People v. Chard

• Decision Date: 11 March 1991
• Docket Number: No. 89SC547,89SC547
• Citation: 808 P.2d 351
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Richard John CHARD, III, Respondent.
• Court: Colorado Supreme Court

Page 351

808 P.2d 351

The PEOPLE of the State of Colorado, Petitioner, v. Richard John CHARD, III, Respondent.

No. 89SC547.

Supreme Court of Colorado,

En Banc.

March 11, 1991.

Rehearing Denied April 22, 1991.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Denver, for petitioner.

Klauzer & Tremaine, Randall W. Klauzer, Steamboat Springs, McGill Professional

Law Corp., Ralph A. Cantafio, Steamboat Springs, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

The People appeal the court of appeals reversal of Richard John Chard's (the defendant) conviction on five criminal counts of aggravated incest. The court of appeals held that reversal was warranted because of the trial court's failure to compel the seven-year-old victim to submit to involuntary psychological and physical examinations. We reverse.

I.

From June 20, 1986, until September 1, 1986, defendant's daughter, R.S., visited with her natural father, defendant Chard, in Steamboat Springs, Colorado. R.S. was six years old at this time and lived in California with her mother and her stepfather. Shortly after her return to California, R.S. complained to her mother that her "tutu" hurt. R.S.'s mother examined R.S.'s vaginal area and found it to be "gapingly open." She also noted that the area was "real bright red" or "bloody." R.S.'s mother was concerned about R.S.'s condition, but decided not to take her to a doctor at that time.

In February 1987, after speaking with her attorney, R.S.'s mother took R.S. to a California pediatrician, Dr. Valerie Young. After examining R.S. thoroughly, Dr. Young noted that she had an abnormally deep vaginal area, a large hymenal opening, and increased vascularity and scarring in the vaginal area. In addition, R.S.'s rectum was enlarged and unusually loose. Dr. Young concluded that R.S. had been subjected to penile penetration of the vagina and anus over an extended period of time. Dr. Young referred R.S. to a California therapist, Suzanne Long, for counseling. Long interviewed R.S. twice and subsequently filed a child abuse report.

Thereafter, the defendant was charged with five counts of aggravated incest. On June 8, 1987, the defendant filed a motion to compel R.S. to undergo a second physical and psychological examination. The trial court held a hearing on the motion on July 21, 1987, which consisted of testimony by the defendant and a local physician, Dr. David Wilkinson.

Dr. Wilkinson acknowledged that Dr. Young's examination of R.S. was thorough, but he stated that there were two possible benefits to be derived from a second physical examination. First, a second examination would reveal if the sexual abuse was continuing. Second, some of the findings and measurements in Dr. Young's report were subjective and might differ in a subsequent examination. Dr. Wilkinson conceded, however, that a physical examination could be traumatic or painful to R.S. and that some of her injuries may have healed since Dr. Young's examination.

No expert testimony was presented regarding the requested psychological examination. The defendant testified that R.S. may have accused him of sexual abuse because she had watched material of a "bizarre and deviant sexual nature" on television. The defendant also stated that R.S. had "mischaracterized" certain things that had happened to her. On cross-examination, the defendant testified that R.S. was as "sharp as a tack" and knew the difference between truth and falsity.

From the evidence presented, the trial court concluded that any benefits that could be obtained from a second physical examination were too speculative. The court also denied the motion for a psychological examination on the basis that cross-examination of R.S. would establish sufficiently whether she was distorting the facts or whether she had been subjected to undue influence.

At trial, R.S. testified that the defendant had stuck his penis into her "tutu" and "bottom" numerous times while she was visiting him in the summer of 1986. Dr. Young testified that R.S. had been subjected to chronic penetration of the vagina with some object and to recurrent, long-term penile penetration of the rectum. Long testified that during her interviews with R.S., R.S. identified the defendant as the person that had sexually abused her. In his defense, the defendant took the stand and denied sexually abusing R.S. He presented expert testimony that marriage dissolutions and custody battles could undermine the reliability of a child's sexual assault claims. He also presented expert testimony critiquing Dr. Young's method of measuring vaginal and rectal openings. On November 19, 1987, the jury found the defendant guilty on all five counts of aggravated incest. He was sentenced to 14 years imprisonment. The court of appeals reversed the defendant's conviction, finding that the defendant had demonstrated a compelling reason for ordering a second physical and psychological examination and that the trial court had abused its discretion by denying these examinations.

