subject: North Carolina Criminal Rape Sexual Abuse Expert Witness Prejudiced Lawyers Attorneys [print this page] STATE OF NORTH CAROLINA v. THOMAS WAYNE LIVENGOOD
COURT OF APPEALS OF NORTH CAROLINA
March 24, 2010, Heard in the Court of Appeals
September 7, 2010, Filed
Defendant was indicted for three counts of incest with a stepchild, three counts of first degree statutory rape of a child less than 13 years of age, and two counts of first degree statutory sexual offense with a child less than 13 years of age. Dr. Kathleen Russo testified at trial as an expert witness for the State in the field of pediatric medicine specializing in the diagnosis and treatment of child sex abuse. On direct examination, Dr. Russo testified that she interviewed D. The physical examination of D revealed no signs of trauma to D's hymen. On cross-examination, Dr. Russo opined, without objection, that her physical findings could be consistent with rape or with no rape. The jury found the defendant guilty of one count of first degree statutory sexual offense. As to the remaining two charges, the jury was deadlocked, and the trial court declared a mistrial. Defendant was sentenced to a minimum of 336 months and a maximum of 413 months from the presumptive range of sentences.
Issues:
Whether the trial court erred in overruling his objection to the answer of Dr. Russo to a question asked by defense counsel during cross-examination?
Whether the performance of his trial attorney was so deficient as to violate the guarantee of effective assistance of counsel contained in the Constitution?
Observation and Holding:
Defendant argues that Dr. Russo's answer constituted an impermissible comment on the credibility of D, in violation of this Court's holding in State v. Horton, N.C. App. , 682 S.E.2d 754, 757 (2009). We hold that the trial court did not abuse its discretion in overruling defendant's objection. Dr. Russo's response was consistent with her prior testimony that her physical findings were consistent with rape or no rape, and was not a comment on D's credibility. The fact that the witness did not give defendant's counsel the answer desired, emphasizing the portion of her testimony that was favorable to defendant, did not constitute a basis for defendant's objection.
Defendant has extracted small snippets of Dr. Russo's testimony out of context and strung them together to argue that Dr. Russo was making comments on D's truthfulness. Defendant contends that trial counsel was ineffective in failing to object to this. In the context of portion of Dr. Russo's testimony, it was not a comment on D's truthfulness. This evidence was relevant, properly admitted, and would have withstood an objection by defendant's counsel. Defendant can show no prejudice arising from this action by his trial counsel.
We hold that the trial court did not err in denying the jury's request for a transcript because Judge Doughton denied the request in his discretion. Because Judge Doughton properly denied the jury's request for the testimony, defendant was not prejudiced by the failure of trial counsel to object to the trial court's decision.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Criminal Rape Sexual Abuse Expert Witness Prejudiced Lawyers Attorneys
By: Atchuthan Sriskandarajah
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