Murphy v. Superior Court In and For Maricopa County, 17314-SA

• Decision Date: 26 September 1984
• Docket Number: No. 17314-SA,17314-SA
• Citation: 142 Ariz. 273,689 P.2d 532
• Parties: Michael John MURPHY, Petitioner, v. SUPERIOR COURT of the State of Arizona In and For the COUNTY OF MARICOPA, the Honorable Dorothy M. Carson, a Judge thereof, and the State of Arizona, Real Parties in Interest, Respondents.
• Court: Arizona Supreme Court

Page 532

689 P.2d 532

142 Ariz. 273

Michael John MURPHY, Petitioner, v. SUPERIOR COURT of the State of Arizona In and For the COUNTY OF MARICOPA, the Honorable Dorothy M. Carson, a Judge thereof, and the State of Arizona, Real Parties in Interest, Respondents.

No. 17314-SA.

Supreme Court of Arizona, In Banc.

Sept. 26, 1984.

Reconsideration Denied Nov. 6, 1984.

Kenneth D. Freedman, Phoenix, for petitioner.

Thomas E. Collins, Maricopa County Atty., Phoenix by Larry Morehouse, Deputy County Atty., for respondents.

HOLOHAN, Chief Justice.

Petitioner, Michael John Murphy, was indicted on October 11, 1983 for two counts of attempted sexual assault in violation of A.R.S. § 13-1001, and one count of sexual assault in violation of A.R.S. § 13-1406. On October 31, 1983, the Maricopa County Superior Court, after a hearing, found that petitioner's probation had been violated based on the alleged crimes.

In November of 1983, petitioner moved in the criminal case to compel a psychological examination of the alleged victim and to compel the depositions of the victim and her victim assistance caseworker (victim/witness advocate). On December 6, after argument, the trial judge denied both pre-trial motions. Petitioner sought relief in a petition for special action to this court. We accepted jurisdiction pursuant to Art. 6, § 5(4) of the Arizona Constitution and granted the requested interlocutory stay of the proceedings below.

The facts relevant to our determination are as follows. The prosecutrix is a 35 year old widowed mother of two children who was attending business college while supporting herself by working at a Circle K. She had never been treated by a mental health expert or seen a psychiatrist, psychologist or counselor, nor previously been the victim of sexual abuse or a sexual assault.

On August 4, 1983 petitioner and prosecutrix had a date at petitioner's home. They joined two other couples having a party in the front room. The television was on with the volume turned up and a stereo was also playing loudly. Petitioner made aggressive passes at the prosecutrix, who resisted his advances. He then asked her to go into another room with him to talk, took her into the room, which turned out to be his bedroom, and closed the door. The other couples remained in the front room, did not hear anything from the bedroom and did not see the prosecutrix again that evening.

In the bedroom, the prosecutrix alleges that petitioner attacked her and forcibly attempted vaginal and anal intercourse. She testified that during the attack she was terrified, resisted, and screamed for help, but no one came, presumably because of the noise from the TV and stereo. Petitioner agreed to stop attempting intercourse if she would perform oral sex on him, which she agreed to do. During the act, he fell asleep and she was able to escape. When she ran from petitioner's home, the front room was dark and she saw no one. She went to a Circle K and called the police.

One of the other females present at the party testified that the TV and stereo remained on at high volume when the alleged attack occurred and that petitioner later instructed her to lie and say that he had gone to bed on the front room couch and that the prosecutrix had gone home. The police investigation revealed that the prosecutrix had several bruises and markings about her breasts, corroborating her account of the struggle.

MOTION TO COMPEL PSYCHOLOGICAL EXAMINATION

Petitioner asserts that the trial court erred in denying his motion to compel the prosecutrix to submit to an examination by his psychologist so that petitioner might be able to impeach the prosecutrix' credibility at trial. Petitioner primarily relies on State v. Roberts, 139 Ariz. 117, 677 P.2d 280 (App.1983). In Roberts, however, the issue was whether a psychologist who had already examined the main prosecution witness, a mildly retarded nine year old female victim, to determine her competency, could testify at trial as to her credibility. We addressed the issue of compelling the psychological or psychiatric examination itself in State v. Wahrlich, 105 Ariz. 102, 459 P.2d 727 (1969). There we adopted the holding and language of Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416 (1966), that the finding of necessity for ordering a psychiatric examination was discretionary with the trial court and "[s]uch necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity." Wahrlich, supra 105 Ariz. at 105, 459 P.2d at 730, quoting Ballard, 49 Cal.Rptr. at 313, 410 P.2d at 849. See also State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979) (applying Ballard to the ordering of psychiatric examinations of sex crime victim for competency). In State v. Morrow, 111 Ariz. 268, 528 P.2d 612 (1974), another sex crime case, we cited Wahrlich in noting that "whether such an examination should be required is left to the sound discretion of the trial court." Id. at 270, 528 P.2d at 614.

