*1
Heard 2002. 16, Sept. Decided 2002. 3, Dec. Reheard 2002. 30, Aug. Refiled 2004. Rehearing Denied Oct. *2 Condon,
Attorney General Charles M. Deputy Chief Attor- ney McIntosh, General John W. Assistant Deputy Attorney Richardson, H. General Charles and Assistant Attorney Gen- Brown, Melody Columbia, eral J. all of for Petitioner. Tara D. Columbia, Shurling, Respondent. Flowers, Greenville, J. David E. Gregg Meyers, of Charleston, both for the South Carolina Victim’s Assistance *3 Network, Amicus Curiae.
Justice BURNETT:
The
petitioned
State
for review of the
of Appeals’
decision reversing Michael H.’s (“Respondent”) juvenile con
(“CSC”)
viction for criminal sexual conduct
with a minor. We
issued an
opinion
this case
September 2002.
In the
H.,
Interest
Michael
a minor under the age
seventeen
of:
25529,
(S.C.
years,
No.
Op.
Factual/Procedural Respondent charged, by juvenile was petition filed in Lex- court, ington County family with CSC in the degree, first kidnapping, with a minor. Respondent CSC is the com- uncle, plainant’s although he is only eight years older than complainant. assault, At the time of the alleged Respondent was twelve or years thirteen old and the complainant was four birth and premature complications, old. Due to years or five a matu- and exhibits developmentally impaired Respondent spent often age.1 complainant below his The level others rity (the complainant’s pater- house home Respondent’s time at brother, and younger Respondent, his grandmother) nal where took and showers and also baths complainant played together during It was spent night.2 when together complainant claimed complainant Respon- these that one of showers him. “raped” dent 1999, in response story in March allegation
The arose a man for indecent exposure. on the local news about arrested saw complainant The mother testified complainant’s had “robbed” the children. why and asked her man report that man had not “robbed” The mother responded children, but and then “raped” explained children had what The mother testified rape complainant’s her son was. was her of a “would be if someone rape boy she told son that or touch him in an area was covered his swimsuit underwear, with was touch his or penis play his if someone some- may try penis and stick or penis, [his] his someone his this Upon hearing explanation, into behind.” thing changed, said her expression mother son’s complainant’s her, “well, done to me before.” [Respondent’s] he told when mother then she asked her son Complainant’s testified it responded happened where this and he had happened, Respondent. was in the shower with ago while when he mother-in-law, Respondent’s mother called her Complainant’s mother, Respondent of her accusation. to inform her son’s mother, done having and denied ever complainant’s spoke complainant. like that to anything with the complainant’s report police mother filed County Children’s Center to the complainant Lexington took *4 average), (just perform- IQ Respondent's is 84 but his 1. verbal below disability. lags indicating learning IQ His he has a ance behind at delays experienced not learn like other kids counselor stated he did up. gross development grew as he in motor (victim’s grandmother) to the testified the door Respondent’s 2. mother boys bathing, and she always open were remained when bathroom continuously remaining frequently, in earshot checked on them during their baths and showers. protocol where a was rape performed counseling began. protocol The doctor no performing rape found evidence of sexual but this was not with anal rape assault testified unusual counselor, after significant Complainant’s time had passed. Lake, Dr. clinical psychologist, testified she believed Re- spondent sexually had assaulted victim.3 During cross-exami- Lake, nation of Dr. Respondent’s counsel discovered he had not complainant’s received notes from the last four sessions with Dr. Respondent Lake. time to asked for review them and completed then his cross-examination. these last sessions, four reported been complainant he had hearing voices in head for his some time. told Dr. Complainant Lake hearing he two men began voices of on his fourth birthday, until they continued a month or so before trial. Com- Dr. plainant told Lake the told him say voices mean things them, to his and to hurt and that friends the voices told him he raped should have like had Respondent Respondent raped him.
