Cure v. State

• Decision Date: 28 February 1992
• Docket Number: CR-90-0391
• Citation: 600 So.2d 415
• Parties: Charles CURE and Kathleen Cure, v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 415

600 So.2d 415

Charles CURE and Kathleen Cure, v. STATE.

CR-90-0391

Court of Criminal Appeals of Alabama.

Feb. 28, 1992.

Rehearing Denied April 17, 1992.

Stephen K. Orso, Mobile, for appellant Charles Cure.

Judy A. Newcomb, Spanish Fort, and Thack H. Dyson of Brackin & Dyson, P.C., Foley, for appellant Kathleen Cure.

James H. Evans, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee State.

MONTIEL, Judge.

This is a consolidated appeal brought by Charles and Kathleen Cure. The appellants were indicted separately and their cases were consolidated for trial. Kathleen Cure was convicted of child abuse, in violation of § 26-15-3, Code of Alabama 1975, of distributing marijuana in violation of § 13A-12-211, three counts of first degree rape, in violation of § 13A-6-61(a)(1), ¹ and three counts of first degree sodomy, in violation of § 13A-6-63(a)(1). Charles Cure was convicted of distributing marijuana in violation of § 13A-12-211, three counts of first degree rape, in violation of § 13A-6-61(a)(1) and three counts of first degree sodomy, in violation of § 13A-6-63(a)(1). The victim of these offenses was the appellants' minor daughter. The record reveals that the acts perpetrated on the victim were despicable. The appellants raise several issues on appeal. Some issues are raised by both appellants and will be addressed jointly.

I

Kathleen Cure contends that she was denied the opportunity to be heard prior to the consolidation of the cases against both appellants. This argument has no merit. The record reveals that the appellant was given the opportunity to be heard on the State's motion to consolidate. Furthermore, the appellant presented a thorough argument against consolidation. Thus, the record does not support the appellant's argument.

II

Both appellants contend that the trial court erred in failing to provide them with the reports of abuse and neglect pursuant to § 26-14-8(b), Code of Alabama 1975, that had been prepared by the Department of Human Resources (hereinafter "DHR"). The appellants argue that the statute requires that they be provided with all of the DHR records. The record reveals that, prior to trial, the appellants apparently asked the court for all exculpatory material and all material that could conceivably be used to impeach the victim. The trial court then conducted an in camera review of the DHR records and provided the appellants with all of the information that was exculpatory or could conceivably be used for impeachment. The trial court also indicated that there were no statements that had been either written or subscribed to by the victim. The trial court also stated that the victim made no taped statements. The appellants requested the same type of information during the trial. The trial court reiterated that there were no such statements made by the victim and that all of the requested information had been provided through the in camera review. The appellants now claim that they are entitled to review all of the information in the DHR file concerning this case.

In order to determine the appellants' entitlement, if any, to the reports under the statute, we must first examine the legislative intent of the statute. "The cardinal rule for construction of a statute is to ascertain the legislative intent, which must be determined by examining the statute as a whole in light of its general purpose." Decatur v. City Board of Educ. v. Aycock, 562 So.2d 1331, 1333 (Ala. Civ.App.1990) (quoting Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So.2d 1211, 1213 (Ala.1985)).

Chapter 14 of Title 26 is entitled, "Reporting of Child Abuse or Neglect." Section 26-14-2 sets out the purpose of the chapter as follows:

"In order to protect children whose health and welfare may be adversely affected through abuse and neglect, the legislature hereby provides for the reporting of such cases to the appropriate authorities. It is the intent of the legislature that, as a result of such efforts, and through the cooperation of the State, county, local agencies and divisions of government, protective services shall be made available in an effort to prevent further abuses and neglect, to safeguard and enforce the general welfare of such children, and to encourage cooperation among the states in dealing with the problems of child abuse."

The statute cited by the appellants, § 26-14-8, is titled, "Establishment of central registry; confidentiality of records and reports." Section 26-14-8(b) provides, in part, that "reports and records of abuse shall be confidential, and shall not be used or disclosed for any other purposes than...." The statute then lists several instances in which such records may be disclosed, including "[f]or use by an attorney ... in representing or defending a child or its parents ... in a court proceeding related to abuse or neglect of said child." Section 26-14-8(c) provides that violation of this confidentiality provision is a misdemeanor offense. The disclosure of the records in instances listed would not constitute a misdemeanor under § 26-14-8(c).

