State v. Barrett

386 S.E.2d 242, 299 S.C. 485, 1989 S.C. LEXIS 196

• Court: Supreme Court of South Carolina
• Decided: October 16, 1989
• Docket: 23089
• Status: Published

Opinions

Chandler, Justice:

Appellant Richard Barrett (Barrett) was convicted of criminal sexual conduct upon his eleven-year-old stepdaughter (Victim). We reverse and remand.

Prior to Victim’s testifying at trial, the State presented Blanche Thomas, a DSS social worker, as a witness. Over Barrett’s objection, Thomas was allowed to testify to the details of what Victim had told her concerning the incident. Barrett contends this constituted impermissible “bolstering” of Victim’s testimony. We agree.

Ordinarily, when a witness has not been impeached, evidence of prior consistent statements is inadmissible. 4 Wigmore, Evidence § 1124 (Chadbourn rev. 1972); 98 C.J.S. Witnesses § 619 (1957); see State v. Gilliam, 66 S. C. 419, 45 S. E. 6 (1903); State v. Thomas, 34 S. C. L. (3 Strob.) 269 (1848). To this rule is an exception in criminal sexual conduct cases. When the victim testifies, evidence from other witnesses that she complained of the sexual assault is admissible as corroboration of the incident; however, the evidence must be limited to the time and place of the assault, and may not include particulars or details. See, e.g., State v. Cox, 274 S. C. 624, 266 S. E. (2d) 784 (1980); State v. Harrison, 236 S. C. 246, 113 S. E. (2d) 783 (1960); State v. Dawson, 88 S. C. 225, 70 S. E. 721 (1911); State v. Suddeth, 52 S. C. 488, 30 S. E. 408 (1898). This Court has recently cautioned bench and bar that the corroboration testimony is so limited. See In re Robert M., 294 S. C. 69, 362 S. E. (2d) 639 (1987); State v. Munn, 292 S. C. 497, 357 S. E. (2d) 461 (1987).

Here, Thomas testified extensively to details of the sexiial abuse reported by Victim. This error was exacerbated by the fact that, at the time Thomas testified, Victim’s credibility was not subject to impeachment inasmuch as she had not taken the stand.

Although there was physical evidence suggesting the presence of sexual abuse, the State relied solely upon Victim’s testimony to establish the details of the crime and the identity of the perpetrator. Other courts have held that improper bolstering constitutes reversible error under similar facts. See, e.g., People v. Sanders, 59 Ill. App. (3d) 650, 16 Ill. Dec. 814, 375 N. E. (2d) 921 (1978); People v. Therrien, 97 Mich. App. 633, 296 N. W. (2d) 8 (1979); Smith v. State, 100 Nev. 471, 686 P. (2d) 247 (1984).

The State contends that any error here was harmless¹ in that Thomas’ testimony was merely cumulative to Victim’s. To the contrary, it is precisely this cumulative effect which enhances the devastating impact of improper corroboration. Accordingly, admission of the evidence mandates reversal of the conviction.

Reversed and remanded.

Gregory, C. J., and Harwell and Finney, JJ., concur. Toal, J., dissenting in separate opinion.

1 This Court recognizes and has applied the harmless error doctrine in criminal prosecutions, including death penalty cases. See State v. Truesdale, 285 S. C. 13, 328 S. E. (2d) 53 (1984).

“It is a doctrine which should be employed guardedly, however, and on a case by case basis.” State v. Morris, 289 S. C. 294, 297, 345 S. E. (2d) 477, 479 (1986) [Emphasis supplied].