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THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner
v.
Gary Douglas Bray, Respondent
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Dorchester County
Luke N. Brown, Jr., Special Circuit Court Judge
Opinion N. 25176
Heard April19, 2000- Filed July 31, 2000
AFFIRMED IN RESULT ONLY
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, Senior
Assistant Attorney General Norman Mark Rapoport,
all of Columbia, and Solicitor Walter M. Bailey, Jr.,
of Summerville for petitioner.
Peter F. Them, II, of Summerville, for respondent.
p.449
JUSTICE WALLER: We granted a writ of certiorari to review the Court
of Appeals' opinion in State v. Bray, 335 S.C. 514, 517 S.E.2d 714 (Ct. App.
1999). We affirm in result only.
FACTS
The facts, as set forth in the Court of Appeals' opinion, are as follows:
Bray is the uncle of the alleged child victim in this case. The
child and her mother, who is Bray's sister, often spent weekends at
the child's maternal grandmother's home in 1995 and early 1996.
Bray lived in the grandmother's home.
The child, who was five at the time of the alleged abuse and seven
at the time of trial, testified that she often played with Bray in his
room when she stayed at her grandmother's house. The child's
mother stated her daughter loved to play with Bray in his room,
that they would often play until bedtime, that Bray's door would be
closed while they played, and that sometimes it would be locked.
The child testified that Bray touched her in a bad way. She
testified he touched her "pee pee" and her "bottom" with his finger
and his tongue, and Bray had her rub his "front private." She
stated she wet her hands in the bathroom adjoining Bray's bedroom
and would then rub his penis. She testified that "we had to keep on
doing it and doing it and doing it until this white stuff came out."
Afterward, she remembers Bray wiped the "white stuff" onto a
clean t-shirt.
Bray admitted owning three pornographic magazines. The child
testified he showed her the magazines, and she remembered seeing
"white stuff" on one woman's belly. Bray, on the other hand,
testified that the child was naturally inquisitive and would "go
through about anything she wanted to go through." One day he
entered his bedroom and found her looking at the magazines, which
he kept under his bed. He attempted to answer the child's
questions about the pictures, including a question about the "white
stuff," and hoped that would end the situation. He knew there
would be trouble if the child's grandmother discovered he had
pornographic magazines in the house.
p.450
335 S.C. at ____, 517 S.E.2d at 716.
Prior to trial, the State moved to have the victim testify via closed-circuit
television (CCTV), out of the presence of Bray and the jury. After a hearing, the
trial court ruled this was a "classic case" of why S.C. Ann § 16-3-1550(E)(Supp.
1999)1 was passed and ordered the victim be permitted to testify via live closed
circuit television without Bray or other relatives (except her mother) present.
The Court of Appeals reversed.
ISSUE
Were the trial court's factual findings regarding the necessity for
the child to testify via CCTV supported by sufficient evidence?
DISCUSSION
The Court of Appeals ruled "the trial court's factual finding regarding the
necessity for the child to testify via CCTV was not supported by sufficient
evidence." 335 S.C. at ____, 517 S.E.2d at 717. We disagree.
A trial court's decision to allow videotaped or closed-circuit testimony is
reversible "only if it is shown that the trial judge abused his discretion in
making such a decision. . . " State v. Murrell, 302 S.C. 77, 82, 393 S.E.2d 919,
922 (1990). Where there is evidence to support a trial court's ruling, it will not
be overturned for an abuse of discretion. State v. Morgan 326 S.C. 503, 485
S.E.2d 112 (Ct. App. 1997).
In the present case, the expert testimony came from Kim Charpia who
was offered and qualified as an expert in the field of counseling services for
sensitively witnesses who are very young, elderly, handicapped, or who have
special needs by using closed or taped sessions when appropriate. The
prosecuting agency or defense attorney must notify the court when a victim or
witness deserves special consideration." This section was formerly codified at
S.C. Code Ann. § 16-3-1530(G) (1985).
p.451
victims of child sexual abuse. 2 Charpia held a masters degree in social work,
and had worked for 8 years at Naval Family Services, during which time she
had seen a minimum of 25 cases per year of child victims of sexual abuse.
