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Criminal Practice – Jury Instructions – Stipulation – Social Worker’s Report – Statutory Rape

State v. Berry (Lawyers Weekly No. 14-07-0763, 30 pp.) (Sanford Steelman Jr., J.) (Robert C. Hunter, J., concurring in part & dissenting in part) Appealed from Alamance County Superior Court (James Hardin Jr., J.) N.C. App.

Holding: After the parties stipulated that an unavailable witness’s report could be admitted as corroborative evidence, the trial court instructed the jury that it was to accept the stipulation as true; in doing so, the court did not impermissibly express an opinion as to the truth of the contents of the report.

We find no error in defendant’s convictions of taking indecent liberties with a child and statutory rape.

The prosecutor read to the jury the following stipulation: “Janet Hadler, a licensed clinical social worker, performed a child family evaluation of [A.R.] in September and October of 2009. Ms. Hadler is unavailable due to family illness. The parties have stipulated that a portion of her report of her interview with [A.R.] may be entered into evidence without her presence. This evidence may be considered for the purpose of corroboration of the witness, [A.R.]”

The prosecutor clarified, “That stipulation, Your Honor, is State’s Exhibit 7. The actual portion of the evidence we’re introducing is State’s Exhibit 6.”

Judge Hardin then gave a limiting instruction to the jury which stated, “The agreed facts in this case relate to what is marked as State’s Exhibit 7 and now received as a stipulation and State’s Exhibit 6, portions of an interview conducted by the relevant parties as described. Since the parties have so agreed, you are to take these facts as true for the purpose of this case.”

There is no indication whatsoever that the trial judge expressed an opinion on any question of fact to be decided by the jury in violation of G.S. § 15A-1222 or as to whether a fact had been proved in violation of G.S. § 15A-1232. The information contained in Exhibit 7, the stipulation, was to be accepted by the jury as true without further proof. The information in Exhibit 6, the redacted report, was to be used for the purposes of corroboration of A.R.’s testimony. There was no question of fact for the trial judge to express an opinion, with regard to either the stipulation or the redacted report.

The trial court did not express opinion in his limiting instruction to the jury, and taken as a whole, the instructions did not prejudice defendant.

As to the admission of the report itself, defendant attempts to argue plain error. However, we have been unable to find any case law supporting the proposition that evidence received pursuant to a stipulation may be reviewed under plain error. This issue is actually invited error, and plain error review is not available.

Finally, the record does not provide sufficient information to determine whether trial counsel’s decision to agree to the stipulation of the report was the result of a legitimate trial strategy. Defendant’s claim of ineffective assistance of counsel is dismissed without prejudice to filing a motion for appropriate relief in the trial court.

No error.

Dissent

(Hunter, J.) I agree with the majority on the issues of plain error review and ineffective assistance. However, I believe that the trial court’s instruction could have been reasonably interpreted by the jury as a mandate to accept certain disputed facts of this case as true, in violation of G.S. §§ 15A-1222 and 15A-1232.

After the prosecutor read the stipulation to the jury, the trial court instructed the jury, “The agreed facts in this case relate to what is marked as State’s Exhibit 7 and now received as a stipulation and State’s Exhibit 6, portions of an interview conducted by the relevant parties as described.

“Since the parties have so agreed, you are to take these facts as true for the purposes of this case. The motion to publish is allowed.”

The jury could have reasonably interpreted the trial court’s statement as requiring the jury to accept Hadler’s report as true, in clear – though inadvertent – violation of §§ 15A-1222 and -1232.

Furthermore, the trial court failed to clarify that the redacted portions of Hadler’s report were not to be considered for substantive purposes at all. The jury was not provided with copies of the stipulation, which said Hadler’s report was admitted for corroborative purposes only.

The trial court both bolstered the credibility of the prosecuting witness and afforded undue evidentiary weight to Hadler’s conclusions in the report.

I would award a new trial.

 


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