IN THE SUPREME COURT OF NORTH CAROLINA
No. 392PA13-3
Filed 5 May 2017
STATE OF NORTH CAROLINA
v.
ROBERT TIMOTHY WALSTON, SR.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 780 S.E.2d 846 (2015), reversing
judgments entered on 17 February 2012 by Judge Cy A. Grant in Superior Court,
Dare County, and ordering that defendant receive a new trial, after the Supreme
Court of North Carolina remanded the Court of Appeals’ prior unpublished decision
in this case, State v. Walston, 239 N.C. App. 468, ___ S.E.2d ___, 2015 WL 680240
(2015). Heard in the Supreme Court on 13 February 2017.
Joshua H. Stein, Attorney General, by Sherri Horner Lawrence, Assistant
Attorney General, for the State-appellant.
Mark Montgomery for defendant-appellee.
BEASLEY, Justice.
In this case we consider whether the trial court abused its discretion in
excluding defense expert testimony regarding repressed memory and the
suggestibility of memory. We find that the trial court did not abuse its discretion,
STATE V. WALSTON
Opinion of the Court
and we reverse the decision of the Court of Appeals and reinstate defendant’s
convictions.
On 14 November 2011, Robert Timothy Walston, Sr. (defendant) was indicted
for a number of child sex offenses. After a trial in February 2012, the jury found
defendant guilty of one count of first-degree sexual offense, three counts of first-
degree rape of a child, and five counts of taking indecent liberties with a child.
Defendant appealed his convictions arguing, inter alia, that the trial court erred in
excluding his expert’s testimony.1 See State v. Walston, ___ N.C. App. ___, ___,780
S.E.2d 846, 849-50 (2015). The Court of Appeals agreed with defendant and granted
him a new trial. Id. at ___, ___, 780 S.E.2d at 857-58, 862. The State petitioned this
Court for discretionary review, arguing that the trial court did not abuse its discretion
in excluding defendant’s proffered expert testimony and that exclusion of the expert
testimony was not prejudicial. We agree, and thus, we reverse the Court of Appeals.
Before trial defendant notified the State that he planned to introduce expert
testimony from Moina Artigues, M.D. regarding repressed memory and the
suggestibility of children. The State successfully moved to suppress Dr. Artigues’s
testimony. The State argued that the testimony was not relevant or admissible
1 This case has been before this Court and the Court of Appeals a number of times on
other issues. The history of this case is detailed in the most recent Court of Appeals opinion
and is not discussed here. See State v. Walston, ___ N.C. App. ___, ___, 780 S.E.2d 846, 848-
49 (2015).
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STATE V. WALSTON
Opinion of the Court
pursuant to Evidence Rules 702 and 403 because the case did not involve “repressed”
or “recovered” memories; that the expert was not qualified under Rule 702 to testify
regarding “false” memories, specifically because she had not examined or evaluated
the two alleged victims; and that the testimony should be excluded under Rule 403
because its potential to prejudice or confuse the jury would substantially outweigh its
probative value.2
At the pretrial hearing, the trial court expressed doubt that this case concerned
repressed or recovered memories and indicated that if the case did not concern
repressed or recovered memories, Dr. Artigues’s testimony about that subject would
be irrelevant or misleading. In response, defense counsel contended that even if Dr.
Artigues was not permitted to testify about repressed or recovered memories, she
should be allowed to testify about the suggestibility of memory in children based on
certain statements the victims made during discovery, which indicated the children’s
relatives may have pressured them to say they had been abused. The State countered
this argument by asserting that the trial court should exclude the expert testimony
because, inter alia, the expert had not interviewed or examined the victims or anyone
else involved in the case. The State relied on State v. Robertson, 115 N.C. App. 249,
260-61, 444 S.E.2d 643, 649 (1994), for this proposition. The State noted that
2 The State also requested that the court prohibit the testimony because of defendant’s
late disclosure of the expert witness. See N.C.G.S. § 15A-910 (2016). At the pretrial hearing,
the court did not rule on the State’s request to exclude Dr. Artigues’s testimony on this
ground.
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STATE V. WALSTON
Opinion of the Court
Robertson was similar to the case at bar in that the defendant in Robertson sought to
introduce expert testimony concerning suggestibility of children; there the trial court
excluded the expert testimony on grounds that its probative value was outweighed
by the potential to prejudice or confuse the jury because the expert had never
examined or evaluated the victims in any way. Id. at 261, 444 S.E.2d at 649. The
State also argued here that defendant’s expert testimony should be excluded because
there was no basis for Dr. Artigues’s opinion.
The trial court ruled that Dr. Artigues could not testify, but allowed voir dire
to preserve Dr. Artigues’s testimony for appellate review. After the conclusion of voir
dire, defense counsel requested that the court reconsider its suppression ruling.
