Opinion
COA22-128
12-20-2022
STATE OF NORTH CAROLINA v. KEVIN FLAKE JOHNSON, Defendant
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri Horner Lawrence, for the State. Fox Rothschild LLP, by Troy D. Shelton and Matthew Nis Leerberg, for Defendant-Appellant.
UNPUBLISHED OPINION
Heard in the Court of Appeals 1 November 2022.
Appeal by Defendant from judgment entered 30 July 2021 by Judge John O. Craig, III, in Wilkes County No. 19 CRS 52410 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri Horner Lawrence, for the State.
Fox Rothschild LLP, by Troy D. Shelton and Matthew Nis Leerberg, for Defendant-Appellant.
INMAN, Judge.
¶ 1 Kevin Flake Johnson ("Defendant") was convicted of incest and second-degree forcible rape of his daughter, Alicia. On appeal, he argues that the trial court erred in limiting cross-examination of Alicia about her mental health and behavior as a child, in admitting expert testimony regarding the behavior of sexual assault victims, and in sentencing him to consecutive terms without supporting findings. We hold that Defendant has not demonstrated prejudicial error on appeal.
We use a pseudonym to protect the identity of the juvenile.
I. FACTUAL AND PROCEDURAL HISTORY
¶ 2 The evidence presented at trial tends to show the following:
¶ 3 On 15 June 2019, Defendant and his family hosted a Father's Day pool party at their home. During the party both Defendant and Alicia, then age seventeen, consumed alcohol. By around midnight Defendant's wife and other daughter had gone to bed and the other guests had departed, leaving only Defendant, Alicia, and Alicia's boyfriend Evan outside the house. Defendant and Evan were talking in the hot tub, while Alicia fell asleep in a patio chair.
¶ 4 Evan attempted to help Alicia get up and go to bed, but Defendant intervened. Defendant helped Alicia inside, and Evan waited for approximately twenty minutes for Defendant to return and then left when he did not. At trial, Alicia testified that after Defendant walked her to her room, he undressed her, undressed himself, vaginally penetrated her with his penis, and ejaculated.
¶ 5 Within five minutes of leaving the house, Evan received a call from Alicia, who told him that Defendant had raped her. Alicia also called her biological brother, who picked her up from Defendant's house. Alicia reported the rape to police and went to the hospital to have a rape kit performed. The nurse examiner observed and photographed a white fluid in Alicia's vagina. DNA testing identified Defendant's DNA as a "major component" of samples taken from the interior and exterior of Alicia's vagina, though testing to confirm the presence of semen was not performed.
¶ 6 Defendant testified at trial and gave the following account: After he walked Alicia inside the house, they began arguing in the living room because Alicia did not want to go to bed. He walked her to her room and kissed her goodnight. Alicia began to undress in his presence, so he turned around and walked back to the living room. He drank a glass of water in the kitchen and began cleaning up after the party, then went to bed at some time after midnight. Defendant also testified that he uses chewing tobacco and was spitting white mucous into dip bottles around the house because he was sick that week. Defendant did not contest the DNA findings but testified that Alicia had access to his DNA from the dip bottles and from his bathroom sink, into which he had ejaculated the previous day while masturbating.
¶ 7 Defendant and his wife had taken in Alicia and her younger sister when Alicia was 18 months old and eventually adopted them. Defendant's wife, Alicia's adoptive mother, testified that Alicia had been diagnosed "early on" with attention deficit hyperactivity disorder and bipolar disorder and had tried various medications to treat symptoms.
¶ 8 The trial court excluded from evidence information about Alicia's mental health symptoms and behaviors in 2011, when she was ten. The trial court prohibited defense counsel from questioning Alicia and her adoptive mother about two mental health evaluation reports containing statements by Alicia and her adoptive mother that Alicia did not recall. Questioned on cross-examination about her prior mental health treatment, including medications referenced in the 2014 evaluation, Alicia testified that she remembered "going to therapy and that's about it."