Although Charpia was not currently specializing in child sexual abuse, she felt
she could be considered an expert in that area by virtue of her training.
Charpia testified she saw the victim 8 times between April 22, 1996 and July
22, 1996 for symptoms of depression. The victim had also suffered nightmares,
and insisted upon wearing pants to school underneath her school uniform.
When asked whether, in her opinion, the victim would be able to testify in open
court in front of the defendant, Charpia replied:
I think in general it would be difficult for her to be in here with all
these adults .... But, I think in particular she would be facing her
uncle, a family member, and grandparents, and they have not
believed her statement. I think she will shut down and not talk at
all. I think she would be overwhelmed and intimidated and
probably unable to talk with anybody. (emphasis supplied).
When asked if the victim should testify in open court in front of the accused,
Charpia stated, "I think if she faces the accused, you may not get any
testimony." When asked if testifying in front of the accused would have a
positive or negative effect on the victim, Charpia responded, "[i]t would do
further negative emotional harm." Although Charpia's testimony was, in part,
based upon the impact to the victim by being required to testify in front of
family, it was also directed at the harm to victim by testifying in the presence
of Bray, and indicated that if forced to do so, the victim would be unable to
communicate.
Similarly, the victim's mother testified she did not feel the victim could
testify in court and that, if required to testify in front of her uncle Gary, "she's
not going to say anything in front of him because she loves him, even though
was not an expert in child sexual abuse. . . " 517 S.E.2d at 719. On the
contrary, Charpia was in fact qualified as an expert in counseling victims of
child sexual abuse. As the issue of Charpia's qualification was not raised on
appeal, the Court of Appeals erred in re-weighing her qualifications and her
credibility. Cf. Summersell v. South Carolina Dep't of Public Safety, 337 S.C.
19, 522 S.E.2d 144 (1999) (it is error for appellate court to consider issue which
is not properly before it).
p.452
she hates him for what he did to her." The mother also testified that she
believed the victim may have been intimidated by Bray, and was glad when her
mother told her Bray would not be there when she testified.
Given the above testimony demonstrating the victim would be
traumatized by testifying in Bray's presence, we disagree with the Court of
Appeals' conclusion that there was insufficient evidence to support use of CCTV.
See State v. Corn, 224 S.C. 77, 77 S.E.2d 354 (1953)(it is for trial court, not
appellate court to weigh evidence, subject to abuse of discretion standard of
review). 3
However, although we disagree with the Court of Appeals' assessment of
the evidence in this case, we nonetheless affirm in result due to the trial court's
failure to make the case-specific findings mandated by our opinion in Murrell,
supra, and the United States Supreme Court's opinion in Maryland v. Craig,
497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).
In Murrell, 302 S.C. at 81, 393 S.E.2d at 921, we adopted the following
procedure to be used by trial courts in attempting to protect child witnesses:
First, the trial judge must make a case-specific determination
of the need for videotaped testimony. In making this
determination, the trial court should consider the testimony of an
expert witness, parents or other relatives, other concerned and
relevant parties, and the child. (emphasis supplied). 4
649, 506 S.E.2d 536 (Ct. App. 1998) and State v. Lopez, 360 S.C. 362, 412
S.E.2d 390 (1991) are tenuous, at best. When the facts of those cases are
thoroughly examined, it is patent that the showings of necessity there were no
greater than the present showing.
4 Contemporaneous with our decision in Murrell, the United States
Supreme Court in Maryland v. Craig, 497 U.S. 836, 856-7,110 S.Ct. 3157, 3169
70, 111 L.Ed.2d 666 (1990), stated:
[t]he requisite finding of necessity must of course be a
case-specific one: The trial court must hear evidence and
determine whether use of the one-way closed circuit television
procedure is necessary to protect the welfare of the particular child (4 continued...)
p.453
Although conceding the trial court here "did not specifically state there
would be harm to the victim if she was required to testify in the presence of the
her uncle," the dissent nonetheless asserts the judge found a case-specific
necessity in this case, based upon the colloquy of the solicitor prior to the court's
ruling. We simply cannot conclude on the present record that this was the basis
of the trial court's ruling. The court stated:
I think this is probably a classic case of why that last part of
16-3-1530, I think, was passed. We've got a young child who
it's alleged has been molested at the age of five and who is
seven years of age now. We've got testimony from the mother
and the expert which shows that except for the mother, at least as
far as I know it right now, the rest of the family don't believe
her. And so I think that's classic. That would--to me would be a
classic situation as to why it would be passed. (emphasis added).
