury for 248 counts of first-degree sex offense, first degree rape, taking indecent liberties with minors and crime against nature. Upon defendant's motion for change of venue, the trial court transferred venue to Pitt County for trial. The cases were joined for trial and came to trial before a jury at the 22 July 1991 Special Criminal Session of the Superior Court for Pitt County, the Honorable D. Marsh McLelland, Judge Presiding. Some charges were dismissed by the State prior to trial; others were dismissed by the State before the State rested its case; and still others were dismissed upon defendant's motion for nonsuit. Defendant was convicted of thirty-seven counts of first-degree sexual offense, three counts of first-degree rape, forty-six counts of taking indecent liberties with children, and thirteen counts of crime against nature. He was sentenced to twelve consecutive terms of life in prison. Defendant appeals from judgments entered 23 April 1992.
STATEMENT OF THE FACTS
The state's theory was that Mr. Kelly, along with the other employees of the Little Rascals Day Care, was engaged in ritualistic satanic child abuse, repeatedly sodomizing, raping and otherwise sexually molesting over half of the children at the day care in the course of orgiastic ceremonies featuring animal and infant sacrifice. None of this was witnessed by any of the adults who brought their children to the day care each day, or by any of the neighbors of the day care. No complaints about the day care of any kind surfaced during the two and one half years it was in operation at its original location.
In the fall of 1988, the day care moved from its original location to a new one. At the same time, the day care enrollment was doubled. New teachers were added. Some left. Some changed assignments.
The change to new surroundings, new teachers, new classmates, and a new schedule was stressful to the children, their parents and the day care staff. Many of the three and four year old children were also having difficult times outside the day care. Some parents were having surgery, others were working especially long hours. Some families were embroiled in domestic difficulties. Most of the children were being left in a number of different child care settings from early morning to late afternoon. Some children had injuries and illnesses. New siblings and deaths in the family troubled other children.
Before the initial investigation of the day care in 1989, the only incident of misconduct anyone was aware of involved Mr. Kelly and Joel Williams, the son of Betsy Kelly's friend, Jane Mabry. Apparently, Mr. Kelly slapped the boy sometime that Fall. Ms. Mabry was infuriated. She removed her son from the day care and demanded an apology from the Kellys. Apparently none was forthcoming. Although Joel Williams was not one of the children Mr. Kelly is supposed to have sexually abused, Ms. Mabry was actively involved in the investigation and prosecution of this case. Neither Joel nor Ms. Mabry testified in the case.
Aside from this, there were no unusual complaints about the day care until January 1989. On January 14, a three-year old said, after repeated questioning by his anxious mother, that "Mr. Bob" had, at some time in the past, "played doctor" with some of the boys. Once the allegation was made, many parents began questioning their children about "Mr. Bob." More and more children were believed to have been abused by more and more adults. Parents who had heretofore never seen any problems with the day care began remembering that their children were acting strangely that Fall. Others claimed that they had seen instances of inappropriate punishment or insufficient supervision. All of this was seen as further evidence of widespread sadistic sexual abuse of the children. At the height of the investigation, thirty children were the subject of almost three hundred charges.
Without exception, every child initially denied that he or she had been subjected to any sort of abuse. Nonetheless, if a child was named by another child who had "disclosed" abuse, the parent of the named child usually began to believe -- almost instantly -- that his or her child was a victim. The parents would seek to have their child evaluated medically and psychologically. All the medical evaluations were done by three doctors associated with the Child Medical Examiner's Program. All the psychological evaluations were done by one of four individuals holding themselves out as sexual abuse therapists.
The therapists encouraged parents, grandparents and siblings to participate in questioning the children. Social workers, prosecutors and police also conducted interviews. All of these interviewers were in communication with each other and the District Attorney.
The only physical evidence was in the form of "subtle" changes in the genitalia of four girls. These changes were only seen by two members of the Child Medical Examiner's Program. Other doctors who examined the children, or reviewed photographs of the children, did not see any physical signs indicating sexual abuse. The examinations of the girls were conducted six to twelve months after Mr. Kelly's last contact with the day care operation, and three to six months after the day care closed. The state's doctors concluded only that the physical evidence was "consistent with," "suspicious," or "suggestive" of penetration. When added to the results of the interviews conducted over the months leading to the physical exams, however, the doctors made definite "diagnoses" of sexual abuse. (Tpp. 13300-13302) See Issue VII.
At trial, the state's case was in the form of brief testimony from twelve children who claimed to have been abused by the defendant in some form or another. This was supplemented by lengthy corroborative testimony from parents, friends, doctors, police officers and therapists. What the other hundred children who attended the day care observed may never be known.
The defense was that the charges were based on belief rather than proof. Expert witnesses testified that the allegations were the result of a combination of unethical, inappropriate, and unprofessional interviewing techniques and community hysteria. The defense presented evidence to show how unlikely it was that so much abuse had taken place without anyone ever having been discovered. Much was also made of the fact that none of the children reported to anyone that they had been abused.
Defendant also presented evidence that he had submitted to being evaluated on the penile plethysmograph. According to defense experts, Mr. Kelly did not evidence sexual attraction to children.
The state treated the penile plethysmograph testimony as an "open door" to present evidence of Mr. Kelly's sex life, his temper, his watching of adult films, his dating experience and previous marital difficulties. The state presented defendant's estranged wife to testify that, sometime in the mid seventies, someone sent "child pornography" to a post office box rented by the defendant.
The state cross-examined the defense witnesses about pedophilia and sociopathy. Mr. Kelly does not fit either classification.
In 1986, Paul and Sally Harrison, who had run the Little Rascals Day Care for several years, were interested in selling the business. Several of the parents whose children had been going to the Little Rascals, urged Betsy Kelly, the daughter of the prominent Twiddy family, to take over the day care.
The day care was then housed in an older home on Court Street. The enrollment was about twenty five children, and there were six full-time workers, including Betsy Kelly. There were also several "fill in" workers, who helped out on occasion. Bob Kelly was sometimes at the day care, usually on Fridays, when he would cook spaghetti for everyone, and give the workers their weekly paychecks.
In the Fall of 1988, the Kellys moved the day care to a larger building on Eden Street. Enrollment was increased to about fifty, and several new workers were employed. One favorite of the children, Brenda Parks, left the day care, and was replaced by co-defendant Shelly Stone. Co-defendant Dawn Wilson was hired to cook for the children. Operations at the new day care began in September, 1988, although there was still some remodeling under way at the time.
Bob Kelly, who was also engaged in the plumbing business, began spending more time at the "new" day care. Much of his time was spent completing the remodeling. However, he also helped out with some of the operations of the day care program. Although he never had the responsibility for a class, he would fill in from time to time for teachers who were at lunch or on break. (Tp. 17,878)
Many of the parents had difficulty keeping their children under control, perhaps because their children spent most of each day in babysitting or day care arrangements. The three or four year old children were described by their parents and friends with terms like "strong-willed," "opinionated," "headstrong," "hyperactive," "aggressive," "manipulative", "controlling", "difficult" and "willful." (Tpp. 4902, 4446, 5734, 7943, 8211, 8306, 10,025, 10,166, 10,291, 10,371, 10,681, 11,404, 11,579, 12,391)
Some of the workers at the day care also found it difficult to control the children. Bob Kelly was the only adult male regularly in the day care. As such, he was seen by the children as a "principal." (Tp. 17,595) When one of the young female workers would have difficulty managing one of the children, "Mr. Bob" would be used as a threat to keep the children under control. (Tpp. 4200, 4295, 4960, 5468, 19218)
The parents who testified at trial were well-educated. Most of the mothers had careers, many in education. The fathers worked long hours, sometimes out-of-town. Some of the children had parents who were separated. Some parents were concerned about leaving their children in institutional settings for so much of their day. Some of the parents felt guilty about leaving their children in day care all day. (Tpp. 6456, 7172, 10,117)
Many of the children were also attending the Little Friends Pre-School for a few hours each week. This program was more academically oriented than the Little Rascals. Parents thought it was important for their children to get this early academic experience. Several parents testified at trial that they thought the program at the Little Friends was superior to that provided by the Kelly's.
Ginette Mitchener, the operator of the Little Friends, required that the children arrive for their sessions promptly. None of the children who came to Ms. Mitchener from the Little Rascals was late arriving. Ms. Mitchener also required the children to be toilet trained. Most of the children who testified in this case were toilet trained before they were two years old.
Many of the children were also attending Audrey Stever's Dance Studio during the day. None of the children ever failed to show up on time.
In September, 1988, Bob Kelly slapped one of the boys in the day care. This boy, Joel Williams, was the son of Jane Mabry. After this incident, Ms. Mabry, a long-time friend of the Kelly's, demanded an apology. She was dissatisfied with the Kelly's response. She took Joel out of the day care and broke off her relationship with Bob and Betsy. She told her friends that Bob Kelly had assaulted her son. (Tp. 3529)
With this exception, the day care was running with no unusual complaints. Considering the change in location, teachers, and enrollment, the children appeared to be happy and showed no more than a normal degree of reluctance to be separated from their parents all day. Most of the children seemed to like the Kellys. One of the children who was eventually to accuse the defendant of several acts of anal and oral sex, repeatedly said that Fall, "Mr. Bob, he's a nice man." (Tp. 10,706)
II. INITIAL ALLEGATION.
One of the children who attended the day care was three year old Kyle Stever. Kyle is the son of Audrey Stever, who operated a local dance studio. Kyle was in day care two days a week. (Tp. 3440) He had been going to a variety of placements during the day ever since he was an infant. (Tp. 3432)
Ms. Stever testified from her journal that, sometime in the Fall of 1988, Kyle began getting confused about whether he was supposed to go to the Little Rascals, his babysitter Rosa, or someplace else. He seemed to want to go to Rosa rather than the day care. (Tp. 3442)
Ms. Stever had toilet trained Kyle before he was two years old. She testified that, in the Fall of 1988, he began having "accidents." (Tp. 3446)
Ms. Stever and her husband thought at the time that Kyle was having problems because of their hectic work schedules that Fall. Ms. Stever was spending a great deal of time in the evenings preparing her dance classes for the studio's annual production of "The Nutcracker." She often worked until eight or nine at night. (Tp. 3434) Ms. Stever thought that the hectic family schedule and the fact that they had little time for Kyle accounted for Kyle's behavior changes. (Tp. 3450)
In November or early December, Ms. Stever got a telephone call from Ginette Mitchener. Betsy Kelly would normally transport the children back and forth from the Little Rascals to the Little Friends. Ms. Mitchener told Ms. Stever that, on one occasion, Bob rather than Betsy came to pick up the children. Ms. Mitchener said that Kyle seemed reluctant to go with Mr. Kelly. Ms. Mitchener said that Kyle told her that he did not like "Mr. Bob." (Tp. 3454)
Ms. Stever testified that, in December of 1988, she was so concerned about Kyle that she asked her friend, Officer Brenda Toppin, for advice. Toppin had been a dispatcher for the local police department. She apparently had a particular interest in child abuse, and began investigating such cases for the police. Toppin suggested that Ms. Stever wait until after Christmas to see if Kyle's behavior changed back to normal. (Tp. 3456)
Kyle stayed home for the Christmas break. He seemed to enjoy being with his family during the day. When the spring semester began, Kyle was reluctant to go back to day care. Nonetheless, Ms. Stever insisted that Kyle go to the day care so that she could run her dance studio. (Tp. 3458)
At this point, another little boy, Brian Swicegood, was also having problems with the Little Rascals. His father was at home recuperating from back surgery. Brian's brothers, who were of school age, stayed home all day during the Christmas school holiday. Brian, however, was sent to the Little Rascals. (Tp. 4247) This upset Brian. (Tp. 4212) He would cry for his mother, and sometimes be put in a "timeout" chair in the hall so he would not disturb the other children. (Tp. 4217, 18631) On January 3, Brian told his mother that the day care was ugly. (Tp. 4413)
On January 6, Brian was sitting in the timeout chair crying when his grandmother, Frances "Nonna" Wilkins, came into the day care unannounced to check on him. Ms. Wilkins, a retired teacher, had been dissatisfied with the management of the children at the day care. When she saw Brian crying in the hall, she took him into her arms, telling him "You will never have to come back to this place again." (Tp. 4224) She testified that Brian "was just as content as he could be to stay in the house with me." (Tp. 4228)
On January 13, Jane Mabry came to Ms. Stever's dance studio and talked to Ms. Stever about the day care. (Tp. 3526) She said that Bob Kelly had slapped her son and that she had taken him out of the day care. (Tp. 3529) She also told Ms. Stever that Brian Swicegood had been taken out of the day care. (Tp. 3472) At that point Ms. Stever got "concerned" about Kyle's welfare. (Tp. 3526) She had also heard that Jackie Partin was unhappy with the day care. (Tp. 3528) Later that day, Ms. Stever talked to Brenda Toppin about the day care and Kyle. Ms. Toppin advised Ms. Stever to question Kyle about why he did not like the day care. (Tp. 3531)
Ms. Stever testified that she questioned Kyle about the day care on January 13. She testified that she tried not to ask Kyle leading questions. Nonetheless, she was concerned about what had happened at the day care and intended "to find out what was wrong with my son." (Tp. 3531) She apparently assumed that whatever was "wrong" with Kyle was attributable to Bob Kelly. This "monoideational" approach was, according to Dr. Moisy Shopper, characteristic of the investigation of the Little Rascals. (Tp. 19,714) This was particularly true of the interviews of Kyle. (Tpp. 19,709-19,726)
Dr. David Raskin testified to the dangers of false accusations from inadequately trained interviewers conducting poorly controlled or unrecorded interviews. (Tp. 15,660) Dr. Raskin was particularly troubled that the children were being interrogated about possible abuse by parents, grandparents, siblings and friends. He testified that "the forensic interviewer should absolutely not have any personal relationship with the parties involved." (Tp. 15,668)
Ms. Stever asked Kyle if there was anybody at the Little Rascals he didn't like. Kyle said "yes." She asked if it was "Mr. Bob." Kyle said "yes." She asked him why he didn't like Mr Bob. Kyle said he could not say. Ms. Stever assured Kyle that he was a good boy, and that he could tell her about it. Kyle did not want to talk about it, saying that "He doesn't do it anymore." Ms. Stever persisted, but Kyle could not or would not say what it was about "Mr. Bob" that he did not like. (Tpp. 3461-62)
On January 14, Ms. Stever read Kyle a story, and then began questioning Kyle again. She asked him when or where the defendant did the things that he did not do anymore. She began naming times and places. According to Ms. Stever, Kyle somehow indicated "nap time." Ms. Stever asked Kyle what the defendant did at naptime. Kyle responded that he did not do it anymore. (Tp. 3463) Dr. Raskin testified that Ms. Stever's technique was "very suggestive." (Tp. 15,841)
Ms. Stever reported back to Brenda Toppin on January 17. Ms. Stever had decided that there was nothing to be concerned about; that she had "overexaggerated" the situation. (Tp. 3537) However, Ms. Toppin saw "concern" on Ms. Stever's face. (Tp. 12,446) When Ms. Stever told Ms. Toppin that Kyle had talked about something happening at naptime, a "red flag" went up for Ms. Toppin. (Tp. 12446) Apparently reading something in Ms. Toppin's response, Ms. Stever said "Brenda, this couldn't be sexual; I mean it just couldn't be." Ms. Toppin was not reassuring, telling Ms. Stever that naptime is "usually when these things happen." Ms. Stever assumed Ms. Toppin was talking about sexual abuse. (Tp. 3539) Ms. Stever kept her son away from the Little Rascals from then on.
Ms. Stever questioned Kyle again that afternoon. She told Kyle that she needed to know what Mr. Bob did to him at naptime to make him sad. She asked Kyle if the defendant ever touched him on his private parts. Kyle said "Not me, mommy, it was the other boys." She asked Kyle to say what Mr. Bob used to do that he does not do anymore. Kyle said "He plays doctor." (Tp. 3468)
Ms. Stever remembered that, a few months earlier, she saw Kyle fondling himself. When she confronted him, Kyle claimed that he was "playing doctor." Upon further questioning, Kyle said that "playing doctor" involves putting things "in your butt." Kyle said he had learned about "playing doctor" from his friend Jim. (Tp. 3447)
When Ms. Stever asked Kyle in January how to "play doctor", Kyle apparently repeated what he said when he was caught "playing doctor" earlier: "You stick something in your butt." Kyle said that the defendant also played doctor with Gardner Culpepper, Will Hollowell, Richard Dixon and Alex Bean. (Tp. 3541) Ms. Stever asked Kyle again if Mr. Bob had touched him. Kyle repeated that Mr. Bob had only touched other boys. Ms. Stever felt "really devastated."
Dr. David Raskin reviewed this interview and termed Ms. Stever's approach "very suggestive." (Tp. 15,841) Dr. Moisy Shopper also commented on Ms. Stever's interview of her son. He testified that the style of Ms. Stever's questioning had the likely effect of suggesting to him what she expected to hear: that the defendant had molested children. Her emotional reaction to what he said had the likely effect of "teaching" Kyle that what he said was the "right" answer to her questions. (Tpp. 15,663, 15,841) According to Dr. Shopper, it is entirely possible, if not likely, that the allegation contained in this interview was false. (Tp. 19,650) Nonetheless, it was believed by the Stevers, the police, and the Department of Social Services.
IV. "SUBSTANTIATING ABUSE."
A. Enter Brenda Toppin.
When Kyle's father heard from his wife what Kyle had said, he wanted the family to leave Edenton. Ms. Stever insisted on staying, saying "it didn't help the situation to not tell anyone because it would still be happening." (Tp. 3469) Having become a "believer" and an advocate for others she believed to have been abused, Ms. Stever's subsequent interviews with Kyle, as well as her reconstructed diary of the events in 1988 and 1989 are, according to Dr. Shopper, suspect. (Tpp. 19,649, 19,670)
On January 14th, Ms. Stever talked to Debbie Swicegood and Jackie Partin, two parents who she believed to be dissatisfied with the day care. Ms. Stever told the women that Kyle had said that the defendant had played doctor with some of the boys. She suggested that they question their children about the day care. (Tp. 3545) Ms. Stever also talked again to Jane Mabry, telling her what Kyle said. (Tp. 3546) Ms. Stever told Ms. Mabry that what happened to Kyle "was more than just a slap." (Tp. 3825)
On January 17th or 18th, Ms. Stever called Ms. Toppin again. (Tp. 12447) She told Ms. Toppin that Kyle had said that the defendant had "played doctor" with Alex Bean, Gardner Culpepper, Will Hollowell and Richard Dixon. She elaborated, saying that Kyle said that the defendant "looked at hineys and played with ding-dongs and hineys and he stuck things in butts." (Tp. 12,448) Brenda Toppin said that would be alright for Ms. Stever to talk with other parents about this.
On January 18th, Ms. Toppin called Social Worker Grenda Costin to report what Ms. Stever said Kyle said. Neither Toppin nor Costin had heard any complaints about the day care other than the report from Ms. Stever. (Tp. 12,450) Nor had they interviewed a single child. Nonetheless, on January 19th, Ms. Toppin told Ms. Stever, "You're not going to like this. We think there's something going on, to what extent we're not sure. But Kyle may be one of the victims." (Tp. 3475) Six days after Kyle mentioned Bob Kelly, Ms. Toppin had determined that there was abuse of several children at the Little Rascals.
Ms. Stever went to Julie Spivey's house on January 19, 1989. She wanted to tell Ms. Spivey to take Josh out of the day care. (Tp. 3845) She told Ms. Spivey that Kyle had accused the defendant of "playing doctor." Ms. Spivey told Ms. Stever that she should also talk to Peggy Brooks. (Tp. 3845) Both Ms. Spivey and Ms. Brooks were soon to begin questioning their sons about "Mr. Bob."
On January 20, Ms. Stever met with David McCall and Grenda Costin, who told Ms. Stever that there was going to be an investigation into the day care. They also suggested to Ms. Stever that they put Kyle in therapy. (Tp. 3479) Brenda Toppin suggested Michelle Zimmerman, a nurse in Virginia, as a therapist. (Tp. 3479) McCall and Costin told Ms. Stever that "they thought something was going on" at the day care. (Tp. 3548)
On January 21, Ms. Toppin, Ms. Costin and Mr. McCall came to interview Kyle at his home. Ms. Stever prepared Kyle by telling him that he needed to be a "police helper" to help figure out why the children at the day care were sad. (Tp. 3550)
Drs. Raskin and Shopper testified at length to the impropriety of this initial interview. Such interviews should not be conducted in the child's home. (Tpp. 15,731, 19,725) The use of multiple interviewers is inappropriate and could lead to false results. (Tp. 15,684) Giving children incentives to disclose, such as calling them "police helpers" further reduces the reliability of the accusations. (Tpp. 15,731, 15,789, 15,893) Nonetheless, it was typical of parents and therapists to encourage their children to make accusations, and reward them afterwards, with no attempt to verify the truth of the allegations. (Tpp. 19,725, 19,728, 19,734, 19,787)
The three adults began questioning Kyle about "Mr. Bob." Ms. Stever listened from the next room. According to Ms. Toppin, Kyle "didn't want to talk about it with us, with me or with anyone." (Tp. 12,453) When they would ask him about "playing doctor," Kyle could not or would not explain further. The adults repeatedly brought the conversation back to sexual molestation, even though, or perhaps because, Kyle would resist talking about that. Dr. Shopper termed this approach "monoiodeational." He explained that some child abuse investigators tend to determine too quickly that abuse has occurred and then refuse to consider any other possibility. (Tp. 19,728) Dr. Shopper noted that in this case, there was a complete failure of the adults to consider other causes for the children's behavior that Fall. (Tpp. 19,703, 19,733, 19,796) This was true not only of the police, but of the therapists, whose conduct he considered to be "unprofessional" and "unethical." (Tpp. 19,711, 19,800)
Ms. Toppin decided, based on Kyle's facial expression and body language, that he could not describe what had happened without the use of anatomically correct dolls. She testified "He was not telling us. We . . . had information from his mother prior to that time as to what he had told her. But he would not tell us anything, and it was obvious that it was difficult for him to talk about." (Tp. 12,687)
According to Ms. Toppin, "Eventually he did say that yes, it happened to him." (Tp. 12,453) On second thought, Ms. Toppin corrected herself to say that, after Kyle wordlessly manipulated the dolls, she asked him if that was how Mr. Bob played doctor. What Kyle actually responded was not "yes" but rather "I don't think he does it anymore." (Tp. 12,693) Indeed, Kyle repeatedly tried to assure the adults that "I don't think he does it any more." (Tp. 12,462)
Dr. Raskin testified that there was no need for the officer to use the dolls. (Tpp. 15,703, 15,849) He noted that the use of these dolls, which can themselves produce false accusations, are an indication of Ms. Toppin's preoccupation with abuse as the explanation for Kyle's behavior. (Tp. 15705) Dr. Raskin also noted that Ms. Toppin was not properly trained in the use of the dolls. (Tp. 15,849)
Ms. Toppin testified that she asked Kyle to show the adults where on his body the defendant touched him while playing doctor. Kyle "grabbed his pants in the penis area and then in the buttocks area . . .." (Tp. 12,695)
Ms. Toppin testified that the conversation was not recorded in any way. She was not able to remember just what she said to elicit Kyle's statements on this occasion. (Tp. 12,466) Ms. Toppin could not remember at trial what terms Kyle used to describe what the defendant did. Rather, she put his descriptions into her own terms. (Tp. 12,677)
The interrogation lasted about two hours. (Tp. 12,463) Kyle had just turned three years old. (Tp. 12,465)
B. Spreading Rumors and Additional Allegations.
After the initial allegation by Kyle, Brenda Toppin began interviewing the children whom Kyle named. She also enlisted parents, who in turn enlisted others, to question the children about abuse. Dr. Raskin noted the danger of having poorly trained "investigators" interviewing the children. (Tp. 15,655)
As some of the other children eventually "disclosed" abuse and named others, the investigation spread. Presumably all of the children who were named by another child as having been abused or witnessed abuse were questioned. Because some children testified that "all the children" were witnesses to some form of abuse, it is expected that every child who attended the day care while it was operated by the Kellys was questioned. Only twenty-nine of these children were the subject of indictments. The remaining children apparently made no credible allegations of abuse.
1. Dan Brooks.
Dan (sometimes called "William") Brooks attended the day care from Fall, 1986 until January, 1989. (Tp. 4849) His Mother, Peggy Brooks, testified that Dan liked the "old" day care but did not like the "new" day care. (Tp. 4934) Ms. Brooks testified that, once Dan would get to the day care and get settled in, he was fine. (Tp. 4937)
Dan's parents were divorced. His father lived in the western part of the state and was re-married. Dan would visit his father on weekends. Ms. Brooks testified to Dan's behavior problems after he got back from the visits. (Tpp. 4916-4919)
Although Dan's behavior problems, including sleep disturbances, stemmed back to 1986, Ms. Brooks testified that in the Fall of 1988 she became "obsessed" with Dan's behavior. (Tpp. 4920, 4957) She took Dan to Mental Health because of the behavior problems Dan experienced involving his visitation. (Tpp. 5294-5295) Dan's father thought that Dan's sleeping problems were due to the fact that he would come back from a long drive and would be "hyper" or "wired." (Tp. 5296)
Karen Davenport, a counselor with Mental Health, testified that she had her first session with Peggy and Dan on November 14, 1988. (Tp. 5309) Ms. Brooks told Ms. Davenport that Dan was being "aggressive" in day care. Ginette Mitchener, the owner of the Little Friends Pre-school, told her that Dan was hitting other children at Little Friends for no apparent reason. (Tp. 4931) The behavior problems seemed to be related to his visitations with his father. (Tp. 5310-5311) Ms. Davenport testified that Dan's aggression could be a symptom of stress related to family discord or other changes in Dan's life. (Tp. 5316) Her initial diagnosis of Dan was "childhood anti-social behavior." (Tp. 5318) They decided to modify the visitation so that Mr. Brooks would come and stay in Raleigh and then visit Dan in Edenton. (Tp. 5298)
Ms. Davenport testified that she had her second meeting with Peggy Brooks and Dan on November 28, 1988. Ms. Brooks said that if changing the visitation pattern did not help Dan, she would make another appointment with Ms. Davenport. (Tp. 5321) Ms. Brooks never made another appointment. (Tp. 5321)
Ms. Brooks' concerns about Dan's behavior were intensified once the day care investigation began. (Tp. 5028) Once abuse was "substantiated," Ms. Brooks felt she understood why Dan had been displaying behavior problems. She testified "When you find out what has happened to your child, then some of those behaviors all of a sudden, they do start making a little more sense." (Tp. 5027)
On January 24, Bob Kelly told Ms. Brooks that he had been accused of sexual abuse. (Tp. 4865) On January 25, Ms. Toppin and David McCall interviewed Dan Brooks. Dan told then that he had gone in the defendant's truck to the Food Lion. Dan said that he and defendant talked about "silly things." Toppin and McCall asked Dan if there were secrets. Dan allegedly said "yes." (Tp. 4985)
After Toppin and McCall left, Peggy Brooks began questioning Dan. She asked him if Mr. Bob had touched him on his bottom. Dan said yes. She asked him if Mr. Bob did that to any other boys and girls. Dan said he did it to Frankie and Will, but not to the girls. She asked him when this happened. He said at lunch time when Ms. Shelly was gone. (Tpp. 4873, 4989-4990)
Ms. Brooks testified that she then telephoned Julie Spivey and asked her to help question Dan. Ms. Spivey came over. Ms. Spivey lay on the floor and asked Dan to demonstrate on her what the defendant had done. (Tp. 4992) She asked, "Where did Mr. Bob put his fingers?" (Tp. 5904) According to Ms. Spivey, Dan touched "the top of my crack." (Tp. 5733) Ms. Brooks asked Dan if defendant did it to others. Dan said he did it to the boys. Then he added that defendant did it to the girls as well. (Tp. 4993)
Ms. Spivey asked Dan where Betsy was at the time. According to Ms. Spivey, Dan said that Betsy Kelly was there at the time. Ms. Spivey testified that she was "stunned" and "especially to find out that Betsy was there." (Tp. 5733)
On January 26, Ms. Brooks asked Dan to tell Brenda Toppin what he had told her and Julie Spivey. (Tp. 4994) Dan said it was too hard to talk about. The adults asked Dan to use his teddie bear to show what he had talked about. According to Ms. Toppin, Dan used his teddie bear to show the defendant touching him "all over." (Tpp. 12,758-12,759)
2. Josh Spivey.
Julie Spivey testified that she never suspected anything about the Little Rascals up until she talked with Peggy Brooks and Dan on the night of January 25, 1989. (Tp. 5729) After that night, she believed that at least Dan had been molested by Bob Kelly. (Tp. 5738)
Ms. Spivey testified that her son Joshua only went to the Little Rascals for five days during the fall of 1988. He then got sick with tonsillitis. (Tp. 5714) When Josh got well, he resisted going back to the day care. (Tp. 5843) Ms. Spivey took Josh out of day care in early November. (Tp. 5720)
Ms. Spivey testified about her relationship with Marvin and Linda Shaw. (Tp. 5727) Mr. Shaw had done magic tricks for Josh. Mr. Shaw and Josh had shot off model rockets together. (Tp. 5933) She testified that Marvin died in December, 1988. Joshua was terribly upset. (Tp. 5728)
Ms. Spivey testified that on the morning after she talked with Peggy Brooks, she talked to Audrey Stever. (Tp. 5735) Ms. Stever told her to take Joshua out of the Little Rascals. (Tp. 5736) Ms. Spivey began asking Joshua why he didn't like the Little Rascals. She asked him questions such as "Did Mr. Bob hurt you?" "Where did Mr. Bob put his fingers?" and "Where was Miss Betsy?" (Tp. 5904) Joshua said only that defendant spanked him in the bathroom. (Tpp. 5738, 5874)
When Brenda Toppin came to interview Josh on February 8, he still said that defendant had only spanked him. (Tpp. 5739, 5740, 12808-12812)
Ms. Toppin told Ms. Spivey that because Joshua had only been to the day care five times, she didn't think that anything else had happened. (Tp. 5741) Josh was eventually to make numerous allegations of sexual misconduct against adults at the Little Rascals.
3. Will Hollowell.
On January 26, Ms. Toppin and David McCall interviewed Will Hollowell. They told Will that Dan Brooks had already talked to them. (Tpp. 6470-6472) Dr. Shopper testified that it is "totally improper" to encourage children to talk by telling them that their friends had already done so. (Tp. 19697) During this interview, with the help of sexually explicit dolls, Will first appeared to make an allegation: that the defendant put his finger in Dan Brooks' fanny and hit his "peenie." Ms. Hollowell then testified that Will did not actually witness this incident, but had heard about it from other children. (Tp. 6480) When the adults asked Will if the defendant ever did anything to him, Will said "No, not me."
Ms. Hollowell testified that, on January 26, Peggy Brooks telephoned to say that Dan had told her things about Will Hollowell being involved in abuse at the Little Rascals. Ms. Hollowell said she didn't believe Ms. Brooks. (Tp. 6490) Indeed, it was not until April that she became a "believer."
4. Betsy Vogedes
On January 27, Ms. Toppin and Mr. McCall interviewed Betsy Vogedes. The adults told Betsy that some of the children were unhappy about the day care and they were trying to find out why. Betsy denied knowing anything about bad touching or playing doctor. She was only concerned that the defendant had spanked Dan Brooks and put him in a baby crib. (Tp. 10,691-10,693) Ms. Vogedes did not attempt to determine if this was something Betsy had actually witnessed, or merely heard about from Dan or the other children. Although Betsy did not say in January that anything at all happened to her, she was eventually to make a number of allegations against the defendant and others.
5. Richard Dixon.
Richard began attending the day care as a "drop in" in 1986, just before he turned two years old. (Tp. 8623) Until September of 1988, his mother, Susan Dixon was working at home. (Tp. 8740) Beginning in September, Ms. Dixon began working as an artist outside the home, requiring Richard to go to the day care full-time. (Tp. 8740) About this same time, Richard began having "night terrors." He would urinate in inappropriate places. She testified that she never sought professional help for Richard for these problems. (Tpp. 8680)
Brenda Toppin and Officer Tim Hickman interviewed Richard on February 6, 1989. (Tp. 8660) Richard did not say anything during the interview about abuse. (Tp. 8662) Richard was eventually to make numerous accusations.
6. Other Children.
A number of other children were interviewed in the days leading up to the DSS "substantiation" of abuse on January 31. Some of them were supposedly eyewitnesses or victims. Because the state thwarted the defense efforts to gain access to these interviews, nothing about them is on the record in this case. See Issues I-V.
