State v. Reyes

432 S.C. 394

853 S.E.2d 334

The STATE, Respondent,

v.Jose Reyes REYES, Petitioner.

Appellate Case No. 2019-001593

Opinion No. 28004

Supreme Court of South Carolina.

Heard September 16, 2020

Filed December 16, 2020

Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Senior Assistant Attorney General David A. Spencer, both of Columbia; and Solicitor William Walter Wilkins III, of Greenville, for Respondent.

JUSTICE JAMES :

Jose Reyes Reyes was convicted by a jury of first-degree criminal sexual conduct with a minor. The court of appeals affirmed the conviction.

State v. Reyes , Op. No. 2019-UP-214, 2019 WL 2448666 (S.C. Ct. App. filed June 12, 2019). We granted Reyes's petition for a writ of certiorari. In this opinion, we address two questions: (1) did the trial court improperly rule in the jury's presence that the child victim (Minor) was competent to testify, and (2) did the solicitor improperly bolster Minor's credibility by phrasing questions to Minor in the first person? For the reasons explained below, we affirm the court of appeals.

Background

In August 2013, Minor informed her aunt and mother that Reyes sexually abused her on multiple occasions when she was spending the night at the home of her mother's cousin. Investigators determined the alleged abuse took place between January and June 2013, when Minor was six years old.

Reyes was indicted for first-degree criminal sexual conduct with a minor. Minor was nine years old when the case was tried. Just before the State began its case-in-chief, the solicitor advised the trial court outside the presence of the jury that Minor would be the first prosecution witness. The trial court and the parties then engaged in the following colloquy:

Trial Court: Do we need to go over anything with her before we -- outside the presence of the jury?

Solicitor: Your Honor, I'll leave that in your discretion. I'm happy to go through kind of a series of the difference between the truth and a lie, but if you would like to do it prior to --

Trial Court: [L]et's do it when the jury's here.

....

Trial Court: Okay. Anything else from the defendant before we bring the jury in?

Defense: No. Are you going to ... try and go through the qualification of whether she's able to testify in the presence of the jury?

Trial Court: That's what my intent was. Do you --

Defense: I object. That's just bolstering just like a forensic interview.

Trial Court: Well, I mean, it's a little bit different because it's the difference in the truth and a lie on the stand. I mean, I note your objection.

The jury entered the courtroom, and the State began its case-in-chief by calling Minor as a witness. Before questioning Minor about the facts of the case, the solicitor asked Minor whether she understood the difference between the truth and a lie and asked related questions that allowed Minor to demonstrate her credibility. Included in these preliminary questions was the following exchange:

Solicitor: Okay. Do you know that while you're here, we only talk about things that are the truth?

Minor: Yeah.

Defense: Your Honor, just for the record, I want to preserve my objection.

Trial Court: All right. As to the bolstering. Yeah, I think that the person can testify on their own behalf, just not another party.

Solicitor: Minor, do you know the difference between the truth and a lie?

Minor: (Nods head.)

....

Solicitor: Okay. So you understand that when we're in here, we're going to talk about the truth. Do you understand that?

....

Minor: Yes.

Solicitor: Okay. Judge, at this time, I would move her as qualified to testify.

Trial Court: Any -- any comments on -- I think, under Rule 601, [SCRE,] she is competent unless otherwise disqualified.

Defense: No objection.

(emphases added). The focus of this appeal is upon the trial court's final comment and the solicitor's use of the first-person "we" when questioning Minor.

Minor then testified that when she spent the night at the home of her mother's cousin and slept on the couch, Reyes would kiss her on the lips, touch the inside of her genital area with his hand, and touch the outside of her genital area with his penis. The State presented no direct physical evidence of sexual abuse; however, the State introduced evidence that both Minor and Reyes tested positive for herpes simplex virus type 1 (HSV-1).

Reyes testified in his defense and denied Minor's allegations. The jury convicted Reyes of first-degree criminal sexual conduct with a minor. The court of appeals affirmed. State v. Reyes , Op. No. 2019-UP-214, 2019 WL 2448666 (S.C. Ct. App. filed June 12, 2019). We granted Reyes's petition for a writ of certiorari to review the court of appeals' decision.

Discussion

"The conduct of a criminal trial is left largely to the sound discretion of the trial judge, who will not be reversed in the absence of a prejudicial abuse of discretion."

State v. Bryant , 372 S.C. 305, 312, 642 S.E.2d 582, 586 (2007). "An abuse of discretion occurs when a trial court's decision is unsupported by the evidence or controlled by an error of law." Id.

