Chappell v. State

429 S.C. 68

837 S.E.2d 496

Frederick Robert CHAPPELL, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2016-000283

Opinion No. 5704

Court of Appeals of South Carolina.

Heard November 5, 2019

Filed December 31, 2019

Rehearing Denied February 10, 2020

Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Taylor Zane Smith, of Columbia, for Respondent.

THOMAS, J.:

Petitioner Frederick Robert Chappell appeals the dismissal of his post-conviction relief (PCR) application, arguing the PCR court erred in denying his claim for ineffective assistance of counsel because his trial counsel did not object when the State's expert witness gave improper bolstering testimony. We reverse.

FACTS AND PROCEDURAL HISTORY

On December 14, 2010, a Greenville County Grand Jury indicted Chappell for first-degree criminal sexual conduct with a minor and lewd act upon a child, and the State called the case to trial in August 2012. On August 7, 2012, after a two-day trial, the jury convicted Chappell of both counts, and the trial court sentenced him to life in prison.¹ Chappell appealed, arguing this court should reverse his convictions because the State's expert witness gave improper vouching testimony. However, in June 2014, this court affirmed Chappell's convictions and held that Chappell's improper vouching claim was not preserved for review. State v. Chappell , Op. No. 2014-UP-272, 2014 WL 2968955 (S.C. Ct. App. filed June 30, 2014).

On November 5, 2014, Chappell filed a PCR application, claiming he received ineffective assistance of counsel because his trial counsel failed to object when the State's expert gave improper bolstering testimony. The PCR court held an evidentiary hearing on December 17, 2015. In an order dated January 21, 2016, the PCR court dismissed Chappell's application, finding the State's expert did not make any improper vouching statements. In May 2018, this court granted a writ of certiorari to review the PCR court's ruling.

At trial, the nine-year-old victim testified her grandmother's former boyfriend, Chappell, had sexually abused her several times when she and her siblings visited her grandmother's home.² She alleged that Chappell touched her "private" and "bottom" with his hands and mouth and sometimes forced her to touch his "private." After the victim testified, the jury watched video of a forensic interview in which the victim described the abuse and identified Chappell as the perpetrator.

The court then held a hearing to determine the admissibility of testimony from the State's expert witness, Ms. Shauna Galloway-Williams. During voir dire, Galloway-Williams testified that she had never interviewed the victim and had not seen the video of the victim's forensic interview. Over trial counsel's objection, the court qualified Galloway-Williams as an expert in child sexual abuse and treatment.

On direct examination, Galloway-Williams testified to why children who are victims of sexual abuse might not report the abuse right away. Then, without objection from trial counsel, the following exchange occurred between the prosecutor and Galloway-Williams:

Q: ... Do children lie?

A: Yes.

Q: Okay. Do children lie about things like – of a sexual nature or abuse? And can you tell us the dynamics of lying and sexual abuse?

A: Children lie. Adults lie. But children are not sophisticated liars. And what I mean by that is they really – you know, children, generally, lie to keep themselves out of trouble, you know. If you ask them if they ate the cookie and they have crumbs on their face, and they say, no, I didn't eat the cookie, that kind of lie.

Children don't often lie about sexual abuse incidents. They don't often lie about things that are beyond their real scope of knowledge.

Chappell argues his trial counsel was ineffective for failing to object when Galloway-Williams improperly bolstered the victim's credibility by testifying, "Children don't often lie about sexual abuse incidents."

STANDARD OF REVIEW

PCR applicants have the burden of proving their allegations by a preponderance of the evidence. Tappeiner v. State , 416 S.C. 239, 248, 785 S.E.2d 471, 476 (2016). "[T]his [c]ourt will uphold the PCR court's factual findings if there is any evidence of probative value in the record to support them." Thompson v. State , 423 S.C. 235, 239, 814 S.E.2d 487, 489 (2018), reh'g denied , (June 12, 2018). This court reviews questions of law de novo and will reverse if the PCR court's decision is controlled by an error of law. Smalls v. State , 422 S.C. 174, 180–81, 810 S.E.2d 836, 839 (2018), reh'g denied , (March 29, 2018).

INEFFECTIVE ASSISTANCE OF COUNSEL

When reviewing a claim for ineffective assistance of counsel, the "court proceeds from the rebuttable presumption that counsel ‘rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ " Smith v. State , 386 S.C. 562, 567, 689 S.E.2d 629, 632 (2010) (quoting Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To rebut this presumption and succeed on an ineffective assistance claim, a PCR applicant must show (1) trial counsel's performance was deficient, and (2) trial counsel's deficient performance prejudiced the outcome of the trial. Strickland , 466 U.S. at 687, 104 S.Ct. 2052.