V. ABUSE IS "SUBSTANTIATED."
DSS "substantiated" abuse on January 31, 1989, based on the allegations already described. Once abuse was "substantiated," more and more parents began to fear and ultimately believe that their children had been abused. Parents became de facto investigative agents of police questioning their children and reporting to Brenda Toppin what their children had said about abuse. Moreover, as the children who made the original "disclosures" continued to be interviewed by a variety of adults, they began to offer more and more -- often bizarre -- allegations. Dr. Raskin testified that the more times a child is interviewed, the more likely it is that his allegations are false. He testified that a single interview, conducted by a trained professional, at a time close to the alleged event, provides the most reliable information. (Tpp. 15,684, 15,687)
At the time abuse was "substantiated" many of the children denied that they had been abused. For instance, on January 24, Beth Bateman denied to her mother that the defendant had touched her inappropriately. (Tp. 11,452) In late January, Grace Bean asked Alex if he had been touched and he "very adamantly denied it." (Tp. 10,046) The parents whose children denied being abused continued to support the Kellys. Parents who believed that there was widespread abuse felt "disgusted with the denying parents." (Tp. 3562) They pressured the District Attorney to bring charges against the Kellys and all of the day care employees. (Tp. 3496) The result was a division in the community between those who believed and those who doubted. (Tpp. 3497-98)
A. Additional Allegations in February and March.
1. Kyle and Dan.
By January 27, based on one meeting with the Stevers, Michelle Zimmerman concluded that Kyle was suffering from Post Traumatic Stress Disorder. (Tp. 19,709) By February 10, after her second meeting with Kyle, Ms. Zimmerman told Ms. Stever that Bob Kelly was a "sadistic pedophile," and that Betsy Kelly probably knew that her husband was abusing the children. (Tpp. 3557-58)
Audrey Stever and Peggy Brooks began teaming up in order to get their sons to make additional disclosures. They questioned Kyle and Dan almost daily in February. (Tpp. 5031, 5050) Ms. Stever also had Kyle's teenage babysitter question Kyle. (Tp. 3565) Some additional "disclosures" resulted. Kyle also began to implicate Betsy Kelly, saying that she hit the boys on the head. (Tp. 3554)
Ms. Brooks told Dan that Kyle Stever had been talking about the day care and the Kellys. She said that Dan needed to do so too. (Tp. 5084) She read stories to Dan at night. She got them from Judy Abbott and Brenda Toppin. (Tp. 5162) The purpose of these stories was to encourage Dan to "disclose." (Tp. 5162)
2. Lauren Smith
Lauren Smith attended the day care for four months. (Tp. 9171) She was there from 7:30 a.m. until 5:15 p.m. (Tp. 9181) Her mother, Jean Smith, took Lauren out of the day care on January 27. On January 28, Ms. Smith began questioning Lauren about sexual abuse at the day care. Lauren denied that anything like that had happened, but did say that Bob Kelly slapped her. (Tpp. 9246-9248)
On February 4, Ms. Toppin interviewed Lauren. Lauren said that sometimes the children cry at the Little Rascals. In response to Ms. Toppin's questions, which were apparently not recorded, Lauren allegedly said that the boys sometimes "play doctor." When asked how the boys "play doctor," Lauren said that "they check stomach and knees." She said that sometimes the children get spanked. When asked if Mr. Bob made them keep secrets, Lauren said yes. She said that one of the secrets was "I love you." She said that the defendant hugged her upstairs. (Tpp. 9250-9260)
3. Brian Swicegood
Brian's grandmother had removed him from the day care on January 6 because he had been placed on the "timeout" or "ugly" chair in the hall. On February 10, Ms. Swicegood began questioning Brian about why he did not like the day care. She told Brian he was a "police helper." (Tp. 4818) Brian said that Bob and Betsy should go to jail because they had spanked him. (Tpp. 4444-4445) She questioned Brian about the day care "every three or four nights" thereafter. (Tp. 4652)
On February 14, Ms. Swicegood questioned Brian about the "upstairs" at the day care. Ms. Swicegood had heard that children were talking about "upstairs" from Peggy Brooks. Brian first said that he had never been upstairs. He then said that he had gone upstairs with Dan Brooks, Ginny Parrish and Timothy Farless. He said there was a snake in a cage, two "Boogie Men" with "boobies," and a monster up there. He said that Betsy Kelly ate the snake. (Tp. 4449)
On February 27, Ms. Swicegood asked Brian if the defendant had done something to him he didn't like. Brian allegedly nodded his head. When she asked him if the defendant touched him, Brian allegedly nodded again. When she asked him where the defendant had touched him, Brian allegedly pointed to his rectum. (Tp. 4451) Dr. Shopper characterized Debbie Swicegood as "a very persistent and ceaseless interrogator" who related everything she heard Brian say to abuse. (Tp. 19,743)
4. Josh Spivey
Ms. Spivey testified to an incident in Greenville on February 23. (Tp. 5913) Josh had gotten upset at something he saw on television there. Linda Shaw had said that Josh saw a man and a boy in a bathroom. Ms. Spivey testified that she kept asking Josh what happened. Joshua kept saying that nothing happened. (Tp. 5914) Ms. Spivey asked Josh if the man in the bathroom reminded Josh of someone. According to Ms. Spivey, Josh said "Mr. Bob." (Tp. 5915)
Ms. Spivey and her fourteen year old son, Bo, tried for the next thirty minutes to get Joshua to say why the man reminded Josh of the defendant. (Tp. 5916) Josh only balled up in the fetal position in response. (Tp. 5750) Ms. Spivey asked Joshua what the defendant did to keep Josh from telling. (Tp. 5919) Ms. Spivey told him that defendant "was wrong" for doing ugly things to children and if Joshua told what he did, that he would be helping her and the police stop Mr. Bob. (Tp. 5923) She and Bo told Josh it was okay to tell. (Tp. 5925) She told Josh that if he told the defendant would go to jail. (Tp. 5748) Ms. Spivey told Bo to take Joshua in the other room so Joshua would tell Bo things about the defendant, but that did not work. (Tp. 5749) She said "Some of your friends have told their secrets." (Tp. 5749) Josh wanted to know what the other children said, but that she would not tell Josh. (Tp. 5749) Ms. Spivey testified that despite her best efforts, all she could get Joshua to say was that he had been spanked. (Tp. 5927) Josh was four at the time. (Tp. 5749)
B. Enter the Sexual Abuse Therapists.
Four individuals holding themselves out as sexual abuse therapists were involved in these cases: Nurse Michelle Zimmerman, Social Workers Judy Abbott and Susan Childers, and School Psychologist Betty Robertson. The children were first questioned by the therapists to determine if they had been abused or if they had witnessed any abuse of others. They then began sessions of "therapy," lasting for months or years. The focus of these sessions was to get the children to "disclose" instances of abuse.
From the start, the therapists included parents and grandparents in interrogating the children. In order to encourage the children to disclose, the therapists included the parents in the therapy sessions. The parents were also given books to read to their children; books where the hero told about having been abused. Beginning in February, 1989, the therapists met with parents individually and in groups, and made periodic reports to the prosecution. (Tp. 5157)
Some children were examined by professionals other than Zimmerman, Abbott, Childers or Robertson. None of the children who were evaluated by psychologists outside the area were found to be abused.
Defense experts evaluated the techniques of Zimmerman, Robertson, Abbott and Childers. They highlighted several factors in the sessions with the therapists that could and possibly did lead to false accusations. This included the use of "disclosure stories," telling children that their friends had already "disclosed," telling the parents what they had learned from other children and parents, including the parents in the sessions, having the parents and other family members question the children outside of the sessions, repeating questions that the child had already answered, giving the children rewards for disclosing, giving them "homework" assignments that included making disclosures, not getting a complete history, the use of suggestive questioning, not "reality testing" the allegations, the use of anatomically correct dolls or stuffed animals as props, and not recording the interviews. (Tpp. 15,621-16,472, 19,622-20,113)
Drs. Shopper and Raskin found the therapists to be too quick to attribute everything to abuse rather than the other obvious sources of stress faced by the children that fall and winter. Their techniques were "unprofessional," and their conduct "unethical." (Tpp. 19,711, 19,800) They provided little or nothing by way of actual therapy for the children. Dr. Shopper summarized Michelle Zimmerman as a therapist. He testified that she did not provide any therapy. "What she did was she encouraged allegations." (Tp. 19,725)
C. A Divided Community.
In the spring of 1989, rumors and innuendo continued to spread. It became "general knowledge" that something had happened at the day care. (Tp. 10,825) One parent testified, "It was the talk of the town." (Tp. 5269)
The community was bitterly divided over the allegations. On the one side were those willing to "believe the children." On the other were those who remained supportive of the Kellys, skeptical of the charges, and angered by the investigative methods of the state. Parents who "believed" were shunned by those who supported the Kellys. (Tpp. 4665-4572, 4891, 6021) Friends of the Kellys were abandoned by those who believed. (Tp. 4538) Everyone was afraid that his or her child would be "named" as having been involved. (Tpp. 10,794-95)
Social psychologists explained how, in a small community such as Edenton, the pressure among parents to "Believe the Children" rather than risk allowing a child molester to go unpunished can be enormous. The fear of sexual abuse can result in parents reconstructing their memories of what did or did not happen at the day care. Innocuous events tend to take on a sinister meaning in hindsight. The fear of abuse translates into a belief in abuse. (Tpp. 18,925-19,044, 19,807)
Parents who worked at the day care were pressured by the police to provide evidence against Bob Kelly. Betty Ann Phillips, a worker at the day care, was told by the District Attorney that she was a suspect; that she had been named by someone as a possible "lookout" at the day care. (Tp. 16,703) Ms. Phillips tried to cooperate with the police, going so far as to distort what her son said about the day care in order to give Brenda Toppin what she seemed to want to hear. (Tp. 16,849) Co-defendant Shelly Stone was told by the District Attorney that if she cooperated with him, he would not prosecute her. (Tp. 19,234) Co-defendant Robin Boles Byrum felt pressure from Brenda Toppin. She tried to think of something to tell the police so they would not think she was involved in abuse. She told Toppin and Agent McGinnis that she had seen some children at the day care masturbating. Mr. McGinnis said that she could be in a lot of trouble for letting the children do that. (Tp. 19,423) Brenda Ambrose, one of the workers who had her own child at the day care, was suspected of participating in the abuse. Ms. Ambrose testified for the state. (Tpp. 2912-3372)
Other parents were told that if they did not take their children to one of the therapists who was familiar with the case, their motives might be suspect. Debbie Forrest moved to Charlotte with her son Frankie during the investigation. Both Brenda Toppin and Judy Abbott repeatedly telephoned her there. Abbott accused Ms. Forrest of "withholding treatment" from Frankie by not having him evaluated by her or one of the therapists "familiar with the case." (Tp. 15,283) Ms. Forrest felt that the investigation conducted by Toppin and the therapists was improper, and resulted in false accusations. (Tpp. 15,166-15,168; 15,175) She refused to have Ms. Abbott evaluate Frankie. Ms. Forrest felt that she was made to feel like a suspect by not cooperating. (Tp. 15,187) Jimmie and Nancy Smith also declined to have their son Judson evaluated by one of the four therapists who saw the other children. By the time of trial, both Mr. and Ms. Smith had been accused by several children as having participated in the abuse. Dan Brooks said of Nancy Smith, "She's Miss Betsy's sister, so she must be mean." (Tp. 5052)
D. A Turning Point: Brenda Toppin Converts Marjorie Hollowell and Chris Bean.
By March, the prosecution had a few allegations from a few children. Most children were saying that nothing happened. Most parents were still supporting the Kellys. The prosecution was apparently stalled.
Audrey Stever testified that in April 1989, "things began to change." (Tp. 3498) It was then that Brenda Toppin met with the parents of two boys who had allegedly been named as having been involved in abuse. One of the boys was the son of a staunch Kelly supporter, the other the son of Bob Kelly's attorney.
1. Will Hollowell.
Brenda Toppin interviewed Will in January. Will said only that he had heard that the defendant had hit Dan Brooks on his "peenie." In March, Ms. Hollowell was still saying publically that there was nothing to the allegations of abuse. (Tp. 6498)
On April 4, Brenda Toppin invited Ms. Hollowell to her office, saying she wanted to "go over" with her and Mr. Hollowell the January 26 interview. In fact, Ms. Toppin did not "go over" the previous interview but used the April 4th meeting to convince Ms. Hollowell that something indeed had happened at the Little Rascals. (Tpp. 6798-6799)
Ms. Hollowell "kind of hit the panic button." (Tp. 6502) She decided to have Will evaluated because Brenda Toppin "cared enough to call us down there and to go over this with us." (Tp. 6505) Brenda Toppin made an appointment for Will with Michelle Zimmerman. (Tp. 6507)
Ms. Hollowell testified to her first visit with Michelle Zimmerman on April 4, 1989. (Tp. 6524) Ms. Zimmerman said that Will said he liked the Little Rascals, but was showing signs of "avoidance." (Tp. 6527) Ms. Zimmerman told Ms. Hollowell to start keeping a journal. (Tp. 6529)
Ms. Hollowell testified that, after this meeting, "I was concerned that he may have seen something or knew something because this lady was a qualified professional." (Tp. 6530) She testified that she began to have doubts. (Tp. 6531)
Ms. Hollowell testified that her next session with Ms. Zimmerman was on April 21, 1989. In preparation for this, she talked to Will on April 19. "I told him that I knew something had happened to him at the Little Rascals, and I wanted him to tell me what it was." (Tp. 6533) According to Ms. Hollowell, at this point, Will became very active and "hyper." According to Ms. Hollowell, Will said the following things: "Mr. Bob put his finger in my fanny." "Pulled out BM and played with it some." "Mr. Bob pee peed on Will's penis." "Mr. Bob put Will's mouth on his peenie." (Tp. 6534) According to Ms. Hollowell, Will said that defendant said "Okay now, let's eat it up." Will said that the defendant "tee teed" in Will's mouth and that Ashley Birckhead saw it.
Ms. Hollowell testified that she cried when Will said these things. (Tp. 6536) She took the children to the Little Rascals briefly on April 21. (Tp. 6537) She "told him that Jesus would keep him safe until he went, and he wouldn't never have to go back after that morning." (Tp. 6538)
Ms. Hollowell testified that on April 26, Will wet the bed. Ms. Hollowell testified that Will had been potty-trained since he was 17 months old. (Tp. 6560) She told Will she knew he had been hurt and that "telling the truth would help him." (Tp. 6561) She asked Will who else had been hurt. Will said Frankie Forrest, Stan Settle, Alex Bean, and Richard Dixon. (Tp. 6562)
Ms. Hollowell began telling others that she now believed that Will had been abused. (Tp. 6544) She testified "I was absolutely convinced that this had happened to him." "I felt that any other children who were there were in danger." (Tp. 6544) She testified "I needed to tell these parents that this was for real." (Tp. 6546)
Ms. Hollowell told Grace Bean that Will had "named" her son, Alex. (Tp. 6548) She testified, "I told her because I had to impress on her, she had to know to get her children out of there and I remember the tears in her eyes, and I knew at that point that she believed me." (Tp. 6548) Alex Bean was taken out of the day care on April 28.
2. Alex Bean.
In the fall of 1988, Ms. Bean wanted to work full-time. (Tp. 10,011) She took her sons, Alex and Stuart to the Little Rascals. (Tp. 10,280) The boys would be in day care from 7:30 in the morning until 5:00 or 5:30 in the afternoon. (Tp. 10,018)
Ms. Bean testified that it was "traumatic" for Alex to be separated from her. (Tp. 10,020) At the time she considered this to be "typical separation anxiety." (Tp. 10,020) She herself was uncomfortable sending her children to day care so young. (Tp. 10,117) She testified that Alex seemed to like his teacher, co-defendant Shelly Stone. (Tp. 10,111)
Ms. Bean testified that she did not notice that Alex was having any behavior problems while he attended the day care. By the time of trial, however, she had begun to re-evaluate Alex's behavior that Fall. She remembered that Alex would "withhold" bowel movements and refuse to go to the bathroom without her. (Tpp. 10,299, 10,036) Alex would overreact when things would not go the way he wanted them to and would display a "traumatic reaction to pain." (Tp. 10,040) He would cry when he had to have his hair washed. (Tpp. 10,041, 10,027-10,042) Alex's father, attorney Chis Bean, noted that Alex had always been "strong-willed." (Tp. 10,291) He testified that he thought Alex's behavior that Fall was due to being away from his parents all day. (Tp. 10,296) Ms. Bean testified that Alex's behavior had straightened itself out by Christmas of 1988.
Ms. Bean testified that when Bob Kelly told her of the allegations against him in January of 1989, she was shocked. She and her husband began asking Alex whether he had been abused at the day care. It was very important to make sure that Alex had not been abused because Chris was considering representing Bob Kelly concerning the allegations. (Tp. 10,304) Alex "adamantly denied" that he had been abused. (Tp. 10,047) This satisfied the Beans, who continued to support the Kellys until April, 1989. (Tp. 10,152)
On April 25 Chris Bean was scheduled to represent Mr. Kelly in a probable cause hearing. Brenda Toppin stopped Mr. Bean outside the courtroom and told him that Alex had been "named" as having been involved in abuse. Mr. Bean testified to the effect of this "disclosure" on him:
I had believed adamantly and completely in Bob Kelly's innocence. And for all of those months, from January through that day, had believed in his total innocence. And for me, I've never been so shattered."
E. The Spring and Summer of 1989: New Victims, New Converts, New Allegations, New Suspects.
The initial allegations by Kyle concerned a few boys. In the Spring of 1989, parents of other children began to fear, suspect, and finally believe that their children had also been abused. By summer there were allegations by girls, children who had only attended the "old" day care, children who had been infants while at the day care, and children who had only attended the Little Rascals a few times.
1. Josh Spivey and Dan Brooks.
Josh Spivey had only attended the Little Rascals five times in the fall of 1988. His mother, Julie Spivey, helped Peggy Brooks question Dan in January. In early February, despite extensive questioning by several adults, Josh said only that he had been spanked by the defendant. In May that changed.
Ms. Spivey testified that on April 29, the family was coming back from dinner with Linda Shaw. There was a thunderstorm. (Tp. 5752) Ms. Spivey told Joshua that thunder was God moving furniture up in heaven. (Tp. 5752) She told him that Mr. Shaw was up in heaven, doing magic tricks and cooking peanuts for God. (Tp. 5932) Joshua said he hoped lightning hit the defendant. (Tp. 5753) He talked about the defendant moving furniture upstairs. Ms. Spivey asked Joshua if there was a bed upstairs. Joshua said that he watched "Bambi" with the defendant upstairs. (Tp. 5754)
Ms. Spivey got Joshua to pantomime what happened between him and the defendant. She testified that Joshua pantomimed with a stuffed bear. (Tp. 5755) She testified that Joshua said defendant "loved on" him. She testified that Joshua said that he put his ding dong in the defendant's mouth and peed. (Tp. 5756) Joshua said that the defendant put something in the back of Joshua's pants. Ms. Spivey thought Joshua might be referring to a vibrator. (Tp. 5756) Joshua said "I shot off like a rocket." (Tp. 5756) She testified that Joshua said that defendant put his ding dong in Joshua's hiney. (Tp. 5757) "He described a non-penetrating acting." (Tp. 5757)
Ms. Spivey spent an hour talking with Joshua on this occasion. (Tp. 5757) It was between 10:30 p.m. and midnight. (Tp. 5937, 5950-5951) On the next day, Ms. Spivey told Peggy Brooks that Joshua had been molested too. (Tp. 5758)
Ms. Spivey went to see Brenda Toppin on May 2. (Tp. 5759) By this time Joshua's story changed. He told Ms. Toppin that defendant put his ding dong in Joshua's mouth, rather than the other way around. (Tp. 5760)
Ms. Spivey testified that Joshua began going to Michelle Zimmerman on May 12. (Tp. 5763) She chose Ms. Zimmerman because Peggy Brooks, her best friend, was taking Dan there. (Tp. 5762)
Peggy Brooks testified that on May 12, Dan did not want to talk about the day care any more. Dan said "We have to talk about it forever." (Tp. 5236) Ms. Brooks told Dan they could stop as soon as Dan told everything. (Tp. 5236)
Julie Spivey testified that, in the summer of 1989, Joshua was frightened by a scene from the movie "Mississippi Burning." Joshua said at that point that defendant put a gun to his head and clicked it. (Tp. 5778) Joshua said that Scott Privott was there. (Tp. 5780) Joshua told her on one occasion that the defendant killed a lamb in the woods and drank its blood. (Tp. 5786)
Peggy Brooks testified that, in the summer of 1989, Nancy Smith was "talking about us pretty bad." (Tp. 5042) Ms. Brooks told Dan she needed to know if Nancy Smith needed to go to jail with the other "bad mommies." (Tp. 5048) Dan said "She's Ms. Betsy's sister, so she has to be bad". (Tp. 5052) Ms. Brooks asked Dan if Ms. Smith had hurt him. (Tp. 5041) According to Ms. Brooks, Dan said that Nancy Smith hit him. (Tp. 5043) Ms. Brooks testified that she never saw any evidence of Dan being hit. (Tp. 5044) Ms. Brooks asked Dan if Nancy Smith had ever carried him anywhere from the day care. Dan said yes. (Tp. 5046) Ms. Brooks asked Dan where Nancy Smith took him. Dan said "A yard." (Tp. 5047) Ms. Brooks asked if Nancy ever hurt Dan's private parts. Dan said yes. (Tp. 5048)
On the next day, Dan said Nancy was not bad, but Brenda (Ambrose) was bad. Dan put his hand "on his bottom" and said "She did that". (Tp. 5054) Ms. Brooks asked Dan if Brenda had played with his "pee-pee." Dan said yes. (Tp. 5054)
Ms. Spivey testified that her husband, Larry, caught Joshua and Dan Brooks in the bathroom with their pants down. Joshua said "We were putting ding dongs in hineys." (Tp. 5771) Ms. Spivey asked Joshua who showed him how to do that. Joshua said the defendant had. Dan Brooks added that defendant had done that to them. (Tp. 5771) According to Ms. Spivey, the two boys began acting silly and laughing. Joshua and Dan said they were doing the "ding dong dance." (Tp. 5771) Ms. Spivey testified that, in her words, the "sexual reenactment" started increasing. She testified that the boys began "humping" stuffed animals. (Tp. 5773-5775) She also caught Joshua and other boys with their pants down. (Tpp. 6045-6046) Michelle Zimmerman told Ms. Spivey that this was "sexual reenactment," and "a sign of child abuse." (Tp. 6047) Dr. Shopper testified that this kind of behavior can be caused by sexual "overstimulation"' caused by the extensive use of sexually explicit dolls and the repeated questioning about sexual matters. (Tpp. 19,706-708)
Carol Twiddy, Ashley Twiddy's mother, asked Ms. Spivey if Joshua had said anything about boats. (Tp. 5767) Ms. Spivey testified that she began asking Joshua about boats. Joshua said that defendant threw Ashley into the water and that he had jumped in and saved her. (Tp. 5768) Ms. Spivey then told Ms. Toppin about the boat. (Tp. 5769) She also talked about boats with Debbie Swicegood and Michelle Zimmerman (Tp. 6023, 6027) As recently as June, 1990, Ms. Spivey was still looking for the boat and a place where it could have been loaded and launched without being seen. (Tpp. 6027-6040)
2. Beth Bateman
Beth started going to day care when she was still an infant. (Tp. 11,525) She enrolled in the Little Rascals in August, 1986, when she was two and a half. (Tpp. 11,372, 11,376) From February through April, 1987, while her mother was pregnant, Beth only went two mornings a week. (Tp. 11,378) On April 21, 1987, Beth's little sister Katie was born. (Tp. 11,372) Beth and her mother stayed home with the new baby from May 1987 to December 1988. (Tp. 11,529)
Beth had a history of medical problems stemming back to 1985. (Tpp. 11,559-11,589) This included labial adhesions, yeast infections, urinary tract infections, rectal problems, vaginal irritation, and blood in her stool. (Tpp. 11,564-11,577) She required frequent physical examinations and continual treatment to her rectum and vagina. Some of these examinations and treatments would likely leave evidence of penetration. (Tp. 14,209) All of this pre-dated Beth's attendance at the Little Rascals. However, they continued during the Fall of 1988. (Tpp. 11,580-582) Ms. Bateman testified that she did not notice any unusual problems with Beth until after the allegations came out. (Tp. 11,535)
In December, 1988 Beth's mother went back to work full-time. Beth was sent back to the Little Rascals. (Tp. 11,387) Her parents would wake her at about 5:30 a.m., and get her to the day care at about 6:30, where she would stay until about 3:30 in the afternoon. (Tp. 11,542) After a couple of weeks, Beth started to be reluctant to go to the day care in the morning. (Tp. 11,388) According to Ms. Bateman, she also complained of having to take naps, and was having trouble sleeping at night. (Tp. 11,398, 11,543-55)
After she heard about the allegations concerning the day care, Ms. Bateman and her husband questioned Beth. Beth assured them that she had not been molested. (Tp. 11,452) Ms. Bateman felt confident that Beth would tell her if she had been abused. (Tp. 11,443)
In April, 1989, when the rumors about the day care intensified, and the day care closed, Ms. Bateman "panicked" because she had to make other arrangements for Beth. (Tp. 11,446) Although she thought that only boys had been involved in the abuse, she began taking notes of what Beth said about the day care (Tpp. 11,442-11,445) She went back and tried to remember what Beth had said and done in the preceding months. (Tpp. 11,546-559) She did not keep any record of what she said to Beth to elicit Beth's statements. (Tp. 11607) She wrote down only things that she thought were relevant to child abuse and the day care. (Tpp. 11,539-11,541) She had no special training or instruction in questioning children. (Tp. 11,606)
In May, 1989, Ginnette Mitchener called Ms. Bateman to see if everything at home was all right. Ms. Bateman and her husband had gone through separations in the past. (Tp. 11,610) Ms. Bateman testified, "I started getting real angry with everybody blaming me for her problems when I knew everything at home was fine. And it was like they were trying to say there were problems there, and there weren't." (Tp. 11,442)
Ms. Bateman decided to have Beth examined for sexual abuse. She took Beth to Drs. Lane and Potocki on April 22. Neither doctor found any indication of sexual abuse. (Tpp. 11,582-11,585) Ms. Bateman took Beth to a third doctor, Dr. Beals, who also reported that there was no evidence of sexual abuse. (Tp. 11,589)
Ms. Bateman was still fearful that Beth had been abused. She discussed the situation with Brenda Toppin. They talked several times in May. (Tp. 11,462)
On May 4, after Ms. Bateman had been keeping notes on Beth and talking to her about the day care for a month, Beth allegedly said to Ms. Bateman, "Bad things happen at naptime." (Tp. 11,462) At this point, Ms. Bateman felt "like something definitely had happened and that somebody had lied to me." (Tp. 11463) On May 5, Beth said that Shelly Stone was mean to Frankie Forrest and Paige White. (Tp. 11,465)
Ms. Bateman contacted Judy Abbott for advice. Although Ms. Abbott had never met Beth, she gave Ms. Bateman a story to read to Beth to encourage her to disclose. (Tp. 11,475) This story, "Tillie Kitty" was one of several that Ms. Abbott gave parents to read to their children.
Ms. Toppin suggested that Ms. Bateman take Beth to be "evaluated." (Tp. 11,464) Ms. Bateman decided to take Beth to social worker Susan Childers. Their first appointment was on May 16. (Tp. 11,464) Ms. Bateman would sit in on the sessions and also talk with Beth between sessions. Beth began to make numerous "disclosures." (Tp. 11493) She told Ms. Childers that the defendant hit her, and threatened her not to tell. (Tp. 11487) According to Ms. Bateman "She put her fingers on her vagina and said that some people put their penises down there." (Tp. 11,493) Beth said that Mr. Kelly tried to put his penis in her "butt," that he did put his finger in her "butt" and that the defendant put his penis in her mouth. (Tp. 11,504)
Ms. Bateman testified that she took Beth to Chapel Hill to be evaluated on October 20, 1989. (Tp. 11,513) She did not take with her the extensive medical records on Beth. (Tp. 11597) Dr. Jean Smith, of the Child Medical Examiner Program, made a "definite" diagnosis of sexual abuse. (Tp. 13,300) See Issue VII.
3. Betsy Vogedes
Betsy Vogedes was enrolled in the "old" Little Rascals in the fall of 1986, when she was two years old. (Tpp. 10,663-10,665) Betsy was in day care so that her mother, Ginger, could work. (Tp. 10,663)
In the summer of 1988, Betsy's father started working out of town a great deal. (Tp. 10,682) As a result, Betsy's schedule and transportation "changed completely."
In October, 1988 Betsy began having bedwetting accidents. This troubled Ms. Vogedes because Betsy had been "potty trained" early. (Tp. 10,675) Betsy would also wait until she got home in the evening to have a bowel movement. Betsy's father testified that "At the time we just figured that was her schedule." (Tp. 11,002)
According to Ms. Vogedes, Betsy liked the Little Rascals. In fact, Ms. Vogedes testified that, in the Fall of 1988, Betsy had thrown tantrum one day because she wanted to stay at the Little Rascals with Bob Kelly rather than leave with her. (Tpp. 10,769-70)
Ms. Vogedes testified that Betsy had always been difficult to discipline. Betsy would have tantrums about "anything that seemed to go against her strong will." (Tp. 10,766) "You couldn't get mad at her because then she would get twice as mad back." (Tp. 10,766)
In January 1989, Brenda Toppin, SBI Agent David McCall and social worker Grenda Costin came to interview Betsy. (Tp. 10,691) They asked Betsy about "playing doctor" at the day care. (Tp. 10,694) Betsy denied that she knew anything about that. (Tp. 10,694) Between January and May, Betsy saw Bob Kelly around Edenton several times. She would smile and wave at him. (Tp. 10,811)
In May 1989, Ms. Vogedes gave birth to a new sister for Betsy. According to Ms. Vogedes, Betsy was "delighted at first." (Tp. 10,684) Then she got jealous. (Tp. 10,812, 10,814) She began demanding attention. She also began talking "baby talk" (Tp. 10,831) After the day care closed, Betsy threw a tantrum, wanting to go back to the day care and Shelly Stone. (Tp. 10,810)
Brenda Toppin advised the Vogedes to have Betsy evaluated. (Tp. 10,707) Ms. Toppin said that, even if Betsy had not been molested, she may have witnessed something. (Tp. 10,708) Mr. Vogedes testified that, at the time "we honestly thought she was just going through a change." (Tp. 11,020) "I thought I was not spending enough time with her." (Tp. 10,680)
Ms. Vogedes began taking Betsy to Betty Robertson on May 9, 1989. (Tp. 10,710) Betsy's grandmother would also attend some of the sessions. (Tp. 11,076) In addition, Ms. Vogedes began questioning Betsy and taking notes of what she said about the day care. (Tp. 10,714) She shared this information with Dr. Robertson and District Attorney. (Tpp. 10,717-721)
Throughout her sessions with Betty Robertson in May, Betsy denied that anything had happened at the day care. (Tp. 10,832) However, at one point she asked the adults "Why did Mr. Bob touch children?" (Tp. 10,836)
In the Summer of 1989, Betsy began making numerous accusations against Bob Kelly. (Tp. 10,859) She also implicated Dawn Wilson. She said that Ms. Wilson made children lick her face and genitalia. (Tp. 10,949)
Like many of the children, Betsy changed her allegations over the years. (Tpp. 10,843-10,915) Such changes suggest to experts such as Dr. Raskin that the children were repeating what they heard had happened or trying to say what they were expected to say by their parents and other adults. (Tpp. 15,835, 15,878, 16,446)
4. Brooke Small
Susan Small testified that she went back to work when Brooke was five weeks old. (Tp. 7781) Brooke was toilet trained before she was two years old. (Tp. 7806) Her husband, Morris Small, testified "potty training was a big thing you know, and we did that as soon as we could." (Tp. 8158)
Brooke began going to the "old" Little Rascals Day Care in 1986. (Tp. 7782) Brooke began going full-time to the Little Rascals when it moved to the new location. (Tp. 7799) Her sisters, Katie and Lauren, also went to the Little Rascals. (Tp. 7799)
The Smalls testified what they remembered about Brooke's behavior in the fall of 1988. Mr. Small testified that Brooke complained about her bottom hurting. He noted that Brooke did not wipe herself very well. (Tp. 8168) Mr. Small testified that Brooke was having toileting accidents around Christmas 1988. (Tp. 7806) She had a history of vaginal and urinary tract problems. (Tp. 8263)
Ms. Small testified that, about Christmas 1988, Brooke's behavior had gotten so bad that she contemplated taking Brooke to counseling, but did not. Brooke had always been headstrong but was now getting to be uncontrollable. Ms. Small thought the problem was that Mr. Small was working too much. She testified "Brooke has always been kind of a daddy's girl." (Tp. 7829)
Ms. Small testified that, after she heard of the allegations, she asked her daughters if "Mr. Bob" had ever done anything to hurt them. The girls said that nothing had happened. (Tp. 7833)
Ms. Small testified that Brenda Toppin interviewed Brooke on January 25. She asked Brooke leading questions. (Tp. 7851) She asked Brooke if they ever played doctor at the day care. Brooke said that she played doctor with Frankie and Paige. (Tp. 7846) Ms. Toppin asked Brooke if anybody asked her to lift her shirt. (Tp. 7847) Brooke said that Frankie and Paige did. After the interview, Ms. Toppin said that she couldn't say whether or not Brooke had been abused. (Tp. 7849)
Ms. Small questioned Brooke about naptime. Brooke said nothing happened at naptime. Ms. Small continued to question Brooke. Ms. Small testified that she encouraged Brooke to talk by saying that Ginna Forward and Will Hollowell had both told. (Tp. 7873) Ms. Small also asked Brooke to be her "super helper." (Tp. 8044) These inducements to make allegations are inappropriate and can contaminate the reliability of this and later interviews. (Tp. 15,862, 15,789, 19,741, 19,785) Eventually Brooke said that the defendant's truck scared her. (Tp. 7871)
Ms. Small testified that she began keeping a journal in May, 1989. She kept Brenda Toppin informed of Brooke's "disclosures." (Tp. 7876-7878) Ms. Small testified that, since the investigation against the day care began, she educated herself about child abuse. She went back and added things to the journal about Brooke based upon this new knowledge. (Tpp. 8100-8104)
Ms. Small decided to have Brooke evaluated by Judy Abbott. (Tpp. 7869-7870) Her first appointment with Abbott was on May 1, 1989. Ms. Abbott gave Ms. Small a story to read to Brooke. The story was called "Patty the Rabbit" and was about "disclosing." Ms. Small was to read this to Brooke every day. (Tp. 7883) After the next weekly session, Judy Abbott gave her another story, called "Tillie Kitty," to read to Brooke every night. This story had to do with children keeping "secrets." (Tp. 7887)
Ms. Small testified that Ms. Abbott questioned Brooke using "anatomically correct dolls." (Tp. 8049) Ms. Abbott questioned Brooke regarding the defendant's penis. (Tp. 8054) Dr. Shopper testified that Abbott was acting both unprofessional and unethical in her interrogation of Brooke. (Tp. 19,800)
Ms. Small testified that on May 15, Ms. Abbott gave her yet another book to read. This book was called "Boots". (Tp. 7906) She then questioned Brooke. She told Brooke that sometimes people aren't what you think they are. Ms. Small asked Brooke if anybody have fooled her and her father. According to Ms. Small, Brooke said the defendant, Betsy, and Shelly. (Tp. 7906) Brooke said that Shelly "tinkled on the floor at the day care." (Tp. 7907)
Ms. Small testified that she tried to reassure Brooke. She asked Brooke if she was afraid. Brooke said yes. She asked Brooke if anyone had hurt her. Brooke said yes. Ms. Small asked Brooke who had hurt her. Brooke said Paige and Ms. Shelly. (Tp. 7909)
Ms. Small testified that she talked to Brooke again the following day. (Tp. 7910) She tried to get Brooke to talk about the day care, but Brooke would change the subject. (Tp. 7911) Brooke did say that Shelly tinkled in the railroad. (Tp. 7912) Brooke got mad and said she wanted to tear the day care down. (Tp. 7913)
Ms. Small testified that she decided to talk to Katie about the day care in front of Brooke in hopes of getting Brooke to talk. (Tp. 7914, 7915, 7917) Dr. Shopper testified that this was an inappropriate interview technique. (Tp. 19,797)
Ms. Small testified that on June 5, Brooke's father asked Brooke if anyone had done anything to her. According to Ms. Small, Brooke said that the defendant had pee-peed in her mouth and in Ashley's mouth. (Tp. 7923) Ms. Small testified that Josh had told Brooke that the defendant had peed in his mouth. (Tp. 8062) Ms. Small testified that she and her husband felt "very, very guilty" for ever taking their children to the day care. (Tp. 7926)
On June 8, they went back to Judy Abbott. In preparation for this session, Ms. Small said, "Brookie, tell Ms. Judy what you told your daddy the other night about the Little Rascals." (Tp. 8047) Brooke told Ms. Abbott what she had told Mr. Small. According to Ms. Small, Brooke added that Dawn took off all her clothes and danced around the day care; that the defendant poo-pooed on some pine straw; that the defendant took Brooke upstairs and took off his clothes; and that Ashley Twiddy was there. (Tpp. 7931-7932)
Ms. Abbott began asking leading questions using "anatomically correct" dolls. (Tp. 7932) Ms. Abbott got Ms. Small to ask Brooke about the defendant's penis. According to Ms. Small, Brooke said that she and Ashley had to touch the defendant's penis. (Tp. 7933) Either Ms. Small or Ms. Abbott (Ms. Small could not remember which) showed Brooke the female doll and asked if she had seen Betsy or Dawn's breasts. Brooke nodded. She said that Shelly peed on the floor and then, according to Ms. Small, started acting "silly." (Tp. 7934)
Ms. Small testified that sometime in the summer of 1989, she took Brooke to Dr. Beals in Elizabeth City for a physical examination. There were no physical signs of sexual abuse at that time. (Tp. 7939) She then decided to take Brooke to UNC. (Tp. 7942) Dr. Desmond Runyan examined Brooke and concluded that the history and examination was "suspicious" for abuse. (Tpp. 13,650-660)
