State v. Bray

TOAL, Chief Justice:

I respectfully dissent. In State v. Murrell, 302 S.C. 77, 393 S.E.2d 919 (1990), this Court held that “[a] decision as to whether to utilize a videotape procedure is subject to reversal only if it is shown that the trial judge abused his discretion in making such a decision or failed to follow the appropriate procedure upon deciding that a witness was entitled to special protection.” Id. at 82, 393 S.E.2d at 922. In Murrell, we held that the trial judge made sufficiently specific factual findings concerning the need for a videotape procedure where he based his findings on the testimony of the family and expert witnesses. “This testimony enabled the judge to conclude that testimony by the victim in the defendant’s presence would have a traumatic effect on the child.” Id. Similarly, in the instant matter, the trial judge based his conclusion on the testimony of the victim’s mother and Kim Charpia, an expert in the field of sexual abuse. Both testified that the victim may be too frightened to testify in the presence of her uncle.

The majority holds that a trial judge must verbalize the case-specific reasons for the use of a videotape procedure pursuant to S.C.Code Ann. § 16-3-1550(E)(Supp.l999). The record reveals that the trial judge found a case-specific necessity in this case, even though he did not specifically state there would be harm to the victim if she was required to testify in the presence of her uncle. After arguments from both de-

*33fense counsel and the solicitor concerning the testimony of the mother and Kim Charpia and the need for a videotape procedure, the trial judge concluded that a videotape procedure was necessary. Specifically, the solicitor argued that the State satisfied the requirements of section 16-3-1550(E) and State v. Murrell:

Solicitor: Your honor, I think we put up everything that we need to put up to satisfy the statutory requirements to allow this court to consider and order special consideration for the seven-year-old child witness in this case. The State v. Morrow [State v. Murrell ] has set out in South Carolina the procedure, and it says that you are supposed to call expert witnesses and parents to testify about why the child cannot and should not testify. And two of — one each of those have been called and they’ve both testified that in their opinion this child will not be able to testify in front of the defendant and, further, should not testify in front of the defendant, (emphasis added).
Court: Well, counselor, I think this is probably a classic case of why that last part of 16 — 3—1530[sic], I think, was passed. We’ve got a young child who it’s alleged has been molested at the age of five and who is seven years of age now. We’ve got testimony from the mother about how this thing came about, and testimony from the mother and the expert which shows that except for the mother, at least as far as I know it right now, the rest of the family don’t believe her. And so I think that’s classic. That would — to me would be a classic situation as to why it would be passed.

The trial judge did not specifically state that he decided to order a videotape procedure because the victim would be traumatized by the presence of the defendant, as the majority recommends. However, immediately prior to the trial judge’s decision, the solicitor references the testimony of the mother and Charpia concerning the victim’s ability to testify in front of her uncle. Based on the solicitor’s argument, the trial judge concluded that this was a classic case as contemplated by section 16-3-1550(E) and ordered the videotape procedure. The trial judge’s terminology “this is probably a classic case” is simply a shorthand way of saying, “I agree with you, Ms. *34Solicitor, and find based on the testimony of her mother and expert witness Charpia, that this victim would be traumatized by testifying in front of Defendant.” The trial judge’s decision should not be overturned on a mere technicality when it is clear from the record that he did not abuse his discretion, relied on the testimony of family and experts, and complied with the Murrell requirements. Accordingly, I would reverse the Court of Appeals’ decision and affirm the decision of the trial court.