Petitioner asserts that granting a psychological evaluation of an alleged victim of a sexual criminal act is to be liberally exercised in favor of the defense. He relies for this proposition in part on People v. Russel, 69 Cal.2d 187, 443 P.2d 794, 70 Cal.Rptr. 210, cert. denied, 393 U.S. 864, 89 S.Ct. 145, 21 L.Ed.2d 132 (1968) and People v. Newton, 244 Cal.App.2d 82, 52 Cal.Rptr. 727 (1966). In Russel and Newton, however, as in Roberts, supra, the issue was the admission of existing examination results, not the ordering of an examination. Furthermore, the discussion in Russel concerning the ordering of an examination was dicta and relied upon Ballard, supra ("if the circumstances indicate a necessity"). 443 P.2d at 799, 70 Cal.Rptr. at 215.

The rule in Ballard and Wahrlich represents a judicious compromise between two conflicting positions. The first, the so-called "Wigmore rule" is that a victim of a sexual offense, especially if her testimony is uncorroborated, should be subjected to a psychiatric examination as a matter of course because of the likelihood of sexual psychopathology causing her to make false accusations. See 3A Wigmore on Evidence, §§ 924(a), 934(a) (Chadbourn Rev.1970); cf. McCormick, Handbook on the Law of Evidence, § 45 at 95-96 (2d. Ed.1972). The second, more modern position is based on countervailing opinions that victims of sex crimes are no less reliable than other witnesses, that psychiatric testimony on the credibility of witnesses is expensive and time consuming and in any case is of dubious value, and that requiring all such witnesses to be so examined would inconvenience them, invade their privacy, deter many of them from disclosing such offenses, see, State v. Kevil, 111 Ariz. 240, 527 P.2d 285 (1974), and serve as a tool for harassment. See United States v. Benn, 476 F.2d 1127 (D.C.Cir.1972) (Bazelon, C.J.).

The "Wigmore rule" once enjoyed considerable support, but this position has been largely repudiated. See, e.g., State v. Romero, 94 N.M. 22, 27, 606 P.2d 1116, 1121 (App.1980) ("based on outmoded notions ... and, as such, should be discarded altogether"); State v. Looney, 294 N.C. 1, 18, 240 S.E.2d 612, 622 (1978) ("completely unrealistic and unsound"); O'Neal, Court Ordered Psychiatric Examination of a Rape Victim--Or How Many Times Must a Woman be Raped?, 18 Santa Clara L.Rev. 119 (1978). The "Wigmore rule" appears to be founded, not in fact, but in old attitudes critical of the credibility of a rape prosecutrix' testimony which we held in State ex rel. Pope v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976), to be "fostered by the fallacy that the crime of rape is characterized by a high incidence of unwarranted accusations and prosecutions which rely on the uncorroborated testimony of the alleged victim." Id. at 27, 545 P.2d at 951; see also, Bienen, A Question of Credibility: John Henry Wigmore's Use of Scientific Authority in Section 924a of the Treatise on Evidence, 19 Cal.W.L.Rev. 235 (1983).

We find the rationale for the "Wigmore rule" unpersuasive. The standard for determining when a witness should be ordered to undergo a mental examination is no different for sex crime victims than for other witnesses. See State v. Piatt, 132 Ariz. 145, 644 P.2d 881 (1981). An apparent majority of states now follow the Ballard view that the trial court has discretion to order a psychiatric examination of a complaining sex crime witness if compelling reasons are shown on the record. State v. Buckley, 325 N.W.2d 169, 171 (N.D.1982). We find no reason to liberalize the grounds for ordering such an examination and hold that the party requesting a witness' examination must show that the examination is necessary. Such a need generally arises "only if little or no corroboration support[s] the charge and the defense raise[s] the issue of the effect of the complaining witness' mental or emotional condition upon her veracity." Wahrlich, supra 105 Ariz. at 105, 459 P.2d at 730 (citation omitted). We emphasize that where, as here, the victim-witness is an adult of normal intelligence with no history of mental problems, and the defense merely raises the issue without offering evidence on the record impugning the witness' psychological stability or testimonial credibility, such an allegation is in the nature of a fishing expedition and is insufficient grounds for ordering an examination. See State v. Boisvert, 119 N.H. 174, 400 A.2d 48 (1979); State v. Kahinu, 53 Hawaii 536, 498 P.2d 635 (1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 944, 35 L.Ed.2d 258 (1973).

MOTION TO COMPEL DEPOSITIONS OF PROSECUTRIX AND VICTIM ASSISTANCE CASEWORKER

A victim assistance caseworker, or victim/witness advocate, provides short term counseling to victims or witnesses of crimes, including emotional support, referrals to...