5. Alex, Will and Richard Dixon.
After the day care closed, Alex and Will were kept during the day by Elaine Spruill. Marjorie Hollowell asked Ms. Spruill to keep notes on anything the boys might say about the Little Rascals or Bob Kelly. (Tp. 10,393)
Ms. Spruill testified that the boys talked a great deal about the day care. They told in detail, and with apparent relish, bizarre stories involving "body parts," "doo doo" and "boobies." (Tpp. 10,392, 10,394, 10,418) The boys said "We like private parts." (Tp. 10,588) Ms. Spruill caught the boys showing each other their penises. (Tp. 10,408) What was worse, Ms. Spruill felt that the boys had developed a "fear of Jesus and religion." (Tp. 10,422) They seemed to have "God's role" confused. (Tp. 10,426) They were uncomfortable about praying with Ms. Spruill. (Tp. 10,424)
All of this was upsetting and embarrassing to Ms. Spruill, a deeply religious woman. (Tp. 10,424, 10,430) She assured the boys that she believed their stories, thinking that telling about the day care would "help their therapy." She consulted with Betty Robertson. "There were just issues I wanted to be sure I was handling correctly." (Tp. 10,484)
Marjorie Hollowell talked with Susan Dixon on April 19. She told Ms. Dixon that she was taking Will out of the day care because she believed the rumors about abuse. (Tp. 8667) Ms. Dixon began asking Richard about the day care. (Tp. 8669) On April 22 she began keeping records of what Richard said about the Little Rascals. (Tpp. 8710, 8769-8770)
At first the interviews did not yield any accusations. Then, Ms. Dixon asked Richard if he liked the defendant. Richard said: "No, he spanks me." Ms. Dixon asked Richard: "Where?" Richard said: "In the drop-in room." Ms. Dixon said: "Who was there at the time?" Richard answered: "Will." Mrs. Dixon asked Richard if he had his pants down. Richard said no. Richard said that the defendant said not to talk about it. (Tp. 8670) Ms. Dixon testified that she kept asking Richard if the defendant had hurt him. (Tp. 8678) Richard repeatedly said that he couldn't talk about it. (Tp. 8678)
Mr. Bean told Alex that Richard Dixon had said that Mr. Kelly tied the two boys up. Alex replied, "Mr. Bob's a nice man. He wouldn't do anything like that." (Tp. 10,314) A few weeks later, Will told Ms. Hollowell that the defendant tied him up with a rope too. Will said that he broke loose and ran home. (Tp. 6580)
Ms. Dixon took Richard to Judy Abbott on May 1, 1989. (Tp. 8680) Ms. Abbott gave Ms. Dixon "The Fuzzy Rabbit" story to read to Richard "several times". (Tp. 8681) Ms. Dixon continued to ask Richard about the upstairs at the day care. (Tp. 8681) Richard told her that Will Hollowell and Dan Brooks were upstairs, too. Richard then began to say things about what happened upstairs that Ms. Dixon did not understand or believe. (Tp. 8682) She got frustrated because Richard wouldn't tell her what had happened. She cried. (Tp. 8683) At that point, late at night, Richard said that he would talk. Richard said that he had seen the defendant's "wee-wee." He said that the defendant had touched Richard on his "wee-wee" and on his bottom. Ms. Dixon testified that, almost immediately, Richard began denying that the defendant had abused him. (Tp. 8684) Dr. Raskin testified to the inaccurate information that often results from repeated questioning. (Tp. 15,684) He also testified that it is improper to interrogate children late at night. (Tp. 15,772)
On May 2, Ms. Bean questioned Alex about being upstairs because Susan Dixon had mentioned something about the upstairs at the day care. (Tp. 10,155) Alex said that he had been upstairs at the day care and that Bob Kelly had "bopped" Alex on his nose. Alex said that he threw "Mr. Bob" out of the upstairs window. (Tpp. 10063, 10313)
On May 8th, Ms. Dixon took Richard to Judy Abbott, who had moved her office to Edenton to be near her many clients. (Tp. 8687) Ms. Abbott gave Ms. Dixon a second story to read to Richard "Tillie Kitty". (Tp. 8689) Richard still would not tell Ms. Dixon about being abused at the Little Rascals. (Tp. 8689)
Ms. Dixon testified to her attempts to get Richard to talk. (Tp. 8778) She testified "I felt there was something that he was not telling me." (Tp. 8778) She had already made up her mind that Richard had been abused: "I wanted him to feel comfortable talking to me." (Tp. 8779) Dr. Shopper testified that "story time" for these children was "turned into a ritual of tell me more allegations of sexual abuse.'" (Tp. 19,732)
On May 8, Grace Bean took Alex to Betty Robertson to be evaluated. She testified that during the sessions, Dr. Robertson would tell Ms. Bean things that Alex had said. Alex would nod his head to signal that Dr. Robertson had gotten it right. (Tp. 10,161) In fact, Alex never said anything directly to Ms. Bean but merely agreed with what Dr. Robertson said. (Tp. 10,164) Dr. Raskin testified that involving the parents in this way places a tremendous burden on the child, and is inappropriate. (Tp. 15,860)
Dr. Robertson would give Alex "homework" to do during the week between therapy sessions. An example of homework was "Tell mommy about the refrigerator." (Tp. 10,070) Another was to talk about "touching all over." (Tp. 10,079) As it turned out, Alex would not actually tell Ms. Bean things that Dr. Robertson had asked him to. Rather, Alex would make Ms. Bean ask him questions, and Alex would nod his head one way or the other in response. (Tp. 10,070)
Ms. Bean noted that Dr. Robertson would ask Alex about things that other children had said about the day care in order to gauge his reaction. For instance, Dr. Robertson asked Alex about "jungle suits." The idea was to "see if he had any reaction to it." (Tp. 10173) Robertson was also telling Ms. Bean what she had learned from others in therapy and evaluation. (Tp. 10,179) Alex said that "Dr. Betty sure knew a lot about the Little Rascals." (Tp. 10,167) Betty Robertson "concluded that he had been a victim of touching." (Tp. 10,074) Ms. Bean testified that Alex has "repressed" a lot of what happened to him at the day care. (Tpp. 10,072, 10,170) See Issue VIII.
Marjorie Hollowell switched therapists from Michelle Zimmerman to Betty Robertson in May 1989. This was in part because Will would not tell Michelle Zimmerman anything about the defendant having touched him. (Tp. 6757)
According to Ms. Hollowell, Will thought that the defendant had special powers. Will thought that if he talked about the defendant, he would get stronger, and the defendant would get weaker. Ms. Hollowell was not sure whether this was a "Michelle [Zimmerman] idea" or a "Betty [Robertson] idea." (Tp. 6584) On April 4, 1989, Will had said that the defendant "could" come into his house. By September 2, 1989, however Will was saying that the defendant "had" come into his house. (Tpp. 6777-6778) Ms. Hollowell testified that she never saw any evidence of the defendant having been in their house. Nevertheless she believed that it happened. She testified that "I did not know that Bob had brought Will into our house and hurt him there. I did not connect the fact that he had trouble sleeping and that he was afraid to be in his room with what Bob Kelly had done to him there." (Tpp. 6733-6734)
Ms. Hollowell testified that in June 28, 1989, she asked Will if he had been on a boat. At that point, Will said no. (Tp. 6848) She then asked Will if the defendant had ever taken him on a boat and Will said no. (Tp. 6849) On the next session, Will told Dr. Robertson about being on a boat with the defendant. (Tp. 6851) Ms. Hollowell testified, "And just as I suspected, something must have happened to him". (Tp. 6851)
Also on June 28, Dr. Robertson told Grace Bean that Betsy Kelly knew what was going on at the day care. (Tp. 10179) On July 13, Dr. Robertson said that Shelly Stone also knew what was going on. By the end of the summer, Alex had begun talking about Shelly Stone and Betsy Kelly having done "bad things." (Tp. 10185) Ms. Bean was concerned that ideas might have been placed in Alex's head about the day care. Betty Robertson assured her that this had not happened. (Tp. 10,191) However, Dr. Robertson would repeatedly bring up topics she had heard from other children to see Alex's reaction. (Tp. 10191) Both Dr. Shopper and Dr. Raskin testified that it was inappropriate for the therapists to tell children things they had heard about the Little Rascals from other children. (Tpp. 15,862, 19,697) Dr. Maggie Bruck added that such inappropriate interview techniques can reinforce inaccurate stories by the children. (Tp. 15,333)
After beginning therapy with Robertson, Will also began implicating other adults in alleged abuse. This included Betsy Kelly, Scott Privott, and Shelly Stone and Officer Tim Hickman of the Edenton Police Department.
In July, Alex told Ms. Bean that he never really went upstairs at the day care. (Tp. 10,080) Dr. Raskin testified that a change in a child's story such as this one should alert the investigator. It may simply mean that the child is confused. However, it could mean that the child has not been reporting what he himself has seen, but what was suggested to him by the questioning. (Tp. 15,878)
Ms. Dixon testified that Richard stopped seeing Judy Abbott in September of 1989. Mrs. Dixon took Richard to Betty Robertson instead because Alex Bean was seeing her. (Tp. 8849)
Will began telling stranger and stranger stories about the day care during the Summer of 1989. This included being put in a jail upstairs in the day care, having a dog defecate on him, being made to wear girl's clothes, having glue poured over him, and suggestions of devil worship. (Tpp. 6565-6581)
Ms. Hollowell began to think that maybe her daughter, Anne, had been molested too. Anne had begun to "parrot" what Will said about the defendant. (Tp. 6834) Anne was just an infant when she attended the Little Rascals. (Tpp. 6703-6705)
6. Brian and Kyle.
On April 19, 1989, Brian was staying with his grandmother "Nonna" Wilkins. Jimmy Smith drove his truck into Ms. Wilkins' backyard, claiming that his brakes failed. (Tp. 4221) According to Ms. Wilkins, Brian said "out of the blue" that "Mr. Bob" stuck his finger in Brian's hiney. (Tp. 4223) Ms. Wilkins told Brian that that was a terrible thing and that the defendant wouldn't have a chance to do that again. (Tp. 4224)
By the end of May, Kyle Stever had implicated Betsy Kelly in the day care allegations. (Tp. 3576) Kyle said that Betsy Kelly played doctor with him. When Kyle said "playing doctor," Ms. Stever assumed that he was referring to anal penetration. (Tp. 3577) Ms. Stever called Brenda Toppin and asked if there might be satanic worship at the day care. Ms. Toppin said "anything is possible." (Tp. 3580)
Ms. Stever asked Kyle if he had ever been on a boat. Kyle said yes, that defendant had taken them on a boat. He added that defendant had pushed a little girl in the water. Kyle said that defendant took the boat back and forth to the water on the top of his truck. (Tp. 3582) Kyle talked about three or four different places where defendant took them in the boat. He later added that Betsy Kelly was on the boat as well. (Tpp. 3582-3586) On July 4th, 1989, Kyle picked out a houseboat as being defendant's boat. (Tp. 3588) When Kyle picked out the boat, his parents told him they were "proud of him for being strong and brave and telling the truth." (Tp. 3591)
Kyle began making other allegations in July of 1989. He told Michelle Zimmerman and then his mother that Shelly was bad too. He said that the defendant used a magic key to come into his house and break all his toys. (Tp. 3593) Kyle said that the defendant took him to the woods; that a fat man was there. (Tp. 3594)
On July 26th during a session with Michelle Zimmerman, Kyle said that Shelly Stone put a green toy tractor in his "butt." (Tp. 3603) He also said that Betsy put her finger in his "butt." Kyle said that Betsy, Shelly, and Dawn twisted his fingers, hit him, and poked their fingers in his eyes and nose. (Tp. 3605)
Ms. Stever testified that she believed these allegations immediately. (Tp. 3604) She testified that she gave the day care workers the benefit of the doubt until Kyle named them. Then "they didn't get the benefit of the doubt anymore." (Tp. 3603)
Ms. Stever took Kyle to Michelle Zimmerman on August 11th. Kyle said Betsy put her finger in Jonathan Winslow's bottom and poopie came out. Kyle said "black Andre" put a finger in his butt. At the time Kyle was talking about a "good Andre" and a "bad Andre," both of whom were black men. (Tp. 3608) It was later that Kyle began talking about a "white Andre." (Tp. 3610) According to Kyle, "white Andre" took kids out on a boat with the defendant and drives a red car. (Tp. 3611)
On August 11th, Kyle said that the defendant dressed up like a witch. On August 16th, Kyle said that he ate defendant's poopie and that defendant ate his poopie. (Tp. 3616) Ms. Stever testified that whenever Ms. Zimmerman would get "disclosures" from Kyle, she would turn them over to Brenda Toppin. (Tp. 3617)
Kyle went to the August 25th session with Ms. Zimmerman dressed as Batman. Kyle talked about "the Joker", and said defendant dressed as a witch. Kyle said the defendant cut his neck, and let blood fall on the floor, and then licked it up. (Tp. 3620)
Ms. Zimmerman then asked Kyle if the defendant killed any animals in his presence. Kyle said that defendant killed a snake and a turtle. (Tp. 3622)
F. Conflicting Medical Opinions: Family Doctors and Defense Experts Versus the Child Medical Examiners.
Several of the children were sent to Chapel Hill to be examined by members of the Child Medical Examiner's Program. ("CMEP") Dr. Jean Smith noted some "abnormality" in Lauren Smith's hymen and "diagnosed" her as having been sexually abused. (Tpp. 13,208, 13,226) Kyle Stever's exam was normal. Nonetheless, Dr. Smith diagnosed the boy as having been abused. (Tpp. 13,237, 13,230, 13,300) Unlike previous doctors, Dr. Smith found some scarring in Beth Bateman's genitalia. She made a "definite" diagnosis of sexual abuse. (Tpp. 13,258, 13,300) Dr. Smith found a "squared appearance of the hymenal ring" in her examination of Betsy Vogedes. (Tp. 13,279) Dr. Smith made a "definite diagnosis" of sexual abuse. (Tp. 13302)
Dr. Desmond Runyan examined Brooke Small in August, 1989. (Tp. 13,640) Doctor Runyan did not review Brooke's medical records. Indeed, Dr. Beals had examined Brooke on 15 May 1989 and found no evidence of abuse. (Tpp. 12,316, 12,320) Dr. Runyan testified that the anal exam was normal. (Tp. 13,653) However, the genital exam was "suspicious" or "suggestive" of vaginal penetration. (Tp. 13,650, 13,656)
Dr. Doren Frederickson testified that he conducted two physical examinations. On 27 October, 1989, Dr. Frederickson examined Will Hollowell. (Tp. 13,445) The examination was normal. (Tp. 13,449) Nevertheless, Dr. Frederickson made a "definite" diagnosis of sexual abuse. (Tp. 13,452) Dr. Frederickson examined Alex Bean on 26 January 1990. (Tp. 13,423) The examination was normal. The diagnosis was "definite" for abuse. (Tpp. 13,509, 13,518, 13,431)
Dr. Thomas Irons, testified that he reviewed photographs provided by the state's doctors. Dr. Irons testified that he did not see the signs of abuse in the photographs that the state doctors provided and testified to. (Tp. 14,263)
Dr. Robert Brayden testified he reviewed the records on Beth Bateman, Brooke Small, Lauren Smith and Betsy Vogedes. He testified that, in his opinion, there was no evidence of sexual abuse in any of the girls. At most, as to Beth Bateman, there was the "possibility" that she had experienced some sort of trauma in her genitalia, which could include sexual trauma. (Tpp. 14,312-14,314)
G. Additional "Disclosures" in 1989 and 1990: Satan and pirates, black men and black magic.
1. Kyle, Dan, Brian, Alex, Will and Josh.
Audrey Stever took Kyle to see Ms. Toppin on September 15th, 1989. She also showed Kyle a photograph of Betsy Kelly in handcuffs. According to Ms. Stever, Kyle then spoke of being handcuffed by a woman name Brenda and a fat man. (Tp. 3635) On September 20th, Kyle said he didn't want to go to Little Friends because Nancy Smith had done bad things to him. (Tp. 3638) Ms. Stever said "I don't condemn anyone until my son says something about them." She added "I have to believe what he says." (Tp. 3643)
Grace Bean told Alex that Betsy Kelly, Dawn Wilson and Shelly Stone had been arrested. Alex was upset. (Tp. 10,334) He said that they had not done anything. (Tp. 10,180)
Alex said that the defendant and a "fat man" put him in the refrigerator. Alex said that he ate a ham and cheese sandwich while he was in the refrigerator. (Tp. 10,340) He also said that a spoon was placed in his behind and that he was forced to perform oral sex. (Tp. 10,087) Alex said that "Mr. Scott" put a candle near his penis. (Tp. 10,089) He told his mother that somebody put a toy cowboy in his bottom. (Tp. 10,090)
Peggy Brooks told Dan that Dawn Wilson was in jail because other kids talked about her. She testified "I was trying to make him safe that all of the children were telling now, and it was okay to talk." (Tp. 5062) Indeed, Ms. Brooks praised Dan every time he said something about the day care. (Tp. 5063) Dan named Shelly, Dawn, Robin, and Betty Phillips as having been involved on abuse. (Tpp. 5086-5089) He also claimed that they prayed to the devil at the day care. (Tp. 5063)
On October 20, Kyle spoke about being on a boat with people from the day care. There were sharks in the water. Several children were allegedly abused. (Tp. 3650)
Ms. Stever testified that on October 27, during a session with Michelle Zimmerman, Kyle talked about having his neck cut, and about defendant dressing up as a witch and saying "oh great God, oh my God." (Tp. 3652) On that day, Ms. Zimmerman said it was all right for Ms. Stever to buy Kyle toy knives and guns because it would make him feel safe. (Tp. 3653) Dr. Shopper testified that this had the effect of confusing Kyle about the difference between fantasy and reality. (Tp. 19,678)
In October, Ms. Stever asked Kyle "in a tricky way" if Betsy Kelly had touched him. Kyle said yes. Ms. Stever asked where. Kyle said upstairs. He said that the defendant was there and also other children were there. Ms. Stever asked Kyle if Betsy Kelly took off her clothes to which Kyle said yes. (Tpp. 3657-3658) Kyle said that Betsy Kelly made him touch her in her "pee-pee" and her "hiney." (Tp. 3660) Ms. Stever asked Kyle if he had to suck her "boobies" or her "pee-pee." Kyle said he had to lick Ms. Kelly's "middle." (Tp. 3662)
In November 1989, Kyle said that Betty Ann was bad. (Tp. 3640) On November 7th and 8th, Ms. Stever had conversations with other parents regarding Betty Ann Phillips. There were many rumors circulating about Ms. Phillips. Ms. Stever told a parent "I'm not saying [Betty Ann's] guilty, I'm just saying I'm not taking any chances." (Tp. 3666)
In November 1989, Peggy Brooks was in the car driving Dan some place. She got irritated at a black male pedestrian. (Tp. 5100) Dan said that this black male pedestrian was one of the people who did bad things at the day care. He said that the black male put "pee-pee in his bottom." (Tp. 5101)
On November 6, 1989 Dan told his mother that Nancy Smith "karate chopped" him. He said that Nancy hit and kicked his pee-pee and hit and kicked his bottom. (Tp. 5056) He said that Nancy Smith had put her finger in his bottom. (Tp. 5056) Ms. Brooks told Dan she was "proud of him for being brave enough to tell me things." (Tp. 5057)
Grace Bean testified that Alex mentioned Scott Privott on November 16, 1989 during a session with Betty Robertson. (Tp. 10,197) Actually, Alex only said "fat man" not "Scott Privott." (Tp. 10,198) At some point, according to Ms. Bean, Alex began using "fat man" and "Scott" interchangeably. (Tp. 10,198)
Ms. Hollowell testified that Will told Betty Robertson about a saw that had a motor. She testified that Will had seen a chain saw at home used to cut down a Christmas tree. (Tp. 6821) In therapy, Will said that a saw like that had been stuck in his bottom. (Tp. 6821)
In December of 1989, Ms. Brooks talked to Dan about the day care while he was having a bowel movement. (Tp. 5104) Dan talked about bones and a skull and cross bones being on a pirate ship. (Tp. 5104) He talked about the defendant dressing up as a Ninja. (Tp. 5106) He said defendant had magic stars and if you touched them you would die. (Tp. 5106) He talked about defendant throwing magic stars at animals and killing them. (Tp. 5106) Dan said that defendant tried to drown him in a swimming pool. (Tp. 5108) Dan said that he had been on a boat with the children from the day care and a man who looked like Kyle Stevers' dad. He said that the children didn't have anything on except life jackets. (Tp. 5110)
On December 9, 1989, as Peggy Brooks was questioning Dan, Dan talked about praying to the devil and about a boat. When she pressed him for details, Dan said that all the adults were praying saying "Devil, devil, devil, destroy these children." (Tp. 5066) Ms. Brooks showed Dan pictures of satanic symbols because she had heard from someone at her school that satanism is related to child abuse. (Tpp. 5070-5071)
On December 11, Michelle Zimmerman came to Kyle Stever's house and wanted Kyle to show her where defendant took him in the woods. (Tp. 3669) Kyle took Ms. Zimmerman to the woods behind his house. (Tp. 3670)
In December, 1989 Brian began to accuse Betty Ann Phillips of having done "bad things." (Tp. 4642) The only "bad thing" he mentioned, however, was a spanking. (Tp. 4642)
On December 22, Kyle said that Debbie Riddick did bad things to him. He said that she stuck her finger in his butt. Kyle said that this happened at "the fat man's house." (Tp. 3673) Ms. Zimmerman showed Kyle a chart of satanic symbols.
On January 8, 1990, Ms. Stever said she thought Darlene Harris was involved. (Tp. 3699) Ten or eleven days after Ms. Stever began to suspect Darlene, Kyle said that Keith Harris, Darlene's son, was at the day care. (Tp. 3700) Ms. Stever and Kyle both saw Keith Harris in therapy with Ms. Zimmerman. (Tp. 3702) Ms. Stever told Kyle that people had hurt Keith too. (Tp. 3703)
On January 12th, during a session with Michelle Zimmerman, Ms. Stever had asked Kyle if defendant had hurt any animals at the day care. (Tp. 3684) Kyle told Ms. Zimmerman that defendant hurt a cat. (Tp. 3682)
On January 19, Kyle told Ms. Zimmerman that defendant put a sword to Ashley Twiddy's neck upstairs at the day care. (Tp. 3693) Kyle talked about defendant eating poop, about defendant making Kyle eat poop, about defendant putting snakes on Keith Harris. (Tp. 3697)
On January 26, Ms. Stever told Ms. Zimmerman that Kyle had said "give the blood to the devil." (Tp. 3705) She said that Kyle had also talked about boats, about white Andre, about snakes, and about defendant putting Ashley and Kyle in a box. (Tp. 3706)
On February 16, Kyle was playing with a wishing well in Ms. Zimmerman's office. Kyle said that defendant dropped William Brooks down a well. Ms. Stever began looking for the well. (Tp. 3726)
Brian's grandmother, "Nonna" Wilkins, made books for Brian about Bob Kelly, Betsy Kelly, and Nancy Smith. (Tp. 4380) Ms. Wilkins characterized the books as "therapeutic stories." She drew a picture of defendant making him "as ugly as I could." (Tp. 4381) She read a portion of the book on Bob Kelly. Ms. Wilkins also wrote a book about Betsy Kelly, called "Betsy the Witch," and about Nancy Smith. (Tpp. 4382-83)
In March, 1990, Brian said that Nancy Smith put a knife, a fork, a stick and his finger in several of the children's "hineys." He also accused Jimmy Smith of having put a pillow over a child's head. (Tp. 4642)
Julie Spivey testified that Josh entered the "Cheerio Hero" contest in March of 1990. (Tp. 5790) She testified to Joshua's account of having saved Ashley on the boat and about the pirate on the boat. (Tp. 5792) Ms. Spivey thought that the pirate might be Bruce Bunch, Keith Harris' mother's boyfriend. (Tp. 5793) Ms. Spivey asked Joshua if there were any ladies on the boat. Joshua asked what his teacher's name was. Ms. Spivey told Joshua that his teacher was Shelly. Joshua said "She was there too". (Tp. 5794)
Marjorie Hollowell testified that in July 1990, Will suggested that Betty Ann Phillips was a "lookout" at the day care. (Tp. 6698) She testified that she now remembers an incident where Betty Ann Phillips saw her coming to the day care out the front window and began "mouthing the words that Margie had arrived." (Tp. 6691) Ms. Hollowell now believes that Betty Ann Phillips was warning the others that she was there. (Tp. 6692)
In November 1990, Alex tried to take back his allegations. He told his father, "Mr. Bob didn't do what you think he did." (Tp. 10,347)
2. Adam Furlough.
By the summer of 1989, the parents of children who had not attended the "new" day care at all began to fear that their children might have been abused at the "old" day care. Dalton and Susan Furlough were two such parents.
Susan Furlough went back to work when her son Adam was an infant. (Tp. 7229) In September 1987 Adam began attending the Little Rascals, and attended until May 1988. (Tp. 7168) This was strictly when the day care was at its original location and eight months before the initial allegation. (Tp. 7168)
Dalton Furlough testified that he saw Ollin Sykes at a T-ball game in June of 1989. Mr. Sykes said that he had heard that there had been abuse at the "old" day care as well as the "new" one. (Tp. 7442) Even though Adam had not been in day care for over a year, the Furloughs became concerned that Adam may have been abused. On the next day Mr. Furlough called Brenda Toppin and met with her. (Tp. 7444) As a result of this meeting, he decided to have Adam evaluated by Judy Abbott.
Adam began therapy with Judy Abbott that summer. Ms. Abbott gave Ms. Furlough "The Fuzzy Rabbit" story. Ms. Furlough began reading this book to Adam and questioning him on July 12, 1989. (Tp. 7191) Ms. Furlough testified to her questioning of Adam, which included a great deal of leading. (Tpp. 7204-7206) She asked questions such as "What did Mr. Bob do to you that made you feel bad?" (Tp. 7287) After Ms. Furlough read the story a second time, Adam asked, "Momma, this mean grown-up rabbit is Mr. Bob, isn't it?" (Tp. 7195) Ms. Furlough said "Yes, Adam, it is." (Tp. 7195)
Adam's father asked Adam "Was Mr. Bob mean to you and did he make you take your clothes off?" (Tp. 7308) "Did he touch your fanny?" and "Did he ever use his finger on your fanny?" (Tpp. 7309-7310)
Ms. Furlough testified that on July 30, she told Adam that the defendant would die in jail. (Tp. 7305) Ms. Furlough testified as to how this might have conveyed their personal feelings about the defendant to Adam. (Tp. 7305) Dr. Raskin testified that, when the child feels that the interviewing parent has an opinion about what has happened, the child will attempt to tell the parent what he or she expects to hear. (Tpp. 15,864, 15,947, 16,446)
Ms. Furlough testified that she and her husband questioned Adam about things they had read in the newspaper or heard from others. (Tpp. 7456-7457, 7213, 7351) On August 2, 1989 Dalton began asking Adam about boats. (Tp. 7313) This was because they heard that other children were talking about boats. (Tp. 7313) Adam began to "disclose." Adam said that Mr. Edsall had taken him out on a boat. Dalton asked if anybody else had taken him out on a boat. Adam said Mr. Bob, Betsy, all the children from the day care, and a black man named Dave. Adam allegedly said that the defendant put the boys in the water and held them upside down. He said that Brooke Small and William Brooks were there, too. (Tpp. 7210, 7452-7454)
When Adam made "disclosures" of abuse, Ms. Furlough believed Adam immediately. (Tp. 7207) On August 23, Adam denied that the defendant hurt him. Ms. Furlough did not believe her son then. (Tp. 7329)
3. Other Children.
The testimony of the twelve children at trial is only a small fraction of the total allegations made against Bob Kelly and other adults. Because the prosecution chose not to proceed on any but these cases, and because the state was able to prevent the defense from getting information collected on children who did not testify, there is no way to know now how widespread and bizarre the allegations became.
It is clear that the investigation spread outside the day care. At least one child, Keith Harris, who never attended Little Rascals, was named by several other children as having been involved. It is equally clear that children who had been infants when they attended the day care, and who could have no long term memory of what happened there, began to "parrot" what they had heard said about Bob Kelly. Finally, many of the children who reported having seen instances of abuse explained later that they did not actually witness it, but had only heard about it from their friends.
VI. RECONSTRUCTION AND TRIAL PREPARATION.
A. "Just a Phase."
Until the allegations were made, none of the parents attributed any of their children's conduct to anything other than normal "growing pains." After all, the children were being separated from their parents, experiencing the loss of loved ones, having changes in schedules, and a variety of other understandable sources of stress. For instance, Peggy Brooks testified that she thought Dan was upset because of the visitations with his father. (Tp. 5011) Grace Bean thought that Alex was traumatized by being separated from her and placed in day care for the fist time. (Tp. 10,010) Julie Spivey thought that Josh was upset at the recent death of her surrogate grandfather, Marvin Shaw. (Tp. 5728) None of these parents thought there was any reason for professional help for their children until abuse was "substantiated."
B. The Parents Become Experts on Abuse.
Each of the children was "evaluated" by one of four "therapists." These therapists also met regularly with the parents of the children and with the police and prosecution. The purpose of these meetings was, in part, to share "disclosures" made at home or during the sessions. The sessions were also an opportunity for the therapists to educate the parents on the psychological characteristics thought by some to be associated with child sexual abuse. The therapists then explained to the parents how behaviors such as denying abuse, bedwetting, reluctance to take naps, etc. were actually indications that their child had been sexually molested. Parents began sharing stories, rumors and fears with each other, adding to the general air of hysteria in the town. (Tpp. 16,685, 18,926-36, 19,044) They got information from each other, from the therapists and from the newspaper in order to question their children.
Many parents testified that, once they learned about the nature of child sexual abuse, they began to "understand" that their children had been displaying symptoms of abuse. (Tpp. 6812, 6851) At trial, many of the parents shared their new-found understanding of the psychology of abuse with the jury. See Issue VIII.
C. Parents Memories Help Confirm Abuse.
Many parents testified that, once they learned about the nature of child sexual abuse, they began to "understand" that their children had been displaying symptoms of abuse. (Tpp. 6812, 6851)
The parents began taking notes about their children after -- in some instances long after -- the abuse at the day care was "substantiated" by DSS. They continued to refine their notes up until their testimony at trial.
As the parents began reconstructing the events at the day care they began to remember things that seemed innocent at the time, but appear sinister in retrospect. According to psychological witnesses, the belief by the parents and therapists that the children had been abused set into motion a process that resulted in the numerous allegations in this case. (Tp. 19,044) Once they believed the children had been abused, parents began reconstructing their memories of what happened in the fall of 1988. For instance, although Beth Bateman had an extensive history of urinary problems that pre-dated her attendance at the Little Rascals, Beth's mother testified that, in her mind, Beth's urinary tract problems started when Beth went back to the Little Rascals. (Tp. 11,599)
Susan Small testified that Brooke's sister, Lauren, broke her clavicle in April 1988. (Tp. 7918) Ms. Small never associated the day care with the broken clavicle until the "disclosures." (Tp. 7984) A year later, when Ms. Small began keeping her journal, she included a reference to Lauren's accident. "They had told me that the day care workers would throw the babies around the room, which is why I thought it important to put in my journal about Lauren's broken clavicle." (Tp. 7981) In 1991, as this trial approached, Brooke said that Betty Ann Phillips had broken Lauren's clavicle. (Tp. 7985)
On July 6, 1989, Marjorie Hollowell put in her journal that Will "tended to stain his pants before going to the bathroom." (Tp. 6740) Ms. Hollowell thought it was significant after she began to believe that the children had been abused. She testified "If you were abused in the bathroom, it makes sense to think in your mind that it's sexual abuse." (Tp. 6741) Julie Spivey associated Josh's dislike of naps to abuse. However, she testified that Josh did not like naps even before going to the Little Rascals. (Tp. 5900)
D. Kelli deSante.
The prosecution travelled to California to interview Bob Kelly's ex-wife, Martha Jane. She had changed her name to Kelli deSante.