Defense counsel asserted that Dr. Artigues’s opinion was relevant in relation to
scientific opinions regarding repressed memory and suggestibility of memory, was
relevant to assist the jury in determining credibility, and was not unfairly prejudicial
to the State. The State reasserted its arguments that this case does not involve
repressed memories and that, as to suggestibility, “this type of expert testimony does
not come in when the expert has not evaluated the victim . . . [which] didn’t take place
in this case.” The court stated it was “not inclined to change [its] ruling.”
On appeal, as to whether the trial court erred in excluding defendant’s
proffered expert testimony from Dr. Artigues, defendant argued to the Court of
Appeals that Rule 702 does not require that a witness personally interview the person
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STATE V. WALSTON
Opinion of the Court
about whom she will testify. Defendant cited to previous cases from this Court and
the Court of Appeals in which witnesses were allowed to testify without having
interviewed or examined the person about whom they were testifying. See State v.
Daniels, 337 N.C. 243, 268-71, 446 S.E.2d 298, 314-15 (1994) (concluding that the
trial court did not abuse its discretion in allowing an expert who had not personally
interviewed a defendant to testify about that defendant’s mental condition), cert.
denied, 513 U.S. 1135, 115 S. Ct. 953, 130 L. Ed. 2d 895 (1995); State v. Jones, 147
N.C. App. 527, 541-44, 556 S.E.2d 644, 653-55 (2001) (concluding that the trial court
did not abuse its discretion in allowing a developmental and forensic pediatrician to
testify about her knowledge of the medical records and behavior of the deceased
victim), appeal dismissed and disc. rev. denied, 355 N.C. 351, 562 S.E.2d 427 (2002).
Defendant also argued that he was prejudiced by the erroneous exclusion of Dr.
Artigues’s testimony; he asserted that there was a reasonable possibility the jury
would have reached a different result had the trial court admitted Dr. Artigues’s
testimony.
The State’s argument to the Court of Appeals largely relied on the similarities
between this case and Robertson. The State argued that Dr. Artigues did not examine
or evaluate the victims or anyone else involved but rather based her opinion only on
an analysis of the discovery material and defense counsel’s trial notes. Thus, the
State asserted that Dr. Artigues’s testimony was properly excluded in compliance
with Robertson. Additionally, the State noted that Dr. Artigues did not generate a
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STATE V. WALSTON
Opinion of the Court
formal report outlining her opinion and the basis of her opinion regarding the
suggestibility of child witnesses. The State also argued that Dr. Artigues’s testimony
was irrelevant.
The Court of Appeals reversed the trial court and remanded for a new trial.
The Court of Appeals found that “the trial court improperly excluded Dr. Artigues’[s]
testimony based upon the erroneous belief that her testimony was inadmissible as a
matter of law” under Robertson. Walston, ___ N.C. App. at ___,780 S.E.2d at 857-58.
The Court of Appeals reasoned that the discussion of Robertson during the pretrial
motions hearing implied that the trial court relied on Robertson to prohibit Dr.
Artigues’s testimony because Dr. Artigues had not interviewed the prosecuting
witnesses.
The Court of Appeals clarified that Robertson did not recognize or create a “per
se rule that expert opinion concerning the general suggestibility of children may only
be given at trial if the testifying expert has examined the child or children in
question.” Id. at ___, 780 S.E.2d at 853. Rather, “expert opinion regarding the
general reliability of children’s statements may be admissible so long as the
requirements of Rules 702 and 403 . . . are met.” Id. at ___, 780 S.E.2d at 853. Thus,
Dr. Artigues’s expert opinion should not be excluded as a matter of law on grounds
that she did not examine the children and may be admissible if in compliance with
the Rule 702 and Rule 403 requirements.
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STATE V. WALSTON
Opinion of the Court
The Court of Appeals noted that the trial court did not make “any findings of
fact or conclusions of law explaining the rationale” for “excluding Dr. Artigues’[s]
testimony.” Id. at ___, 780 S.E.2d at 857. Specifically, there was no evidence in the
record that the trial court had conducted a Rule 702 analysis, id. at ___, ___, ___, 780
S.E.2d at 858, 860, 862, nor did the trial court “make any findings or conclusions
related to Rule 403,” id. at ___, 780 S.E.2d at 862. Therefore, the Court of Appeals
panel found itself unable to “make any determination concerning whether the trial
court would have abused its discretion in excluding Dr. Artigues’[s] testimony
pursuant to either Rule 702 or Rule 403.” Id. at ___, 780 S.E.2d at 862. Thus, the
Court of Appeals reversed defendant’s convictions and remanded for a new trial. Id.
at ___, ____, 780 S.E.2d at 858, 862.