Although the dissent's assertion that the trial judge found the victim
would be harmed by testifying in the presence of her uncle is one reasonable
inference to be drawn, the emphasized language of the court's ruling is equally
susceptible of the inference that the trial court determined to utilize the CCTV
procedure based upon the victim's young age and fear of other family members
who did not believe her. The fact that this Court is unable to ascertain precisely
the basis of the trial court's ruling simply highlights the need for the case
specific findings mandated in Murrell. 5
that the child witness would be traumatized, not by the
courtroom generally, but by the presence of the defendant .
. . . the trial court must find that the emotional distress suffered by
the child witness in the presence of the defendant is more than de
minimis, i.e., more than mere nervousness or excitement or some
reluctance to testify. (emphasis supplied).
5 Moreover, the dissent contends the trial court's statement that "this is
probably a classic case" of why section 16-3-1550(E) was passed is simply a
shorthand way of saying, "I agree with you, Ms. Solicitor, and find based on the
testimony of her mother and expert witness . . . this victim would be
traumatized by testifying in front of the Defendant." It is not the statute, but
our opinion in Murrell which requires case-specific findings. If simple recitation
p.454
As noted by Supreme Court in Craig ,
The trial court must also find that the child witness would be
traumatized, not by the courtroom generally, but by the presence
of the defendant .... Denial of face-to-face confrontation is not
needed to further the state interest in protecting the child witness
from trauma unless it is the presence of the defendant that causes
the trauma.
497 U.S. 836, 856-7, 110 S.Ct. 3157, 3169-70. Here, although there was
evidence indicating the victim was afraid of testifying in the presence of Bray,
there was also more generalized testimony concerning her fear of the courtroom
and her relatives. As the trial court failed to set forth case-specific findings
mandated by Murrell, the matter must be reversed and remanded for a new
trial. See State v. Hill, 314 S.C. 330, 444 S.E.2d 255 (1994) (trial court's failure
to make case specific findings of fact supporting a decision constitutes an error
of law).
Finally, the Court of Appeals placed great emphasis upon the trial judge's
failure to personally interview the victim. In Murrell, this Court "suggested"
the trial judge interview the child witness in addition to receiving expert
testimony; we did not, however, mandate such a procedure. We decline to
impose upon trial courts a categorical prerequisite of a personal interview with
the child prior to employing alternative procedures. 6 As noted by the United
States Supreme Court in Craig, "[a]lthough we think such evidentiary
requirements could strengthen the grounds for use of protective measures, we
decline to establish . . . any such categorical evidentiary prerequisites for the
use of the one-way television procedure." 497 U.S. at 860, 110 S.Ct. at 3171.
(emphasis supplied). Similarly, the cases addressing the matter have
consistently held that expert testimony, standing alone, is sufficient to support
a finding of necessity. See State v. Lewis, 324 S.C. 539, 545, 478 S.E.2d 861,
864, n. 2 (Ct.App.1996) (listing cases which hold expert testimony is sufficient
evidence, by itself, to satisfy the federal statute and the Confrontation Clause).
determinations.
6 Notably, at oral argument before this Court, counsel for Bray advised
that he was not advocating a per se requirement of an interview with the child
prior to utilization of CCTV for child witnesses.
p.455
Although we decline to adopt an absolute requirement, we reiterate our holding
in Murrell that the better practice in these cases, when possible, is for the trial
judge to personally interview the child witness prior to determining whether
use of CCTV is necessary.
