State v. Galloway

443 S.C. 229

904 S.E.2d 866

The STATE, Respondent,

v.Richard Kenneth GALLOWAY, Petitioner.

Appellate Case No. 2022-000914

Opinion No. 28225

Supreme Court of South Carolina.

Heard March 27, 2024

Filed July 31, 2024

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Greenville County, Perry H. Gravely, Circuit Court Judge

Appellate Defender Joanna Katherine Delany, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Joshua Abraham Edwards, both of Columbia; and Solicitor William W. Wilkins, III, of Greenville, all for Respondent.

JUSTICE FEW:

Richard Kenneth Galloway was convicted of sexually assaulting his girlfriend’s daughter. We granted Galloway’s petition for a writ of certiorari to address three issues. We now address two of those issues—whether the trial court erred by excluding expert testimony offered by Galloway concerning potential "false memories" on the part of the victim and whether the trial court erred by admitting testimony from the State that Galloway was violent toward the victim’s mother. We dismiss the writ as to the third issue. We affirm the court of appeals.

I. Facts and Procedural History

In 2016, the victim sent a letter to the Greenville City Police Department alleging Galloway sexually abused her between 1988 and 1990. The victim was in elementary and middle school at the time of the crimes. She was thirty-seven years old when she reported the abuse to the police and thirty-nine years old at the time of trial.

At trial, the victim testified the first instance of sexual abuse occurred during the summer before she started the fourth grade. Galloway was in a relationship with the victim’s mother, Patricia Waldrop, and babysat her and her younger brother while Waldrop worked the night shift at a gas station convenience store. At the time, Galloway was staying at a motel and renting a room with one bed. The victim testified that one night she and her brother were staying with Galloway and sleeping in the bed when Galloway got into the bed, rolled over to the victim, and reached his hand into her underwear. She testified Galloway "spent some time fondling" her. The next morning, the victim told Waldrop about what happened, and Galloway did not babysit the victim or her brother for "a long time."

Waldrop continued seeing Galloway, however, and later moved the victim and her brother into Galloway’s home during the middle of the victim’s fourth grade year. The victim testified about multiple incidents of sexual abuse that occurred during the two years she lived in Galloway’s home. She testified Galloway—on more than one occasion—watched her while she was showering, fondled her breasts and vagina, and performed oral sexual assaults on her. The victim did not tell Waldrop about the abuse during this time.

Waldrop moved the victim and her brother out of Galloway’s home and into her mother’s home during the victim’s sixth grade year. However, Waldrop’s mother and stepfather were "violent alcoholics," which caused Waldrop to "second-guess" her decision to leave Galloway. The victim—upon learning Waldrop was considering moving back in with Galloway—disclosed the ongoing sexual abuse to Waldrop. Waldrop then confronted Galloway about the abuse, but neither she nor the victim reported it to the police. Waldrop did not move the victim and her brother back into Galloway’s home, and Waldrop testified the last time the family saw Galloway was around 1991—when the victim was in the seventh grade.

In 2016—approximately twenty-five years after her last encounter with Galloway—the victim wrote the letter to the police alleging Galloway sexually abused her when she was a child. Galloway was arrested and charged with three counts of first-degree criminal sexual conduct with a minor and one count of lewd act upon a child.¹ After a trial, the jury convicted Galloway on two of the four charges: one count of first-degree criminal sexual conduct with a minor and one count of lewd act upon a child. The jury acquitted Galloway of the second count of first-degree criminal sexual conduct with a minor, but could not reach a verdict on the third count. The trial court sentenced him to consecutive sentences of thirty years in prison for first-degree criminal sexual conduct and ten years for lewd act upon a child. Galloway appealed his convictions, and the court of appeals affirmed. State v. Galloway, 436 S.C. 453, 872 S.E.2d 646 (Ct. App. 2022). We granted Galloway’s petition for a writ of certiorari.