The State petitioned this Court for discretionary review. The only issue
currently before this Court is whether the Court of Appeals erred in concluding that
the trial court improperly excluded Dr. Artigues’s testimony. We conclude that it did
and hold that the trial court did not abuse its discretion in excluding Dr. Artigues’s
testimony.
“In reviewing trial court decisions relating to the admissibility of expert
testimony evidence, this Court has long applied the deferential standard of abuse of
discretion.” State v. King, 366 N.C. 68, 75, 733 S.E.2d 535, 539-40 (2012). Trial courts
act as a gatekeeper in determining admissibility of expert testimony, and a trial
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STATE V. WALSTON
Opinion of the Court
court’s decision to admit or exclude expert testimony “will not be reversed on appeal
unless there is no evidence to support it.” Id. at 75, 733 S.E.2d at 540 (quoting State
v. King, 287 N.C. 645, 658, 215 S.E.2d 540, 548-49 (1975), judgment vacated in part
per curiam, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209 (1976)).
North Carolina Rule of Evidence 702 controls the admission of expert
testimony. N.C.G.S. § 8C-1, Rule 702 (2016). Rule 702(a) states:
(a) If scientific, technical or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion, or
otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or
data.
(2) The testimony is the product of reliable principles
and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
Id. (emphases added). A Rule 702 analysis takes into consideration the qualifications
of the expert as well as the reliability and relevance of the expert testimony. See
State v. McGrady, 368 N.C. 880, 884-93, 787 S.E.2d 1, 5-11 (2016) (providing a
thorough analysis of Rule 702 requirements).
Rule 702(a), as amended in 2011, does not mandate
particular procedural requirements for exercising the trial
court’s gatekeeping function over expert testimony. The
trial court has the discretion to determine whether or when
special briefing or other proceedings are needed to
investigate reliability. A trial court may elect to order
submission of affidavits, hear voir dire testimony, or
conduct an in limine hearing. More complex or novel areas
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STATE V. WALSTON
Opinion of the Court
of expertise may require one or more of these procedures.
In simpler cases, however, the area of testimony may be
sufficiently common or easily understood that the
testimony’s foundation can be laid with a few questions in
the presence of the jury. The court should use a procedure
that, given the circumstances of the case, will secure
fairness in administration, elimination of unjustifiable
expense and delay, and promotion of growth and
development of the law of evidence to the end that the truth
may be ascertained and proceedings justly determined.
Id. at 893, 787 S.E.2d at 11 (emphasis added) (internal citations and quotation marks
omitted).3
If expert testimony meets the requirements of Rule 702, it may still be
inadmissible under Rule of Evidence 403 if the “probative value [of the testimony] is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.” N.C.G.S. § 8C-1, Rule 403 (2016); see King, 366 N.C. at 75-
76, 733 S.E.2d at 540. In State v. King this Court upheld the trial court’s exclusion
3 Here both parties made their arguments to the Court of Appeals under the former
Rule 702 standard. The Court of Appeals determined that the new 702 standard should apply
to this case based on the date of the superseding indictment. State v. Walston, 229 N.C. App.
141, 151-52, 747 S.E.2d 720, 728 (2013), rev’d, 367 N.C. 721, 766 S.E.2d 312 (2014).
In a previous opinion in this case, the Court of Appeals determined that because the
new Rule 702 requirements are more stringent than the former requirements, defendant was
not prejudiced by the trial court’s application of the incorrect standard in excluding Dr.
Artigues’s testimony. In making that determination, however, the Court of Appeals failed to
address the merits of defendant’s argument that the exclusion of Dr. Artigues’s testimony
was improper because it was based on an incorrect understanding of the law. State v.
Walston, 239 N.C. App. 468, ___ S.E.2d ___, 2015 WL 680240 (2015) (unpublished).
In the most recent Court of Appeals opinion in this case, the Court of Appeals did
address the merits of defendant’s argument, as discussed above, and agreed with defendant
that Dr. Artigues’s testimony was improperly excluded. Walston, ___ N.C. App. ___, 780
S.E.2d 846.
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STATE V. WALSTON
Opinion of the Court
of the State’s proffered expert testimony; even though Rule 702 requirements had
been met, “the expert testimony was inadmissible under Rule 403” because “the
probative value of the evidence was outweighed by its prejudicial effect.” 366 N.C. at
76, 733 S.E.2d at 540. “Whether to exclude evidence under Rule 403 is a matter
within the sound discretion of the trial court.” Id. at 76, 733 S.E.2d at 540 (quoting
State v. Penley, 318 N.C. 30, 41, 347 S.E.2d 783, 789 (1986)). “If all other tests are
satisfied, the ultimate admissibility of expert testimony in each case will still depend
upon the relative weights of the prejudicial effect and the probative value of the
evidence in that case.” Id. at 76-77, 733 S.E.2d at 541. “[W]hen a judge concludes
that the possibility of prejudice from expert testimony has reached the point where
the risk of the prejudice exceeds the probative value of the testimony, Rule 403
prevents admission of that evidence.” Id. at 77, 733 S.E.2d at 541.