Dr. thought might auditory Lake the voices be hallucina- suggested tions and to complainant’s mother that he see a physician psychiatrist or a diagnosis or treatment. Dr. reflected, however, Lake’s that *5 he of time hearing during period had voices ant been Re- That was denied. occurred. motion alleged the assault have testi- complainant’s also moved to spondent’s counsel hearing of incompetent, report based on mony stricken as motion was as well. voices. That denied him, trial, ex- Respondent raped At testified complainant words, Respondent penis that “stuck his in his own plaining, he at trial and denied Respondent butt.” also testified up my way. complainant any had sexually assaulted motion for directed granted Respondent’s The trial judge based degree kidnapping charges on verdict the first CSC guilty evidence found CSC Respondent on insufficient but the Department with a him committed to minor ordered (“DJJ”) twenty-first birthday. until his of Juvenile Justice the Court of reversed Respondent appealed Appeals H., Op. Michael remanded for a new trial. In the Interest of 2002). (S.C. Ct.App. January No. 02-UP-050 filed Rehearing filed for and Sugges- The State then a Petition En filed a Rehearing response, Respondent tion for Banc. In for in the Alternative Writ of Appeal Petition for Bond or for Appeals The Court of denied Petition Supersedeas. Respondent’s Appeal Petition for Rehearing granted but Bond. stay this
Subsequently, petitioned State Court and for Appeals’ granting supersede- the Court of order bond behalf the Court petition as. Justice Moore denied not order was ground Appeals’ on the the Court set condi- day, family the same court appealable. On tions of the bond. for a writ of certiorari granted petition
We the State’s following address the issues: family err in that the holding
I. Did the of Appeals failing his discretion in judge court abused victim to submit to a examination? jurisdiction its beyond II. act Appeals Did the Court Bond? Appeal when it granted Respondent’s Law/Analysis Psychological I. Examination argues Appeals State the Court in holding erred his family failing abused discretion in to order *6 the child victim to psychological submit to a examination. We disagree. matter,
As a preliminary argues the State this that issue is not for preserved review. The State trial asserts counsel’s complaint grounded was in perceived discovery violations con- the notes of Dr. cerning Lake had not turned been over to him. disagree. We Important regarding information mental health the child victim was in Respon- uncovered dent’s cross-examination of Dr. Lake. At the close of the case, Respondent State’s moved for a psychological evaluation based on this Obtaining evidence. the psychological evalua- tion, violation, discovery not pursuing the primary was objective move, Respondent’s one, “Now motion. we’d to have this child a go through psychological prior evaluation because, to continuing with this case based upon testimony we’ve heard and given what we’ve been today, highly it’s likely voice some told to say [Respondent] did [victim] this.” may
An issue not be raised for the time on appeal. first In preserve for appeal, to an issue it be must raised to Wilke, upon by ruled the trial court. Wilder v. Corp. 330 71, (1998). words, S.C. 497 S.E.2d In 731 other the trial court an must be to given opportunity resolve the before it issue presented Toal, to the appellate Vafai, Muckenfuss, court. & Carolina, (S.C. Appellate 1999). Practice in South at Bar 66 case, In Respondent’s this trial, counsel raised the before issue again trial, and then at during which point the trial judge denied the motion to victim have the submit psychological to a examination.
Whether the authority has to order a victim in a sexual assault to prosecution submit to a psychological an examination is issue of impression first in South Carolina. split There is a in authority jurisdictions other as to whether a court has the to order a power victim to submit to a then, so, psychological examination if under what circum stances.
547
judge
discretion to
jurisdictions
trial
give
Some
evaluation when
victim submit to a
order a
for such an evalua
compelling
show
need
defendant can
grant
of the defendant’s
tion. The trial court’s denial
judge
if
trial
abused his
only
is then reversed
request
(Alaska
State,
App.1984);
Delaney,
S.E.2d
a
for
examination
request
psychological
denied
defendant’s
(three
supreme
The
court af-
young girls).
of the victims
reason,
“any
failed
present
the defendant
to
firmed because
otherwise,
justify the examination.”