¶ 9 The jury found Defendant guilty of second-degree forcible rape and incest. The trial court found as an aggravating factor that Defendant had taken advantage of a position of trust or confidence to commit the offense and sentenced Defendant to consecutive terms of 90 to 168 months imprisonment for rape and 15 to 27 months for incest. Defendant appeals.
II. ANALYSIS
¶ 10 Defendant raises three issues on appeal. First, he argues that the trial court erred by excluding evidence of Alicia's mental illness and behavior as a child that was relevant to her credibility. He also argues that the trial court erred in allowing the State to present expert testimony concerning the responses of victims of sexual trauma without relating the analysis to the facts of the case. Finally, he asks us to require trial courts to provide an explanation when imposing consecutive sentences. We address each argument in turn.
A. Evidence of Past Mental Health
¶ 11 The State moved pretrial to exclude two sets of Alicia's psychological medical records stemming from evaluations performed in 2011, when she was ten years old, and in 2014, when she was thirteen. The trial court deferred its ruling until Alicia's cross-examination and then, expressly exercising its discretion under Rule 403 of our Rules of Evidence, found that the probative value of the 2011 records was substantially outweighed by the risk of unfair prejudice and instructed Defendant not to cross-examine Alicia about them. The trial court also prohibited Defendant from cross-examining Alicia about portions of the 2014 report that appeared to relate to events in 2011 or earlier.
¶ 12 Rule 403 provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.N.C. Gen. Stat. § 8C-1, Rule 403 (2021).
¶ 13 Defendant argues that impeachment evidence of mental illness of a key State's witness cannot be excluded based on the passage of time and is also not subject to the balancing test under Rule 403. Defendant's proposed hardline rule conflicts with precedent. See, e.g., State v. Whaley, 362 N.C. 156, 159-60, 655 S.E.2d 388, 390 (2008). We hold, for reasons discussed below, that evidence of the mental health history of any witness can be excluded under Rule 403 in the discretion of the trial court, who is in a far better position than an appellate court to gauge the probative value of evidence as well as the risk of unfair prejudice, confusion, and other harms delineated in Rule 403. We review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion. State v. Peterson, 361 N.C. 587, 602-03, 652 S.E.2d 216, 227 (2007). A trial court abuses its discretion when its ruling is "manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision." Id.
¶ 14 Defendant relies on Rule 611(b) of our Rules of Evidence, which provides that "[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility." § 8C-1, Rule 611(b). Cross-examination of a key State's witness regarding "past mental problems or defects" is permissible and presumptively more probative than impeachment evidence regarding a less material witness. State v. Williams, 330 N.C. 711, 723, 412 S.E.2d 359, 367 (1992).
¶ 15 In Williams, the defendant was convicted of murder primarily based on the testimony of one witness. The trial court prevented defense counsel from crossexamining the witness about his suicide attempts, psychiatric history, and drug habit two years preceding his trial court testimony. Id. at 717, 412 S.E.2d at 363. Our Supreme Court held that this evidence was admissible for impeachment purposes because "mental, psychological, or emotional defects reflect on mental capacity for truth-telling." Id. at 719, 412 S.E.2d at 364 (cleaned up). The Court held that evidence of mental illness is admissible "for the purpose of discrediting a witness' testimony due to the impairment of the ability to observe, retain, or narrate." Id.
¶ 16 The Court in Williams recognized that some jurisdictions "have limited admission of evidence that a witness suffers from mental illness or addiction to cases where the illness or addiction actually affected the mental capacity of the witness at the time of commission of the crime or testimony at trial." Id. at 721, 412 S.E.2d at 365. But it rejected that distinction between past mental illness and mental illness affecting the witness at the time of the crime or trial, noting its previous decisions in which "the mental problems . . . occurred some period of time prior to either the crimes witnessed or the trials." Id. at 722, 412 S.E.2d at 366. When a witness is a key witness for the State, we have "long allowed cross-examination regarding the witness' past mental problems or defects." Id. at 723, 412 S.E.2d at 367.