Mr. Kelly divorced Ms. deSante in December 1978. Before their divorce, Mr. Kelly tried to get his wife to go with him to marriage counseling. When the marriage dissolution was imminent, Mr. Kelly sued her for custody of the children. Ms. deSante answered the custody complaint, never mentioning any sexual impropriety in the marriage. Eventually she consented to give custody to Mr. Kelly. Nonetheless, Ms. deSante told the prosecutors in this case of many sexual excesses by the young Bob Kelly. (Tpp. 20,595-623) At trial, the state argued successfully that it should be able to present Ms. deSante's testimony to show the jury that he was "not a normal heterosexual male." See Issue X.
Ms. de Sante testified that she married the defendant in 1969 when he was 21 and she was 17. She testified that the defendant liked anal intercourse with her, that he wanted her to wear sexy negligee, that he wanted to take pictures of her in sexy poses, that he watched "X-rated movies" at the country club with other men in 1973, that he kept heterosexual pornographic books around the house from 1969 on, that he drank too much, that he had been married two times, that he threatened to commit suicide, that he had a violent temper, that he was "sexually aggressive." (Tpp. 20,476-20,714)
Ms. de Sante testified that, sometime before she left the defendant in 1976, she opened a post office box for which Mr. Kelly had the combination . In the box were several items, including a mailed magazine that included pictures, inter alia, of naked children in suggestive poses. Ms. de Sante testified that this probably upset her more than someone else because she had been sexually molested by her father throughout her childhood. (Tp. 20,601)
VII. THE CHILDREN TESTIFY.
At trial, each child dutifully testified to the allegations in the indictment, as well as to a number of other acts of the defendants.
A. Alex Bean.
Alex testified under oath that Bob Kelly touched his "number one" [penis] and his "number two" [rectum] with his hand (Tpp. 9954 9955); that Mr. Kelly put a candle and a burning flower stem in his "number two" (Tpp. 9955, 10,005); that Bob Kelly hurt Richard but nobody else was hurt (Tp. 9977); that he was on a boat with the defendant, a tugboat; that nobody but he and Bob Kelly were on the boat (Tpp. 9977-9979); that he never went upstairs at the day care (Tp. 9985); that the defendant tried to shoot an apple off of Will Hollowell's head (Tp. 9985); that the defendant shut him up in a refrigerator (Tp. 9986); that he never saw Will being shut up like that (Tp. 10,003); that he and Will were hung up in a bag in tree in Will's backyard (Tpp. 9988-9993); that Dawn Wilson never did anything to any of the children at the day care (Tp. 9996); that he never saw anybody go to the bathroom on anybody else at the day care. (Tp. 10,002)
B. Adam Furlough.
Adam was led to agree under oath that defendant made him put a magic marker in Brooke Small's butt, and made Brooke put a magic marker in Adam's butt; that the defendant put a magic marker in Adam's butt; that a black man and Scott Privott were there at the time; that all this took place in the woods behind the Winn-Dixie (Tp. 7100); that a little red-headed boy was in the woods when they got there; that the little boy's parents were also in the woods (Tp. 7103); that he had to put magic markers in Brooke's butt (Tp. 7104); that there were grown-ups in the woods sitting in chairs watching this take place (Tp. 7107); that the defendant tried to push him onto a fire in the woods (Tp. 7132); that he met a girl named Amy in the woods; that he saw a lion and a cat and a "real bear" in the woods (Tp. 7135); that he never saw anybody hurting animals in the woods (Tp. 7136); that the defendant put his ding dong in Brooke's mouth; that he had to lay on top of Brooke; that he had to put his private next to Brooke's back privates; that he had to put his finger in Brooke's back privates; that he had to touch Brooke's front privates; that Scott was there (Tpp. 7084-7088); that he did not go upstairs at the day care (Tp. 7117); that he was on a sailboat with Ashley and Ryan and their parents (Tpp. 7126, 7149); that Betsy Kelly was not in the woods (Tp. 7100); that Ms. Kelly hurt kids at the day care; that she had a knife and would run around the day care with the knife (Tpp. 7140-7141); that nobody in the woods talked about the devil (Tp. 7144); that the defendant put a pen and his finger in his butt. (Tpp. 7078-7081)
C. Brooke Small.
Extensive leading was required to get Brooke to testify under oath that the defendant made Adam Furlough put his finger in her "front private;" that the defendant made Adam Furlough put his finger in Brooke's "back private" (Tp. 7680); that the defendant took pictures of this (Tp. 7681); that Adam put his bottom in Brooke's bottom; that Adam put his bottom in Brooke's mouth; that the defendant took pictures (Tp. 7682); that all of this happened downstairs at the old day care (Tp. 7683); that Batman was there (Tp. 7683); that the defendant did bad things at the new day care as well; that he stepped on Brooke's foot; that the defendant kicked Brooke in her private parts (Tp. 7686); that defendant put his finger in her hiney and in her private parts (Tp. 7686); that all this happened downstairs in Shelly's room (Tp. 7686); that the defendant "used the bathroom in her mouth" (Tp. 7687); that this made her sick; that the other children were not there at the time; that this happened in the kitchen and in Shelly's room (Tp. 7688); that she told Judy Abbott that the defendant put his bottom in Dawn's bottom, but did not actually see it (Tp. 7689); that defendant put his bottom in Dawn's mouth and that the defendant put his gun in Brooke's mouth while in Shelly's room (Tp. 7690); that the defendant took her upstairs at the Little Rascals, but she doesn't remember what happened there (Tp. 7691); that the defendant took her, Ashley Twiddy, and Beth Bateman out on a boat and to the defendant's house and to Ashley's house; that the defendant put his bottom in all three of the girls in those places (Tpp. 7692-7693); that the defendant gave her pills that made her sleepy (Tp. 7694); that the defendant put his bottom in her mouth; that Judy Abbott helped her remember things (Tp. 7698); that Betty Ann Phillips beat four babies until blood came out of their eyes (Tp. 7703); that she saw Betty Ann beat babies until blood came out of their knees (Tp. 7704); that Betsy Kelly "knifed" birds at the day care in a bird cage (Tpp. 7708-7709); that Betsy would put food in the bird cage and then trap birds in it; that Betsy would then kill the birds and throw them into the woods (Tp. 7710); that Betsy stomped a cat and then threw it; that Betsy set a fire in the woods and threw a cat on it (Tpp. 7711-7712); that she, Bob Kelly, and Betsy Kelly went through a little door in a fence and then walked into the woods; that in the woods, other children were playing (Tp. 7714); that the defendant and Betsy had killed babies with a gun at the new day care; that she really did see this (Tpp. 7715-7716); that this was the "truth" (Tp. 7717); that she told Judy Abbott that she was abused in outer space; that they got to outer space in a balloon; that it was really a spaceship that took them into outer space (Tp. 7718); that that is the truth (Tp. 7718); that she saw Dawn Wilson dancing around naked at the day care (Tp. 7723); that Betsy stuck a needle in her and that Brooke had to go get an x-ray; that there was marijuana and cocaine at the day care; that the marijuana was red and white; that there was a thermometer at her home that said "marijuana" on it (Tp. 7733); that the defendant made her drink marijuana in the kitchen (Tp. 7734); that Shelly Stone kicked her in the stomach (Tp. 7737); that Robin Byrum kicked the children (Tp. 7738); that Cindy did bad things; that Betty Ann threw Lauren and kicked her; that nobody saw this, and she never told anyone about it (Tp. 7742); that Betsy Kelly tried to stick a knife in her eye and Shelly and Betty Ann stood by laughing (Tpp. 7744-7745); that the defendant shut her up in a cabinet at the old day care, and Brenda Parks got her out (Tp. 7746); that somebody put a candle on her shoulder and burned her; that Betty Ann dressed up like a witch and scared Lauren; that Betty Ann cut somebody's head off; that the defendant put sand in her eyes; that there were snakes at the day care; that she took a boat trip with the defendant; that she went to the defendant's house; that she went to Ashley Twiddy's house (Tpp. 7749-7758); that she never actually went inside Ashley's house and nothing happened there anyway (Tp. 7761); that the defendant did bad things to Ashley; that he threw her around but doesn't remember where or when this happened (Tp. 7762); that the defendant stepped on Beth Bateman's foot but doesn't remember where or when this happened; that this was the only bad thing that the defendant did to Beth (Tp. 7764); that Betty Ann's husband did bad things; that he would kick Lauren and a little baby (Tp. 7766); that she never saw a police officer at the day care; that she never saw a black man at the day care. (Tpp. 7766-7767)
D. Brian Swicegood.
Brian testified that he talked to others about what happened at the Little Rascals and told others the truth, but does not want to tell the jury about the Little Rascals. (Tpp. 4071-73) He was eventually led to agree that somebody touched him at the Little Rascals and that that somebody was the defendant (Tp. 4075); that the defendant touched him on his stomach and nowhere else (Tp. 4076); that the defendant spanked him (Tp. 4077); that he told his mother that the defendant touched him in other places but does not remember what he said (Tp. 4079); that the defendant put his finger in his hiney (Tpp. 4082, 4084, and 4088); that he does not remember telling anyone about oral sex with the defendant; (Tp. 4087); that the defendant shot a cat with a red, green and yellow gun (Tp. 4106); that he saw a stick with a star on it that changed colors (Tp. 4106); that somebody stuck it in somebody else's hiney at the Little Rascals (Tp. 4107); that people put pine straw in children's hineys at the Little Rascals (Tp. 4107); that he liked to play girlfriends (Tp. 4108); that Betsy Kelly put a brown stick in Dawn's hiney; that the defendant hurt a baby named Luke Copeland (Tp. 4108); that he went to a motel with defendant (Tp. 4110); that he did not say most of the statements attributed to him by the adults he talked to. (Tpp. 4113-4150)
E. Joshua Spivey.
Joshua testified that he did not like going to the Little Rascals because it was boring. (Tp. 5600) He was led to say that bad things happened there; that Mr. Bob did bad things; that Mr. Bob touched him; that Mr. Bob put his "ding dong" in his butt and in his mouth (Tp. 5604); that he put his ding dong in the defendant's mouth. (Tp. 5605); that he was on a boat with defendant and Shelly; that it was not a sailboat; that the defendant got the boat from a boat store and drove him on the boat (Tp. 5616); that his friends were with him on the boat, but he can't remember any of the names except for Dan (Tp. 5617); that a pirate was driving the boat (Tp. 5625); that nothing happened on the boat except that they just rode around in it (Tp. 5618); that the defendant threw Ashley Twiddy into the water and Joshua saved her (Tp. 5607-5608); that they then went back to the "Boat Store;" that they got in a bus and went back to the Little Rascals; that Betsy, defendant and Shelly were on the bus, and the bus was full of children; that he had never been to the defendant's house but told his mother that he had (Tp. 5609); that the defendant had a house that walked around the neighborhood just like the statute in the "Ghostbusters" movie (Tp. 5626); that he and Ashley went to the defendant's house (Tp. 5627); that Ms. Shelly was nice, and he liked her (Tp. 5614); that Shelly was in the room when the defendant did bad things, but she did not see the defendant do bad things to Joshua (Tp. 5631); that he told Michelle Zimmerman that Shelly hurt all the babies at the day care (Tp. 5639); that he doesn't know now if she did it or not (Tp. 5639); that he did not like nap time, but all they did was sleep (Tp. 5628); that he went upstairs with the defendant at the day care; that they watched the movie "Bambi" (Tp. 5629); that nothing else happened upstairs; that Shelly, Betsy Kelly, and defendant and all the children from the day care went into the woods (Tp. 5635); that the defendant killed a lamb in the woods behind the day care. (Tp. 5634) Joshua only attended the day care five times.
F. Kyle Stever.
Kyle testified that the defendant stuck a knife and something else in his butt (Tp. 3377-3379); that the defendant made him suck on his "ding dong;" that the defendant made him touch his "ding dong" (Tp. 3384); that defendant put his finger in Kyle's butt, but not on his ding dong (Tp. 3427); that he does not like Betsy Kelly because "she did bad things to me" but was not able to remember what Betsy Kelly did to him (Tp. 3392); that he doesn't like Dawn Wilson because she did "bad things" too (Tp. 3392); that defendant pushed him to the ground (Tp. 3393); that defendant stuck a 6" play knife into his butt (Tp. 3394); that defendant made him suck his ding dong (Tp. 3397); that he was taken out on a boat at nighttime, and being pushed into the water with sharks (Tp. 3402); that the children and adults were there at the time (Tp. 3403); that the defendant dressed up as a witch (Tp. 3406-3407); that defendant broke into his house with a "magic key" (Tp. 3409); that bad things happened upstairs at the day care (Tp. 3413); that the defendant chased him with a toy snake; that defendant killed a snake and a turtle with a knife; that defendant tied Kyle and other children up with a rope (Tpp. 3414-3416); that the defendant lowered him into a well in a bucket; that there was blood on the floor at the day care; that his neck was cut (Tp. 3417); that defendant made him eat feces (Tp. 3421); that this was at night. (Tp. 3422)
G. Lauren Smith.
Lauren testified "they did bad things to us" (Tp. 9001); that Bob Kelly put his penis in her front privates (Tp. 9001); that this sometimes happened in Shelly Stone's room, sometimes upstairs at the day care, sometimes at nap time and sometimes in the morning after her mother left (Tp. 9002); that the defendant put other things in her; that he put a pencil and a needle in her privates; that he put his penis in her bottom and in her mouth; that he "peed" in her mouth (Tpp. 9003-9005); that the defendant would take her and Ginny Parrish in a truck to a place in downtown Edenton; that she was taken some place where she had to go upstairs (Tp. 9006); that at this place the defendant put a needle and a pencil in her privates; that Betsy Kelly was there and Dawn Wilson was there (Tp. 9007); that everybody was in the room watching as the defendant put needles in her (Tpp. 9034-9042); that she does not remember whether anyone put a needle in Ginny Parrish (Tp. 9044); that the defendant would give her pills that made her sleepy (Tp. 9008); that the defendant made spaghetti for the children; that there was "poop" in the spaghetti sauce (Tp. 9010); that the defendant put her in a "jail" upstairs at the day care (Tp. 9010); that defendant and the other adults at the day care killed babies with knives; that, on second thought, maybe the babies were paper babies (Tpp. 9055-9056); that Bob Kelly and Betsy Kelly killed dogs with a knife; that perhaps the dogs were pretend dogs (Tpp. 9062-9063); that the defendant killed real rabbits with blood in them (Tpp. 9065-9066); that the defendant cut a kitty's legs off and put blood on Ashley Winslow (Tp. 9117); that Bob Kelly killed real bunnies at the day care; that Mr. Kelly killed real birds at the day care (Tp. 9122); that the defendant killed real snakes at the day care (Tpp. 9123-9124); that Bob Kelly peed in her mouth upstairs at the day care (Tpp. 9070-9071); that the defendant also peed in somebody else's mouth, but she doesn't remember whose (Tp. 9072); that she saw the defendant touch Ginny Parrish and Brooke Small; that the defendant touched her in front of the whole class (Tp. 9081); that she was on a boat with the defendant; that sometimes the whole class was there, sometimes just the girls were there and sometimes just the boys were there (Tp. 9081); that Ginny Parrish and Brooke Small were there on the boat; that the defendant, Shelly Stone and Betsy Kelly, were on the boat (Tpp. 9081-9082); that the boat was a sailboat with a cannon (Tp. 9083); that the defendant had "puppet snakes" on the boat; that sometimes the defendant was not on the boat, but just Dawn, Shelly and Betsy were (Tp. 9088); that there was another boat, a motorboat with no cabin (Tp. 9088); that the defendant once pushed her brother into the water, but she was not there when this happened (Tp. 9092); that, while on a boat, Bob Kelly put his private in her privates and his finger in her privates (Tp. 9157); that Betsy Kelly and Dawn Wilson put their penises in her (Tpp. 9092-9096); that the defendant tried to make her eat poop at the day care (Tp. 9108); that the defendant made Ginny, Brooke, Will and Richard eat poop; (Tp. 9109); that the defendant make everybody eat poop (Tp. 9110); that Robin hurt her; that Robin hit her and put scissors "up to" her privates (Tpp. 9111-9112); that she told Judy Abbott about being tied up, but does not know whether that happened or not (Tpp. 9114-9117); that, if it happened, Shelly Stone did it and children were watching her (Tp. 9117); that, on second thought, the defendant did not put pins in her hiney; but only on her hiney (Tp. 9150); that she does not remember him putting his penis in her front private (Tp. 9150); that, on second thought, the other objects were placed on her privates, rather than in her privates (Tp. 9151); that, on third thought, the defendant put markers in her privates; that Betsy Kelly and Shelly Stone did this, as well (Tp. 9152); that pins and penises and fingers and pencils were all put in her privates and in her mouth upstairs at the Little Rascals (Tp. 9156); that this also happened to Ginny Parrish (Tp. 9156); that she does not remember nap time at the Little Rascals. (Tp. 9049)
H. Richard Dixon.
After extensive leading questions, Richard testified that the defendant touched him (Tp. 8519); that the defendant touched him on his bottom; that the defendant put his finger in Richard's hiney; that this happened in the bathroom at the Little Rascals, both the old Little Rascals and the new Little Rascals (Tpp. 8519-8522); that the defendant touched his "wee-wee" during nap time (Tp. 8522); that he was on a boat with the defendant; that the defendant woke him up at naptime and took him to the "boat place" where Frankie Harrell's father helped them get on the boat; that Will Hollowell was with them; that, on other occasions he was with some "boys," but not Will or Alex; that the boat was either a houseboat or a row boat, but was not like the boat Will described (Tp. 8528-48); that they went treasure hunting on the boat; that there were scuba tanks and wetsuits on the boat; that they dug for treasure with little shovels (Tpp. 8558-8559); that "that really, truly happened" (Tp. 8560); that the defendant took him, Will Hollowell and Alex to the woods and in the woods the defendant touched his wee-wee (Tp. 8529); that the defendant touched him on his bottom and touched Will and Alex on their bottoms (Tp. 8530); that on one occasion the defendant came into his house; that the door was unlocked; that nothing happened in the house (Tp. 8531); that Shelly "touched me" (Tp. 8552); that Robin "touched me" (Tp. 8553); that Brenda "touched Alex and Will" (Tp. 8556); that he "woke up" just in time to see Brenda touching Will (Tp. 8557); that the defendant shot a lion in the woods by his cousin's house (Tp. 8565); that they cooked the lion on a fire; that the lion was really a "pretend lion," but the fire they cooked the lion on was real; that they took the pretend lion back to the day care and made it into a rug (Tpp. 8568-8569); that he saw Dawn touch other children in the T.V. room, including two girls; on second thought, that he didn't actually see it, but could hear it (Tpp. 8584-8587); that there was a television upstairs; that he, Alex, Will and the defendant were the only ones there at the time; that there was a "pet room" upstairs with pretend animals (Tpp. 8589-8590); that Alex came with the defendant to his house one day, but nothing happened (Tpp. 8592-8593); that they watched T.V. and played games and then went back to the day care while everyone was still asleep (Tpp. 8594-8595); that the defendant took him and Alex to the Fair (Tp. 8604); that they then went back to the day care while everyone was still asleep (Tp. 8604); that Betsy Kelly touched Alex and Will in the bathroom; that he was in there too and Betsy touched him; that they then went back to sleep (Tpp. 8607-8608); that Shelly tied him up and tied Alex up (Tp. 8609); that Shelly also "touched us;" that the other children were in the T.V. room at the time (Tpp. 8609-8611); that Shelly put tape on their mouths and then touched them. (Tp. 8612)
I. Betsy Vogedes.
Betsy testified, "All I remember is that he touched kids. He would put their . . . he like put his finger in their privates or something." (10,561) She was then led to say that the defendant put his finger in her privates and made her lick his penis and put his privates in Dawn. (Tpp. 10,562-10,568) As to whether the defendant touched other children, Betsy testified "He touched kids. I just - just know it, because if he's touched everybody else and everyone else has been up here, then I kind of know that they've been touched." (10,597)
Betsy testified that she saw Privott at day care. "He was touching kids too." (10,649)
Betsy was led to testify that Betsy Kelly "touched kids" too. (10,569) She never saw it, but "I just know it." (10,595) Betsy added, "I think she touched me." (10,595)
J. Will Hollowell.
Will was asked "Did Mr. Bob ever touch you somewhere that you didn't like"? (Tp. 6303) Will responded that he did not want to talk about that. Will was eventually led to say that defendant put his finger in his hiney; that defendant put his foot in Will's hiney; that the defendant put his penis in Will's hiney (Tpp. 6305-6307); that the defendant put an ink pen in his hiney; that the defendant put a knife in his hiney; that Will put his penis against the defendant's hiney; that Will put his penis in the defendant's mouth; that the defendant did not put his penis in Will's mouth (Tpp. 6307-6309); that he licked the defendant's hiney; that the defendant threatened him (Tpp. 6310-6311); that Shelly Stone did things but that he did not want to talk about that (Tp. 6318); that he heard the defendant tell Cindy to touch all the babies (Tp. 6321); that Betsy did "bad things;" that she would "touch kids where she wasn't supposed to" (Tp. 6322); that he did not actually see that (Tp. 6323); that he was taken to a boat from the day care; that it was a fishing boat with nets that "he used to drop on me" (Tp. 6331); that sometimes the defendant would be on the boat and sometimes Shelly would be on the boat (Tp. 6331); that Alex Bean was there but not Josh Spivey; that the boat had nets on long arms and that the defendant would hang children from the nets (Tpp. 6332-6334); that the boat was carried to the water on a trailer and put into the water at Sandy Point (Tp. 6333); that the defendant took him and Alex Bean hunting for buried treasure (Tp. 6336); that there was a tiger and some snakes at the day care (Tpp. 6340-6341); that the defendant put a candle in his hiney and a knife in his hiney (Tpp. 6343-6344); that one time the defendant set fire to the chair he was sitting on (Tp. 6346); that the defendant tied him up with a "steel rope" and a chain; that Alex Bean was there at the time (Tp. 6350); that the defendant tried to put snakes on him on the boat and that Shelly was helping the defendant (Tp. 6351); that the defendant tied him up in a bag and hung him from a tree in Will's backyard (Tp. 6354); that the defendant did the same thing to Alex Bean (Tpp. 6355-6356); that Betsy Kelly climbed up into the tree to help defendant (Tp. 6356); that the defendant took him and Anne to the "Sheriff's Station" one day when the sheriff was out to lunch; that the defendant put them in the jail; that someone named "Officer Tim" let them out (Tp. 6358); that he was "sure" that this happened (Tp. 6359); that defendant had an "evil bird;" that the defendant took him, Alex, and Will Pruden to the theater and scared them with the bird; that Josh Spivey was also there (Tpp. 6360-6362); that Dan Brooks told him that the defendant had put his finger in his bottom (Tp. 6363); that Scott Privott kept sharks as pets; that Scott Privott invented a machine to catch sharks in (Tpp. 6366-6367); that he was on a boat with other adults and there were sharks there (Tp. 6368); that Dawn threw food to the sharks; that he saved Alex from the sharks; that he is sure that that's the truth (Tp. 6369); that he knows it is the truth "because I told my mamma that" (Tp. 6371); that the defendant's dog pooped on him (Tp. 6376); that after that, he went home by himself and washed his clothes (Tp. 6377); that he locked the defendant in upstairs at the day care and that the defendant broke out a window and climbed down a ladder from the upstairs (Tp. 6385); that he was in a bathroom upstairs (Tp. 6387); that upstairs he saw cobwebs, a tarantula, a cobra, a rattlesnake, a barn owl and tree owl (Tp. 6388); that he went upstairs on a second occasion and again locked defendant in (Tp. 6390); that he saw Scott Privott come with a car and take the snakes away (Tp. 6391); that the defendant threw his friend Anne across the room; that Shelly Stone prayed to the devil outside the day care; that the defendant put him in a UPS box and taped it up (Tp. 6406); that he used a little piece of pottery to get out of the box (Tp. 6408); that on one occasion, the defendant hung him up by his neck in Will's backyard; that William Pruden was there at the time (Tpp. 6412-6413); that the defendant and Betsy took him and Dan Brooks upstairs and scared them with rattlesnakes (Tp. 6414); that the defendant put his penis in Will's mouth (Tp. 6420); that the defendant peed in his mouth; that the pee was purple (Tp. 6425); that defendant "pushed kids around and acted mean" at the old day care (Tp. 6427); that sometimes the defendant took kids into the bathroom; that he never saw it, but he heard about it from someone else. (Tp. 6427)
K. Beth Bateman.
Beth testified that "they did bad things" (Tp. 11,255); that "Mr. Bob stuck his finger in my butt;" that this sometime happened first thing in the morning, and sometime at naptime; that the defendant put his penis in her "hiney," and in her mouth; that the defendant put his penis in her butt; that she watched adult movies upstairs; that Scott Privott brought the movies; that Brooke, Betsy, Alex, R.H. Partin and Dan Brooks were upstairs watching the adult movies with her; that nobody was abused upstairs (Tpp. 11,255-11,264); that she saw the defendant have vaginal and anal intercourse with all of the female workers at the day care (Tpp. 11,265-11,266); that both Shelly Stone and Dawn Wilson put their penises in her mouth and in both her front and back private parts (Tp. 11,305); that Betsy Kelly put her penis in her mouth and private parts (Tp. 11,313); that she went on a boat with Brooke and Betsy; that it was a motorboat, not a sailboat (Tp. 11,322); that she heard that "they" killed animals upstairs at the day care (Tp. 11,330); that a black man skinned a hamster upstairs, and got blood everywhere (Tp. 11,333); that she was not actually penetrated in her mouth or privates. (Tp. 11,366)
L. Dan Brooks.
Dan testified that the defendant hurt him "in a whole lot of ways" (Tp. 4777); that the defendant stuck his finger in his bottom; that he did other things, but could not remember what they were (Tp. 4778); that he does not remember who the adults were at the Little Rascals, except for defendant (Tp. 4776); that he saw the defendant's "private part" but does not remember when or where (Tp. 4779); that defendant put his penis in Dan's bottom (Tp. 4782); that Nancy Smith did the same things to him that defendant did (Tp. 4790); that she prayed to the devil on rocks outside the day care (Tp. 4794); that the other workers did that also (Tp. 4795); that everybody at the day care was praying to the devil; that they used a table with candles on it and swords and knives (Tp. 4805); that the defendant had old men with white hair tied up in the back of his truck (Tp. 4795); that the defendant killed a deer and poured blood over the old men (Tp. 4796); that the defendant also had elephants, lions, and tigers in the back of his truck (Tp. 4796); that he went on a boat trip with the defendant; that he could not remember where they went or what the boat looked like or whether anybody but defendant was on the boat (Tp. 4800); that he walked to the boat from the Little Rascals (Tp. 4801); that something bad happened to him on the boat, but does not remember what (Tp. 4803); that he was taken to a special place upstairs at the new Little Rascals; that there was a hole in the roof, and there were axes and hoses there (Tp. 4812); that he never actually went upstairs at the day care (Tp. 4813); that he saw a moose in the woods and the defendant shot it (Tpp. 4814-4816); that the defendant put it in the back of his truck and took it back to the Little Rascals (Tp. 4816); that he never saw any other animals at the Little Rascals except rats (Tp. 4817); that the defendant put "funny things" in the spaghetti; that the "funny things" were meatballs (Tp. 4819); that the defendant put hot sauce on his bottom in the kitchen at the Little Rascals (Tp. 4820); that "The Joker" came to the Little Rascals (Tp. 4821); that the defendant put his head under water in a well in the woods someplace (Tp. 4822); that no one but the defendant was there (Tp. 4822); that he had to eat paper at the Little Rascals; that all the grown-ups made him; that they had "big gasoline bombs;" that they would drop the bombs on him if he didn't eat paper (Tp. 4826); that Betsy hit him in the stomach (Tp. 4830); that Betsy Kelly hit other children in the stomach as well (Tp. 4831); that the defendant dressed like a Ninja Turtle at the Little Rascals. (Tp. 4832)
VIII. THE "OTHER CHILDREN"
Numerous children were investigated. Over a hundred attended the day care at the relevant time. Twenty-nine were the subject of indictments. Very little information on any of the children other than the twelve who testified, was made available by the state to the defense. See Issue I. As a result, there is no record of what most of the children at the day care had to say about the claims of extensive ritualistic, violent and bloody abuse described by the twelve children who did testify. There were several children named as participants in abuse -- e.g., R.H. Partin, who was never the subject of indictment, and whose story may never be heard. Other children, like Katie Small and Ginny Parrish, were the subject of indictment but were not called.
IX. THE DEFENSE.
The defense showed the jury that it was the assumption of guilt, rather than forensic evidence, that was at the basis of the prosecution's case. Defense experts explained that Brenda Toppin, the therapists and the parents used improper interviewing techniques to elicit "disclosures."
Witnesses explained that institutional or ritualized sexual abuse is quite different from incestuous child abuse. For one thing, the concepts of denial and delayed reporting or retraction do not apply to abuse occurring outside the family. Although children may hesitate to accuse their parents or siblings of abuse, children do not hesitate to accuse non family members. Moreover, three or four year old children do not respond to threats in the way an adult does. Once the child is away from the person making the threat, the child is unlikely to be affected by it. What the state characterized as "delayed reporting," was not a symptom of abuse. Rather, the fact that the children did not accuse the defendant until they had been repeatedly interviewed was an indication that it was the interviewing rather than the abuse that caused the disclosures. This view was strengthened by the fact that their children continued to make more and more bizarre allegations the longer they were interviewed. The behaviors thought by the state to be evidence of abuse -- bedwetting, baby-talk, nightmares, etc. -- were more likely the result of trauma from the investigation itself. (Tpp. 15,288-16,472, 19,622, 20,117)
Several expert witnesses testified that there was no significant physical evidence in the case. The only child who showed any signs of trauma to her genitalia had been repeatedly examined and treated for genito-urinary problems for years. These witnesses also testified that there is no recognized set of psychological characteristics that typify sexually abused children, and no recognized "diagnosis" of child abuse outside Chapel Hill. (Tpp. 14,040-14,587)
The defendant presented several witnesses to testify that they saw no abuse. Parents, repairmen, delivery people, etc., testified that they were in and out of the day care at all times of the day without impediment. Moreover the day care was in a quiet neighborhood surrounded by houses and offices. (Tpp. 17,088-17,521)
To rebut the state's evidence that the defendant was a pedophile, the defendant presented evidence that he was not sexually attracted to children. He also presented evidence to show how little opportunity there was for him and the other day care workers to have engaged in the elaborate scheme of abuse attributed to them. (Tpp. 14,631-15,131)
The defendant testified. He repeatedly and categorically denied that he has ever engaged in any sexual misconduct with any of the children at the day care. (Tp. 17,422-17,724)
I. THE PROSECUTION HAS UNCONSTITUTIONALLY WITHHELD INFORMATION FROM THE DEFENDANT WHICH WOULD HAVE BEEN OF MATERIAL BENEFIT TO HIS DEFENSE.
Assignment of Error No. 1, Rp. 619
Assignment of Error No. 7, Rp. 619
Assignment of Error No. 9-11, Rp. 620
Assignment of Error No. 14, Rp. 620
Assignment of Error No. 16, Rp. 621
Assignment of Error No. 40, Rp. 625
Assignment of Error No. 43, Rp. 626
Assignment of Error No. 49, Rp. 626
Assignment of Error No. 54, Rp. 627
Assignment of Error No. 78-79, Rp. 632
Assignment of Error No. 103, Rp. 636
Assignment of Error No. 155, Rp. 645
Assignment of Error No. 208, Rp. 655
The defendant tried unsuccessfully to get from the prosecution information in its possession or control on children who did not testify at trial; information that would have been of material benefit to his defense. Appellate counsel has recently discovered that there is such information. A new trial is required.
1. Material Available to the Prosecution.
Within days after Kyle Stever told his mother that the defendant "played doctor" at the Little Rascals, Brenda Toppin concluded that "something was going on at the day care." She just didn't know how extensive the abuse was. She communicated her beliefs to Audrey Stever, who, in turn, began talking to other parents whose children attended the Little Rascals. What resulted was an extensive effort to confirm the existence and determine the extent of the abuse at the day care. From the beginning, this was a collaborative effort of the District Attorney, the Attorney General, local and state law enforcement, social workers, the Child Medical Examiner Office, parents, babysitters, siblings and private sex therapists. About 120 children attended the day care while it was operated by the Kellys. Presumably, all of them were the subject of the investigation.
Brenda Toppin arranged to have many of the children interviewed by one of four therapists. Toppin also suggested to parents that they keep journals of their questioning of the children. All of this information was either being routinely shared with the prosecution, or available to the prosecution on request.
The prosecution and law enforcement personnel also taped some interviews. For instance, it was revealed during the cross-examination of Julie Spivey, that her son, Josh, had been tape recorded by the District Attorney. A tape recording of an interview by Brenda Toppin of one "investigation child," was discovered by the undersigned while preparing for this appeal. It is unknown how many other interviews were taped by the prosecution. None have been disclosed.
2. Efforts by the Defense to Gain Access to Exculpatory Material.
On 24 January, 1989, after he learned that there were allegations that he had engaged in some kind of misconduct at the day care, Bob Kelly retained attorney Chris Bean to try to find out what he was supposed to have done. From that day on, the defense did everything our law allows in order to get information on the state's case.