II. Admissibility of Expert Testimony

The victim testified at trial she had been diagnosed with schizoaffective disorder and was treated for it at a hospital in 2012. She also testified she was diagnosed with post-traumatic stress disorder and she had suffered from "sleep deprivation, immune problems, fatigue, [and] mental problems" since the late 1980s. Neither party called an expert to testify the victim actually had either of the disorders. However, Galloway called Dr. David Price—a forensic psychologist and forensic neuropsychologist—to testify in general about post-traumatic stress disorder and schizoaffective disorder and that both disorders are associated with false memories. Price did not personally evaluate the victim and explained he had not discussed the particular case "in great detail" even with Galloway’s counsel.

The State objected to Price’s testimony, so the trial court had Price testify outside the presence of the jury. Price testified a person diagnosed with post-traumatic stress disorder could experience "anxiety symptoms, insomnia, [and] disruption [in] concentration …." According to Price, these symptoms could have "an impact on memory" and could cause people with the disorder to "distort" memories or "avoid any recollection of [them] because it’s so painful or disturbing." He testified that post-traumatic stress disorder "could … have an effect on [the person’s] ability to relate what happened objectively." Price also testified about schizoaffective disorder. Price testified false memories "can be associated more [with] schizoaffective disorder than post-traumatic stress disorder." He noted, "schizoaffective people have thought disorders," which "can cause false memories." Price testified further that a person with schizoaffective disorder "can have" false memories.

Price stated he was prepared to testify that "false memories actively produce false allegations in criminal court," and it "happens enough to be a concern." However, Price agreed he would not be "testifying about anything in detail with [the victim]." He could not testify about "anything in [the victim’s] past or her current status that would make her more amenable to false memories." Price explained, "If I was going to render an opinion about her specifically, I would either evalu- ate her or review all of her records, medical records, and things of that nature."

Analyzing the elements of Rule 702 of the South Carolina Rules of Evidence, the trial court found Price "qualified as an expert" in psychology. Focusing on the element of reliability, however, the trial court excluded any testimony about false memories, stating,

I am not going to allow testimony on this whole false memory syndrome or whatever it’s called, you could open the door for every single case from that. So, I’m not going to allow anything regarding false memory since he has not evaluated this particular person ….

Galloway argues the trial court erred by excluding Price’s testimony on false memories. First, he argues the trial court failed to properly perform a Rule 702 analysis and misapplied the reliability requirement. Second, he argues the ruling was improper because the State’s expert was allowed to give similar testimony and thus Galloway was denied the right to present evidence in his defense.

1. Rule 702, SCRE

[1, 2] "To admit expert testimony under Rule 702, the proponent … must demonstrate, and the trial court must find, the existence of three elements: ‘the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable.’ " State v. Wallace, 440 S.C. 537, 544, 892 S.E.2d 310, 313 (2023) (quoting State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999)). We will not reverse the trial court’s determination whether the proponent demonstrated the existence of these three elements unless we find the trial court acted outside its discretion in making the required findings. State v. Jones, 423 S.C. 631, 636, 817 S.E.2d 268, 270 (2018); see also Wallace, 440 S.C. at 541-42, 892 S.E.2d at 312 ("We will not reverse a trial court’s ruling on [expert testimony] unless … we find the trial court has not acted within the discretion we grant to trial courts." (citing State v. Williams, 430 S.C. 136, 149, 844 S.E.2d 57, 64 (2020))).

i. Reliability

[3] Under the reliability element of the Rule 702 analysis, a trial court must determine "whether the basis for the expert’s opinion is sufficiently reliable such that it may be offered into evidence." Jones, 423 S.C. at 640, 817 S.E.2d at 272. Our court of appeals has explained that there are subparts to this determination, such that a trial court must "assess not only (1) whether the expert’s method is reliable …, but also (2) whether the substance of the expert’s testimony is reliable." State v. Warner, 430 S.C. 76, 86, 842 S.E.2d 361, 365 (Ct. App. 2020), aff'd, 436 S.C. 395, 872 S.E.2d 638 (2022). Justice Hill—writing Warner as a member of the court of appeals—continued, "As long as the trial court is satisfied the expert’s testimony consists of a reliable method faithfully and reliably applied, the gate of admissibility should be opened." 430 S.C. at 86-87, 842 S.E.2d at 366. The federal counterpart to our Rule 702 also breaks down the reliability analysis into subparts, requiring the trial court find the testimony: (1) "is based on sufficient facts or data;" (2) "is the product of reliable principles and methods;" and (3) ...