Id.
or
to
compelling
that
a
position
compelling
have taken
courts
Other
violates the
to submit to a
examination
psychological
victim
to
right
privacy
to
the victim’s
public policy designed
protect
People
to the victim.
v.
further
trauma
prevent
and to
developed by
court to
when
precise
each different
determine
The
test
from case
a victim is warranted varies
psychological
a
examination of
court,
ways
Jersey
example, discussed the various
The New
for
to case.
by
testimony
“tainted”
interview tactics and
child's
could become
a
influence,
the initial burden of
and held that the defendant bears
adult
product
showing
of
some
that the victim’s statements were
evidence
Michaels,
299,
techniques.
N.J.
suggestive or
interview
136
coercive
burden,
pretrial
meets
"taint”
If the defendant
a
Espinoza,
Cal.App.4th
Cal.Rptr.2d
95
116
700
Horn,
449,
(N.C.1994);
v.
State
337 N.C.
primary support exercising judicial determining trial from discretion judges of a child sexual assault whether a evaluation psychological First, suggests the court complainant appropriate. a to submit to impact forcing complainant negative outweighs a concern that always evaluation is psychological Horn, at 53 benefits to defendant. S.E.2d any potential (“the defendant, flowing an innocent from benefits to possible witness, out examination of the are such a court ordered the witness’ resulting invasion of weighed by ....”) a sweeping This is (citing Looney, supra). privacy perpetrator and the complainant Where generalization. assault, to a sexual funda only are two witnesses often request a defendant be entitled mental fairness dictates where there is evaluation of a child witness complainant’s psychological reason to compelling question testify may complainant incompetent A child who is status. account of the facts. an accurate capacity give not have concerns that special victims involving present child Cases to order judicial psycho discretion allowing favor of weigh evaluations.7 logical Bloom, Post-Schumpert Independent Interviews and Jeffrey Era P. Witnesses, July/Aug. Law. 40 S.C. Psychological Evaluations Child
550
Second, Horn the invasion of an individual victim’s suggests examination, by a and the privacy psychological danger such would further hesitant practice discourage already victims crimes, reporting weighs against from sex a trial exer- judge judicial discretion to order cising psychological evaluations Horn, (“the such cases. 446 at 53 to possible S.E.2d benefits an innocent defendant ... are ... outweighed by discouraging victims of crime report such offenses and other potential them”) witnesses from their disclosing knowledge (citing Looney, supra). Supreme North Carolina rea- Court’s First, soning unconvincing is for two reasons. the Delaney guidelines factors set forth strict for the trial consider in determining whether need compelling exists. These factors weigh favor of complainants thereby suggest judges rarely Therefore, would evaluations. it psychological unlikely the rare occasions where do order judges psychologi- cal evaluations strongly discourage would victims from report- Second, sex ing highly unlikely crimes. it is the victim of a truly sex crime considers well in advance of trial whether to report a sex may crime because the court order a possibly psychological evaluation. This is especially true when the is a complainant highly improbable child. It is a child com- plainant judicial would be so cognizant process as to even consider the of a possibility judicially psychologi- ordered cal evaluation.
Finally, the North Carolina Supreme Court further sup- ports judicial its absolute bar on discretion by suggesting the right sufficiently defendant’s to a fair trial is protected by the trial judge allowing the defendant to submit evidence rebut- ting Horn, the complainant’s mentally deficient status. S.E.2d at 54. assertion provides support This scant for deny- ing trial judges’ discretion to consider ordering psychological of complainants. evaluations In particular, cross-examination complainant of a who is incompetent testify, a condition that evaluation, could through psychological be established would wholly be ineffective in protecting defendant’s to a fair trial. A complainant who is incompetent testify may not (July/Aug.1998) (arguing evidentiary advantage the State has an process amounts to a violation of due when the State is allowed an witness, not).