A. Deficient Performance

Chappell argues his trial counsel's performance was deficient because she did not object to improper bolstering testimony. "To prove trial counsel's performance was deficient, a[ ] [PCR] applicant must show ‘[trial] counsel's representation fell below an objective standard of reasonableness.’ "

Smalls , 422 S.C. at 181, 810 S.E.2d at 840 (quoting Williams v. State , 363 S.C. 341, 343, 611 S.E.2d 232, 233 (2005) ). Thus, this court will find trial counsel's failure to object was deficient performance only if it was unreasonable under the prevailing professional norms at the time of trial. Strickland , 466 U.S. at 688, 104 S.Ct. 2052.

1. Improper Bolstering Testimony

The PCR court found Galloway-Williams' testimony did not contain any vouching statements. Chappell argues Galloway-Williams improperly vouched for and bolstered the victim's credibility by testifying, "Children don't often lie about sexual abuse incidents." We agree with Chappell.

"The assessment of witness credibility is within the exclusive province of the jury." State v. McKerley , 397 S.C. 461, 464, 725 S.E.2d 139, 141 (Ct. App. 2012). Therefore, "even though experts are permitted to give an opinion, they may not offer an opinion regarding the credibility of others." State v. Kromah , 401 S.C. 340, 358, 737 S.E.2d 490, 499 (2013). Moreover, a witness "may not ... give testimony that improperly bolsters the credibility of the victim." Briggs v. State , 421 S.C. 316, 323, 806 S.E.2d 713, 717 (2017).

Improper bolstering is "testimony that indicates the witness believes the victim, but does not serve some other valid purpose." Id. at 325, 806 S.E.2d at 718. Improper bolstering also occurs when a witness testifies for the purpose of informing the jury that the witness believes the victim, or when there is no other way to interpret the testimony other than to mean the witness believes the victim is telling the truth. Id. at 324, 806 S.E.2d at 717 ; State v. Jennings , 394 S.C. 473, 480, 716 S.E.2d 91, 94 (2011) ; McKerley , 397 S.C. at 465, 725 S.E.2d at 142. However, an expert's testimony is not improper bolstering "when the expert witness gives no indication about the victim's veracity ...." State v. Perry , 420 S.C. 643, 663, 803 S.E.2d 899, 910 (Ct. App. 2017), cert. granted , (April 19, 2018).

In support of his ineffective assistance claim, Chappell cites several improper bolstering cases involving a witness who interviewed or treated the victim before trial. See State v. Chavis , 412 S.C. 101, 108, 771 S.E.2d 336, 340 (2015) (finding a forensic interviewer improperly bolstered the victim's credibility when she testified that she recommended the defendant not be allowed around the victim); Kromah , 401 S.C. at 359, 737 S.E.2d at 500 (stating a forensic interviewer's testimony her interview with the victim led to a "compelling finding" of abuse was improper bolstering because it was equivalent to stating the victim was telling the truth); Jennings , 394 S.C. at 480, 716 S.E.2d at 94 (finding a forensic interviewer improperly bolstered the victim's credibility by noting in her report that the victims "provide[d] a compelling disclosure of abuse ..."); Smith , 386 S.C. at 564, 568, 689 S.E.2d at 631, 633 (stating a forensic interviewer improperly bolstered the victim's credibility by testifying that the victim was believable and had no reason to lie); State v. Dawkins , 297 S.C. 386, 393–94, 377 S.E.2d 298, 302 (1989) (stating the victim's treating psychiatrist improperly bolstered the victim's credibility by testifying that the victim's symptoms were genuine); State v. Dempsey , 340 S.C. 565, 569–71, 532 S.E.2d 306, 308–09 (Ct. App. 2000) (finding the victim's counselor improperly vouched for the victim's credibility by testifying that ninety-five to ninety-nine percent of allegations of child sexual abuse are true). Although we find these cases informative, we note that Galloway-Williams was an independent expert who had no contact with the victim before trial.

This court first considered whether an independent expert's testimony was improper bolstering in State v. Brown , 411 S.C. 332, 768 S.E.2d 246 (Ct. App. 2015), abrogated on other grounds by State v. Jones , 423 S.C. 631, 817 S.E.2d 268 (2018). There, the independent expert testified regarding the general behavioral characteristics of child sexual abuse victims. Id. at 345, 768 S.E.2d at 253. The court held there was no improper bolstering testimony because the independent expert "(1) [did] not testify[ ] as a forensic interviewer, (2) never interviewed the victims, ...