¶ 17 Defendant encourages us to read Williams as holding that cross-examination regarding past mental problems of a key State's witness must be admitted regardless of how much time has passed since those mental problems last occurred. While we agree that the Supreme Court declined to place a temporal limitation on the admissibility of this type of evidence in Williams, we disagree that the passage of time is irrelevant to analysis under Rule 403, particularly when the mental health problems at issue occurred when the witness was a young child.
¶ 18 In considering whether to exclude evidence under Rule 403, the trial court balances the probative value of the evidence against the harm likely to result from its admission. State v. Serzan, 119 N.C.App. 557, 559-60, 459 S.E.2d 297, 300 (1995). In this case, the trial court explained its Rule 403 analysis to counsel several times and also noted that content from the reports was inadmissible hearsay.
¶ 19 Defendant argues that evidence of past mental illness is not subject to Rule 403's balancing test because this type of evidence is so highly probative that it is "never outweighed by other concerns." This argument is not supported by our precedent. Generally, the decision to exclude evidence on the basis that its probative value is outweighed by its prejudicial effect "is a matter within the sound discretion of the trial court." State v. Fortney, 201 N.C.App. 662, 666, 687 S.E.2d 518, 522 (2010). Application of the balancing test "remains entirely within the inherent authority of the trial court." Warren v. Jackson, 125 N.C.App. 96, 98, 479 S.E.2d 278, 280 (1997).
¶ 20 Nor does the authority cited by Defendant indicate that our Supreme Court intended to remove that discretion from the trial court in the specific case of evidence of past mental illness of a key witness for the State. Williams does not address Rule 403 balancing at all. In that case, the Supreme Court held that the trial court erred by excluding evidence of the witness's drug addiction under Rule 608(b), which allows inquiry into specific instances of a witness's conduct on cross-examination. Williams, 330 N.C. at 719, 412 S.E.2d at 364. The Supreme Court reversed because that evidence was admissible under Rule 611(b). Rule 403 was not raised as an issue in that case.
¶ 21 In State v. Whaley, the Supreme Court reviewed the trial court's exclusion of Rule 611(b) evidence as more prejudicial than probative. 362 N.C. at 159, 655 S.E.2d at 390. In that case the State's key witness, the victim of the alleged assault, had filled out a counseling questionnaire six months after the assault and two years before trial. Id. at 158, 655 S.E.2d at 389. Her questionnaire responses discussed her mental health, including a statement that twenty percent of the time she was not "sure whether things that [she] remember[ed] happening really did happen or whether [she] just dreamed them." Id. at 158, 688 S.E.2d at 390. The trial court did not allow any cross-examination related to this statement, finding that the witness's mental state six months after the assault was not relevant to her mental state at trial or at the time of the assault and excluded the evidence as "more prejudicial to the State than it is probative." Id. at 159, 655 S.E.2d at 390. Citing Williams, the Supreme Court reversed, holding that "testimony must be allowed when it may bear upon the credibility in other ways, such as to cast doubt upon the capacity of a witness to observe, recollect, and recount." Id. at 161, 655 S.E.2d at 391 (cleaned up).
¶ 22 Defendant interprets the "must" in that holding as an imperative that removes discretion from the trial court, including the discretion to weigh the relative probative and prejudicial values of evidence challenged under Rule 403. But the Court in Whaley also acknowledged that 611(b) evidence "may nonetheless be excluded under Rule 403 if the trial court determines 'its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.'" Id. at 159-60, 655 S.E.2d at 390 (citing Rule 403). The Court noted that we review the trial court's determination for abuse of discretion and held that "[u]nder the circumstances presented here . . . the trial court abused its discretion." Id. at 161, 655 S.E.2d at 391. Although Whaley makes clear that the probative value of such impeachment evidence is very high when "the victim's testimony [is] crucial to the State's case and attacking her credibility represent[s] the primary theory of the defense," its holding does not remove all discretion from the trial court in weighing that evidence under Rule 403. Id.