opportunity to evaluate a child but the defense is her of his or convey implications understand or fully on cross examination. condition rights trend of protecting the recent recognize We Assembly.8 General articulated South Carolina’s victims as *10 afforded with these protections in accord completely We are However, will not be rights a victim’s crime. victims of for or- need is the standard where compromised compelling complainants. of child evaluations dering Therefore, by is violated of this State public policy no of to consider the need judicial of discretion exercise proper justice. the ends of evaluations to meet such case, counsel present Respondent’s to the Turning as health of the child victim mental questionable offered the evaluation of sought psychiatric he a reason primary vic cited the child counsel Respondent’s victim. Specifically, him head that told of voices his hearing tim’s admission justification for mean to his friends as say things and do examination. psychiatric victim to undergo compelling factors, very the victim’s light Delaney Examined in of (four and six at alleged at the time of the assault young age counseling, trial), undergoing that the victim was the fact further he would not be (indicating the incident spoke freely of examination), the victim’s and the fact by another traumatized year during was voices hearing testified victim counselor Const, I, have the to be free provides § that victims 8. S.C. art. intimidation, harassment, throughout the criminal and or abuse judicial proper discretion juvenile justice process. The exercise intimidation, hardly compelling need could be considered based on harassment, justice system. abuse in our (2003), testimony provides that the § S.C.Code Ann. 16-3-657 prosecution need not be corroborat- conduct victim in a criminal sexual judicial discretion in fully supports the exercise provision ed. This Where one can be convicted considering psychological evaluations. compe- imperative be testimony, it is that his accuser uncorroborated testify. tent to (2003), evidence of a victim's § 16-3-659.1 bars S.C.Code Ann. conduct, conduct, opinion the victim’s sexual evidence of sexual circum- conduct under most reputation the victim’s sexual evidence of Assembly’s intent clearly the General reflects While the statute stances. assault, judicial proper exercise protect victims of sexual of a considering ordering psychological evaluation discretion in protec- by Delaney, not contradict this prescribed does complainant, as provision. tive occurred, when victim alleged the assault the judge would have been within his discretion to order the victim to submit to an independent psychological examination. circumstances,
Considering these particularly the evidence regarding the possible hallucinations, victim’s auditory we affirm the Court of Appeals’ order reversing Respondent’s adjudication and remanding for a new trial. We modify the order by limiting the trial judge’s discretion to order a psycho- logical examination to in which a cases child the complaining remand, victim. Upon the court should consider motion any for a Respondent psychological examination of the child victim in light the Court’s issue, resolution of this novel applying the analysis we set forth in this case. Appeal
II. Bond argues The State the Court of Appeals beyond acted jurisdiction its in granting Respondent’s motion for bond pending appeal. his We disagree. *11 14-8-200(a)
South § Carolina Code Ann. (Supp.2003) states that the Court of Appeals shall have the same authority to grant petitions for bail as this Court would have in a similar case. Under South § Carolina Code Ann. (1985), 18-1-90 bail shall be allowed to the defendant in all cases in which the trial, is appeal conviction, from the or sentence for a criminal offense. 221(b),
Rule South Carolina Appellate Court Rules (“SCACR”), provides that the Court of Appeals juris- retains diction until this Court or grants denies a petition for certiora- ri.
Where a petition for rehearing denied, has been the Court of Appeals shall not send the remittitur to the lower court until the time to petition for a writ of certiorari under Rule 226(c) has expired. If a petition for writ of certiorari filed, the Court of Appeals shall not send the remittitur until notified that petition the has been denied. If the writ is granted Court, by Supreme the the of Appeals Court shall not send the remittitur. 221(b), (2002).