There were three theories under which the defense proceeded. First, the defense requested everything it was entitled to receive under the discovery statutes; not only summaries of the interviews with the children, but the actual questions asked and the answers given. Second, the defendant asserted his constitutional rights to receive exculpatory material in the possession or control of the prosecution or state agencies involved in the investigation. Third, the defense repeatedly subpoenaed materials on all the "investigation children" in the hands of agencies, therapists, doctors, and parents, and requested the trial court to review this material in camera before trial and transmit to him any material useful to his defense. All of these subpoenas were quashed.
3. Material Provided by the Prosecution to the Defense or the Court.
Prior to trial, the therapists prepared synopses of their interviews of the original twenty-nine "indictment children." These two or three page summaries, and the medical records of the "indictment children," were transmitted to the defense before trial. Not transmitted to the defense before trial were the actual recordings of the interviews or lengthy "therapy notes" of interviews with the children. During trial, the state dismissed charges or failed to call as witnesses seventeen of the original twenty-nine "indictment children." The prosecution declined to turn over to the defense any of the hundreds of pages of therapy notes and recordings of interviews on the seventeen remaining "indictment children." As each of the twelve "trial children" testified, the state transmitted to the defense "therapy notes" and parent diaries on that child.
The prosecution put in a box some documents on the seventeen "indictment children" who did not testify. This box was transmitted by the prosecution to the trial court. These files were made a part of the Record on Appeal, and have been received by this Court. The prosecution has taken the position that it does not "have" any of the audio or video records of the children made by therapists, parents, state agencies, and that no tapes by law enforcement exist. (April 1991 Motion Tp. at 377) Therefore, with the exception of a few tapes introduced by the prosecution or the defendant at trial, there are presumably no recordings in the material on the "indictment children" available to this Court for review.
Judge McLelland declined to review the material provided to the court on children who did not testify. As a result, none of the therapists' notes or parent diaries on any but the twelve "trial children" was ever turned over to the defendant by the prosecution or the court.
4. Recently Discovered Exculpatory Material.
On 28 October 1993, defendant's appellate counsel went to the Office of the Clerk of Court for Pitt County to view the exhibits. He opened several boxes, none of which were sealed. Most of the boxes contained trial exhibits. One box, like the others unsealed, contained 25-30 manilla files. These files were labeled with the names of both the "trial" children and some or all of the other seventeen "indictment children." In addition, the box contained several hundred unfiled pages of documents concerning a number of "indictment children." Counsel briefly reviewed some of the documents contained in some of the files.
As will be shown, the files contain undisclosed information that would have been of material benefit to the defense.
C. Applicable Legal Principles.
A criminal defendant has a state and federal constitutional right to a fundamentally fair trial. U.S. Const., Amend. XIV; N.C. Const. Art. I, +19. Part of the guarantee of these rights is the requirement on the state not to withhold from the defendant requested evidence "favorable to the accused" and "material either to guilt or punishment." Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d 215, 218 (1963). Evidence is material when
there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.
United States v. Bagley, 473 U.S. 667, 682, 87 L.Ed.2d 481 (1985). See also Jean v. Rice, 945 F.2d 82, 87 (4th Cir. 1991).
Impeachment evidence is exculpatory and falls within the ambit of Brady. Giglio v. United States, 405 U.S. 150, 154-55, 31 L.Ed.2d 104 (1972). Impeachment includes not only cross-examination regarding the truthfulness of a witness, but presentation of conflicting evidence, evidence of bias, or evidence of the witness's inability to remember or accurately report observations. See generally, 1 H. Brandis, North Carolina Evidence +38 (3d.Ed. 1988).
The state has a duty to disclose to the defendant exculpatory material in its possession, custody or control, not just in its files. This includes material in the hands of its agents, or which it has access to. See Pennsylvania v. Ritchie, 480 U.S.___ (social services records); Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964) ("it makes no difference if the withholding is by officials other than the prosecutor"); Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976) (applying Brady principles to information in possession of police); State v. Johnson, 273 Kan. 119, 573 P.2d 976 (1976) (prosecutor deemed to have knowledge of hospital report on victim taken to hospital by police officer).
The prosecution also has a duty to make a good faith effort to assist the defense in procuring exculpatory material. See generally 2 LaFave and Israel, Criminal Procedure, +19.5 (1984 & 1991 Supp.). For instance, in Commonwealth v. Donahue, 396 Mass. 590, 487 N.E.2d 1351 (1986), the defense sought material collected by the FBI, requesting assistance from the local prosecutor. The Supreme Court of Massachusetts held that the prosecutor had a duty to provide reasonable assistance to the defense. Recognizing that the question was one of fairness, the court set out a balancing test for determining the degree of assistance the state would be required to provide: (1) the potential unfairness to the defendant from not having the material sought; (2) the difficulties faced by the defendant in getting access to the material; (3) the burden on the prosecution to assist the defense, and (4) the relationship between the prosecutor and the third party, both in general, and in the instant case.
Due process requires that the defendant have access to exculpatory material in time for it to be used in his defense. E.g., Ake v. Oklahoma, 470 U.S. 68, 84 L.Ed. 2d 53 (1985); State v. Cunningham, 108 N.C. App. 185, 429 S.E.2d 718 (1992); McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988). In some cases, fairness requires the state to transmit exculpatory material to the defendant pre-trial, or for the material to be reviewed by the trial court pre-trial. Pennsylvania v. Ritchie; see generally 2 LaFave and Israel at +19.5(e) (1984 & 1991 Supp.) and cases cited therein.
1. The Recently Discovered Material was Exculpatory.
To understand what constitutes exculpatory evidence in this case, it is essential to understand the theories of prosecution and defense. First, the state's theory was that the workers in the day care were involved in a coordinated scheme of ritualistic abuse. According to the state's evidence, this involved the abuse of dozens of children over a period of more than two years. Several adults were allegedly involved, acting as lookouts, drivers, guards and photographers, as well as molesters. Most of the children said that other children had seen them being tortured, raped, burned, stabbed, tied up or otherwise abused. Therefore, statements by alleged eyewitnesses that they saw no abuse would be exculpatory. Also exculpatory would be statements of the alleged eyewitnesses that they saw abuse, but not like the abuse that they supposedly witnessed. Such evidence would further the defense that the hysteria surrounding this case led children to report imagined acts of molestation.
Second, the state made much of the fact that the children appeared to be giving similar tales of abuse. The defense noted that there were numerous contacts between the various interviewers of the children, and that the interviewers used information from each other to question the children. The defense noted further that the children who "disclosed" had a lot of contact with each other before and after the allegations were made. Information tending to show that children were "learning" from each other or from their interviewers what "Mr. Bob" was supposed to have done would have been helpful to the defense, by showing that the "disclosures" were mere repetitions of stories rather than actual accounts of experiences.
Third, the defendant argued that the improper interviews conducted in this case led to false accusations. Therefore, transcriptions of interviews with children that reveal to defense experts suggestive or coercive interview techniques would be exculpatory. Because the defendant also argued that the state's therapists did not do adequate "reality testing" to separate fact from fantasy in the children's stories, evidence that the therapists accepted uncritically some of the physically impossible accusations against the defendant would be exculpatory.
Fourth, much of the prosecution's case rested on attributing the behavior of the children to having been sexually abused. The defense theory was that the children were reacting normally to stress in their lives -- e.g., new siblings, changes in schedules, sickness, deaths of loved ones -- having nothing to do with abuse. The behaviors reported by the adults -- bedwetting, tantrums, nightmares, etc. -- were either normal for young children, exaggerated by the parent's in hindsight, or actually caused by the repeated interviewing by concerned parents, neighbors, police, therapists, babysitters, siblings, doctors and prosecutors. Therefore, records of interviews showing that the children were displaying unusual behavior for reasons attributable to causes other than abuse, particularly the interviews themselves, would be exculpatory.
Finally, evidence that any of the children accused persons unconnected with the defendant or the day care with sexual abuse of one of the "trial children" would be exculpatory. This too would tend to explain the psychological and physical symptoms allegedly displayed by some of the "trial" children.
The material withheld by the prosecution was exculpatory. For instance, the file on "Child No. 1" contains an allegation that she was raped by the father of one of the "trial children." "Child No. 1" is also quoted as having said that she was taken with four boys, including Alex Bean and Will Hollowell, to Richard Dixon's house. Both Alex and Will denied going to Richard's house. Alex testified that he does not even remember "Child No. 1." Judy Abbott took "Child No. 1" to the Dixon house to meet Susan Dixon and verify "Child No. 1's" story. This material would have been important to show the extent of the hysteria in Edenton at the time of the investigation. It would also have provided defense counsel with important impeachment material.
In the file on "Child No. 2," is a statement from Dr. Desmond Runyan, who examined the child. Dr. Runyan opines that "Child No. 2" is "suggestible," and that her parents have been tending to "interrogate" her. This would have supported the defense theory that anxious parents suggested tales of abuse to their young children.
"Child No. 3" said that she was taken on a boat from the day care to Norfolk. This would have shown the jury that the stories of abuse on boats had gotten more far fetched as time went on. Moreover, as late as May, 1989 "Child No. 3" said that, "They didn't do anything wrong." "Child No. 3" also complains to Betty Robertson that "Mr. Bill" [Special Prosecutor William P. Hart] keeps trying to make her talk about the Little Rascals. "Child No. 3" told her therapist that what she saw coming out of the defendant's penis was purple. One of the "trial children," Will Hollowell, was also being seen by Betty Robertson. Will allegedly told Robertson that the defendant's "pee pee" was purple. Either "Child No. 3" or Will was repeating what the other child or Dr. Robertson said, rather than something he or she herself had personally seen. Showing this sort of "cross-pollination" was central to the defense.
"Child No. 4" is the sister of one of the trial children in this case. She accused several people of having abused her who were never charged with abuse. The defense was in a position to show that these people did not abuse her. Her accusations would have supported the defense theory that the therapists had a "witch hunt" mentality. The notes on "Child No. 4" show that, on at least one occasion, she was interviewed jointly by Brenda Toppin and Susan Childers. This would have supported the defendant's contention that the "therapists" were acting as prosecution investigators. Many of her statements about who abused children, whether anyone wore witch costumes, whether children were taken off-campus for abuse, etc. are in direct conflict with her sister's. Moreover, she did not mention to any of the adults many of the incidents that her sister testified to. Finally, until she was put in "therapy" in June, she claimed that the abuse did not happen.
2. The Defendant Properly Requested this Material.
Defendant moved pre-trial for exculpatory information collected by the state and its agents. In July, 1990, Judge Tillery issued an Order under Pennsylvania v. Ritchie, requiring the prosecution to provide to the court for a pre-trial in camera inspection, material on the children that the state elected to make the subject of indictments or about whom the state intended to introduce evidence under Rule 404. (Rpp. 166-174)
The prosecution sought relief from this Order. In September, 1990, the Supreme Court affirmed that portion of the Order that required the prosecution to disclose to the defendant exculpatory material on any of the children who were to be either the subject of indictment or called as witnesses. It vacated only that portion of the order that required the prosecution "to obtain from third parties, other than law enforcement agencies, any of the material described in said order."
The defense continued to seek the material on the indictment children that the prosecution was receiving from parents and therapists about the children. The state maintained that, even though it had access to material in the hands of the therapists, agencies or parents, it was not obliged under Brady or Ritchie to disclose that information to the defense or to the trial court. It argued that it need only turn over prior statements of those children it chose to call as witnesses.
3. The Trial Court did Not Review Material on Children Until and Unless They Testified.
The state transmitted to the trial court a box of material on the twenty nine "indictment children" The defendant repeatedly moved to have the material reviewed in camera prior to trial. The state took the position that, because the material was in the form of "statements" by the children, it need not be turned over unless and until that child testified. See N.C.G.S. +15A-903(f)(2)(1988); Jencks v. United States, 353 U.S. 657, 100 L.Ed. 849 (1957). Judge McLelland accepted the state's argument, and declined to review the material on any non-testifying "indictment children" other than Bonner Rawls.
It was a violation of defendant's right to compulsory process and due process of law for the trial court not to have reviewed all of the material before it in time for its use by the defense. McDowell v. Dixon; Ritchie; Ake.76
This ruling treats the discovery statute as a limitation on the rights afforded by the Constitution. The drafters of the discovery statute, however, made it plain that their intent was to codify general principles of fairness, not restrict the defendant's access to needed material. See Official Commentary to N.C.G.S. +15A-903 (1988), noting that discovery is ultimately a question of due process. The drafters cited Giles v. Maryland, 386 U.S. 66, 17 L.Ed.2d 737 (1967) and Brady v. Maryland, 373 U.S. 83.
As a result of the trial court's rulings, the defense only got therapists' notes and parent diaries on the "trial children," and only when it was too late for them to be used effectively.
4. The Trial Court Did Not Transmit to the Defense any Material on Bonner Rawls.
The only child whose documents the trial court reviewed was Bonner Rawls. The trial court ruled that there was nothing in their file on Bonner that would have been helpful to the defense. Based on the material in the files of other "indictment children" it is likely that the trial court was wrong; that there is material that would be exculpatory as defined herein. The Court is respectfully requested to review the file on Bonner Rawls. If, as predicted, there is indeed exculpatory material therein, the defendant was denied his constitutional rights to due process.
5. There is a Reasonable Likelihood that Other Such Material Exists.
The examples of exculpatory material already mentioned are by no means an exhaustive list of all of the helpful material in the files. A complete review of the material by appellate counsel has been prohibited by this Court. Rather, these examples are the result of a few minutes' cursory review of the files by appellate counsel. Several other "indictment children" with files in the box were alleged by the trial children as having been involved in specific acts of abuse. There is a reasonable likelihood that there is a great deal of other exculpatory material before the Court.
It is also likely that there is exculpatory material that the prosecution never turned over to the trial court for in camera review. First, there are recordings of interviews with the trial children. These were requested of the prosecution and subpoenaed from therapists and parents. None were disclosed to the defense or the court.
Second, the prosecution had access to detailed parent diaries. Such diaries concerning testifying "trial children" were disclosed to the defense. Upon information and belief, the files in the box before the Court do not contain such diaries.
Third, there were many children who were named by "trial children" as having been involved who were not themselves the subject of indictments. Defendant repeatedly requested statements by these non-indictment children. (Tp. 7670) There is a reasonable likelihood that information from interviews on these children would be exculpatory as already defined.
A recently discovered portion of an interview by Brenda Toppin is a good example of exculpatory material collected on a non-indictment child. "Child No. 5" was interviewed by Brenda Toppin. The interview was audio-taped. Ms. Toppin then apparently taped over this interview with an interview of Betsy Kelly. After the state cross-examined Ms. Kelly about a comment she made during the interview, the defense played the entire interview for the jury. The tape was introduced into evidence as Defendant's Exhibit No. 256, which has since been transmitted to this Court.
At the end of the tape recording is the last few minutes of Ms. Toppin's interview of "Child No. 5." The transcript of this portion of the interview is attached to this Brief with the name of the child obscured. Ms. Toppin did not bring any record of her interviews to court, defendants subpoena duces tecum having been quashed. She testified, however, that she used appropriate interview techniques, did not lead the children, and used the anatomical dolls in a professional and non-suggestive manner. (Tpp. 12,458, 12,461, 12,467-69, 12,473) The transcript reveals that, contrary to Ms. Toppin's testimony at trial, at least some of her interviews were recorded and then intentionally destroyed. It also reveals that Ms. Toppin's interviews were not only suggestive, but coercive to the point of brutality. The child's crying and pleas to stop are met only by Ms. Toppin's promise to stop when the child said what she wanted to hear. The tape also makes it clear that it was Ms. Toppin, not "Child No. 5," who manipulated and touched the dolls. See App. 8.
Transcripts or recordings of other interviews by Ms. Toppin may yet exist. They could have helped prove a pattern of suggestive interviews that would have impeached the testimony by the "trial children."
Another child, Keith Harris, was named by several children as having been involved in the abuse. As a result, both the defendant and Keith's mother, Darlene Harris, were charged. The state did not drop these charges until March, 1991, after it was ordered to provide the defense with information on Keith just as on any other "indictment child." (Rp. 193) The state never provided any material on Keith Harris to the defense or to the trial court. Information collected on Keith showing that he was not involved in abuse, or in material conflict with the state's other evidence, would have been exculpatory in this case. Moreover, because Keith never attended the day care, it would have furthered the defense that the allegations were an hysterical reaction of the community; a reaction that defied reason.
6. A New Trial is Required.
The defendant was constitutionally entitled to exculpatory material in possession of the state in time for it to be used at trial. The state must show now that there could not have been any exculpatory material in any of the material generated by therapists, agencies or parents that the prosecution had access to. N.C.G.S. +15A-1443(b) (1988).
Because the state cannot show that its failure to disclose this material was harmless beyond a reasonable doubt, a new trial is required.
II. THE TRIAL COURT ERRED IN QUASHING DEFENDANT'S SUBPOENAS AND DENYING HIM ACCESS TO THE RECORDS OF THE NC VICTIMS' COMPENSATION PROGRAM .
Assignment of Error No. 9, Rp. 620
Assignment of Error No. 12, Rp. 620
Assignment of Error No. 18-20, Rp. 621
Assignment of Error No. 24, Rpp. 621-622
Assignment of Error No. 38, Rp. 625
The prosecution has consistently argued that it did not "have" any of the therapy notes, parent diaries, or recordings of interviews it had access to. Accordingly, the defense tried to subpoena the parties who did "have" it. Beginning in December 1990 and continuing through July 1991, the defense repeatedly subpoenaed material on all of the investigation children, including "Children Nos. 1-5," from the parents, the therapists, the Child Medical Examiner's Office, Victim's Compensation, Brenda Toppin, DSS, King's Daughters Hospital and Albemarle Mental Health. The prosecution and the custodians of the material opposed the subpoenas. The court quashed them all and sanctioned defense counsel for having issued them.
As already demonstrated, the parents and therapists of indictment children had exculpatory material in their possession. It is very likely that information collected on non-indictment children was even more exculpatory. The prosecution had access to it; used it; suppressed it. A mere fraction of it has come to light accidentally. The defense was entitled to it all.
The subpoenas issued by the defense were proper in form. See Appendix. They ask only for information already in the possession of the parents and therapists. They ask only for material that the parents and therapists were already sharing with the prosecution. They are clear, concise and ask for documents and objects patently material and exculpatory. See State v. Love, 100 N.C. App. 226, 395 S.E.2d 429 (1990), rev. denied, 328 N.C. 95, 402 S.E.2d 423 (1991). As already argued, the material that would have been produced was exculpatory.
It was error for the trial court to have quashed the subpoenas. As already argued, it is likely that the material listed in the subpoenas would have been helpful to the defense. Defense counsel was as precise a reasonably possible under the circumstances in drafting the subpoenas.
Because the court quashed subpoenas that were proper in form and asked for material patently exculpatory, his constitutional rights to compulsory process were denied. Because this error cannot be harmless, a new trial is required. Ritchie; United States v. Valenzuela-Bernal, 458 U.S. 858, 73 L.Ed.2d 1193 (1980).
The defense also moved prior to trial to gain access to the Victim's Compensation records. He argued that he was entitled to this information in order to establish the link between the state and the "private" therapists evaluating the children. (Rpp. 195-196) This motion was denied.
If the files indeed contained exculpatory material, the defendant was entitled to it. If a claim of privilege is interposed, the correct response would be for the trial court to conduct an in camera review of the material. By denying the motion, the trial court ruled as a matter of law that there could not be anything of exculpatory value in the files. The narrow issue is, therefore, whether the state can prove beyond a reasonable doubt that there is nothing of exculpatory value in the Victim's Compensation records. If the state cannot, a new trial is required.
There are several sources of potentially exculpatory material in the files. First, payment records from the state to the therapists would establish what the defense could only argue: that the therapists were acting as agents of the state in investigating the allegations. Establishing that the state was paying therapists to interview potential witnesses to abuse, rather than just victims, would have revealed the true relationship of the therapists to the prosecution, and cast doubt on the objectivity of the therapists. Moreover, the records would have established who the therapists were interviewing, how many times they were interviewing the children, and how much their services cost the state. Finally, the records themselves probably contained statements of or about the children; statements that could well have contained exculpatory material as already defined.
The rulings quashing the subpoenas violated defendant's constitutional rights as enunciated in Brady, Ritchie and their progeny.
III. THE TRIAL COURT ERRED IN NOT SEALING MATERIAL FOR APPELLATE REVIEW .
Assignment of Error No. 10, Rp. 620
In December 1990, the defendant subpoenaed materials on the "investigation children" from the therapists. After the defendant's subpoenas were quashed, he moved to seal for appellate review the documents brought to court pursuant to the subpoenas. This motion was denied. The defendant moved for an ex parte showing of the materiality of these documents. This motion was also denied. Defense counsel filed a sealed affidavit with a showing of the materiality of these documents. (December, 1990 Hearing Tpp. 149-150) Upon information and belief, this affidavit has been transmitted to this Court. None of the material brought into court pursuant to subpoenas that were quashed was sealed for appellate review.
The defendant made a colorable showing that the material subpoenaed would have been helpful to his defense. State v. Hardy, 293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977). It is a due process violation and reversible error for the trial court not to seal material for appellate review. State v. Jones, 85 N.C. App., 56, 63, 354 S.E.2d 251, 255 (1987); State v. Hunt, 64 N.C. App 81, 88, 306 S.E.2d 846, 851 (1983).
IV. THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT WAS NOT ENTITLED TO THE ACTUAL RECORDINGS OF INTERVIEWS WITH THE INVESTIGATION CHILDREN .
Assignment of Error No. 1-2, Rp. 619
Assignment of Error No. 7, Rp. 619-620
Assignment of Error No. 11, Rp. 620
Assignment of Error No. 40, Rp. 625
Assignment of Error No. 43, Rp. 626
Assignment of Error No. 78-79, Rp. 632
A large number of interviews with the "investigation children" were conducted. Many were surely audio or video taped, transcribed, or otherwise memorialized. A few of the tapes came to light at trial. There are more. The state had access to them all. Defendant was also entitled to have access to them in preparation for trial.
Beginning in December, 1989, the defense attempted to get the recordings of the interviews through discovery. The state took the position that it was complying with the discovery statute by providing two or three page synopses of interviews by therapists and others, abridged and edited for the consumption of the defense. The defendant argued that his right to discovery was not limited to the discovery statutes, but was grounded in the state and federal constitutions. He noted that the interview questions were the "tests" conducted by the therapists on the children, and the answers were the "data" upon which the therapists based their conclusions that the children had been abused. Defendant argued he was entitled to have his experts review those tests and that data to draw their own conclusions. The trial court repeatedly ruled that discovery was limited to the statutes, and that the summaries were all the state would be required to provide. (Dec. 1989 Hearing at Tp. 3; May, 1990 Hearing at Tp. 154; July, 1990 Hearing at Tp. 63)
Defendant continued, by motion and subpoena, to seek from the prosecution and the therapists the actual recordings of the interviews. (Rpp. 95, 198, 276, 288-290, 369, 411) As the result of the trial court's rulings, however, the defendant got only "prior statements" or treatment summaries of the twelve "trial children" for use in cross-examination, and a few tapes.
The defendant was entitled to pre-trial discovery of the actual interviews conducted with the children. Whether or not the discovery statute allows it, the constitution requires it. State v. Cunningham, 108 N.C. App. 185.
In Cunningham, this Court considered an analogous situation. At issue was the chemical analysis of a suspected controlled substance performed by the State Bureau of Investigation. The defendant sought pre-trial discovery of not only the "conclusory laboratory reports," but also "any tests performed or procedures utilized by chemists to reach such conclusions." 108 N.C. App. at 195. The state provided only the report before trial. At trial, the state provided the test data for defense counsel to use during cross-examination of the SBI chemist. The Court held it was constitutional error to withhold the test data from the defense until trial:
In sum, the sole document provided to defendant before trial by the state was the SBI "laboratory report." This report, which basically is limited to a statement that the material analyzed contained cocaine, reveals only the ultimate result of the numerous tests performed by Agent Higgens. As such it does not enable defendant's counsel to determine what tests were performed and whether the testing was appropriate, or to become familiar with the test procedures. We conclude that the information sought by defendant is discoverable pursuant to Section 15A-903(e) and the North Carolina Constitution.
Cunningham, 108 N.C. App. at 196; see also State v. Jones, 85 N.C. App. 56
In Jean v. Rice, 945 F.2d 82, two key state witnesses, including the prosecuting witness, identified the defendant after having their memories "hypnotically refreshed." Neither the fact of the hypnosis or the recording of the hypnotic sessions was disclosed to the defense prior to trial, despite a timely request. At trial, before the complainant was cross-examined, the defense attorney discovered that the complainant had made her identification after hypnosis. Counsel requested the tape of the hypnosis session. The state refused to disclose it. The District Court held that, because the defense learned of the hypnosis, the failure of the state to turn over the tapes was harmless. The Court of Appeals for the Fourth Circuit reversed:
We are persuaded that the audio recordings and accompanying reports -- twice requested -- should have been disclosed to defense counsel, and that the government's failure to do so was a violation of the principles announced in Brady and its progeny.
Jean, 945 F.2d at 87.
In this case, defendant repeatedly argued that, in the context of a child abuse investigation, where therapists are "evaluating" children for child abuse, the interview questions and answers are the "tests" and "data" upon which the therapists base their conclusions. Thus, he was entitled to discover not only distillations of weeks and months of therapy and interviewing, but the recordings themselves. Many such recordings existed at the time of trial, either in the hands of the prosecution, the therapists, the parents, or state agencies. Because the defendant was denied access to them, his state and federal constitutional rights to due process and to defend himself were violated.
The prosecution argued repeatedly that it did not "have" the tapes prepared by therapists and parents; that, although it had access to the tapes, it was not obliged to disclose that information to the defense or to the trial court. The trial court agreed.
The relationship between the prosecutors, police, parents and therapists was such that the state should be deemed to have possession, custody or control of the interview records on the "investigation children." Detective Brenda Toppin referred the parents of the children to specific therapists. These therapists were enlisted by the state to interview children who were suspected of having been abused, or who were thought to have witnessed abuse. (Tp. 10,708) Therapists and parents regularly reported to Ms. Toppin the "disclosures" they acquired in their interviews with the children. (Tp. 12,773) They were de facto investigators for the prosecution.
It is undisputed that the prosecution had access to any material collected by the therapists and parents. Whenever a child testified, it was the state who transmitted material on that child to the defense. In the same way it "had" the material on the twelve children who testified, the state "had" material on any of the children investigated.
The prosecution participated in keeping the defense from getting material in the hands of these "third parties." It advised Michelle Zimmerman not to honor the trial court's order to appear and produce. (Rpp. 230-231) It advised Peggy Brooks to keep her tapes of Dan to herself so that it would not have them. (Tpp. 5204, 5260, 5266) It represented parents and therapists in opposing the defendant's subpoenas. Under these circumstances, the prosecution should be deemed to have had constructive possession of the material it suppressed. Anderson v. South Carolina, 709 F.2d 887, 888 (4th Cir. 1983);;; see 2 LaFave and Israel, Criminal Procedure, +19.5 (1984 & 1991 Supp.)(constitutional duty to disclose extends to material prosecution has access to)
Even if the prosecution were under no duty to provide the defense with copies of the tapes, the defense was entitled to subpoena them. As already argued, however, the defense subpoenas for these tapes were quashed. See Issue II.
The state cannot show that the suppression of this material was harmless. Without it the defendant was not in a position to show the actual questions and answers from the interviews so that he could in turn show, after review by defense experts, that the interviews were suggestive, contaminated, and likely to have caused the behavior attributed by the state to sexual abuse.
Because the defendant was not allowed access to tapes made by the therapists, the state was able to make the following improper argument:
Now, if there was any question, ladies and gentlemen, about the accuracy of the tapes and whether there was leading or suggestive questions, don't you know that those little subpoenas would have been sent out for those tapes, and they would have played them for you if there was anything improper about the way she questioned those children. But it's much easier to just suggest that there might have been improprieties.
Tp. 21682; see Issue XIII.
Had the defendant been able to examine those tapes made by Judy Abbott and the other therapists, he would have been in a position to point out some of the irregularities the prosecutor argued did not exist. As it was, the prosecutor could suggest that, because the defendant did not present the tapes, the interviews were models of objectivity and propriety. This is precisely the concern that informed the decisions in Cunningham and Jean.
V. THE SUPPRESSION OF EXCULPATORY MATERIAL BY THE PROSECUTION DENIED DEFENDANT'S DUE PROCESS RIGHTS .
Assignment of Error No. 19, Rp. 621
Assignment of Error No. 37-38, Rp. 625
A prosecutor has an ethical duty to see justice done. See State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); ABA Standards for Criminal Justice, The Prosecutorial Function at +3. The prosecution failed in this duty here.
The prosecutor argued strenuously, and successfully, that he did not "have" the material produced for the prosecution by the parents and therapists. He then purported to represent these same "third parties" in having the subpoenas served on them quashed. By this act, the prosecution was not a passive party, declining to provide information to the defendant, it was actively suppressing material sought by the defense and in the hands of others.
It is a state and federal due process violation for the state to interfere with the defendant's right of compulsory process. See, e.g., Collins v. State, 642 S.W.2d 80 (Tex. Crim. App. 1982); Freeman v. Georgia, 599 F.2d 65 (5th Cir.) cert denied, 444 U.S. 1013, 62 L.Ed.2d 641 (1979).
The prosecution sought further to suppress the truth by dismissing the cases of children rather than reveal to the defense material collected during the preparation of this case. The trial court limited the state's duty to disclose exculpatory material to prior statements by witnesses. The state then ensured that the defendant would not learn anything about most of the "indictment children" by the simple expedient of not calling them as witnesses.
Judge Butterfield ordered Michelle Zimmerman to honor a subpoena for material on Keith Harris. The prosecutor wrote Ms. Zimmerman a letter advising her that the Judge Butterfield's Order was without effect. (Rpp. 230-231)
Finally, the District Attorney denied the existence of any tapes in his possession. During trial, it was revealed that an interview with Joshua Spivey was indeed recorded by the District Attorney. It was only then, long after Josh had left the stand, that the prosecution turned the tape over to the defense. (Tpp. 5970-6016) Not disclosing the existence of the Josh Spivey tape until the tape was revealed by one of its witnesses was improper.
This case has evoked strong emotions in everyone connected with it. It is understandable that prosecutors, like other people, sometimes get personally involved in their cases. However, when that personal involvement blinds these individuals to the special duty they swear to uphold, the integrity of the criminal justice system, and the due process rights of defendants, are compromised.
Because the prosecution here repeatedly, actively and deliberately blocked every effort by the defense to secure the material he needed for his defense, a new trial is required.
VI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR PHYSICAL AND PSYCHOLOGICAL EXAMINATIONS OF THE PROSECUTING WITNESSES .
Assignment of Error No. 25, Rp. 622
Assignment of Error No. 163, Rp. 647
Assignment of Error No. 200, Rpp. 652-653
Defendant must be re-tried because the trial court denied his motion to have the prosecuting witnesses examined by defense experts, and allowed the state to improperly exploit that ruling.
B. Factual Background.
On 21 February 1991, the defendant filed a motion to have the prosecuting witnesses made available by the court for physical and psychological examinations by defense experts. (Rpp. 270-274) This motion came on for hearing 1 April 1991, and was denied. (Tp. 185, April 1991, Motions, line 23) As part of the limited discovery in this case, the state transmitted to the defense slides made from Polaroid photographs of some of the physical examinations taken by the state's experts.
At trial, the state presented several witnesses to testify to both the psychological and physical examinations conducted as part of the state's investigation and prosecution of these cases. Several testified that they diagnosed some of the children as having been abused based on physical examinations and psychological interviews. See Issue VII. Defense witnesses reviewed what they could find out about the methods and results of the state's witnesses. They offered contrary opinions. The state pointed out repeatedly, through cross-examination and argument, that the defense witnesses had not themselves examined the children. In addition, the state presented evidence that the photographs of the physical examinations of the children were inadequate to illustrate the physical findings of abuse testified to by the state's witnesses.
1. Physical Evidence
As a part of its investigation of this case, the state arranged for several of the children to be examined by the Child Medical Examiner Program in Chapel Hill. The examinations of the girls were conducted six to twelve months after Mr. Kelly's last contact with the day care operation, and three to six months after the day care closed.
As to the medical examinations, Dr. Jean Smith and Dr. Desmond Runyan testified to "subtle" changes in the genitalia of four girls. The doctors concluded that the physical evidence, in combination with interviews conducted over the months leading to the physical exams, showed that the children had been abused.