¶ 23 Our Supreme Court has found no error when the trial court excluded some, but not all, credibility evidence related to a key witness's mental health. In State v. Newman, the trial court allowed some evidence of the witness's mental illness but excluded other evidence, such as his specific diagnoses and medications. 308 N.C. 231, 243-54, 302 S.E.2d 174, 182-88 (1983). In Whaley, by contrast, the Supreme Court held the trial court erred when it excluded any inquiry into the witness's "past mental defects" documented in the questionnaire. 362 N.C. at 159, 655 S.E.2d at 390.
¶ 24 The record in this case is more similar to Newman than to Williams or Whaley because other evidence of Alicia's mental health struggles was presented to the jury, including her mother's testimony about her mental health diagnoses. The excluded evidence was significantly less probative than the evidence in Williams and Whaley because: (1) when asked about the excluded records on voir dire, Alicia was unable to recall any specifics or verify the notes; and (2) the excluded evidence related to Alicia's mental condition when she was a young child. It was not an abuse of discretion to find that the prejudicial nature of this evidence substantially outweighed its probative value.
¶ 25 Defendant was allowed to conduct voir dire as an offer of proof as to the excluded records, but Alicia recalled little to nothing of her mental health and treatment as a child. On this record, we cannot conclude that the trial court abused its discretion in finding that there was little probative value to any of Alicia's responses.
In his reply brief, Defendant argues, based on dicta in Williams, that he was entitled to present extrinsic evidence of Alicia's past mental illness, including the 2011 and 2014 reports themselves and testimony of Alicia's mother. But Rule 611(b) allows only that "a witness may be cross-examined on any matter relevant to any issue in the case, including credibility." We do not accept that Williams, which does not deal with extrinsic evidence, implies that collateral, extrinsic evidence of credibility is admissible at trial. See State v. Floyd, 167 N.C.App. 371, 605 S.E.2d 267 (2004) (unpublished).
¶ 26 The trial court noted that Alicia's difficulty remembering details of her prior treatment was not unusual, given that she was ten years old and "only in the second grade" at the time of the 2011 evaluation. While we acknowledge that the Supreme Court in Williams declined to place a temporal restriction on the admissibility of this type of evidence, there is more than simply a gap of time between Alicia's childhood psychological evaluations, the assault when she was seventeen, and her testimony at nineteen. In both Whaley and Williams the witnesses were adults at the time of the past "mental defects" at issue. In this case, nearly half of Alicia's lifetime had passed between the 2011 evaluation and the 2021 trial, and she had experienced the mental development inherent in becoming an adult. We are in no position to disagree with the trial court's assessment that evidence of her mental health when she was ten years old bears little probative value as to her capacity to tell the truth as an adult, and that questioning her about diagnoses that she cannot remember, stemming from medical records provided without the benefit of expert interpretation, creates a significant risk of prejudice.
¶ 27 Also unlike in Williams and Whaley, where the only evidence incriminating the defendants was witness testimony, in this case Alicia's testimony that Defendant raped her was corroborated by physical evidence, including the observation by medical personnel of a white liquid in her vagina and DNA testing-undisputed by Defendant-showing him as a "major contributor" to samples taken from the interior and exterior of her vagina after she reported being raped.
¶ 28 We hold that the trial court did not err in excluding evidence of Alicia's past mental health issues under Rule 403.
B. Confrontation Clause
¶ 29 Defendant also argues that excluding evidence of Alicia's prior mental illness and treatment violated his constitutional right to confrontation, as that right includes the ability to attack a witness's credibility. State v. Bowman, 372 N.C. 439, 446, 831 S.E.2d 316, 321 (2019). The Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution guarantee the right of a criminal defendant to confront the witnesses against him. State v. McNeil, 350 N.C. 657, 677, 518 S.E.2d 486, 498 (1999). The trial court retains "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L.Ed.2d 674, 683 (1986). "Accordingly, cross-examination guaranteed by the Confrontation Clause is 'subject always to the broad discretion of [the] trial judge[.]" McNeil, 350 N.C. at 677, 518 S.E.2d at 499 (cleaned up). We review alleged Confrontation Clause violations for abuse of discretion. Id. at 678, 518 S.E.2d at 499 ("Therefore, we cannot say the trial court abused its discretion in excluding the evidence."). Because, as discussed above, the trial court did not abuse its discretion in finding the probative value of the excluded evidence was substantially outweighed by the risk of prejudice, Defendant's right to confrontation was not violated.