II.

We first address the defendant's contention that the trial court abused its discretion by failing to order R.S. to undergo a psychological examination. The defendant claims that a second examination would have little or no traumatic effect on R.S. and that it would determine whether R.S. was competent to testify.

A.

A criminal defendant has a constitutional right to present evidence on his behalf, People v. Pronovost, 773 P.2d 555, 558 (Colo.1989), as well as a constitutional right to confront adverse witnesses, Kogan v. People, 756 P.2d 945, 959 (Colo.1988). These rights have been construed as granting the defendant the right to obtain material evidence, subject to certain limitations. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).

In deciding whether to grant a defendant's motion for the involuntary psychological examination of a child sexual-abuse victim, the court must weigh the defendant's right to a fair trial against the invasion of the victim's privacy interests. Moor v. State, 709 P.2d 498, 508 (Alaska App.1985). Children are entitled to the same constitutional guarantees as adults, including protection from unreasonable searches and seizures under the fourth amendment. People v. Nokes, 183 Cal.App.3d 468, 476-81, 228 Cal.Rptr. 119, 123-27 (1986).

Many jurisdictions have sought to balance a defendant's interest in a fair trial against the victim's privacy interests by requiring the defendant to show a "compelling reason or need" before granting a motion for an involuntary psychological examination. See, e.g., Moor v. State, 709 P.2d at 508; State v. LeBlanc, 558 So.2d 507, 509 (Fla.App.1990); State v. Filson, 101 Idaho 381, 385, 613 P.2d 938, 942 (1982); State v. Glover, 49 Ill.2d 78, 81-83, 273 N.E.2d 367, 370 (1971); State v. Gregg, 226 Kan. 481, 488-89, 602 P.2d 85, 91 (1979); State v. Nelson, 235 Neb. 15, 20-22, 453 N.W.2d 454, 458 (1990).

Colorado has also adopted the "compelling reason or need" test with regard to involuntary psychological examinations. In People v. Estorga, 200 Colo. 78, 82, 612 P.2d 520, 523-24 (1980), this court approved the test set forth in People v. King, 41 Colo.App. 177, 179, 581 P.2d 739, 741 (1978), to determine the circumstances under which a trial court should grant a defendant's motion for a compulsory psychological examination of a child sexual-abuse victim. The court in Estorga held that a psychological examination "should be ordered only when there is a compelling reason for it." Estorga, 200 Colo. at 82, 612 P.2d at 523. The court further held that "the ordering of such an examination is within the discretion of the trial court," id., and that the trial court must " 'balance the possible emotional trauma, embarrassment or intimidation to the complainant against the likelihood of the examination producing material, as distinguished from speculative, evidence.' " Id. (quoting King, 41 Colo.App. at 179, 581 P.2d at 741). Cases following Estorga and King have upheld the trial court's discretion to order a psychological examination only upon the defendant's showing of a "compelling need or reason." See People v. Woertman, 786 P.2d 443, 449 (Colo.App.1989), rev'd on other grounds, Woertman v. People, 804 P.2d 188 (Colo.1991) (court properly denied motion where the emotional trauma of a second examination outweighed the material evidence it would have produced); People v. Lucero, 724 P.2d 1374, 1376 (Colo.App.1986) (no abuse of discretion where court balanced valid conflicting interests to deny motion for compulsory psychological examination); People v. Piro, 671 P.2d 1341, 1343 (Colo.App.1983) (trial court did not abuse its discretion by denying the defendant's motion to compel a psychiatric examination).

B.

The defendant argues that he demonstrated a "compelling reason" for ordering a second psychological examination of R.S. The defendant's attempt to provide a "compelling reason" in this case consisted of an affidavit and testimony that R.S. had mischaracterized occurrences in her past; that she had been exposed to bizarre, deviant behavior on television which could have caused her to fabricate some or all of the accusations; and that she had been unduly influenced by her mother and other adults. The King court rejected these types of statements as being "conclusory in nature" and "devoid of specific factual recitation." King, 41 Colo.App. at 179, 581 P.2d at 741. The defendant's allegations concerning R.S. were also undermined by his testimony on cross-examination when he stated that R.S. was as "sharp as a tack"; that R.S.'s mischaracterizations were nothing of major consequence; that her exposure to bizarre sexual behavior on television consisted of school programs discussing sexual abuse and general access to television; and that R.S. knew the difference between a...