The defendant contended that there was no physical evidence to support the charges. Dr. Thomas Irons, a pediatrician and Associate Dean of the East Carolina University Medical School, testified that he reviewed photographs provided by the state's doctors. He testified that he did not see the signs of abuse in the photographs that the state doctors provided and testified to. (Tp. 14,263) Dr. Irons was repeatedly cross-examined about the fact that he did not actually see any of the children. (Tpp. 14,228, 14,273, 14,275)
Dr. Robert Brayden testified for the defense. (Tp. 14,285) Dr. Brayden testified that he reviewed the records on several of the prosecuting witnesses, including the pictures taken by the doctors with the use of the colposcope. He reviewed the records and pictures on Beth Bateman, Brooke Small, Lauren Smith and Betsy Vogedes. Dr. Brayden testified that, in his opinion, there was no evidence of sexual abuse in any of the girls. At most, as to Beth Bateman, there was the possibility that she had experienced some sort of trauma in her genitalia. (Tpp. 14,312-14,314)
Doctor Brayden was cross-examined about the basis for his opinions. The prosecutor hammered away at the fact that Dr. Brayden's opinions were the result of a review of photographs and records rather than in-person examinations. (Tpp. 14,465, 14,476, 14,486, 14,489, 14,510, 14,516, 14,522, 14,530, 14,539, 14,542, 14,544, 14,553, 14,554)
The state called Dr. Smith to testify that the photographs did not properly illustrate the physical signs of abuse she saw in her examinations. The physical evidence was too "subtle" to show up in the photographs given to the defense. (Tpp. 13,377-79)
The prosecutor argued that the state witnesses were more credible than the defense witnesses because only the state witnesses had actually seen and examined the children. (Tp. 21,686) The prosecutor argued that it is difficult to tell whether or not a child has been sexually abused from photographs. (Tp. 21,768)
2. Psychological Evidence.
Several children were "diagnosed" as sexually abused solely on the basis of their "history" of behavior, and their statements to the doctors. Thus, Dr. Smith diagnosed Kyle Stever as having been abused based solely on his parents' statements. (Tp. 13,300) Dr. Frederickson made a "definite" diagnosis of sexual abuse of Will Hollowell based solely on Will's "disclosures," and his "history" as related by Will's parents. (Tp. 13,449) Dr. Frederickson also testified that he made a "definite" diagnosis of abuse of Alex Bean without either physical evidence or statements by the boy. (Tp. 13,502)
The state presented an enormous amount of testimony that the children were having sleep disturbances and toileting accidents, engaging in sexual or aggressive behavior, throwing tantrums and displaying fears of fire, water, bathrooms, police officers, men, animals, going upstairs and boats. In addition, the state presented a lot of evidence that the children did not admit to having been abused until after repeated questioning. The state characterized this as "delayed reporting." The defense presented several witnesses, including Dr. Moisy Shopper and Dr. David Raskin, who testified that the techniques used by the state's therapists probably caused the allegations. The state impeached Dr. Shopper on the ground that he had not talked to the children, but based his opinions on the information given the defense by the state. (Tpp. 19,902, 19,904, 19,936, 20,054, 20,101, 20,102, 20,114-116)
The prosecutor argued that the children did not accuse the defendant until months later because they suffered from Child Sexual Abuse Accommodation Syndrome. (Tpp. 21,098, 21,126, 21,640, 20,990-93, 21,011-12, 21,016, 22,032, 21,729, 21,234, 21,697) The prosecutor argued that the defense witnesses were not in a position to criticize the therapists because they did not actually interview the children. (Tp. 21,686) The prosecutor argued that the defendant could have called the therapists or subpoenaed the tapes of their interviews. (Tp. 21,682)
C. Applicable Legal Principles.
Our discovery statutes read, in pertinent part:
[U]pon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence . . . available to the prosecutor if the State intends to offer the evidence . . ..
N.C.G.S. +15A-903(e) (1988).
Where a discovery statute expressly restricts discovery, the trial court is without discretion to order it. See, e.g., N.C.G.S. +15A-904 (1988); State v. Miller, 61 N.C. App. 1, 300 S.E.2d 431 (1983). On the other hand, where discovery is not expressly forbidden, the trial court has discretion to order it. See State v. Lee, ___N.C.___, ___S.E.2d___ (filed 28 January 1994).
The Criminal Code Commission recognized that criminal discovery is an essential feature of our criminal justice system. The discovery section was intended as a guide for, not an obstacle to, permitting the defendant "to have available at the trial any evidence which he could legitimately offer in his defense." State v. Stevens, 295 N.C. 21, 37, 243 S.E.2d 771, 781 (1978). Thus, interpreting the discovery statutes, our courts have noted that their purpose was "to insure, insofar as possible, that defendants receive a fair trial ." State v. Thomas, 291 N.C. 687, 691, 231 S.E.2d 585, 588 (1977).
Rather than attempting to codify what would be required to insure fairness in every instance, the drafters of the Code intended to leave a great deal to the discretion of the trial court, who is in the best position to arbitrate, in a given case, between the interests of the state and the defense. The Commission recognized that "case law development" of principles of due process would determine the contours of criminal discovery. See Official Commentary to N.C.G.S. +15A-903, citing Giles v. Maryland, 386 U.S. 66, 17 L.Ed.2d 737 (1967) and Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963). Therefore, where the statute does not expressly forbid discovery, the trial court is empowered with discretion to order its disclosure. State v. McDougald, 38 N.C. App. 244, 248 S.E.2d 72 (1978), appeal dismissed 296 N.C. 413, 251 S.E.2d 472 (1979).
The discovery statutes are not intended to limit discovery, but rather to spell out a defendant's minimum entitlement to information. The maximum must be determined on a case-by-case basis. The question is one of fundamental fairness; of balancing the state's legitimate interests in protecting the privacy of the prosecuting witness, against the defendant's interest in defending himself from false imprisonment. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Discovery rules are intended to serve two functions: to "protect the innocent from erroneous conviction and ensure the integrity of our criminal justice system." California v. Trombetta, 467 U.S. 479, 485, 81 L.Ed.2d 413, 420 (1984).
Other jurisdictions have recognized the discretion of the trial court to order an independent physical or psychological examination of the prosecuting witness in a sex offense case. See, e.g, People v. Chard, 808 P.2d 351, 353 (Colo. 1991); People v. Nokes, 183 Cal.App.3d 468, 476-81, 228 Cal. Rptr. 119, 123-27 (1986). Where the defendant demonstrates that, without an independent physical examination of the victim, he would be deprived of his right to a fair trial, the examination must be ordered. See, e.g., State v. Rhone, 566 So.2d 1367 (Fla.Dist.Ct.App. 1990); Lickey v. State, 108 Nev. 191, 827 P.2d. 824 (1992); State v. D.R.H., 127 N.J. 249, 604 A.2d 249 (1992) see generally B. A. Morosco, The Prosecution and Defense of Sex Crimes at +9.07 (1993).
The Supreme Court of Colorado recently adopted the majority approach. The court noted that the Colorado discovery statutes do not expressly allow for such an examination. The court held, nonetheless, that concerns about the privacy of the child must be balanced against a defendant's constitutional right to defend himself. Chard, 808 P.2d 355. The Supreme Court of Rhode Island set out some of the factors that should be weighed in determining whether or not the examination should be ordered:
In determining whether to order an independent medical examination, the trial justice should consider (1) the complainant's age, (2) the remoteness in time of the alleged criminal incident to the proposed examination, (3) the degree of intrusiveness and humiliation associated with the procedure, (4) the potentially debilitating physical effects of such an examination, and (5) any other relevant considerations.
State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989).
North Carolina and Texas have been cited as taking the mechanical approach that, absent statutory authority, trial courts have no power to order physical examinations of prosecuting witnesses. See People v. Chard, 808 P.2d 351 (Colo. 1991). Thus, in State ex rel. Wade v. Stephens, 724 S.W.2d 141 (Tex. App. 1987), the court held that the statute was intended to be a comprehensive discovery statute so that any criminal discovery orders must fall within the confines of its authority. Id. at 144. In State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988), the Supreme Court of North Carolina found no statutory authority expressly permitting a competency evaluation of an adult prosecuting witness, and held there was no error in the trial court's denial of defendant's motion for one. This Court has incorrectly read Fletcher to stand for the proposition that the trial court has no discretion to authorize a medical examination even where defendant has a compelling need for one, and even where the state presents its own expert testimony. See State v. Joyce, 97 N.C. App. 464, 389 S.E.2d 136 (1990).
1. The Discovery Statutes Allow For the Requested Examination.
The state will doubtless argue that, in North Carolina, no defense-requested examination of a state's witness could ever be ordered. It will cite Fletcher, Joyce and Phillips for that proposition. It will attempt to distinguish McDougald and Lee. It will ignore the constitutional foundation of discovery.
There are five answers to an argument that the trial court has no discretion to order the examinations requested in this case. First, the Supreme Court has very recently held, as did this Court in McDougald, that the trial court has the discretion to order discovery not expressly forbidden by statute. In Lee, the trial court ordered a defense expert witness to prepare a written report of his findings and conclusions for use by the prosecution in preparing its case. The defendant complained that there was no provision in the discovery statute requiring a witness to prepare such a report. The Court agreed that the statute was silent on this question. It held, however, that, because the statute did not forbid the trial court to order the report, it was within the trial court's discretion to do so. Slip. Op. at. 51-52. There is no prohibition in the statute for the trial court to order psychological examinations of the prosecuting witnesses. Therefore, the trial court had the discretion to order them.
Second, the discovery statute expressly permits a defendant to examine physical evidence introduced by the state, in this case the persons of the prosecuting witnesses. N.C.G.S. +15A-903(e) (1988). Therefore, Fletcher, which dealt only with psychological examinations, is inapposite.
Third, Fletcher dealt only with cases where the prosecution has not presented its own expert's analysis. The situation is different where, as here, the state relies heavily on the results of its own physical and psychological examinations.
Fourth, in State v. Phillips, 328 N.C. 1, 399 S.E.2d 293 (1991), the Supreme Court held that a defendant is not entitled to interview state witnesses. That case did not hold that a defendant is not entitled to have an independent psychological or physical examination of an alleged victim in a sexual abuse case.
Finally, discovery is not a purely statutory matter. This Court has recognized that our Constitution is a separate authority for a criminal defendant's discovery rights. Thus, even where the statute does not provide for discovery, the constitution may require it. See State v. Cunningham, 108 N.C. App. 185, 423 S.E.2d 802 (1992).
2. The Trial Court had the Discretion to Order The Examinations.
At least as to the physical examinations, State v Joyce was incorrectly decided. A request for a physical examination falls squarely under the language of the discovery statute, where a request for a psychiatric exam does not. More importantly, where the state had itself introduced an evaluation of the physical evidence, it creates a different situation than the one faced by the Supreme Court in Fletcher, where the state introduced no such examination.
This Court reached the proper result in State v. Hunt, 64 N.C. App. 81, 306 S.E.2d 81, rev. denied, 309 N.C. 824 (1983). There, the state employed hypnosis to elicit testimony from one of its witnesses. The defense unsuccessfully sought an independent psychiatric examination of the witness, This Court held that, once the state had relied on its experts to elicit the testimony, the defense has a constitutional right to an independent examination of the witness.
It is not necessary for this Court to decide that defendant is automatically entitled to an evaluation of the prosecuting witness. An intermediate position would be to hold that the trial court has the authority to order one, if justice requires. This is the position taken by a majority of jurisdictions reaching the issue. See, e.g, People v. Chard, 808 P.2d 351, 353 (Colo. 1991); see also People v. Nokes, 183 Cal.App.3d 468, 476-81, 228 Cal. Rptr. 119, 123-27 (1986); State v. Rhone, 566 So.2d 1367 (Fla.Dist.Ct.App. 1990); Lickey v. State, 108 Nev. 191; State v. D.R.H., 127 N.J. 249; State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989). This rule would comport with the intent of the drafters of the discovery statutes: that discovery provide the defendant with a fair chance to defend himself.
3. The Examinations Should Have Been Ordered Here.
The state's case was largely based on its expert's examination of the children. Defendant was denied a chance to effectively meet this evidence. Moreover, the state withheld, until after a child testified, the "data" from which the state's experts made their "diagnoses," i.e., the actual recordings and notes of the interviews with the children; material that the state had access to all along. See Issue IV. At a minimum, the trial court should have exercised its discretion in deciding whether, as a matter of fairness, the examination should have been ordered.
The guiding principle for this issue, as in all issues of criminal discovery, is due process. A proper exercise of discretion in this case would have been for the trial court to balance the defendant's legitimate need for the examinations, against the state's legitimate interest in preventing them. Had the trial court conducted such a balancing, the examinations would have been ordered.
The defendant's need for the examinations was great. His theory of the case was that the children were not abused, and that the physical evidence did not support any such diagnosis. As to the psychological examinations, his theory was that the interview techniques by the parents and therapists caused the psychological symptoms, not abuse.
The state had no legitimate interest in preventing the examinations. The defendant's psychological experts were at least as qualified to interview the children as the therapists who evaluated the children. They are more qualified than the parents, siblings, police officers, babysitters, neighbors, grandparents and Sunday School teachers, who also interviewed the children. Moreover, the court could have insured that the examinations were done professionally and ethically. If the court was concerned about the ethics or ability of the defense experts, it could have appointed its own amicus curia to perform the examinations.
As to the medical examinations, the defense experts were all qualified pediatricians. There was no reason to fear that they would do harm to the children by examining them.
The state may argue that having the children examined by an additional examiner would be oppressive. As to the medical examinations, it should be noted that the children had already been subjected -- by the state -- to multiple examinations. Indeed, when either Dr. Lane. Dr. Potocki or Dr. Beals was unable to find physical evidence of abuse in Beth Bateman and Brooke Small, the prosecution had no qualms in sending the two girls to Chapel Hill for further examination. As to the psychological examinations, most of the children had been subjected to hundreds of interviews by various adults over the years this case was being prepared. The additional interviews needed for an evaluation by a trained psychologist or psychiatrist would surely not cause much additional hardship.
4. The State Should Not Have Been Allowed to Capitalize on the Fact that the Defendant Was Denied the Examinations.
The state successfully prevented the defense from examining the children, providing the defense only with photographs. The state introduced those photographs to illustrate Dr. Smith's testimony that the children had been penetrated. In anticipation of Dr. Brayden's testimony that there was no evidence of abuse in the photographs, the prosecutor presented Dr. Smith to testify that the pictures were inadequate to show the evidence of penetration she saw during the examination. (Tpp. 13,377-79) The admission of this testimony, over defense objection, was a separate error denying the defendant a fundamentally fair trial.
5. A New Trial is Required.
The defendant's state and federal constitutional rights to due process and to defend himself were violated by the failure of the trial court to order these examinations. See Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963) (defendant's constitutional rights to defend himself may override statutes denying him discovery). Due process requires at least that the judge consider the withheld evidence to see whether some state's interest outweighs the defendant's need for the evidence. See Pennsylvania v. Ritchie, 480 U.S. 539, 94 L.Ed.2d 40 (1987).
In this case, the trial court exercised no discretion, but rather denied his motion out of hand. In combination with the numerous other rulings denying the defendant information needed for his defense, see Issues I-V, this error denied the defendant a fair trial. U.S. Const. Amend. XIV; N.C. Const. Art. I, ++19, 23, 24.
Because the error in denying defendant's motion was a constitutional one, the state should be burdened to show that it was harmless beyond a reasonable doubt. N.C.G.S. 15A-1443(b) (1983). Even if the burden were on defendant to show a reasonable likelihood that the verdict was affected, defendant would still prevail.
One of the state's witnesses, Dr. Jean Smith, testified that abuse examinations are "subjective." This is an understatement. See, e.g, Paradise, Predictive Accuracy in the Diagnosis of Child Sexual Abuse, 13 Child Abuse and Neglect 169 (1990); White and Quinn, Investigatory Independence in Child Sexual Abuse Allegations, 16 Bull. Am. Acad. Psych. and Law 269 (1988); Quinn, White and Santilli, Influences of an Interviewer's Behaviors in Child Abuse Investigations, 17 Bull. Am. Acad. Psychology and Law 45 (1989). There is a reasonable likelihood that another doctor would have reached a different conclusion. Indeed, where parents took children to be evaluated by doctors or therapists unconnected with this case, no evidence of abuse was seen. As long as the "underlying data" for the diagnoses of abuse was solely the product of state witnesses, and solely in possession of the state, the defendant had little chance to support his theory and raise a reasonable doubt in the minds of the jury.
The state made much of the fact that the defense witnesses had not examined the children. It capitalized on the defendant's plight by repeatedly and effectively impeaching the defense experts on the basis that their opinions were based on the information provided them by the state, not on their own examinations of the children. Lest the jury forget that point, the state drove it home repeatedly in closing argument.
The prosecution denied the defendant access to the material used by the state's witnesses in forming their opinions. It then demeaned the defendant's witnesses because their opinions were not founded on the material denied them. As a result, it cannot be said that the defendant received a fair trial.
VII. THE TRIAL COURT ERRED IN ALLOWING SEVERAL STATE'S WITNESSES TO TESTIFY THAT THEY DIAGNOSED THE CHILDREN AS HAVING BEEN SEXUALLY ABUSED .
Assignment of Error No. 122, Rp. 639
Assignment of Error No. 124, Rpp. 639-40
Assignment of Error No. 162, Rpp. 646-47
Assignment of Error No. 165, Rp. 647
Assignment of Error No. 167, Rpp. 647-48
Defendant must be retried because several state expert witnesses testified that they "diagnosed" the children as having been sexually abused.
B. Factual Background.
Prior to trial, defendant made a motion to prohibit the state's medical experts from testifying that they "diagnosed" any of the children as having been sexually abused. The defendant cited both state and federal constitutions. (Rpp. 322-324) This motion was deferred for trial.
Dr. Jean Smith, a pediatrician with the Child Medical Examiner Program in Chapel Hill, testified to several examinations she conducted during the summer and fall of 1989. Dr. Smith examined Lauren Smith on 21 July 1989. (Tp. 13,197) She noted some "abnormality" in the hymen. (Tp. 13,208) The doctor testified over objection that, in her opinion, Lauren had been sexually abused. The diagnosis of abuse was "definite." (Tp. 13299)
On 28 July 1989, Dr. Smith examined Kyle Stever. (Tp. 13,230) The physical examination was normal. (Tp. 13,237) Nonetheless, because Dr. Smith believed that Kyle's behavior, as reported by his parents, was "consistent with" sexual abuse, she diagnosed the boy as having been abused. (Tp. 13,300)
Dr. Smith conducted an examination of Beth Bateman on 20 October 1989. (Tp. 13,239) Three other doctors had already examined the child and found no indication of sexual abuse. (Tpp. 12,327, 12,330, 12,359-12,377) Nonetheless, based on some scarring in Beth's genitalia, Dr. Smith testified that she made a "definite" diagnosis of sexual abuse. (Tpp. 13,258, 13,300)
Dr. Smith examined Betsy Vogedes on 3 November 1989. In the genital examination, Dr. Smith found a "squared appearance of the hymenal ring." (Tp. 13,279) She also found "anal dilation" in the rectal exam. (Tp. 13,292) Dr. Smith testified, over objection that she made a "definite diagnosis" of sexual abuse. (Tp. 13,302)
Dr. Desmond Runyan examined Brooke Small in August, 1989. (Tp. 13,640) Dr. Runyan testified that the anal examination was normal. (Tp. 13,653) However, the genital examination was "suspicious" or "suggestive" of vaginal penetration. (Tpp. 13,650, 13,656)
Dr. Doren Frederickson testified that he conducted two physical examinations. On 27 October, 1989, Dr. Frederickson examined Will Hollowell. (Tp. 13,445) The examination was normal. (Tp. 13,449) Nevertheless, Dr. Frederickson made a diagnosis of sexual abuse. (Tp. 13,452) This diagnosis was based solely on Will's "disclosures," and his "history." The doctor testified that even a single disclosure could be enough for a "definite" diagnosis of abuse, if the statement was "done through a correct interviewing technique," or was otherwise "believable." (Tp. 13,518)
Dr. Frederickson examined Alex Bean on 26 January 1990. (Tp. 13,423) The examination was normal. Nonetheless, the diagnosis was "sure abuse." (Tpp. 13,509, 13,518, 13,431) The doctor noted that the boy never told him anything about being abused. (Tp. 13,505)
The defense presented Dr. Thomas Irons, the Associate Dean of the East Carolina University Medical School, who testified that he reviewed photographs provided by the state's doctors. He testified that the American Academy of Pediatrics takes the position that it is inappropriate to diagnose sexual abuse without physical findings to support it. (Tp. 14,224) He testified that "sexual abuse" is not a proper diagnosis. He testified that the examination and treatment of young children can cause "subtle signs of penetration." (Tp. 14209)
Dr. Irons testified that he did not see the signs of abuse in the photographs that the state doctors provided and testified to. (Tp. 14,263) Dr. Irons was repeatedly cross-examined about the fact that he did not actually see any of the children. (Tpp. 14,228, 14,273, 14,275)
Dr. Robert Brayden testified for the defense. (Tp. 14,285) Dr. Brayden testified that he reviewed the records on several of the prosecuting witnesses, including the pictures taken by the doctors with the use of the colposcope. He reviewed the records and pictures on Beth Bateman, Brooke Small, Lauren Smith and Betsy Vogedes. He testified that, in his opinion, there was no evidence of sexual abuse in any of the girls. At most, as to Beth Bateman, there was the possibility that she had experienced some sort of trauma in her genitalia, which could include sexual trauma. (Tpp. 14,312-14) He agreed with Dr. Irons that it is inappropriate to "diagnose" a child with sexual abuse. (Tp.14,433)
Doctor Brayden was repeatedly cross-examined about the fact that his opinions were the result of a review of photographs rather than an in-person examination. (Tpp. 14,465-14,554) The doctor testified that the photographs did not show that there was abuse. (Tp. 14,489) The state presented Dr. Smith to testify that it is difficult to diagnose abuse from photographs like the ones given to the defense. (Tp. 13,377) See Issue III.
C. Applicable Legal Principles.
A witness is ordinarily not allowed to offer opinion testimony. N.C.G.S. +8C-1, Rule 701 (1986). An expert is a person who, by special training or experience, is in a better position than a juror to understand a scientific or technical matter. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984). A witness qualified as an expert is allowed to testify to her opinions if they will assist the jury in its deliberations. N.C.G.S. +8C-1, Rule 702 (1986); see generally, 1 H. Brandis, North Carolina Evidence (3d. ed. 1988) at +132.
Recognizing the role of the expert witness as assisting the jury to understand what it would not otherwise, all states reaching the issue have held that an expert may not appear in order to testify that the prosecuting witness has been assaulted. See, e.g., State v. Saldana, 324 N.W.2d 227 (Minn. 1988); State v. Black, 109 Wash. 2d 336, 745 P.2d 12 (1987); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d 291 (Cal. 1984); State v. Taylor, 663 S.W.2d 235 (Mo. 1984); People v. Taylor, 552 N.Y.S.2d 883, 552 N.E.2d 131 (1990); Wheat v. State, 527 A.2d 269 (Del. 1987).
Two reasons are usually cited for not allowing a psychologist to testify that a child has been abused. First, there is no empirical support for the proposition that any witness can accurately determine, especially on the basis of a child's statements or psychological characteristics, that he or she has been subjected to sexual abuse. See State v. Scheffelman, 820 P.2d 1293 (Mont. 1991). Second, such testimony merely attests to the truthfulness of the child witness. As such, it is the functional equivalent of expert testimony on the truthfulness of a witness and inadmissible as a matter of law. E.g. United States v. Whitted, 994 F.2d 444 (8th Cir. 1993). Therefore, it is universally held, such testimony is not helpful to the jury. See State v. Parker, 111 N.C. App. 359, 432 S.E.2d 705 (1993); State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992).
North Carolina is in the majority of jurisdictions who disallow expert witnesses from testifying that they "diagnosed" children as having been sexually abused. In State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987), the Supreme Court found reversible error where a physician diagnosed abuse solely on absence of hymen, and a statement by the witness four years after the alleged incident.
Very recently, in State v. Parker, a pediatrician testified that, based on the "history" of the complainant and a physical exam revealing a non-intact hymenal ring, "It is my opinion that she had been sexually abused over a long period of time based on my exam." 111 N. C. App. at 366, 432 S.E.2d at 709. This Court awarded the defendant a new trial, holding that the question of whether or not the prosecuting witness had been abused was one for the jury, not the doctor:
[L]ike the expert in Trent, [the pediatrician] based his opinion only on his interview with [the prosecuting witness] in which she related a history of sexual abuse and the fact that her hymenal ring was not intact. Given the limited basis for [the pediatrician's] opinion, there is nothing in the record to support a conclusion that he was in a better position than the jury to determine whether the victim was sexually abused.
111 N.C. App. at 366, 432 S.E.2d at 710.
1. The "Diagnoses" of Children Based Solely on "History" Were Inadmissible.
Several children were "diagnosed" as sexually abused solely on the basis of their "history" of behavior. This was not an adequate foundation for the expert opinion. Unlike Trent and Parker, the opinions were based solely on the "histories" given the doctor.
The state may argue that, because some of the histories were provided by the therapists or other experts, the foundation for these diagnoses was strengthened. To the contrary, the fact that the doctors relied on others for the "histories" weakens the foundation of their opinions. Moreover, the jury was in a position to hear the therapists (had the state chosen to call them) and decide for itself whether or not the "histories" was accurate. Finally, the therapists themselves were not competent to testify that the children had been abused. Some states have held that statements by children to sex abuse counselors are presumptively unreliable because of methods typically used by such counselors to extract statements. See, e.g., State v. Harris, 247 Mont. 495, 808 P.2d 453 (1991); Felix v. State, 849 P.2d 220 (Nev. 1993).
In State v. Hall, 330 N.C. 808, the Supreme Court expressed concern that the jury would give too much weight to the testimony of an expert in deciding whether a person has been assaulted. It is the jury, not the expert, that is in the better position to determine whether a complainant's symptoms are the result of sexual assault or something else:
When the complainant testifies at trial that she has been sexually assaulted, the jury is given the unique and exclusive opportunity to access [sic] the credibility of her story, both on direct and cross examination. This is accomplished in a manner which is not usually available to the treating physician who generally assumes the veracity of the patient's account in formulating a diagnosis and treatment. The jury is also able to evaluate her story in light of other evidence adduced at trial. These factors ameliorate the lack of critical inquiry by therapists and may put the jury in an improved position to determine the complainant's credibility.
330 N.C. at 822.
The "lack of critical inquiry" that concerned the Court in Hall was equally evident here. The doctors testified that they never sought to verify the "histories," never consulted with the children's family doctors or pediatricians, relying instead on "reason, logic, and experience." (Tpp. 13,521-22) This testimony was certainly helpful to the prosecution, but not to the jury. As such, it should have been excluded.
2. The "Diagnoses" of Sexual Abuse Based on Physical Evidence and History Were Inadmissible.
Dr. Smith diagnosed Lauren Smith, Beth Bateman, and Betsy Vogedes as "definite" for sexual abuse. Dr. Smith emphasized that a "definite diagnosis" means more than a finding of physical evidence "consistent with" abuse. (Tp. 13,387) The diagnosis was based solely on allegedly abnormal findings in the physical examinations of the children and their "history." As in Trent and Parker, this was inadmissible.
The foundation for Dr. Smith's opinion was weak and without "critical inquiry." She admitted that the diagnostic process was not scientific, and relied heavily on the subjective impressions of the examiner. (Tp. 13,371) Dr. Frederickson added that the field of sexual abuse diagnostic is new and still emerging. (Tp. 13,395)
Dr. Smith testified that she did not review the medical records of the children as contained in the files of the family physicians. (Tp. 13,115) Had she done so, she would have noticed that previous physicians had not seen any signs of abuse. For instance, Dr. Liebert Devine the family practitioner who treated Adam Furlough, Betsy Vogedes, Brian Swicegood and Brooke Small, never saw any indication of sexual abuse in any of these children. (Tpp. 14,057-69) Neither Dr. John DeTriquet nor Dr. Martin Beals found any evidence of abuse in William Brooks. (Tpp. 12,336, 14,125) Dr. Earl Lane, Beth Bateman's family doctor, saw no evidence of abuse in April 27, 1989. (Tp. 14,193)
Further weakening the probative value of Dr. Smith's opinion was that the examinations were conducted long after January 1989, when the defendant last had any contact with the children. Dr. Smith examined Lauren Smith on 21 July 1989. (Tp. 13,197) She examined Kyle Stever on 28 July 1989. (Tp. 13,230) She examined Beth Bateman on 20 October 1989. (Tp. 13,239) She examined Betsy Vogedes on 3 November 1989. (Tp. 13,279)
The state may argue that Trent and Parker are wrong, and that this area should be left to the experts. Defendant would point out that for such a "battle of the experts" to be a fair one, both sides must have access to the children for examinations. See Issue VI. Otherwise, the state can continue to do what it did in this case: demean the opinions of the defense witnesses because they did not examine the children.
3. The Testimony Was Essentially Expert Testimony on the Credibility of the Children.
Most states, like North Carolina, do not allow expert testimony on the credibility of witnesses. State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986); State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299, rev. denied, 319 N.C. 625 (1987). In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), the state introduced evidence of rape trauma syndrome [RTS] to explain why the victim of a rape might not be able to identify her assailant. The Supreme Court of Pennsylvania reversed defendant's conviction:
The crux of the testimony appears to be that the victim's failure to identify the appellant two weeks after the rape is unremarkable, as she was in the acute phase of RTS in which the victim has difficulty performing even normal functions, and the in-court identification five years later is particularly credible, as it results from a flashback, with the mind operating like a computer. It is clear that the only purpose of the expert testimony was to enhance the credibility of the victim.
547 A.2d at 358 (emphasis in original).
Recently, in State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141 (1993), this Court drew a clear line to distinguish admissible from inadmissible opinion testimony regarding the credibility of child prosecuting witnesses. The Court held that it was not inadmissible for an expert to testify that children generally do not fabricate allegations of abuse. It was inadmissible, however, for the expert witness to testify that the child did not fabricate such allegations in this case.
Several experts in this case "diagnosed" the children as "definite" for abuse based on their claims of abuse, or such claims attributed to them by adults. Given the fact that the witnesses were basing their opinions on the statements of the children, this was expert opinion testimony on the reliability of those statements, in other words, on the credibility of the children. As such, the opinion had no place in a criminal trial. Cf, State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).
4. The Defendant Was Prejudiced.
Many courts have recognized that expert testimony in this area carries great, and often undue, weight with the jury:
Permitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the victim was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness.
State v. Saldana, 324 N.W.2d at 230.
Our Supreme Court has likewise recognized the danger of the jury giving too much weight to the testimony of experts in this area:
[T]he potential for prejudice looms large because the jury may accord too much weight to expert opinions stating medical conclusions which were drawn from diagnostic methods having little merit as fact-finding devices.
Hall, 330 N.C. at 820.
In this case, the evidence had the effect of encouraging the jurors to "believe the children." Indeed, Dr. Frederickson testified that he would be able to diagnose "definite sexual abuse" based solely on a single "disclosure" from a child if the disclosure was "believable." (Tp. 13,518) Although this conveniently fits into the state's theory: that the children should be believed without question when they claimed to have been abused -- it devolved to no more than a personal endorsement of the child's credibility by an expert.
Because the testimony here was improper opinion testimony, it was error for the trial court to admit it over objection. Because the error may well have affected the verdict, a new trial is required.
VIII. THE TRIAL COURT ERRED IN ADMITTING OPINION TESTIMONY FROM SEVERAL LAY WITNESSES .
Assignment of Error No. 51, Rp. 627
Assignment of Error No. 62, Rp. 629
Assignment of Error No. 66, Rp. 630
Assignment of Error No. 70, Rp. 630
Assignment of Error No. 82, Rp. 632
Assignment of Error No. 87-88, Rpp. 633
Assignment of Error No. 90, Rpp. 633-634
Assignment of Error No. 92-93, Rp. 634
Assignment of Error No. 99, Rp. 635
Assignment of Error No. 108-110, Rp. 637
Assignment of Error No. 114, Rp. 637
Assignment of Error No. 120, Rp. 638
Assignment of Error No. 124, Rpp. 639-640
Assignment of Error No. 128, Rpp. 640-641
Assignment of Error No. 131-132, Rp. 641
Assignment of Error No. 136, Rp. 642
Assignment of Error No. 140, Rp. 642-643
Assignment of Error No. 145, Rp. 643
Assignment of Error No. 149, Rp. 644
Assignment of Error No. 152, Rp. 645
Defendant was prejudiced by the erroneous introduction of opinion testimony by several lay witnesses.
B. Factual Background.
Each of the "trial children" children had been "evaluated" by one of four "therapists." These therapists also met regularly with the parents of the children. The purpose of these meetings was, in part, to share "disclosures" made at home or during the sessions. The sessions were also an opportunity for the therapists to educate the parents on the psychological characteristics thought by some to be associated with child sexual abuse. The therapists explained to the parents how behaviors such as denying abuse, bedwetting, reluctance to take naps, etc. were indications that their child had been sexually molested.
The state declined to call any of the therapists to testify. Instead, the state presented the parents. After testifying about what they saw or heard their children do or say, many of the parents sought to interpret for the jury the hidden meaning behind their children's behavior. Some parents testified that their children acted in certain ways because they had been sexually abused. Several testified to their opinions about the motives, intentions, beliefs and opinions of their children. Some witnesses testified that the children had not fantasized abuse. Several passed on to the jury the opinions gleaned from others. One witness testified that her son had been abused in ways that he does not remember; that he has "repressed" much of what happened to him.
C. Applicable Legal Principles.
An opinion that a child's behavior is consistent with having been sexually abused is admissible in certain circumstances. State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992); State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987). However, such opinion testimony must be introduced by expert witnesses. State v. Hutchens, 110 N.C. App. 455, 429 S.E.2d 755, rev. denied, 334 N.C. 437, 433 S.E.2d 181 (1993).
In Hutchens, a lay witness was asked by the prosecutor to describe the "emotional state" of the prosecuting witness. The witness testified that the prosecuting witness had difficulty concentrating, sleep disturbances and nightmares. The witness went on to testify that the child exhibited feelings of abandonment, depression and hopelessness. The state followed this testimony with an expert witness, who testified to the psychological characteristics of sexually abused children.
This Court summarized the applicable law:
Opinion testimony on the emotional state of another is admissible in North Carolina pursuant to the following principles. First, North Carolina Rule of Evidence 701 authorizes the admission of lay opinion evidence if the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue. Second, expert testimony regarding the mental and emotional state of an alleged sexual abuse victim has been determined to be relevant and admissible in North Carolina.
110 N.C. App. at 460, 429 S.E.2d at 758 (citations omitted).
The Court went on to apply this law to the facts at hand:
In the instant case, [the lay witness] was neither tendered nor received, explicitly or implicitly, as an expert in any field . . .. The state argues that [she] nonetheless, pursuant to Rule 701, could give her lay opinion as to the emotional state of another. However, [the witness'] testimony went well beyond constituting pursuant to Rule 701 a permissible lay opinion on the emotions [the prosecuting witness] displayed . . .. The "emotions" [the witness] described are in essence the characteristics of sexually abused children recognized in this State and elsewhere and delineated by [the expert witness] who testified immediately after [the lay witness].
. . . .
