State v. Quarg

415 S.E.2d 578, 106 N.C. App. 106, 1992 N.C. App. LEXIS 360
CourtCourt of Appeals of North Carolina
DecidedApril 21, 1992
DocketNo. 911SC429
StatusPublished
Cited by1 cases

This text of 415 S.E.2d 578 (State v. Quarg) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Quarg, 415 S.E.2d 578, 106 N.C. App. 106, 1992 N.C. App. LEXIS 360 (N.C. Ct. App. 1992).

Opinion

JOHNSON, Judge.

Defendant contends that the trial court erred in (I) allowing certain hearsay testimony which did not corroborate the victim’s testimony, (II) allowing into evidence certain statements made by the defendant which were not disclosed to the defense prior to trial, (III) allowing certain expert testimony which was not disclosed prior to trial, and (IV) denying defendant’s motion to dismiss for insufficiency of the evidence. We find reversible error in the testimony of the sexual abuse expert and award defendant a new trial. Because defendant’s first two assignments of error relate to circumstances not likely to reoccur at the new trial, we discuss only defendant’s third and fourth assignments.

I.

In his third Assignment of Error, defendant contends that the trial court erred in allowing opinion testimony of a social worker which was not disclosed in response to his discovery request. We agree.

Mr. Braun, a social worker, examined S. W. on 6 August and again on 13 August 1990. Following the second interview, he wrote a two page “Screening/Admission Assessment” report which included the “provisional diagnosis” of “adjustment disorder with mixed emotional features” and “post traumatic stress disorder” (PTSD). The State received this initial report but had in its possession no other material pertaining to information received or diagnosis made by Braun in the three or four subsequent treatment sessions with S. W. Defendant received a copy of Braun’s initial report on 12 December 1990 but was unaware of any subsequent sessions between S. W. and Mr. Braun or of any final diagnosis and received no other material from the State.

[109]*109At trial, the State tendered Braun as an expert in child sexual abuse. He was allowed to testify from memory after having reviewed. his entire file prior to trial. On voir dire, Braun testified that he had seen S. W. for a brief screening visit and for a longer admission assessment visit, the report of these two meetings being the report given by the State to defendant. Braun also testified that he subsequently saw S. W. three or four more times. On voir dire, it was determined that he had produced no final written report from these sessions and had not brought his notes concerning these sessions to trial. Defendant objected to the admission of Braun’s testimony on the grounds that defendant had received only the initial report containing the provisional diagnosis and nothing else. The trial judge held that in the absence of a final written report, the notes that Braun had made during the subsequent three or four treatment interviews comprised the final report and since they had mot been made available to defendant nor could they be obtained in a timely manner during the course of the trial, he. sustained defendant’s objection and ruled Braun’s testimony inadmissible.

Following the trial court’s ruling, defendant cross-examined Braun as to a statement S. W. made to him on 13 August 1990. This statement was in Braun’s initial report and he had testified on direct concerning this statement. Braun was then allowed to testify on redirect, over repeated objections, that in his opinion S. W. suffered from PTSD.

Defendant contends that the trial court having ruled Braun’s testimony inadmissible, it was error to admit his opinion testimony later over objection. The State argues that defendant “opened the door” in his cross-examination, making the opinion testimony admissible.

“After a witness has been cross-examined, the calling party may again examine him to clarify the subject matter of the direct examination and deal with new matter elicited on cross-examination. Counsel, on redirect, is not entitled either to have the direct testimony repeated or to bring out entirely new matter.” 1 Brandis on North Carolina Evidence § 36 (3rd ed. and 1991 Supp.). The calling party is entitled to examine, on redirect, new matters which may have been brought out on cross-examination. State v. Weeks, 322 N.C. 152, 168, 367 S.E.2d 895, 905 (1988) (contents of defendant’s medical records not discussed either on direct or on cross thus [110]*110no testimony for which a clarification was needed and State’s objection to defendant’s redirect examination was properly sustained); State v. Moore, 103 N.C. App. 87, 95, 404 S.E.2d 695, 700, disc, rev. denied, 330 N.C. 122, 409 S.E.2d 607 (1991) (where evidence of bias is elicited on cross-examination, the witness on redirect is entitled to explain even though this evidence may not have been competent on direct).

We find from a review of the transcript that the testimony ruled inadmissible concerned the treatment sessions subsequent to the first two meetings which were the subject of the initial report. Defendant did not open the door during his cross-examination so as to bring Braun’s opinion testimony derived from these sessions within the proper bounds of redirect examination. Defendant’s cross-examination was limited to a few questions concerning a specific statement S. W. made to Braun and about which Braun had testified on direct. This questioning did not cover new matter so as to allow the State on redirect to question Braun about his diagnosis of PTSD. The admission. of Braun’s opinion testimony regarding his final diagnosis, after having been held inadmissible for failure to comply with discovery, was error.

We further find that the admission of Braun’s opinion testimony on PTSD was error in that it was admitted without proper limiting instructions. In State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992), our Supreme Court specified three requirements that must be met before testimony on PTSD and closely related conditions, specifically rape trauma syndrome and conversion reaction, may be used in a sex abuse or rape case. First, the trial judge must find the testimony admissible under Evidence Rule 403 and helpful to the jury under Evidence Rule 702. Secondly, the testifying expert must be tendered and accepted by the court as an expert in the relevant field. Thirdly, the jury must be properly instructed on the limited use to which the testimony may be put. Expert testimony that the victim suffers from these disorders or shows symptoms consistent with these disorders may not be used substantively to prove that a rape or sexual offense did in fact occur. Id. This testimony is, however, properly admissible for purposes of “corroborating the victim’s story, or it may help to explain delays in reporting the crime or to refute the defense of consent.” Id. at 822, 412 S.E.2d at 891. As stated in Hall, in determining whether this evidence is admissible,

[111]*111[t]he trial court should balance the probative value of evidence of post-traumatic stress, or rape trauma, syndrome against its prejudicial impact under Evidence Rule 403. It should also determine whether admission of this evidence would be helpful to the trier of fact under Evidence Rule 702. If the trial court is satisfied that these criteria have been met on the facts of the particular case, then the evidence may be admitted for the purposes of corroboration. If admitted, the trial judge should take pains to explain to the jurors the limited uses for which the evidence is admitted.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Quarg
431 S.E.2d 1 (Supreme Court of North Carolina, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
415 S.E.2d 578, 106 N.C. App. 106, 1992 N.C. App. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-quarg-ncctapp-1992.