Under the abuse of discretion standard applicable to this case, our role is to
decide whether the trial court’s decision to exclude Dr. Artigues’s testimony was “so
arbitrary that it could not have been the result of a reasoned decision.” White v.
White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Though the trial court did not
explicitly state or demonstrate its Rule 702 or Rule 403 analysis,4 “[a] correct decision
4 When specific findings of fact and conclusions of law are not required, it is within
the trial court’s discretion to make fact findings “if a party does not choose to compel a finding
through the simple mechanism of so requesting.” Watkins v. Hellings, 321 N.C. 78, 82, 361
S.E.2d 568, 571 (1987). We have previously stated that “[w]hen the trial court is not required
to find facts and make conclusions of law and does not do so, it is presumed that the court on
proper evidence found facts to support its judgment.” Estrada v. Burnham, 316 N.C. 318,
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STATE V. WALSTON
Opinion of the Court
of a lower court will not be disturbed on review simply because an insufficient or
superfluous reason is assigned.” State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641,
650 (citation omitted), cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224
(1987).
Here the Court of Appeals was correct to clarify that a defendant’s expert
witness is not required to examine or interview the prosecuting witness as a
prerequisite to testifying about issues relating to the prosecuting witness at trial. We
agree with and affirm the Court of Appeals’ legal analysis on this issue. Such a
requirement would create a troubling predicament given that defendants do not have
the ability to compel the State’s witnesses to be evaluated by defense experts. See
State v. Fletcher, 322 N.C. 415, 419, 368 S.E.2d 633, 635 (1988).
We disagree, however, with the Court of Appeals’ determination that the trial
court based its decision to exclude defendant’s proffered expert testimony solely on
an incorrect understanding of the law. Based on the discussion of Robertson during
the pretrial motions hearing, as well as the parties’ briefs on appeal, the Court of
Appeals presumed that the trial court excluded Dr. Artigues’s testimony based on an
erroneous belief that Robertson created a per se rule of exclusion when an expert has
not interviewed the victims. The trial court, however, never stated that Robertson
324, 341 S.E.2d 538, 542 (1986) (citations omitted).
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STATE V. WALSTON
Opinion of the Court
created such a rule nor that it based its decision to exclude Dr. Artigues’s testimony
solely on Robertson.
Furthermore, as this Court notes in McGrady, Rule 702 does not mandate any
particular procedural requirements for evaluating expert testimony. See 368 N.C. at
893, 787 S.E.2d at 11. Here the record demonstrates that the trial court heard
arguments from both parties regarding the subject matter of Dr. Artigues’s proffered
testimony, conducted voir dire and considered the testimony that defendant wished
to elicit from Dr. Artigues, and considered the parties’ Rule 403 balancing arguments.
Moreover, during voir dire the trial court at times engaged Dr. Artigues directly
concerning possible confusion over how the victims used specific words in their
deposition—such as being “grilled”5 by an adult and “flashbacks”6—and Dr.
5 [PROSECUTOR] So you’re assuming that this grilling
was implanting or suggesting memories to the young girls?
[DR. ARTIGUES] I don’t see how it could be otherwise.
....
[THE COURT] You don’t see how? You can’t think of any
situation where grilling can be otherwise?
....
[THE COURT] Grilling to you may be different from what
grilling means to the mother, to me or anyone else?
[DR. ARTIGUES] Right, that is true.
6 [PROSECUTOR] You would agree, would you not, that
ordinary lay people who don’t live in the psychiatry world, when
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STATE V. WALSTON
Opinion of the Court
Artigues’s use of the clinical definitions of these words in her evaluation. Thus, the
record demonstrates that there is evidence to support the trial court’s decision to
exclude Dr. Artigues’s testimony and that the trial court properly acted as a
gatekeeper in determining the admissibility of expert testimony. Therefore, we find
that the trial court did not abuse its discretion in excluding Dr. Artigues’s testimony.7
We reverse the decision of the Court of Appeals and reinstate defendant’s convictions.
REVERSED.
they use the word flashback they’re using it like what you’re
defining as memory cues?
[DR. ARTIGUES] That is very possible, yes.
7 Because we find no abuse of discretion, it is unnecessary to conduct a prejudice
analysis and we decline to do so.
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State v. Walston
Combined Opinion