Our Supreme Court enunciated the rules regarding the admissibility of testimony regarding the characteristics of sexually abused children in Kennedy and, more recently, in Hall. An explanation of the symptoms and characteristics of sexually abused children is admissible (1) only through the testimony of an expert in the field, and (2) only for the limited purpose of assisting the jury in understanding the behavior patterns of sexually abused children. Evidence that a particular child's symptoms are consistent with those of children who have been sexually abused is admissible (1) only through the testimony of an expert in the field, and (2) only for the limited purpose of aiding the jury in assessing the complainant's credibility.
110 N.C. App. at 460, 429 S.E.2d at 758-759 (citations omitted).
The Court found admission of the testimony to be reversible error:
[W]e reject the State's contention that [the witness] simply related a lay opinion as to the emotions displayed on a given occasion for the purpose of corroborating [the prosecuting witness'] testimony. Rather, we agree with the defendant that the introduction of [her] testimony, followed by [the expert's] testimony, was a back-door attempt to introduce non-expert testimony that [the prosecuting witness] exhibited symptoms consistent with those exhibited by sexual abuse victims.
110 N.C. App. at 461, 429 S.E. 2d at 759.
There are at least five categories of improper lay opinion testimony in this case.
1. Testimony About the Nature of Child Abuse and Testimony that Certain Behaviors Were the Result of Sexual Abuse.
Several lay witnesses sought to educate the jury about the psychological effects of sexual abuse. Moreover, parents testified that their children behaved in ways that showed they had been sexually abused at the day care. For instance, Gary Smith testified that Lauren's behavior is attributed to her having been abused at the day care. (Tpp. 9913, 9914, 9923, 9926) Ms. Smith testified that Lauren's fear of fire was related to her having been abused. (Tp. 9599) (Tp. 7226) Susan Furlough testified that it is difficult for children to talk about sexual abuse. (Tp. 7385) She testified that Adam drew distorted pictures because he had been abused. (Tp. 7371) Chris Bean testified that although he had not been concerned about Alex's behavior before, once he learned about the psychology of child abuse, he began to understand that Alex was acting in ways that indicated he had been abused. (Tp 10,329)
This issue is controlled by State v. Hutchens. As in Hutchens, the state used lay witnesses to provide "back-door" opinion testimony from lay witnesses on a subject that the law requires the testimony of an expert. As in Hutchens, a new trial is required.
2. Testimony About the Motives, Intentions and Opinions, of the Children.
Several witnesses tried to explain their children's statements and behavior in terms of abuse. For instance, Brenda Ambrose testified that Nicole was mad at her because she thought that she and her father were involved in the abuse. (Tp. 3321) Both Debbie Swicegood and Frances Wilkins testified that Brian said he had earaches so that he would not have to go to Little Rascals. (Tp. 4192, 4661) Debbie Swicegood also testified that the interviews of Brian brought back fearful memories. (Tp. 4673) Gary Smith testified that Lauren was angry at him because she thought he was involved with abuse at the day care. (Tp. 9768) Mr. Smith testified that Lauren had a fear of fires from being threatened with having her house burned down by the defendant. (Tp. 9764) Ms. Hollowell testified that Will was afraid of bathrooms because he thought defendant could be in them. (Tp. 6889) She testified that Will got upset at a Mickey Mouse poster in his room because it reminded him of the day care. (Tp. 7226) Susan Small testified that Brooke didn't disclose until June 8 out of fear. (Tp. 8114) Grace Bean testified that Alex had denied being abused out of a sense of guilt over what happened to him. (Tpp. 10,074-75) Ms. Small testified that it was only after Brooke began to feel "safe" that she began to "disclose." (Tp. 8104) Debbie Swicegood testified that Brian got upset during some of his many interviews about sexual abuse. She opined that the interviews did not upset him, but what he remembered from the day care did. (Tp. 4673)
It is generally admissible for a lay witness to testify to his perceptions of the emotions displayed by another person. See, e.g., State v. Looney, 294 N.C. 1, 240 S.E.2d 612 (1978). However, a witness may not testify to his opinion about the cause of that emotion. See, e.g, State v. Hill, 105 N.C. App. 489, 414 S.E.2d 73 (1992); State v. Harrelson, 54 N.C. App. 349, 283 S.E.2d 168 (1986).
A witness may testify to the words spoken or the behavior displayed by another for corroboration. However, a witness may not testify to what another person thought, understood, feared, believed, hoped, or intended. See generally 1 H. Brandis, North Carolina Evidence +129 (3d. Ed. 1988).
It was error for the trial court to allow the adult witnesses to interpret for the jury the fears, dreams and beliefs of their children. A parent is certainly competent to repeat what the child has said or done for corroborative purposes. See, e.g., State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986). What caused the words or what they meant, however, is a question for the jury.
3. Testimony That the Children Were not Fantasizing or Making up What Had Happened.
Several parents testified that the children must have experienced the things that they talked about. For instance, Marjorie Hollowell testified that Will had not made up his accusations. She insisted, "No one could have influenced him in any way." (Tp. 6547) Chris Bean testified that Emily Layton would not know about the things she said if she had not actually experienced them. (Tp. 10,307) Larry Spivey testified that Josh was not influenced to "disclose" anything. (Tpp. 6118, 6267) Elaine Spruill kept Alex and Will after the day care closed. She testified that, when Alex and Will described abuse to her, she knew they were describing "real" events, not fantasies. Ms. Spruill testified that the boys "had lived" the stories they told. (Tpp. 10,406, 10,531)
This is not testimony based on perceptions, but on the witness' belief that children of a certain developmental level cannot fantasize sexual conduct. See State v. Patterson, 28 N.C. 533, 220 S.E.2d 600 (1975) (police officer not competent to testify that the defendant understood the Miranda warning). It may have been proper for an expert witness to testify to that opinion. State v. Heath, 316 N.C. at 341, 341 S.E.2d at 568 (dictum); State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804 (1987). However, it was error for the trial court to allow lay witnesses to so testify. See, e.g., State v. Bowman, 84 N.C. App. 238, 352 S.E.2d 437 (1987).
Moreover, the testimony here was not just that a child could not fantasized abuse. It was opinion testimony that the children did not fantasize abuse. Even an expert is not qualified to so testify. In State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, rev. denied, 333 N.C. 576, 426 S.E.2d 701 (1993), this Court drew a clear line concerning what an expert can testify to concerning the credibility of another. It is proper for an expert witness to testify that children generally do not fabricate tales of abuse. However, it is not proper for an expert witness to testify that a particular child did not fabricate the allegations upon which the prosecution is based. That is the sole province of the jury. See also State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299, rev. denied, 319 N.C. 625 (1987) (expert testimony that witness not fabricating story inadmissible).
Several lay witnesses testified to matters that even expert witnesses could not. Their incompetent opinions went to the heart of this case: whether the allegations made by the children were the result of months of suggestive interviewing or actual abuse. Such testimony was not helpful to the jury, but rather displaced the jury as the finder of fact.
4. Opinions From Others.
Much of the opinions testified to by the parents were those of non-testifying therapists. For instance, Lauren Smith's mother testified that, once she learned about psychology of abuse, she began to understand that Lauren had been abused. (Tp. 9592) Chris Bean testified that although he had not been concerned about Alex's behavior before, once he learned about the psychology of child abuse, he began to understand that Alex was acting in ways that indicated he had been abused. (Tp 10,329) Carla Bateman testified that, now that she understands the psychology of abuse, she can understand that Beth's behavior is attributable to having been abused. (Tp. 11,750) Dillard Dixon testified that recent improvements in Richard's behavior were due to therapy. (Tp. 8918)
In addition to being improper lay opinion testimony (that the opinion of the expert is valid), the testimony was inadmissible hearsay, being the repetition of an out-of-court statement introduced for its truth.
This testimony was especially damaging. The defense witnesses were available for cross-examination. The therapists were protected from cross-examination by the state's use of the parents as surrogates. Given the controversial nature of much of the opinion testimony, it was especially unfair for the state to be able to introduce it without effective cross-examination.
5. Testimony That the Children Knew More Than They Said.
Perhaps the clearest error was in allowing witnesses to testify that their children were not telling everything that had happened to them. For instance, Grace Bean testified that Alex had been abused in ways that he does not even remember; that he has "repressed" some of what happened to him. (Tpp. 10,071-72) This testimony could not be based on the adult's perceptions. Rather, it is a pure example of testimony concerning the internal mental state of another.
The central question in this case was why the children acted the way they did in the fall of 1988 and thereafter; why they never told of being abused or told only reluctantly; why they had nightmares or wet the bed; why they accused the defendant of such horrendous conduct. The prosecution's answer was simple: everything the children did or did not do, said or did not say, can be attributable to abuse.
The defendant presented a more reasonable, albeit more complicated, view: The children did not behave strangely, except in the reconstructed memories of hysterical parents. The few abberant behaviors observed emerged after the children began "therapy," and were attributable to the improper, unprofessional and unethical conduct of the therapists, not to sexual abuse. There are no such thing as "typical" behaviors of sexually abused children. Children respond to abuse in a variety of ways, and may be stressed by a variety of stimuli, including sexual abuse investigations. Defense witnesses testified that the therapists assumed that the children had been abused and explained all of their behaviors in those terms. Thus, normal behaviors such as a distaste for being left in day care, masturbation, or nightmares, took on an unwarranted sinister meaning when the assumption was made that the children had been abused.
The prosecution insulated the therapists from confrontation and impeachment. U.S. Const. Amend. VI, XIV; N.C. Const. Art. I, ++19, 23, 24; N.C.G.S. +15A-1443(b) (1988). It was able to rebut the defense only by presenting improper opinion testimony through lay witnesses.
This was a close case. Even if the defendant were required to show that he was prejudiced, he would nonetheless prevail. There is a reasonable likelihood that, had the parents not been allowed to give their opinions on the significance of their children's behavior, the jury would have remained unconvinced that the children had been abused by the defendant rather than by the therapists.
IX. THE TRIAL COURT ERRED IN ALLOWING DEFENDANT'S FORMER ATTORNEY TESTIFY AGAINST HIM AND IN ADMITTING EVIDENCE OF THIS ATTORNEY-CLIENT RELATIONSHIP .
Assignment of Error No. 85, Rp. 633
Assignment of Error No. 130, Rp. 641
Defendant must be re-tried because his former lawyer participated in his prosecution.
B. Factual Background.
On 24 January 1989 defendant retained attorney Chris Bean to represent him on possible criminal charges arising from these allegations. Mr. Bean conducted the defense until 25 April 1989. This included, at least, investigating the basis for criminal charges against Mr. Kelly, arranging for a psychological evaluation, engaging in plea discussions, and investigating the possibility of a civil action for defamation against those making allegations.
On 25 April, Mr. Bean was notified by Brenda Toppin that his son had been "named" by Will Hollowell as having been the victim of abuse. On 29 April, Mr. Bean told the defendant's in-laws that he have to have withdraw from Mr. Kelly's representation. On or about 1 May, the defendant retained Keith Teague to represent him. On 8 May, Mr. Bean's son began seeing Betty Robertson to determine if he had indeed been abused. Sometime between 8 May and 22 June, Dr. Robertson "substantiated" that Alex had been abused. On 22 June, Mr. Bean notified the defendant of his intention to withdraw and formally moved to withdraw from representation.
Mr. Bean participated in the investigation and prosecution of his former client. Not only did he turn over to the District Attorney investigative materials collected on his son, Mr. Bean made public statements in support of the prosecution, and publicly expressed his personal belief that the defendant was guilty. Mr. Bean also reported to the District Attorney on a conversation he had with Mr. Kelly in August, 1989. See Appendix.
On 19 August 1991, defendant moved to have Mr. Bean prohibited from testifying, and from having any witness mention that Mr. Bean had been Mr. Kelly's attorney. He cited both constitutional provisions and ethical rules. (Rp. 391)
Before the state's opening statement, the defendant moved to prohibit the state from mentioning Mr. Bean's representation. This motion was denied. (Tp. 2714) When Marjorie Hollowell identified Chris Bean as having been Bob Kelly's attorney, defendant's objection was overruled. (Tp. 6547) Before Grace Bean testified, and again before Chris Bean testified, the defendant objected and referred to his pre-trial motion. The trial court overruled defendant's objections. (Tpp. 10,057, 10,273) Both Mr. and Ms. Bean testified for the state.
C. Applicable Legal Principles.
In United States v. Schell, 775 F.2d 559 (4th Cir. 1985), attorney David Jividen was retained by two citizens, Reid and Wilson, who were being investigated as part of a large-scale RICO prosecution, known as "the "Gallo case." Mr. Jividen provided legal services, was paid and terminated representation. He was thereafter hired by the United States Attorney's Office, and assigned to represent the government in prosecution of the Gallo case. The United States Attorney divided up the prosecutions against the various defendants, and attempted to build a "Chinese Wall" around Mr. Jividen, thereby insulating him from the prosecution of his former clients. Mr. Jividen thereafter participated in the prosecution of other defendants in the Gallo case.
Several defendants were convicted. On appeal, both of Mr. Jividen's former clients and two other co-defendants sought reversal because of Mr. Jividen's "switching sides."
The Fourth Circuit Court of Appeals affirmed the convictions of the co-defendants who had never been represented by Mr. Jividen. However, it reversed the convictions of Reid and Wilson, Mr. Jividen's former clients. In so doing, the court noted:
The relationship between an attorney and his client is a sacred one. In that relationship, the client must be secure in the knowledge that any information he reveals to counsel will remain confidential. The confidentiality of the attorney-client relationship is severely compromised, if not destroyed, when, after representing a client, a lawyer joins in the criminal prosecution of that client with respect to the identical matter about which the attorney originally counseled the client. Such switching of sides is fundamentally unfair and inherently prejudicial.
775 F.2d at 565.
The court rejected the government's argument that, because the several defendants in the Gallo case were separately indicted and investigated, Mr. Jividen could properly participate in the prosecution of other defendants without prejudicing Wilson and Reid. The court held that, because Mr. Jividen did not represent any other defendants, they could not claim to have been prejudiced by his "switching sides." However, Wilson and Reid were prejudiced by Mr. Jividen's participation in any aspect of the prosecution of the Gallo case. Id. at 656. The court concluded that "due process is violated when an attorney represents a client and then participates in the prosecution of that client with respect to the same matter." Id.
In State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993), the prosecutor subpoenaed the defendant's former lawyer, then a member of the District Attorney's staff, to testify to the numbers of the prosecution files regarding his client, the dates upon which he moved for discovery and reviewed the prosecution's files, and the fact that he talked with his client by phone to set up an appointment. The Court noted that none of this was confidential information. Nonetheless, the Court held that it was improper for the defendant's lawyer to have appeared as a witness for the state. The Court remanded the case for a new trial on other grounds. It took pains, however to instruct the trial court that there must be "no participation in the case against defendant on the part of [the former defense lawyer]. The Court relied on two rules of ethics:
Rule 5.1(D) of the Rules of Professional Conduct states: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same . . . matter in which the person's interests are materially adverse to the interests of the former client" . . .. Rules of Professional Conduct Canon V, Rule 5.1(D) (1985). Rule 9.1(C)(1) states: "[A] lawyer serving as a public officer shall not . . . [p]articipate in a matter in which the lawyer participated . . . while in private practice . . . ." Rules of Professional Conduct, Canon V, Rule 9(C)(1) (1985). The comment to Rule 9.1(C)(1) provides: "Paragraph (C) does not disqualify other lawyers in the agency with which the lawyer in question has become associated." The American Bar Association's Formal Opinion 342, 62 A.B.A.J. 517 (1976), provides that where an attorney who formerly represented a defendant being prosecuted joins the prosecution's office, it is not necessary to disqualify the entire governmental office; however, "the individual lawyer should be screened from any direct or indirect participation in the matter, and discussion with his colleagues concerning the [prosecution] . . . ."
Reid, 334 N.C. at 561. See also State v. Camacho, 329 N.C. 589, 406 S.E.2d 868 (1991) (prosecutor who previously represented the defendant on same matter and obtained confidential information disqualified).
1. Mr. Bean was Disqualified From Testifying Against the Defendant.
In this case, Mr. Bean participated in the prosecution of Bob Kelly with respect to the very conduct for which he was retained to defend Mr. Kelly. He should have been disqualified from participating in the prosecution of his former client. At a minimum, the defendant's motion to disallow him from testifying or revealing his professional relationship with the defendant should have been granted.
Mr. Bean's participation in the prosecution of Bob Kelly was far greater than that considered in either Reid or Schell. He collaborated with the state in its investigation of Mr. Kelly, turning over to the District Attorney reports received from Dr. Betty Robertson. Mr. Bean participated in parent advocacy efforts, making statements to the media "[t]o combat the false impression . . . that the charges arose only because of an hysterical reaction by parents to rumors of abuse, and . . . [t]o attempt to educate parents of young children elsewhere that sexual abuse can and does occur by trusted persons, even in a seemingly safe and secure environment as Edenton." (Rpp. 402-403) He took several of the prosecuting witnesses to the Chowan County Jail to show them that "Mr. Bob" could not get out and harm them. He made public statements that the defendant sexually abused his son. (Rp. 403) He reported to the District Attorney on a discussion he had with Mr. Kelly after his representation was ended.
Mr. Bean candidly admits, "My conduct is no doubt in conflict with the interests of Bob Kelly." He goes on to assert that he does not believe either the Code of Ethics or law prohibit his participation in the prosecution. (Rp. 403)
Mr. Bean explains his conduct in three ways. First, he claims that, because the information on his son was not gathered during the pendency of his representation of Mr. Kelly, there is no ethical or legal impediment to his participation in Mr. Kelly's prosecution. (Rp. 404) Second, his expression of the defendant's guilt was only as to Alex Bean, and had nothing to do with the defendant's guilt of the other charges against him. Third, Mr. Bean was not intending to testify to any confidential matters.
Each of these rationales is insufficient. It is meaningless to assert that an expression of guilt as to Alex Bean would not prejudice the defendant as to other children. The cases against the defendant for all of the children were so intertwined that it is meaningless to describe them as separate. Investigators got leads as to who had been abused by what children told their parents or therapists. Indeed, the allegations concerning Alex did not originate with him, but rather with Will Hollowell. The state itself argued to the jury:
You recall that Alex again is the little boy whose father, Chris, was the gentleman who first represented Bob Kelly in this matter.
Tp. 21,151 (emphasis added).
Just as the government in Schell could not effectively insulate Mr. Jividen by separating the Gallo cases, the state here did not effectively insulate Mr. Bean. The prejudice to the defendant would be the same even if the charges against Alex had been dropped.
It is also of little import that the information shared was allegedly not confidential. Although a similar argument prevailed in this Court in Reid, the Supreme Court opinion makes it clear that the confidentiality of the information revealed in testimony is irrelevant. It is the fact of participation in the prosecution through testimony that is determinative. See also N.C. Rules of Professional Responsibility, Canon IV, Rules 4(A) and 4(B), Comment ("The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source").
Mr. Bean asserts an equitable argument. He writes in his affidavit that the substance of his testimony would have been unavailable from other sources. To the contrary, Mr. Bean's testimony was only corroborative of Alex's. Moreover, it was cumulative to the corroborative testimony offered by Grace Bean or Elaine Spruill. Finally, the state could have called Betty Robertson to testify to the same matters testified to by the Bean's.
The equities favor the defendant. He would have been entitled to a mistrial for Mr. Bean's conduct. However, he did not move for such a drastic remedy. His request was much more modest: to prohibit Mr. Bean from testifying against his former client or otherwise allowing the attorney-client relationship to be used to the defendant's disadvantage. As a matter of fundamental fairness, it was error for the trial court not to have granted this motion. U.S. Const. Amend. XIV; N.C. Const. Art. I ++19, 23, 24. Moreover, the unfair prejudice from the Bean testimony far outweighed any probative value it had. N.C.G.S. +8C-1, Rule 403 (1986).
2. A New Trial is Required.
Schell makers it clear that, where an attorney participates in the prosecution of a former client with respect to the same matter, the client has been prejudiced as a matter of law. 775 F.2d 559. In an analogous situation, our courts have held that a lawyer's concession of his client's guilt is reversible error. State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985); accord Castro v. State, 597 So.2d. 259 (Fla. 1992) (entire prosecutor's office disqualified from prosecution where former defense lawyer discusses case with prosecutor; defendant need not show prejudice; appearance of unfairness requires appellate relief).
Even if the law were that the state could show the error to be harmless beyond a reasonable doubt, defendant would still prevail. The prejudice in this case stems not so much from any confidential matters that the former defense lawyer may or may not have shared with the state. Rather, the damage was in the effect on the jury of a former advocate becoming a prosecutor. Mr. Bean's testimony was powerful and emotional. He recounted the effect of Brenda Toppin telling him that Alex was involved:
I had believed adamantly and completely in Bob Kelly's innocence. And for all of those months, from January through that day, had believed in his total innocence. And for me, I've never been so shattered."
In closing argument, the state repeatedly referred to Mr. Bean's representation of the defendant:
Grace and Chris Bean. You can imagine what Chris Bean went through and what Grace went through, and Alex, with Chris representing Bob Kelly and doing his best to represent their legal interest during those first few moments where charges hadn't yet been brought but there were at least concerns about the day care license and some concern that charges would be brought. And eventually he is faced with his son telling him Mr. Bob did things to me, too. And they told you they didn't want to be involved in this. They didn't ask for indictments. They didn't ask for charges. They didn't want to be involved. They believed it happened but they didn't want to be involved. They said they didn't feel that Alex was strong enough to go through this. But that H.P. Williams talked to Chris and asked him if he could submit indictments and Chris said okay. But they didn't want to be involved in this. They didn't want to participate. No one, I would submit to you, wanted to be.
. . . .
Chris Bean represented Bob Kelly. His son had been at that day care. Bob Kelly had been to his house with his father. Can you imagine that boy ever talking to his father at all? He had to know that his father was part of it. That his father knew everything that was going on.
Tp . 21,792
Given the closeness of this case, and the weakness of the evidence presented by the state, it could not be that this error was harmless beyond a reasonable doubt.
Because Mr. Kelly's former lawyer participated in prosecuting him, and because the state cannot show that this was harmless beyond a reasonable doubt, a new trial is required.
X. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S OBJECTIONS TO THE TESTIMONY OF KELLI DE SANTE .
Assignment of Error No. 3, Rp. 619
Assignment of Error No. 42, Rpp. 625-626
Assignment of Error No. 204, Rp. 654
Defendant is entitled to a new trial because the state was allowed to introduced irrelevant evidence tending improperly to disparage his character.
B. Factual Background.
In its case-in-chief, the state presented a great deal of evidence of bad acts for which Mr. Kelly was not on trial. This evidence included allegations by children of sexual and assaultive conduct other than that set out in the indictments. The state argued that this evidence was to show Mr. Kelly's motive to molest children. As is often the case, the evidence also tended to show that the defendant had bad character. See, e.g., State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987) ("404" evidence often tends to show bad character as well).
To meet this evidence, the defendant presented evidence that he had no sexual attraction to children. This evidence was based in part on the results of an examination of the defendant employing the penile plethysmograph.
The state characterized the penile plethysmograph results as evidence that the defendant is a "normal heterosexual male." It then successfully argued that it should be allowed to cross-examine defense witnesses and produce any evidence it had that the defendant was anything other than a "normal heterosexual male." (Tpp. 14,637-14,840)
The state cross-examined the defense witnesses about the reliability of the penile plethysmograph. In addition, the state attempted to elicit testimony from defense witnesses that the defendant is a pedophile and a sociopath. Both witnesses testified that Mr. Kelly did not fit either classification.
In its case in rebuttal, the state presented Mr. Kelly's ex-wife, Kelli de Sante, the former Martha Jane King Kelly. Defendant was granted a continuing objection to Ms. de Sante's testimony. (Tp. 20,592)
Ms. de Sante testified that she married the defendant in 1969 when he was 21 and she was 17. She testified that the defendant liked anal intercourse with her, that he wanted her to wear sexy negligee, that he wanted to take pictures of her in sexy poses, that he watched "X-rated movies" at the country club with other men in 1973, that he kept heterosexual pornographic books around the house from 1969 on, that he drank too much, that he had been married three times, that he threatened to commit suicide, that he had a violent temper, that he was "sexually aggressive." (Tpp. 20,476-20,714)
Ms. de Sante testified that, sometime before she left the defendant in 1976, she opened a post office box for which Mr. Kelly had a key. In the box were several items, including a mailed magazine that included pictures, inter alia, of naked children in suggestive poses. Ms. de Sante testified that this probably upset her more than someone else because she had been sexually molested by her father from when she was four until she was twelve. (Tp. 20,601)
Ms. de Sante testified that she left the defendant several times between 1973 and 1976, but would always come back. She testified that it was the defendant who tried to keep the marriage together, and suggested marriage counseling. Ms. de Sante testified that she had an affair in 1975. She left the defendant for good in 1976, and moved to Myrtle Beach, Atlanta, Phoenix, San Diego, Myrtle Beach, San Diego, Myrtle Beach, Winston-Salem and San Diego. She eventually settled in Anaheim, California and started two businesses, "de Sante Cosmetiques," and "de Sante Promotions."
In February, 1978, the defendant filed for divorce and custody of their three year old son, Bobby. In her response, Ms. de Sante mentioned nothing about "kiddie porn." She eventually consented for the defendant to have custody of Bobby, so that the boy could live with "a closer father image." (Tp. 20,697) The first time Ms. de Sante mentioned anything about child pornography in connection with Mr. Kelly was in 1990, after she had been interviewed by the prosecutors in this case several times. (Rp. 20,705-706)
C. Applicable Legal Principles.
Every juror knows that a sinner is more likely to commit a crime than a saint. It is therefore probative evidence against a criminal defendant that he has committed prior bad acts; hence the eagerness of prosecutors to present this evidence, and the reluctance of defendants to have it come in. In spite of this relevance, this Court, at one time, properly judged it unfair for a person to have to defend himself for his bad acts in the course of a trial for a present offense. See, e.g., State v. Jeffries, 117 N.C. 727, 23 S.E. 163 (1895); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954); N.C.G.S. +8C-1, Rule 404 (1986); but see 1 H. Brandis, North Carolina Evidence at +92, (3d Ed. 1988), notes 49-50 (questioning special treatment for sex cases). More recently, our court's have abandoned the rule of exclusion of bad act evidence, and replaced it with a rule of inclusion. As long as bad act evidence is relevant to show something of issue in the case, the fact that it also is evidence of bad character is not grounds for exclusion. See, e.g. State v. Bagley, 321 N.C. 201.
1. Defendant Did Not Put His Character At Issue.
At trial, the prosecutor argued that the defendant somehow "opened the door" to Ms. de Sante's testimony by presenting evidence that he is not sexually attracted to children. See State v. Syriani, 333 N.C. 350, 428 S.E.2d 118 (1993); State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992).
At most, the defendant presented evidence tending to rebut the state's evidence, introduced over objection, that the defendant had a motive to molest children. If the door was open, it was the prosecution rather than the defense that opened it. A party should not be allowed to "open its own door" to irrelevant and prejudicial evidence.
Even if the defendant had placed a character trait at issue, it was the narrow trait of not being sexually attracted to young children. The bulk of the state's evidence had nothing to do with children. Rather, it dealt with defendant's sexual activity with adults of the opposite sex, primarily his wife.
Even the testimony concerning the alleged "kiddie porn" was not designed to meet the defense claim that the defendant was not sexually attracted to children. In State v. Hinson, 102 N.C. App. 594, 401 S.E.2d 371 (1991), this Court found it to be error, in a child sexual abuse case, to introduce evidence that the defendant had pornography in his possession, because there was no evidence that the pornography was shown to the victim or otherwise part of the defendant's modus operandi. Cf, State v. Williams, 318 N.C. 624, 350 S.E.2d 353 (1986) (defendant's taking daughter to "X-rated" drive-in showed scheme to commit sex act with her).
2. The Testimony Was Irrelevant to Any Issue in the Case.
The prosecutor argued at trial that Ms. de Sante's testimony was admissible to show the defendant's "motive." However, the evidence was irrelevant under our Rules of Evidence. It cast no light on a motive. What it did do was to portray the defendant as, in the prosecutor's words, "sociopath with sexual problems," and a person with "deviant sexual interests." (Tpp. 21,708, 21,711)
3. The Testimony Should Have Been Excluded Under Rule 403.
The evidence far exceeded the scope of the defense. The evidence presented by the defendant was limited to the fact that he was not sexually attracted to young children. The state's evidence did not rebut that. The testimony concerning affairs, adult heterosexual pornography, sexual positions and so forth should have been excluded. See, e.g., State v. Watson, 22 N.C. App. 540, 207 S.E.2d 370 (1974) (scope of rebuttal not unlimited).
The state's evidence was too old to have any probative value. The defense evidence was based on a psychological examination conducted just months before trial. The state's evidence was of defendant's alleged sexual proclivities from 1969 to 1976, when he was in his twenties, some 20 years before trial. Our courts have found that the relevance of such evidence diminishes over time until it is virtually meaningless. See State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988) (seven to twelve years); State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986) (8 years); State v. Shane, 304 N.C. 643, 285 S.E.2d 813 (1982) (seven months renders prior act too remote).
It is extremely doubtful that Ms. de Sante found "kiddie porn" in the mailbox in the seventies. Her memory is apt to be suspect, due to her own sexual abuse as a child and her extensive history of mental disturbance. Moreover, at about the time this was supposed to have happened, Ms. de Sante was being sued by the defendant for divorce and custody of the children. Not only did Ms. de Sante not say anything in her pleading about the alleged "kiddie porn," she voluntarily gave custody of her children to the defendant. The first time she mentioned to anyone that her former husband was a pedophile was when he was being interviewed by the prosecutors in this case in 1990, more than fourteen years after the alleged incident.
Nor was the state able to link the defendant to the material it characterized as "kiddie porn." Assuming that Ms. de Sante was correct in remembering what was in the post office box, there was no showing that the defendant had requested the material. There was no showing that defendant was the sole boxholder. Ms. de Sante testified that she tore the material up immediately. The defendant never saw it.
Given the tenuous link between the material in question and the defendant, its probative value was miniscule. The prejudicial impact on the other hand was enormous. One of the many quasi-theories of the state was that the defendant and Scott Privott were in the business of producing child pornography. The only evidence of this was the fact that Mr. Privott operated a video store, and vague allusions of some of the children that someone had taken pictures of them at the day care years before. Given that there was no solid evidence that the defendant committed any crimes against the children, the suggestion that he was an aficionado of child pornography would have encouraged the jury to resolve any doubts it had against the defendant.
4. Defendant's Constitutional Rights Were Implicated.
Defendant's due process and confrontation rights are implicated. There was no effective way in 1992 to meet the dim remembrance of a disturbed woman about the incident she testified to, allegedly sometime in 1976 or 1977. Nor would the defendant have been in a position to show that the woman imagined or invented the incident. A defendant is not entitled to psychological examination of the competency of state's witnesses. See State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988) but see Issue VI. Under these circumstances, the defendant's state and federal constitutional right to defend himself and to due process of law were violated. U.S. Const. Amend. VI, XIV; N.C. Const. Art. I, ++19, 23, 24.
5. A New Trial is Required.
Because the error in admitting this testimony deprived the defendant of his constitutional rights, the state has the burden of showing, beyond a reasonable doubt, that the error was harmless. N.C.G.S. +15a-1443(b) (1988). Even if the defendant were burdened to show prejudice, he would still prevail. As already argued, this evidence must have appeared to be jury as a "smoking gun;" proof positive that the defendant committed these crimes. That is certainly the tone of the prosecutor's closing argument. Given the closeness of this case, and the paucity of direct evidence of defendant's guilt, this testimony cannot be deemed harmless.
Because this testimony was inadmissible, the trial court erred in overruling defendant's objections. Because the error was not harmless, but was in fact prejudicial to the defendant, a new trial is required.
XI. THE TRIAL COURT ERRED IN DISQUALIFYING JURORS FOR CAUSE WHO WOULD TEND TO GIVE MORE WEIGHT TO AN ADULT'S TESTIMONY THAN TO A CHILD'S .
Assignment of Error No. 31, Rpp. 623-24
Defendant is entitled to a new trial because two jurors were excused for cause because they would tend to give a child's testimony less weight than an adult's.
B. Factual Background.
Jurors Wainwright and Ida King were questioned about the testimony of children. Both jurors said that, everything else being equal, they would tend to give greater weight to the testimony of an adult witness than to that of a child witness. (Tpp. 1109-1110; 1761-1763) Both jurors were stricken for cause on motion of the state.
C. Applicable Legal Principles.
All citizens are presumptively qualified to serve on a jury. Only those citizens who are specifically disqualified by statute may be excused by the court for cause. See N.C. Const. ++18, 24; N.C.G.S. ++9-3, 15A-1211 (1988).
Our courts have had several occasions to consider whether a prospective juror is disqualified from jury service because of his or her feelings about particular types of evidence. The rule is that, as long as a juror can follow the law regarding the weight to be given evidence, he or she is qualified to sit and may be excused only by a peremptory challenge. Thus, once a juror is instructed on the law and then says that he or she could not abide by the law, a cause challenge is proper. See, e.g., State v. Willis, 332 N.C. 151, 420 S.E.2d 158 (1992) (juror who would hold state to prove defendant's guilt by more than beyond a reasonable doubt not qualified); State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992) (juror who would not be able to follow law regarding defendant's failure to testify not qualified); accord, United States v. Molls, 987 F.2d 1311 (8th Cir. 1993) (juror who could not believe witness testifying under grant of immunity); Johnson v. Collins, 964 F.2d 1527 (5th Cir. 1992). Where, however, a prospective juror could follow the law, notwithstanding certain biases, he or she is not disqualified. See, e.g., State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990); accord, Adkison v. State, 548 So.2d 606 (Ala. Cr. App. 1988); State v. Schwer, 757 S.W.2d 258 (Mo. App. 1988).
In State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977), a juror was disqualified from service because she had a special relationship with law enforcement. Her husband had been a police officer for several years. She knew several of the investigating officers in the case. Although she repeatedly testified that she could be fair and impartial, she said that there is a possibility that she might believe the police officer witnesses more than a stranger.