Rule
SCACR
The
State filed
Petition
4,
for
on
Rehearing
February
2002, before the expiration of the fifteen days allotted in Rule
7,
February
the
filed
221(a),
Respondent
SCACR. On
the State’s
the outcome of
pending
Bond
Appeal
Petition for
of
decision. The Court
Appeals’
the
of
from
Court
appeal
on Febru-
Rehearing
for
the
Petition
Appeals denied
State’s
2002,
Petition for
21,
Appeal
and
ary
granted Respondent’s
had not
day.
Appeals
Bond
the same
Court
Respondent’s
when it
the
granted
returned the remittitur
Bond,
granted
not
and this
had
Appeal
Court
Petition
Therefore, we
the Court of
find
yet.
certiorari over
case
and
case
act-
jurisdiction
Respondent’s
retained
over
Appeals
Respondent’s petition.
it
authority
granted
ed within its
when
Appeals
Additionally, the State
argues
by
Respondent
failing
to bail
admitting
abused its discretion
guidelines
necessary
attempt
what
would be
to consider
disagree.
bond. We
violating
from
prevent Respondent
person
admitting
The factors to be considered
reversal,
include
pending appeal
probability
bail
crime,
the charac
escape,
possibility
nature of
Patterson,
v.
ter
circumstances of
Nichols
appellant.
(1943).
Appeals
The Court of
set
Conclusion reasons, the affirm as modified Court For the we foregoing adjudication reversing Respondent’s decision Appeals’ addition, affirm the we a new trial. granting Respondent request to the State’s denying decision Appeals’ Court of 554
declare the bond issued the null appeal by Appeals and void. PLEICONES, JJ., C.J., TOAL,
WALLER and concur. MOORE, J., dissenting separate opinion in a in which concurs. Chief Justice TOAL: respectfully
I dissent because I believe that the rule special by the trial the adopted majority giving judges discretionary — authority order in child victims sexual abuse to cases undergo psychological existing evaluations —undermines trial procedures witness credibility used evaluate and contra- venes the recent statewide to protect movement the rights Therefore, sexually the abused. I believe that under no circumstances should a trial have judge authority the to order undergo child victims of sexual abuse to psychological evalua- tions. I Accordingly, would reverse the of the portion court of appeals’ holding family decision abused judge his discretion in to order the child victim to failing submit psychological evaluation. applied country
Of various tests around the to deter- it judge’s mine whether is within the trial discretion to order child to submit to a psychological victims examination in cases, sexual abuse majority has chosen to adopt Virginia Supreme factors used the West Court in State v. (1992). Delaney, factors, 417 903 W.Va. S.E.2d These follow, guide as are intended trial judge determining whether to a psychological examination:
(1) the nature of the requested examination and the intru- examination; (2) siveness inherent in that the victim’s age; (3) resulting physical emotional effects of the and/or (4) victim; examination probative value (5) court; examination to the issue before the remote- act; ness of the time examination to the alleged criminal (6) already the evidence available for the defendant’s use.
Delaney, at S.E.2d factors; rather,
I do not support adoption of these I agree Supreme analysis North Carolina Court’s in State Horn, v. which led to the conclusion “a trial does
555 a victim submit to authority psycho- to not have the to an examination, victim’s mental status is even the when logical 52, 449, 337 446 of crime N.C. S.E.2d charged.” element the (1994). Horn, same many the considered the In court 54 “ possible but reasoned that ‘the Delaney factors as the defendant, from such a court flowing to innocent benefits an witness, the outweighed by are examination ordered to and right privacy of the witness’ resulting invasion discouraging from victims public to the interest danger ” v. Id. 53 (quoting to such offenses.’ at State report crime (1978)) 612, (emphasis 294 N.C. 240 S.E.2d Looney, “ added).9 balance, concern the court found that ‘zealous On justification harassing not for a grueling for the accused is ” Id. trial of the victim.’ and find agree support I the North Carolina court First, view considerations. my practical policy in such exami- privacy by invasion an individual victim’s an into practice discourage such a would danger nation and the crimes, adequately victims from sex already reporting hesitant view, a trial from my forbidding judges decision support, examinations authority to order having these cases.