CONCLUSION
We disagree with the Court of Appeals' assessment of the quantum of
evidence in this case. The fatal defect, in our opinion, lies not in the evidence
presented by the state, but in the trial court's failure to set forth case-specific
reasons for use of such a procedure in this case. We reiterate, for the benefit of
the trial judges of this state, that in order to support the decision to utilize
CCTV, case-specific findings must be set forth including references to testimony
demonstrating the child witness will in fact be traumatized, not merely by
testifying in a courtroom, or in front of a crowd of people or relatives, but by the
presence of the particular defendant.
AFFIRMED IN RESULT ONLY. 7
MOORE, BURNETT and PLEICONES, JJ., concur. TOAL, C.J.,
dissenting in a separate opinion.
direct evidence in this case, the error cannot be deemed harmless.
p.456
CHIEF JUSTICE TOAL: I respectfully dissent. In State v. Murrell, 302
S.C. 77, 393 S.E.2d 919 (1990), this Court held that "[a] decision as to whether
to utilize a videotape procedure is subject to reversal only if it is shown that the
trial judge abused his discretion in making such a decision or failed to follow the
appropriate procedure upon deciding that a witness was entitled to special
protection." Id. at 82, 393 S,E.2d at 922. In Murrell, we held that the trial
judge made sufficiently specific factual findings concerning the need for a
videotape procedure where he based his findings on the testimony of the family
and expert witnesses. "This testimony enabled the judge to conclude that
testimony by the victim in the defendant's presence would have a traumatic
effect on the child." Id. Similarly, in the instant matter, the trial judge based
his conclusion on the testimony of the victim's mother and Kim Charpia, an
expert in the field of sexual abuse. Both testified that the victim may be too
frightened to testify in the presence of her uncle.
The majority holds that a trial judge must verbalize the case-specific
reasons for the use of a videotape procedure pursuant to S.C. Code Ann. §16-3
1550(E)(Supp. 1999). The record reveals that the trial judge found a case
specific necessity in this case, even though he did not specifically state there
would be harm to the victim if she was required to testify in the presence of her
uncle. After arguments from both defense counsel and the solicitor concerning
the testimony of the mother and Kim Charpia and the need for a videotape
procedure, the trial judge concluded that a videotape procedure was necessary.
Specifically, the solicitor argued that the State satisfied the requirements of
section 16-3-1550(E) and State v. Murrell:
Solicitor: Your honor, I think we put up everything that we need
to put up to satisfy the statutory requirements to allow
this court to consider and order special consideration
for the seven-year-old child witness in this case.
The State v. Morrow [State v. Murrell] has set out in
South Carolina the procedure, and it says that you are
supposed to call expert witnesses and parents to testify
about why the child cannot and should not testify. And
two of - one each of those have been called and they've
both testified that in their opinion this child will not be
able to testify in front of the defendant and, further,
should not testify in front of the defendant. (emphasis
added).
p.457
Court: Well, counselor, I think this is probably a classic case
of why that last part of 16-3-1530 [sic], I think, was
passed. We've got a young child who it's alleged has
been molested at the age of five and who is seven years
of age now. We've got testimony from the mother
about how this thing came about, and testimony from
the mother and the expert which shows that except for
the mother, at least as far as I know it right now, the
rest of the family don't believe her. And so I think
that's classic. That would - to me would be a classic
situation as to why it would be passed.
The trial judge did not specifically state that he decided to order a
videotape procedure because the victim would be traumatized by the presence
of the defendant, as the majority recommends. However, immediately prior to
the trial judge's decision, the solicitor references the testimony of the mother
and Charpia concerning the victim's ability to testify in front of her uncle.
Based on the solicitor's argument, the trial judge concluded that this was a
classic case as contemplated by section 16-3-1550(E) and ordered the videotape
procedure. The trial judge's terminology "this is probably a classic case" is
simply a shorthand way of saying, "I agree with you, Ms. Solicitor, and find
based on the testimony of her mother and expert witness Charpia, that this
victim would be traumatized by testifying in front of Defendant." The trial
judge's decision should not be overturned on a mere technicality when it is clear
from the record that he did not abuse his discretion, relied on the testimony of
family and experts, and complied with the Murrell requirements. Accordingly,
I would reverse the Court of Appeals' decision and affirm the decision of the
trial court.
p.458