The Court noted that:
In addition to statutory challenges for cause (as provided in G.S. 9-15), the courts have recognized that under certain circumstances there are relationships which impair a juror's ability to give a defendant an impartial trial.
292 N.C. at 622.
The Court held that, because of the relationship of the witness to the prospective witnesses in this case, she was not qualified to sit. 292 N.C. at 622.
This case was later distinguished in State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991). There, a juror was asked, in pertinent part:
Q. Well, would you think that you would tend to believe a police officer more so than any other type of witness?
A. Possibly, to be honest with you. I'm saying due to the fact that he's supposed to be trained.
. . . .
Q. You think that because of their training they are more believable than other witnesses, because of their training and experience.?
A. Not necessarily so. What I am saying is that perhaps so.
328 N.C. at 676.
The Court held that this juror was not disqualified to sit on the jury. The Court distinguished the juror from the juror in Lee. The Court noted that the juror "would not automatically give enhanced credence to testimony by any particular class of witness. Rather, certain factors in the witness's background, such as training and experience, would affect the credibility of that witness." McKinnon, 328 N.C. at 676. See also State v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1979) (juror who would weigh a police officer's testimony heavier than a civilian's testimony, if there were indicia of special credibility, is not disqualified).
1. The State Did Not Meet Its Burden of Establishing that the Jurors Were Not Qualified to Serve on a Jury.
The responses of the jurors make it clear that they would not automatically believe whatever an adult said in contradiction to a child. Juror Wainwright said only that "all things being equal" she would tend to give more weight to an adult's testimony than to a child's. (Tp. 1110) This can only mean that, if two persons are equal in bias, interest in the outcome of the case, opportunity to observe the events in question, and character for truthfulness, the juror would tend to give more weight to a person who has an adult's perceptual and cognitive powers.
Even if the jurors' answers were that they would automatically believe a child rather than an adult, they would still not be disqualified to serve. Jurors are routinely instructed that, in assessing the credibility of witnesses, they should "apply the same tests of truthfulness which you apply in your everyday affairs." The inevitable difference between children and adults is that adults tend to have more sophisticated mental abilities, better memories, more well-developed perceptual skills and knowledge. It would be perfectly appropriate for a juror to consider these factors in weighing the testimony of a witness. It would be natural for a juror to give the testimony of a truthful, disinterested thirty year old more weight than the testimony of a truthful, disinterested five year old. A juror who would do so is not disqualified from service, but is acting in keeping with the instructions to the jury, which inform them that they may consider the witness' "ability to remember," and whether the testimony is "reasonable" in determining the weight to give their testimony. See N.C.P.I.--Crim. 101.15.
As in McKinnon, the jurors' answers show only that "certain factors in the witness's background, such as training and experience, would affect the credibility of that witness." McKinnon, 328 N.C. at 676. Just as the juror in McKinnon would consider a police officer's experience in weighing his testimony, Ms. Wainwright would consider the experience of an adult evaluating his testimony.
Our law contemplates that some jurors will have ideas about the law that are not accurate. Such jurors are not disqualified to serve if they can set those ideas aside and follow the law as set out by the trial court. In McKinnon, the Court held that a juror who would expect an innocent defendant to testify was not disqualified as long as she could put that natural tendency aside and follow the law. McKinnon, 328 N.C. at 677-78. See also State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993) (test of juror's qualification is ability to follow the law).
As to both jurors, the questioning fell short of revealing whether or not the juror would be able to follow the law on this point. There was no way for the trial court to determine, on the basis of the questions posed the prospective jurors, whether they would be able to follow the law.
2. The Defendant's Motion to Have the Jurors Instructed Was Improperly Denied.
Even if the jurors' responses were that they would automatically give more weight to an adult's testimony, the trial court should have instructed the jury on this point of law before striking them. See State v. Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991). This is the procedure followed by the court in an earlier instance. Juror Little said that, although she did not presume the defendant to be innocent, she would "listen to the evidence." (Tp. 1700) The trial court instructed Ms. Little that it would be her duty as a juror to presume the defendant innocent, and require the state to prove guilt beyond a reasonable doubt. (Tpp. 1701-1703) Ms. Little said that she would be able to follow the law. (Tp. 1703)
Defendant moved the court to conduct a similar procedure as to juror King. (Tp. 1763) Assuming arguendo that the law is that a juror may not give more weight to an adult's testimony, the jurors should have been so instructed and then asked if they could follow that law. If they could follow the law, they were qualified to sit, and the state should have used peremptory challenges to eliminate them from service. In granting the state's cause challenge without making the requested instruction, the trial court erred.
3. A New Trial is Required.
There is no way now to know what effect the improper excusal of these two jurors had on the outcome of the case. It should be noted, however, that the jurors who did sit lacked a healthy skepticism; seemed to be willing to believe some incredible tales told by very young children. Moreover, the defendant should not be burdened with showing prejudice. The improper excusal of a juror for cause should be deemed reversible per se. See Gray v. Mississippi, 481 U.S. 648, 95 L.Ed.2d 622 (1987); Darden v. Wainwright, 725 F.2d 1526 (11th Cir. 1984).
It is an oft-cited proposition that jury selection, including questions of the qualifications of jurors, is within the sound discretion of the trial court. See, e.g., State v. McKinnon; but see State v. Cunningham (awarding defendant new trial where trial court failed to excuse unqualified juror). However, this principle applies only to the determination of what a particular juror's answers in voir dire mean, and whether those answers reveal the juror to be disqualified within the meaning of the constitution and statutes. The trial court has no discretion to determine the qualifications of jury service. Because the trial court determined that those jurors who said they would tend to give a child's testimony more weight than an adult's, everything else being equal, were not qualified for jury service, a new trial is required.
XII. THE TRIAL COURT ERRED IN EXCUSING JURORS FOR CAUSE ON THE GROUND OF ALLEGEDLY POOR READING ABILITY .
Assignment of Error No. 31, Rpp. 623-24
Defendant is entitled to a new trial because qualified jurors were excused for cause because of allegedly low reading levels.
B. Factual Background.
All prospective jurors were given a printed questionnaire. Juror Milton Hardison apparently did not complete all of the questionnaire. In response to questioning, Mr. Hardison said that he had completed the tenth grade in school and could read and write, but "not too good." Juror Hardison was excused for cause. (Tp. 164) Juror Mary Harris was excused because, according to the trial court, she did not understand some of the questions posed her. (Tp. 581) Juror James Johnson said that he went to the seventh grade in school. He said that he can read, but not very well. Mr. Johnson was excused for cause. (Tp. 810) All three of these jurors are African-American.
C. Applicable Legal Principles.
Our state constitution mandates that jury service be universal; that all citizens be subject to jury service. N.C. Const. Art. I, ++18, 24. The only exceptions to this requirement are set out by statute: N.C.G.S. ++9-3, 15A-1212 (1988); N.C.G.S. +15A-1212 (1988). Neither educational level, intelligence or reading ability are grounds for exclusion.
There are three problems raised by the excusal of these jurors. First, reading ability is not a statutory basis for excusal from service or for a cause challenge. Second, even if reading ability were a prerequisite for service in this case, there was no attempt by the court or the parties to systematically exclude poor readers. There is no way to know how many potential jurors had reading abilities comparable to the jurors excused for cause. Third, all of the jurors excused for reading or mental ability were African-American. Giving trial court discretion to exclude poor readers would be unconstitutional. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 42 L.Ed.2d 690 (1975) (jury qualification scheme that tended to exclude women unconstitutional; not a "fair cross section;" exemption from service women overinclusive); Duren v. Mississippi, 439 U.S. 357, 58 L.Ed.2d 579 (1979) (cognizable groups may not be excluded); see generally, 3 Cook, Constitutional Rights of the Accused, +17:14 (1988).
The improper excusal of a juror for cause should be deemed reversible per se. See Gray v. Mississippi, 481 U.S. 648, 95 L.Ed.2d 622 (1987); Darden v. Wainwright, 725 F.2d 1526 (11th Cir. 1984). At least, the state should have the burden of proving that the improper excusal was harmless beyond a reasonable doubt.
For these reasons, the defendant is entitled to a new trial.
XIII. THE TRIAL COURT ERRED IN NOT INTERVENING EX MERO MOTU TO PREVENT THE STATE FROM MAKING SEVERAL GROSSLY IMPROPER ARGUMENTS .
Assignment of Error No. 216, Rp. 656
The prosecutor made several grossly improper arguments to the jury. Even though the defendant did not make a contemporaneous objection, a new trial is required.
The prosecutor is afforded wide latitude in closing argument. However, his freedom is not unbounded. He may not make personal attacks on the defendant's witnesses. State v. Vines, 105 N.C. App. 147, 412 S.E.2d 156 (1992). He may not argue matters not in evidence as evidence of guilt, by making "improper suggestions, insinuations and assertions of personal knowledge." State v. Locklear, 294 N.C. 210, 218, 241 S.E.2d 65 70 (1978). A trial judge is required to strike an improper argument even without objection. See State v. Vines, 105 N.C. App. 147; State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967).
The prosecutor argued, as substantive evidence, a report that had not been admitted into evidence:
You also have the, um, the findings, ah, in earlier testing of Mr. Kelly that shows he's an irresponsible individual and he is compulsive and is totally unable to maintain any sort of close personal relationship with other people. That was, ah, the clinic in, ah, -- in Greenville, ah, Alfred Yongue, ah, where he was diagnosed as a sociopath with sexual problems, um, and, ah, essentially many of the same finding that you saw in court regarding his temper, his inability to get along with people, ah, all of the things you would expect.
21711, lines 1-10.
Dr. Younge's report was not authenticated and not admitted into evidence. Its admissibility was limited to provide the foundation for Dr. Adams' opinion that the defendant is not a sociopath.
The prosecution repeatedly and successfully thwarted the defense efforts at gaining access to tapes of recording by the therapists. See Issues I-V. The prosecutor then argued that the defendant could have, nonetheless, procured them:
The therapists did not work for the prosecutors. They didn't work for Brenda Toppin. They didn't act as investigators. There's no evidence of suggestive and leading questions except the opinions of these leading experts in the country.
Ah, there's no indication of improper techniques except for these leading experts in the country. They were criticized as not providing therapy. and they were criticized for not taping. Well, you know that at least one therapist did tape. That came out in evidence, that Judy Abbott did tape it. And there were transcripts in her notes.
Now, if there was any question, ladies and gentlemen, about the accuracy of the tapes and whether there was leading or suggestive questions, don't you know that those little subpoenas would have been sent out for those tapes, and they would have played them for you if there was anything improper about the way she questioned those children. But it's much easier to just suggest that there might have been improprieties.
21681, line 16 - 21682, line 11.
The prosecutor argued that the defendant engaged in more misconduct than he was charged with:
And you have heard a lot about what went on in the investigation and the charging and the prosecution of this case. And yes, ladies and gentlemen, Bob Kelly has not been charged with everything he could have been charged with. I would suggest to you that from what you've seen, this would have probably been about a ten-year trial, if we had charged him with everything that you heard about that came out in this case with the few witnesses that you've heard.
Tp. 21623, lines 15-23.
. . . .
Well, ladies and gentlemen, you don't know what evidence the State has against the other defendants. And you will not know. You couldn't know because we can't put that evidence on. We can put some evidence on that may help you understand something about the other people. But if you recall, for instance, the letters from Dawn Wilson to Bobby Kelly. We could not put those into evidence. Those could be -- part of the content of those and the fact that they were sent at the time when we were getting ready to go to trial and Bob may have thought he needed to get Bobby Kelly, his son at his side. And the fact that Dawn all of sudden began writing suggestive letters to Bobby Kelly for the first time, that can be considered by you in terms of Bobby Kelly's intent of what he was trying to do in terms of manipulation of the evidence. It can be considered by you in terms of Bobby Kelly's testimony. But we couldn't present any of the contents of those letters and try to show that Dawn Wilson was in fact engaged in anything inappropriate. She didn't testify. If she had testified, then we could have put some things on to impeach her, impeach her credibility.
There are certain things that we can only put on in certain circumstances. And I'll show you an example, ladies and gentlemen. A lot of noise has been made the fact that we brought Kelli DeSante in for rebuttal. And that is the only reason that you would consider that testimony. Why is that? Because we could not -- even though that shows that Bob Kelly may have in the past had some perversion, there's law regarding how far back you can go to show certain things. There has to be connection. There has to be a relevant connection. There has to [sic] a time connection. There are all kinds of considerations that go into what is admissible evidence. And we could not even have put on that evidence about Bob Kelly's sexual preferences if it had not been for the defense putting on Henry Adams and trying to prove that Mr. Kelly is a normal heterosexual man. So you don't know what other evidence we have against the other defendants and you won't know unless you happen to go and set and listen to their trials, simply because some of the evidence would not have been relevant.
21632, line 1 - 21633, line 17.
Each of these arguments was so grossly improper that the trial court should have intervened in order to protect the defendant's state and federal constitutional rights to a fundamentally fair trial. Collectively, the arguments were sufficiently prejudicial to require a new trial.
XIV. THE TRIAL COURT ERRED IN SUBMITTING THREE CASES TO THE JURY THAT WERE DISMISSED AT THE CLOSE OF THE STATE'S EVIDENCE .
Assignment of Error No. 215, Rp. 656
The trial court dismissed charges against defendant for crime against nature involving Joshua Spivey (91 CrS 4266), Beth Bateman (91 CrS 4297) and Will Hollowell (91 CrS 4263) at the end of the state's evidence. (Tpp. 14,036-38) After the defense was presented and the evidence was closed, the court purported to reinstate the charges. (Tpp. 20,954)
Defendant argued that the court had no jurisdiction over the dismissed charges, at least where the defense had already been presented. Defendant's objection was overruled. (Tp. 20,955) Because the trial court was divested of jurisdiction over these charges, defendant's conviction must be vacated.
Our General Statutes provide that the granting of a motion to dismiss after the state rests acts as a verdict of not guilty. N.C.G.S. +15-173 (1988). See also, State v. Ballard, 280 N.C. 479, 483, 186 S.E.2d 372, 374 (1972) ("[w]hether correct or erroneous, the judgment of nonsuit ha[s] the force and effect of a verdict of "not guilty.") Once a verdict of not guilty is entered, a defendant may not thereafter be placed in jeopardy. State v. Ausley, 78 N.C. App. 791, 338 S.E.2d 547 (1986); U.S. Const. Amend. V, XIV; N.C. Const. Art. I, +19.
Once the trial court dismissed the charges at the end of the state's case, it was divested of jurisdiction over them. The resulting judgment against the defendant on these charges is a nullity and should be vacated by this Court.
XV. THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURORS ON THEIR DUTY .
Assignment of Error No. 210, Rp. 605
The defendant submitted a written request for the following instruction:
Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment.
Each juror must decide the case for himself or herself, but only after an impartial consideration of the evidence with fellow jurors.
If, after due deliberation with your fellow jurors, any of you hold a sincere belief that you have made a correct decision based upon the evidence or lack or insufficiency of the evidence presented in this case, then you should hold to such belief and to your personal decision even if you stand alone in such decision. The law does not require that any juror should change his or her minds, or surrender his or her conscientious belief and judgment, in order to reach a verdict.
No juror should surrender his or her honest beliefs and judgments as to the weight or effect of the evidence solely because of the opinion of a fellow juror, or for the mere purpose of returning a verdict.
The trial court declined to give this instruction. This was error requiring a new trial.
This instruction is substantially the same as the statutory instruction on the duty of the jury. N.C.G.S. +15A-1235(b) (1988). It is a correct statement of the duty of the jury, and should have been given.
There is a reasonable probability that the failure of the trial court to instruct on the duty of the jurors was prejudicial. There was sworn testimony at a Motion for Appropriate Relief hearing that some jurors voted for a verdict of guilt not out of personal belief in the guilt of the defendant, but out of deference to the opinions of others. (Hearing Tp. 32-120) There is a reasonable probability that, had the "hold out" jurors been instructed by the court that it was permissible for them to remain true to their beliefs without violating their duty as jurors, they would have done so, resulting in a hung jury.
It is noteworthy that in this case the trial court did not give any instruction on the jury's duty to be unanimous, as required by statute and specifically requested by the defendant. (Rp. 417); see N.C.G.S. +15A-1235(a) (1988); State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980) (failure to abide by this statute ordinarily prejudicial); Cf, State v. Ward, 301 N.C. 469, 272 S.E.2d 84 (1980) (harmless error for the trial court not to instruction duty of jurors where court instructed the jury on unanimity). It is also significant that the jury poll in this case was perfunctory. The trial court merely asked the jurors if they still "assented" to the verdict. The poll did not ask each juror if he or she personally believed in the defendant's guilt, but rather if the verdict -- however arrived at -- was correctly stated by the foreperson.
Because the failure of the trial court to give the requested instruction was prejudicial, a new trial is required.
XVI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR APPROPRIATE RELIEF AND MOTION TO RECUSE .
Assignment of Error No. 1, Addendum to the Record, Page 28
Assignment of Error No. 2, Addendum to the Record, Page 28
Defendant must be re-tried because jurors were exposed to extraneous, prejudicial information.
B. Factual Background.
Shortly after trial, two jurors contacted defendant's appellate counsel. These jurors alleged that there were numerous improprieties during the deliberations. Juror Dennis Ray made visits to Edenton despite instructions by the trial court not to. Mr. Ray also claimed to have talked with an inmate at Eastern Correctional Institution. According to Mr. Ray, the inmate, a convicted child molester, claimed to know Bob Kelly, and to have personal knowledge of Mr. Kelly's guilt. The jurors said that Mr. Ray also displayed some sort of object that he claimed to be a "magic key" referred to by several children. The jurors said that another juror, David Williams, told them during deliberations that he himself had been molested as a young boy. Finally, the jurors said that the jury did not base its verdict solely on the evidence introduced at trial, but had consulted an article in Redbook magazine on pedophilia.
At the time these disclosures were made, the producer of the "Frontline" television program was in the process of collecting material for a second show on the Edenton cases. Although the program was originally scheduled to air during the fall of 1992, it was not actually televised until July, 1993. The program included all of the allegations by the two jurors who had contacted defense counsel. It also included statements from Dennis Ray and David Williams verifying that the jury used the Redbook magazine to diagnose Mr. Kelly as a sociopath and pedophile, and statements by David Williams about his personal experience with child sexual abuse. See Defendant's Hearing, Exhibit No. 5.
On 22 November 1993, based on the statements of the jurors, the defendant filed a Motion for Appropriate Relief, asking for an evidentiary hearing on all of the allegations of juror misconduct. The defendant also moved to have a judge other than the trial judge be the finder of fact in this hearing. As support, the defendant included a letter from Judge McLelland to a private citizen, implying that, in his opinion, the "Frontline" producer had fabricated the allegations of juror misconduct. See Addendum to the Record, pages 15-18.
On 21 December 1993, this Court partially granted the Motion for Appropriate Relief. It ordered an evidentiary hearing on the issues of whether Dennis Ray had improper contact with an outside party, and whether he claimed to have a "magic key." The Court denied the motion in all other respects. The Court also denied without prejudice defendant's Motion to recuse Judge McLelland.
On 18 January 1994, defendant field a Motion for Recusal in the Superior Court for Pitt County. This motion was denied by Judge McLelland. (Motion Hearing Tpp. 16-17)
An evidentiary hearing on the surviving allegations of juror misconduct began on 18 January 1994 and lasted three days. Several jurors testified. Roswell Streeter testified that Mr. Ray told him about a specific conversation with an inmate at Eastern Correctional Institution; that this inmate was a black male who came from Edenton, was himself a child molester, knew Bob Kelly, and knew that he was guilty. Mr. Streeter testified that Mr. Ray told him this during the second week of deliberations. (Hearing Tpp. 48-50) Other jurors testified that they did not hear Mr. Ray tell Mr. Streeter about this specific conversation during deliberations. They admitted that they would not necessarily have overheard such a conversation. Several testified that Mr. Ray told them that a number of people talked to him about the case sometime in the fall of 1991. However, this comment was made not during deliberations, but at a time shortly before several of the jurors asked to be relieved of going to work on Fridays. Mr. Ray testified that he told the jurors that a convicted child molester he knew told him that he knew Bob Kelly. However, Mr. Ray testified that he said this in November, 1991 rather than during deliberations. (Hearing Tpp. 149-152)
On 31 January 1994, Judge McLelland entered an Order. He found as a fact that Dennis Ray had improper contact with an inmate who claimed to know that Bob Kelly was a child molester, and guilty of the charges against him. Judge McLelland concluded, however, that the error was harmless, and denied defendant's motion. (Addendum to the Record, pages 22-25)
C. Applicable Legal Principles.
1. Extraneous Material.
A defendant is entitled to a jury that decides his guilt based on the evidence presented at trial. He has an absolute constitutional right to confront each and every piece of evidence used against him; to explain, refute, rebut, or minimize it if he can. U.S. Const. Amend VI, XIV; N.C. Const. Art. I, ++19, 23, 24.
All courts agree that error occurs when the jury is exposed to information about the defendant or the case other than from the witness stand. When such "extraneous" information is deemed "prejudicial," a new trial is required. See State v. Rosier, 322 N.C. 826, 370 S.E.2d 359 (1988).
What constitutes "extraneous" evidence has been the subject of a great deal of discussion in the courts. There are at last three categories of such material: 1) Juror research, see, e.g., People v. Dashnau, 591 N.Y.S.2d 124 (1992), 2) unauthorized jury views, e.g., State v. Trammel, 484 N.W.2d 263 (Neb. 1992), and 3) exposure of jurors to opinions of others about the case. See Parker v. Gladden, 385 U.S. 363, 17 L.Ed.2d 420 (1966). United States ex rel. Owen v. McMann, 435 F.2d 813 (2d Cir 1970), cert. denied, 402 U.S. 906 (1971); Accord United States v. Howard, 506 F.2d 865 (5th Cir. 1975); Russ v. State, 95 So. 2d 594 (Fla, 1957).
Prejudice to the defendant is not determined by an inquiry into the effect of the extraneous material on the jury. Rather, the test is an objective one. If the evidence is of the sort that would affect the decision of an "average" juror, it is deemed prejudicial. State v. Lyles, 94 N.C. App. 280, 249, 380 S.E.2d 390, 396 (1989). The state has the burden of rebutting the presumption that extraneous information is prejudicial. United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984).
Recusal of a trial or hearing judge is required where there is the appearance that he or she has already determined the justness of a cause, or has a preconception concerning the truth of matters to be proven. N.C.G.S. +15A-1223 (1988); State v. Fie, 320 N.C. 626, 359 S.E.2d 774 (1987). "The purity and integrity of the judicial process ought to be protected against any taint of suspicion." Ponder v. Davis, 233 N.C. 699, 706, 65 S.E.2d 356, 360 (1951); see also McClendon v. Clinard, 38 N.C. App. 353, 247 S.E.2d 783 (1978) (recusal of trial judge for public comments on the matter); Tumey v. Ohio, 273 U.S. 510, 71 L.Ed 749 (1927); (due process violated by judge who is not impartial)
1. The Trial Court Should have Granted the Motion for Appropriate Relief.
Judge McLelland found as a fact that Juror Dennis Ray was exposed to extraneous information in the form of a conversation with an inmate about the defendant's guilt. This finding is supported by the testimony and is binding on this Court. The sole question is whether the state has rebutted the presumption of prejudice from this impropriety by showing that Mr. Ray's statement would not have affected an average juror.
Judge McLelland bases his conclusion of no prejudice on two factors: 1) that the statements were made before deliberations, and 2) that there was a great deal of evidence in the case. Both of these factors make it more likely, not less likely, that the defendant was prejudiced.
As to the timing of Mr. Ray's disclosure, it should be noted that, even if the testimony of Mr. Ray was truthful, his statement to Streeter came well into the trial. The jury was impanelled on August 16, 1991. It was not until 6 November 1991 the jurors brought anything to the attention of Judge McLelland about their work situations. (Tpp. 11,026, 11,041) By that time, the jury had heard fifty-eight witnesses and been presented with 135 exhibits. It is just as likely that Mr. Ray's comments affected the verdict as any of the of the state's case heard that fall.
As to the amount of testimony in the case, it should be noted that the state's case, although lengthy, was weak and contradicted by a strong defense. It depended almost entirely on hearsay and the rehearsed testimony of small children. The state has not borne its burden of showing that the exposure of Mr. Ray to extraneous information was harmless beyond a reasonable doubt.
2. Judge McLelland Should Have Recused Himself.
After the "Frontline" program aired, there was a great deal of public concern that the trials of Bob Kelly and Dawn Wilson were unfair. Some citizens wrote to Judge McLelland to express their concern. Judge McLelland wrote at least one letter implying that the "Frontline" program was biased, and that the allegations of juror misconduct were not based in fact, but were the result of manipulation, if not fraud, by the producer of the television program. Addendum to the Record, pages 15-18.
The question is not whether Judge McLelland was unfair or biased. Rather, the question is whether there is an appearance of judicial leaning. The appearance of impartiality is especially important where, as here, the judge is not acting as an objective arbiter of the law but a subjective finder of fact. Statements by the judge insinuating that the allegations of misconduct in the jury were fabricated by the media create the impression that the judge was predisposed to find as a fact that Dennis Ray was being truthful and Roswell Streeter was not. Moreover, they suggest that Judge McLelland was personally "embroiled" in the controversy to the extent that a reasonable person might get an impression of partiality. See In re Nakell, 104 N.C. App. 638, 411 S.E.2d 159 (1991), affirmed, 330 N.C. 851, 413 S.E.2d 556 (1992). Because of this appearance, the result of the hearing is irreparably tainted.
For these reasons, the defendant must be re-tried.
XVII. THE STATE'S RELIANCE ON INADMISSIBLE AND UNRELIABLE HEARSAY DENIED THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO DUE PROCESS OF LAW .
Assignment of Error No. 52, Rp. 627
Assignment of Error No. 55-56, Rp. 627
Assignment of Error No. 58-60, Rpp. 628, 629
Assignment of Error No. 63-64, Rp. 629
Assignment of Error No. 68-69, Rp. 630
Assignment of Error No. 71, Rpp. 630, 631
Assignment of Error No. 76, Rp. 631
Assignment of Error No. 81, Rp. 632
Assignment of Error No. 84, Rp. 632
Assignment of Error No. 86, Rp.633
Assignment of Error No. 89, Rp. 633
Assignment of Error No. 96-97, Rp. 635
Assignment of Error No. 105-106, Rp. 636
Assignment of Error No. 116-117, Rp. 638
Assignment of Error No. 122, Rp. 639
Assignment of Error No. 126-127, Rp. 640
Assignment of Error No. 139, Rp. 642
Assignment of Error No. 141, Rp. 643
Assignment of Error No. 147, Rp. 644
Assignment of Error No. 150-151, Rpp. 644, 645
Assignment of Error No. 157, Rp. 645
Assignment of Error No. 160, Rp. 646
Assignment of Error No. 164-165, Rp. 647
Assignment of Error No. 168, Rp. 648
The state's case was composed almost exclusively of hearsay. Under the circumstances, defendant's state and federal constitutional rights to confront the evidence against him, and to due process of law, were violated. U.S. Const. Amend. VI, XIV; N.C. Const. Art. I, sections 19, 23, 24, 35.
XVIII. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS BECAUSE THE EVIDENCE GAVE RISE TO NO MORE THAN A SUSPICION OF DEFENDANT'S GUILT .114
Assignment of Error No. 207, Rp. 655
A conviction based on less than substantial evidence violates both state and federal constitutions. U.S. Const. Amend. XIV; N.C. Const. Art. I, ++19, 23, 24. Evidence giving rise only to a suspicion of defendant's guilt, no matter how strong a suspicion, cannot support a conviction. State v. Hood, 79 N.C. App. 170, 334 S.E.2d 421, rev. denied, 314 N.C. 671 (1985); Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560 (1979).
There is some evidence of each element of each crime; that is, each child dutifully testified, with considerable leading, to the various acts that the defendant was being tried for. The state will doubtless argue that, because there was some evidence of each crime, defendant's motion to dismiss was properly denied. However, the law is that some evidence is not sufficient to overcome a motion to dismiss. Rather, the test is whether the evidence, taken as a whole, including the uncontradicted evidence of the defendant, gives rise to a reasonable inference, or a mere suspicion of the defendant's guilt.
In this case, the evidence was so contaminated by suggestive interviewing, so distorted by the pre-trial conduct of the prosecution, so dependent on unreliable hearsay and incompetent opinion testimony, that the verdicts are not reliable enough to satisfy the requirements of due process.
XIX. THE SENTENCES IN THIS CASE DENY THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE FROM CRUEL OR UNUSUAL PUNISHMENTS .
Assignment of Error No. 222, Rp. 657
Defendant first argues that the mandatory life sentence for first degree sexual offense constitutes cruel and unusual punishment as a matter of law. However, the defendant recognizes that the facial validity of the statutes has been addressed in prior decisions of the North Carolina Supreme Court. See, e.g., State v. Peek, 313 N.C. 266, 328 S.E.2d 249 (1985). Defendant argues now that the mandatory life sentence constitutes cruel and unusual punishment as applied to this defendant. See Solem v. Helm, 463 U.S. 277, 77 L.Ed.2d 637 (1983); Enmund v. Florida, 458 U.S. 784, 73 L.Ed.2d 1140 (1982).
XX. THE TRIAL COURT ERRED IN ENTERING JUDGMENTS FOR MULTIPLE CRIMES FOR EACH ALLEGED ACT BY THE DEFENDANT .
Assignment of Error No. 220, Rp. 656
For the reasons set out by Chief Justice Exum in his dissenting opinion in State v. Gardner, 315 N.C. 44, 463, 340 S.E.2d 701, 714 ((1986) (Exum, J. dissenting), the North Carolina Constitution forbids separate punishments for the same act under two statutes.
For these reasons, the defendant has not yet had the fair trial he is entitled to under state and federal constitutions. He must either be fairly tried or released from confinement.
Mark D. Montgomery
Assistant Appellate Defender
Malcolm Ray Hunter, Jr.
Office of the Appellate Defender
1905 Meredith Drive, Suite 200
Durham, North Carolina 27713
ATTORNEYS FOR DEFENDANT-APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Defendant-Appellant's Brief has been duly served by State Courier Service upon Ellen Scouten, Assistant Attorney General, North Carolina Department of Justice, Raney Building, Raleigh, NC, by depositing same in a depository designated for that purpose.
This is the 21st day of April, 1994.
Mark D. Montgomery
Assistant Appellate Defender
No. 933SC676 THREE-A DISTRICT
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA )
v. ) From Pitt County
ROBERT FULTON KELLY, JR. )
I. WHETHER THE PROSECUTION HAS UNCONSTITUTIONALLY WITHHELD INFORMATION FROM THE DEFENDANT WHICH WOULD HAVE BEEN ON MATERIAL BENEFIT TO HIS DEFENSE?
II. WHETHER THE TRIAL COURT ERRED IN QUASHING DEFENDANT'S SUBPOENAS AND DENYING HIM ACCESS TO THE RECORDS OF THE NC VICTIMS' COMPENSATION PROGRAM?
III. WHETHER THE TRIAL COURT ERRED IN NOT SEALING MATERIAL FOR APPELLATE REVIEW?
IV. WHETHER THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT WAS NOT ENTITLED TO THE ACTUAL RECORDINGS OF INTERVIEWS WITH THE INVESTIGATION CHILDREN?
V. WHETHER THE SUPPRESSION OF EXCULPATORY MATERIAL BY THE PROSECUTION DENIED DEFENDANT'S DUE PROCESS RIGHTS?
VI. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR PHYSICAL AND PSYCHOLOGICAL EXAMINATIONS OF THE PROSECUTING WITNESSES?
VII. WHETHER THE TRIAL COURT ERRED IN ALLOWING SEVERAL STATE'S WITNESSES TO TESTIFY THAT THEY "DIAGNOSED" THE CHILDREN AS HAVING BEEN SEXUALLY ABUSED?
VIII. WHETHER THE TRIAL COURT ERRED IN ADMITTING OPINION TESTIMONY FROM SEVERAL LAY WITNESSES?
IX. WHETHER THE TRIAL COURT ERRED IN ALLOWING DEFENDANT'S FORMER ATTORNEY TESTIFY AGAINST HIM AND IN ADMITTING EVIDENCE OF THIS ATTORNEY-CLIENT RELATIONSHIP?
X. WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S OBJECTIONS TO THE TESTIMONY OF KELLI DE SANTE?
XI. WHETHER THE TRIAL COURT ERRED IN EXCUSING JURORS FOR CAUSE WHO WOULD TEND TO GIVE MORE WEIGHT TO AN ADULT'S TESTIMONY THAN TO A CHILD'S?
XII. WHETHER THE TRIAL COURT ERRED IN EXCUSING JURORS FOR CAUSE ON THE GROUND OF ALLEGEDLY POOR READING ABILITY?
XIII. WHETHER THE TRIAL COURT ERRED IN NOT INTERVENING EX MERO MOTU TO PREVENT THE STATE FROM MAKING SEVERAL GROSSLY IMPROPER ARGUMENTS?
XIV. WHETHER THE TRIAL COURT ERRED IN SUBMITTING THREE CASES TO THE JURY THAT WERE DISMISSED AT THE CLOSE OF THE STATE'S EVIDENCE?
XV. WHETHER THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURORS ON THEIR DUTY?
XVI. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR APPROPRIATE RELIEF AND MOTION TO RECUSE?
XVII. WHETHER THE STATE'S RELIANCE ON INADMISSIBLE AND UNRELIABLE HEARSAY DENIED THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO DUE PROCESS OF LAW?
XVIII. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS BECAUSE THE EVIDENCE GAVE RISE TO NO MORE THAN A SUSPICION OF DEFENDANT'S GUILT?
XIX. WHETHER THE SENTENCES IN THIS CASE DENY THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE FROM CRUEL OR UNUSUAL PUNISHMENTS?
XX. WHETHER THE TRIAL COURT ERRED IN ENTERING JUDGMENTS FOR MULTIPLE CRIMES FOR EACH ALLEGED ACT BY THE DEFENDANT?