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The trial court abused its discretion in a prosecution for rape and other offenses by excluding the opinion testimony of three witnesses about the complainant's character for truthfulness. The exclusion of testimony was prejudicial because the complaining witness did not report the alleged rape until two week later, and there was little or no physical or medical evidence in the case.
Attorney General Roy Cooper, by Special Deputy Attorney
General Dorothy Powers, for the State.
Roberti, Wittenberg, Lauffer & Wicker, by R. David Wicker, Jr., for the defendant-appellant.
The proper foundation for the admission of opinion testimony as to a witness's character for truthfulness or untruthfulness is personal knowledge . (See footnote 1) Here, Defendant argues that the trial court erred by refusing to allow the opinion testimony of three defensewitnesses . Because Defendant established that the witnesses had personal knowledge of the complaining witness, the trial court prejudicially erred by excluding their opinions regarding the complaining witness's character for truthfulness or untruthfulness. On 18 January 2006, Defendant Alvaro De Jesus Valdez Hernendez (See footnote 2) was found guilty of second-degree rape, assault on a female, communicating threats, injury to personal property, harassing phone calls, and interfering with telephone lines, in charges stemming from an alleged attack on the complaining witness in the early morning hours of 5 November 2004. Defendant and the complaining witness had previously had what was characterized as a stormy romantic relationship from 1991 until February 2003, when Defendant moved out of the apartment they shared together in Carrboro, in Chatham County. The complaining witness had a domestic violence protective order against Defendant from April 2003 until April 2004.
According to Defendant's testimony at trial, he and the complaining witness resumed their romantic relationship in either September or October 2004. He testified that he and the complaining witness had plans to meet after she was finished with work on the evening of 4 November 2004; however, she testified that he showed up at her apartment and pushed his way inside without permission. Defendant stated that they had consensual sex thatnight, whereas the complaining witness asserted that he had raped her. Two and a half weeks later, on 22 November 2004, the complaining witness called the Chapel Hill Police Department; the next day, she went to the station and reported the alleged rape to two officers there. Defendant contends that the complaining witness reported the alleged rape after she became angry with him when she saw him kiss his new girlfriend, and that she had threatened him.
At trial, the trial court granted the State's motion in limine to exclude any witness, evidence, testimony or argument regarding any prior domestic incidents between the victim and the Defendant that arose in Chatham County, North Carolina prior to 1998. After the complaining witness testified and at the close of the State's evidence, Defendant called as his first witness Sergeant James Bowden of the Siler City Police Department. Sergeant Bowden testified that he had spoken to or dealt with the complaining witness more than half a dozen times and then recounted an incident from March 2003 in which the complaining witness had allegedly harassed Defendant and his girlfriend during a soccer game at a local park. Defense counsel then began to question Sergeant Bowden as to his opinion of the complaining witness's character with regard to truthfulness or untruthfulness[.]
At that point, the prosecutor objected, and the trial court excused the jury. The trial court then indicated that [he] had sustained the objection because [he] did not believe that a foundation has been laid for this officer to be allowed to expressan opinion about [the complaining witness's] character of truthfulness. Defense counsel responded that it was not his intention to ask about specific instances, which would violate the trial court's prior grant of the State's motion in limine, or to inquire as to the complaining witness's reputation. Rather, defense counsel stated that Sergeant Bowden and another defense witness, Sergeant Mark Gonzalez of the Siler City Police Department, had previously had sufficient contact with the complaining witness to form an opinion as to her character for truthfulness. The trial court then agreed to a voir dire examination of both Sergeants Bowden and Gonzalez, as well as a third witness, court interpreter Mitch Million, for defense counsel to make an offer of proof of a proper foundation for their opinions as to the complaining witness's character for truthfulness.
Each individual testified to contact on numerous occasions with the complaining witness, and their opinions that she was not truthful. Sergeant Bowden stated that he had an opportunity to speak with or deal with [the complaining witness] more than half a dozen times, over numerous years, and that he had formed the opinion that she was not being truthful on those occasions. Sergeant Gonzalez likewise testified that he had met the complaining witness on numerous occasions over multiple years, during which encounters he had communicated with her in Spanish, her native language, and that he had formed the opinion that she was making untruthful statements. Mr. Million stated that he had seen [the complaining witness] in court over a half dozen times,between six and a dozen times during his service as a court interpreter, and had also seen her on numerous occasions at the community college where he taught. Through those encounters, Mr. Million had formed the opinion that the complaining witness had a character for untruthfulness. Mr. Million also testified that he had been called by the trial court to interpret in the instant case, but because of [his] experiences with [the complaining witness] in the past, he had recused himself since he knew that [he] could not be impartial because of her credibility.
At the conclusion of the voir dire examinations, the trial court again sustained the prosecutor's objections, stating that the foundation offered is too equivocal to allow [Sergeant Bowden] to give his opinion[,] that there is simply nothing to establish that what she said is not truthful[,] and that [t]he foundation offered is not sufficient to give [Sergeants Bowden and Gonzalez] a basis on which to give this jury an opinion of the character for truthfulness of [the complaining witness[.] The trial court further added that he believed Mr. Million's testimony to be so far beyond the bounds . . . of permissible opinion testimony about somebody's character for truthfulness as to be ludicrous that it's offered because its admission would allow anybody who comes to court and sits and listens to testimony [to] make a decision about whether they believe somebody or not and then be able to come into court to testify about their character for truthfulness.
The trial court concluded that in all of the testimony, there is nothing definitive to prove that [the complaining witness] evertold an untruthfulness to these officers or Mr. Million[,] and, as such, there is absolutely no foundation to allow testimony by these witnesses as to this witness' character for truthfulness, and the objections are sustained. The jury therefore did not hear any testimony from Sergeant Gonzalez and Mr. Million and heard Sergeant Bowden's testimony only as to the March 2003 incident at the soccer field. Following the jury's verdict of guilty of second-degree rape, assault on a female, communicating threats, injury to personal property, harassing phone calls, and interfering with telephone lines , the trial court entered judgment and sentenced Defendant to a minimum term of ninety-six months and a maximum term of one hundred twenty-five months in prison.
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