Our review of the statute, as a whole, indicates that Chapter 14 was clearly enacted and designed for the protection of children. In fact, the Court of Civil Appeals reached this conclusion in Decatur City Board of Educ. v. Aycock. The court stated, "A careful reading of the various sections of Title 26, Chapter 14 indicates the intent of the legislature to protect children and to safeguard and enforce their general welfare through the reporting of abuse and neglect." 562 So.2d at 1334 (emphasis in original). The court further stated that "[r]eports and records of child abuse and neglect are confidential and may be used for the purposes listed." Id.

The relevant federal statute is the Child Abuse Prevention and Treatment Act. The Act provides that one of the things a State must do in order to qualify for a grant is "provide for methods to preserve the confidentiality of all records." 42 U.S.C. § 5106a(b)(4) (Supp.1991). The regulations by which the statute is implemented state that a "State must provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense." 45 C.F.R. § 1340.14(i)(1). They also provide, however, that a State may authorize disclosure to certain persons and agencies "under limitations and procedures the State determines." 45 C.F.R. 1340.14(i)(2). These persons and agencies are substantially those reflected in § 26-14-8. Our review of that statute indicates that its primary goal was to provide for confidentiality. It also appears that a secondary goal was to conform to the mandates of federal law. See generally Harris v. City of Montgomery, 435 So.2d 1207, 1213 (Ala.1983). Neither of these goals suggests that the statute was intended as an entitlement to mandatory discovery in a criminal case.

This issue was addressed by the Maryland Supreme Court in State v. Runge, 317 Md. 613, 566 A.2d 88 (1989). In interpreting a substantially similar statute, the court stated that when the statute allows for disclosure under certain limited circumstances or to designated entities, "it is telling us that custodians have authority to release the information within the statutory framework and that if it is so released, the custodians will not be subject to prosecution under [the statute]." 566 A.2d at 91. The court further stated, that contrary to the defendant's contention, "the subsection is not a mandatory discovery provision that directs disclosure of confidential social services records to child abusers or to the parents of abused children." Id.

We agree with the Maryland court and find that § 26-14-8 should not be read as an entitlement to mandatory discovery in a criminal case. Because the appellants base their entitlement argument solely on the Alabama statute, we are not required to address the disclosure principles set out in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). We do note, however, that the appellants apparently requested all information that was exculpatory and that could conceivably be used for impeachment. This information was provided to them through the trial court's in camera review and satisfied the requirement that they be provided information material to their defense. Ritchie; Russell v. State, 533 So.2d 725 (Ala.Crim.App.1988) (trial court did not err in conducting in camera review and appellant received all conceivably exculpatory information from in camera review of DHR file); State v. Runge (trial court conducted in camera review). See also Ex parte Smith, 555 So.2d 1106 (Ala. Civ.App.1988) (trial court properly conducted in camera review of DHR records and ordered discovery of relevant information). Thus, we find no error in the court's ruling.

III

Both appellants contend that the trial court erred in allowing James Taylor to testify that he pleaded guilty to an offense that also involved the appellants' daughter. This issue was not preserved for review. James Taylor's guilty plea was first brought out during the direct examination of one of the law enforcement officers who investigated the case. Kathleen Cure simply stated that she objected and moved to strike the question. A general objection does not preserve an issue for appellate review. Thompson v. State, 575 So.2d 1238 (Ala.Crim.App.1991); Jackson v. State, 553 So.2d 647 (Ala.Crim.App.1989). James Taylor's guilty plea was also brought out without any objection during the State's direct examination of James Taylor and during Charles Cure's cross-examination of James Taylor. Thus, Charles Cure cannot now claim that he was injured by the admission of this testimony. Mooney v. State, 548 So.2d 1091 (Ala.Crim.App.1989). We note that we also disagree with the appellants' characterization of James Taylor as a co-defendant or an accomplice. There is no evidence in the...