Second, already the chal- process contemplates trial fairness, and overall credibility with witness lenges associated already have several attorneys judges and both trial receive disposal their to ensure that defendants alternatives at judge’s the trial importantly, is perhaps, a fair trial. Most already the admission of evidence deny to admit power health Or as mental status. gathered concerning witness’s resort, if the may the trial dismiss case judge a last imperiled. to a fair trial has been right defendant’s sufficiently Third, to a fair trial right a defendant’s testify- cross-examine both the protected through right A presented by all other the State. ing victim and witnesses trial has no Looney, court held that the 9. the North Carolina undergo psychiatric victim to examina- discretionary power require undergo being permitted testify. require To victims to tion before reasoned, evaluations, would be "a drastic invasion such the court itself, humiliating and privacy" and "in witness' own at potentially damaging reputation of victim." 240 S.E.2d to the well-prepared thorough- cross-examination has the potential credibility. undermine a de- ly Alternatively, witness’s may fense other call witnesses to attack the victim’s credibili- may the defense its own ty. Finally, present expert witnesses *14 rebut concerning evidence the victim’s mental health status. matter, Fourth, a practical majority’s as the decision the has a unanticipated consequence creating “trial within a trial.” words, In other if a determines —after the weighing Delaney factors as advocated the an majority exami- —that ordered, trial,” be nation should the the trial “primary against abuser, the alleged effectively is on while “sec- put hold the trial,” ondary the examination of the victim to ascertain the status, trial,” mental In “secondary victim’s is conducted. this in victims assume role the accused the primary case. This process additional turns our notion of the adversarial on its process by temporarily head the State its relieving proof constitutional burden of prove defendant guilty —to beyond instead, a reasonable creating, hearing doubt—and a the victim’s mental capacity. Fifth, Assembly people the General and of South Carolina have actively sought, years, protect in recent rights victims, particularly victims of sexual assault. See Victims’ Const, I, of Rights, § Bill S.C. art. 24 (providing that victims intimidation, harassment, have the to be free from juvenile abuse the criminal throughout justice process); § Ann. S.C.Code 16-3-657 (Supp.2002) (providing that a testimony of victim in a prosecution criminal sexual conduct corroborated); need not § be Ann. S.C.Code 16-3-659.1 (Supp.2002) conduct, evidence of (barring victim’s sexual opin- conduct, ion evidence of the victim’s sexual and reputation evidence of the victim’s sexual conduct in prosecutions circumstances). criminal sexual conduct under most Each provisions these illustrates the concerted movement toward in protection of victim sexual I criminal conduct cases. believe that decision majority’s undermines these efforts supporting intentions these policy decisions. Sixth, adoption of the Delaney represents factors radical in the criminal trial in change procedure this state. Evaluating credibility witness is an re- important function judges served for juries. Allowing to order judges victim the role of undermines abuse cases sexual evaluations in the power deal of great and vests a juries judges evaluations. perform who psychologists will evaluations ordering psychological that the Finally, is of little occurrence, majority posits, as the a rare be undergo such are forced to the victims who consolation to ar- Moreover, majority’s find the I respectfully evaluations. victims, not be dissuaded will particular, that child gument contemplate too they young since are abuse reporting from a child ahead, contrary, To the unpersuasive. hurdles further process understand the adversarial inability to victim’s issue, that I believe position on this my justifies position rights legisla- of victims’ nature protective consistent with the tion in Carolina. South conclusion, majority’s giving decision I do not support conduct a criminal sexual discretion to order judges
trial Given examination. to submit to victim *15 for all to ensure fairness already designed legal system our rule special who enter the courtroom those state, I in this would policy afoul of today public runs adopted decision hold- appeals’ of the court of the portion REVERSE discretion abused his family ing the victim. I evaluation of refusing to order the appeal on however, majority’s decision agree, issue. bond
MOORE, J., concurs.