C. Expert Testimony
¶ 30 Defendant next argues that the trial court erred in allowing the State to introduce expert testimony regarding the responses of sexual assault victims without applying their analysis to the facts of the case. Assuming without deciding that this was error, we hold that Defendant has failed to demonstrate prejudice.
¶ 31 Two of the State's witnesses, the sexual assault nurse examiner who examined Alicia and a forensic interviewer, were admitted as experts. At issue on appeal is their testimony regarding the "fight-flight-freeze" responses to trauma. The nurse examiner testified that, when faced with trauma, a victim might fight back, run away, or appear "frozen in space." The forensic interviewer testified that there was no "normal" response to trauma. The trial court allowed this testimony but ordered the witnesses not to relate their analysis on "fight-flight-freeze" to Alicia's response or the particular facts of the case.
¶ 32 "An error is not prejudicial unless there is a reasonable probability that, had the error in question not been committed, a different result would have been reached at trial." State v. Babich, 252 N.C.App. 165, 172, 797 S.E.2d 359, 364 (2017). Defendant argues that the expert testimony bolstered Alicia's credibility. But both witnesses testified that they were not offering an opinion about whether Alicia had been sexually assaulted. As Defendant points out, their testimony indicates that, under the fight-flight-freeze theory, any reaction would be typical. We cannot hold that this generalized testimony effectively vouched for Alicia's credibility and encouraged the jury to give her testimony undue weight. Assuming the trial court erred in admitting this testimony, we hold that this error did not prejudice Defendant.
D. Consecutive Sentences
¶ 33 Defendant last argues that the trial court erred by imposing consecutive sentences without providing an explanation for its decision to do so. Defendant encourages this Court to adopt a new rule requiring trial courts to provide their reasoning when imposing consecutive sentences.
¶ 34 The General Assembly has entrusted trial courts with discretion to impose concurrent or consecutive criminal sentences. N.C. Gen. Stat. § 15A-1340.15(a) (2021). Sentences are presumed to be concurrent unless otherwise specified by the trial court. Id. Defendant argues that this Court should require the trial court to state its reasoning for imposing consecutive sentences because of the significance of the decision and to enable appellate review. Defendant cites no statute or binding precedent to support this argument.
¶ 35 Instead, Defendant provides a policy-based argument for the adoption of this rule. The choice to run sentences consecutively can significantly increase the amount of time that a defendant spends incarcerated. Requiring the trial judge to record its reasoning "would encourage the judge to clarify and justify, in his own mind, the grounds for the sentence he chooses." United States v. Velazquez, 482 F.2d 139, 142 (2d Cir. 1973). The American Bar Association recommends that the imposition of consecutive sentences be accompanied by "a statement of reasons for the selection of consecutive terms." Am. Bar Ass'n, Standards for Criminal Justice § 18-5.19, n.2 (3d ed. 1994). This rule has been adopted by other jurisdictions, including the federal courts, in which the trial court must make clear "the rationale under which it imposed the consecutive sentence." United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998).
¶ 36 But in the absence of any such requirement provided by the General Assembly or our Supreme Court, we will not engage in policy-making by effecting Defendant's proposed rule. See Davis v. Craven Cnty. ABC Board, 259 N.C.App. 45, 48, 814 S.E.2d 602, 605 (2018). ("This Court is an error-correcting body, not a policy-making or lawmaking one.")
III. CONCLUSION
¶ 37 We hold that the trial court did not abuse its discretion in excluding Alicia's medical records, Defendant was not prejudiced by the admission of generalized expert testimony, and the trial court did not err by failing to provide reasons for imposing consecutive sentences.
NO PREJUDICIAL ERROR.
Judges DILLON and DIETZ concur.
Report per Rule 30(e).