Under South Carolina law, the competency of a witness is to be determined by the trial court, whereas the credibility of a witness is exclusively for the jury to decide. State v. Pitts , 256 S.C. 420, 430, 182 S.E.2d 738, 743 (1971) ; Tappeiner v. State , 416 S.C. 239, 250, 785 S.E.2d 471, 476 (2016) (quoting State v. McKerley , 397 S.C. 461, 464, 725 S.E.2d 139, 141 (Ct. App. 2012) ). It is improper for a judge or a prosecutor to bolster a witness's credibility by stating to the jury his or her view that the witness is likely being truthful. See Tappeiner , 416 S.C. at 250, 785 S.E.2d at 477 ; State v. Hardee , 279 S.C. 409, 414, 308 S.E.2d 521, 525 (1983).

A. Minor's Testimony

Reyes contends the solicitor's above-quoted line of questioning and the trial court's comment that Minor was competent unless otherwise disqualified amounted to a witness competency hearing the trial court erroneously conducted in the presence of the jury. Reyes argues Rule 104, SCRE,¹ required the trial court to hold an in camera witness competency hearing; particularly, he argues the rule requires in camera competency hearings in order to prevent improper vouching and bolstering of the subject witness's credibility.

First, we question whether the colloquy amounted to a witness competency hearing. Under Rule 601(a), SCRE, "[e]very person is competent to be a witness except as otherwise provided by statute or these rules." Accordingly, a witness is presumed competent and the party opposing the witness's competency has the burden of proving the witness is incompetent. State v. Needs , 333 S.C. 134, 142-43, 508 S.E.2d 857, 861 (1998), holding modified on other grounds by State v. Cherry , 361 S.C. 588, 606 S.E.2d 475 (2004) ; see Pitts , 256 S.C. at 429, 182 S.E.2d at 743 ("In case of timely objection to the competency of a person offered as a witness, it is the duty of the court to make such examination as will satisfy it as to the competency or incompetency of the person to testify, and thereupon to rule on the objection accordingly."). Here, defense counsel did not challenge Minor's competency, and the trial court did not ask any questions of Minor to gauge her competency. When a trial court conducts a true competency hearing, the better practice is to hold the hearing outside the jury's presence.²

However, our resolution of this appeal does not depend upon whether the colloquy was or was not a competency hearing. Instead, we focus upon the propriety of the jury being present when the trial court stated that under Rule 601, "[Minor] is competent unless otherwise disqualified," and we focus upon the propriety of the solicitor's use of the first-person "we" and "we're" in the presence of the jury.

1. The Trial Court's Comment

Reyes argues the trial court vouched for Minor's credibility when it stated in the presence of the jury that Minor was competent to testify unless she was otherwise disqualified. Reyes contends because the trial court failed to instruct the jury about the difference between competency and credibility, the jury could have concluded the trial court thought Minor was credible.

Accordingly, we must decide whether a reasonable juror would consider the trial court's statement that Minor was competent as an indication the trial court believed Minor was credible. A common function of the trial court is to make rulings on evidence, and typically there is no error where the trial judge does so in a neutral manner in the jury's presence. See State v. Chasteen , 228 S.C. 88, 98, 88 S.E.2d 880, 885 (1955), overruled on other grounds by State v. Torrence , 305 S.C. 45, 406 S.E.2d 315 (1991) (holding, before the adoption of Rule 104, SCRE, no prejudicial error resulted from the trial court ruling in the presence of the jury that the defendant's confessions were admissible because the trial court "announced [its] decision in a most formal way without any intimation as to the weight of the evidence").

In the instant case, the trial court made the comment about Minor's competency in conjunction with a formal reference to Rule 601(a) before Minor gave any factual testimony. Under these circumstances, we hold a reasonable juror could not have considered the trial court's comment as an indication the trial court believed Minor was credible.

2. The Solicitor's Questioning

As noted in the above-quoted exchange, the solicitor told the trial court she planned to "go through kind of a series of the difference between the truth and a lie [with Minor]." Although this general line of questioning is often employed by a trial court or counsel during a witness competency hearing, it is also a useful and proper line of questioning to enable a jury to evaluate a child witness's credibility. See Commonwealth v. Hutchinson , 611 Pa. 280, 25 A.3d 277, 290-91 (2011) ("[S]ome ‘foundational [competency] questioning’ might be duplicated during the trial...