People v. Turley, 90CA1513

• Decision Date: 20 May 1993
• Docket Number: No. 90CA1513,90CA1513
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David A. TURLEY, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 498

870 P.2d 498

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David A. TURLEY, Defendant-Appellant.

No. 90CA1513.

Colorado Court of Appeals,

Div. I.

May 20, 1993.

As Modified on Denial of Rehearing

Aug. 5, 1993. ^*

Certiorari Denied March 21, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, David Turley, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault, second degree kidnapping, and three counts of habitual criminal. We affirm.

I.

Defendant first asserts that the trial court abused its discretion by refusing to require the victim to reveal her current address. Primarily, defendant argues that the trial court failed to weigh properly his interests against the victim's interests. We disagree.

The general rule requiring disclosure of the address of a witness is subject to an exception which precludes those inquiries which tend to endanger the personal safety of the witness. People v. Thurman, 787 P.2d 646 (Colo.1990); see Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). For such exception to be applicable, it must be shown that the danger claimed by the victim in some way relates to the particular defendant, and there must be a nexus such that the witness legitimately fears reprisal from the defendant or his associates. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972).

Generally, the initial burden is on the prosecution to offer an explanation when it objects to the revelation of information about a witness. People v. Thurman, supra. After a showing that the safety of a witness would be endangered if certain information were to be divulged, the defense has the duty to show that the information sought has some materiality sufficient to outweigh the matter of the safety of the witness. People ex rel. Dunbar v. District Court, supra.

Here, during direct examination at a pretrial motions hearing, the victim refused to divulge to the prosecutor where she currently lived because she stated she was afraid of the perpetrators of the offenses. The trial court, on subsequent occasions, refused to require the victim to reveal her address to the defense. The trial court noted that the victim had been made available to the defense for interview purposes and concluded that it would not force the victim to divulge her address because the assault was a traumatic incident, "and the Court does not believe that [the victim] should be required to make [her] address known."

Defendant claims, and the People, in effect, concede, that the trial court's ruling did not expressly reflect an application of the proper balancing test. However, we agree with the People that, even so, the trial court's ruling implies determinative facts and circumstances clearly supported by the record.

Specifically, the record shows unequivocally that the defendant made multiple express threats against the victim and her family Accordingly, the record supports the conclusion that the personal safety exception was applicable here. Thus, we find no abuse of discretion in the refusal to require disclosure of the information. See People ex rel. Dunbar v. District Court, supra. Cf. § 16-5-203, C.R.S. (1992 Cum.Supp.); Crim.P. 16 Part I(d)(2) and Part III(d).

during the course of the criminal episode. See People v. Thurman, supra (ideally, the witness will provide the trial court with a factual basis for the witness' apprehension, such as evidence of an actual threat to the witness). Moreover, the record indicates that the defendant knew the victim's prior address and her place of employment. Thus, the incremental value of the victim's most recent address was, at best, limited.

II.

Based upon the victim's behavior following the assault, during the pretrial identification procedure, and while testifying, the defense requested that the trial court order a psychological examination of the victim. The trial court denied the request, finding no factual basis for requiring the victim to undergo such an examination. Defendant now contends that the trial court's ruling was an abuse of its discretion. We disagree.

In order to balance a defendant's interest in a fair trial against the victim's privacy interests, a defendant must show a compelling reason or need before the trial court will grant a defense motion for an involuntary psychological examination. People v. Chard, 808 P.2d 351 (Colo.1991).

Disposition of a request for such an examination is within the discretion of the trial court. People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980).

Based upon the record and the speculative nature of the defendant's assertions in this regard, we conclude that the trial court did not abuse its discretion in denying the motion for psychological examination. The defendant failed to establish a compelling need for the information that would be derived therefrom. See People v. Chard, supra.

III.

Defendant next maintains that the trial court erred by refusing to allow discovery of the victim's mental health records and by finding that an insufficient showing had been made to require an in camera review by the trial court of any existing Social Services child abuse records. We perceive no error.

Defendant sought to discover whether the victim had ever undergone mental health treatment and whether the victim had any history of contact with the Denver Department of Social Services. The defense alleged that such evidence related to the victim's mental state and her general credibility and reliability.

The trial court denied the request for discovery of these items. Based upon its in-court observation of the victim, the trial court discerned no indication that the victim's competency was in question. It further found that the defense had failed to present sufficient evidence to establish a necessity to require discovery of any alleged records of a prior psychiatric history of the victim. With respect to the alleged social services records, the trial court concluded that the defense had failed to make a sufficient offer of proof to establish a finding of possible necessity for these materials.

In making its ruling, the trial court relied upon People v. Exline, 775 P.2d 48 (Colo.App.1988), for the proposition that, pursuant to § 19-10-115(2)(f), C.R.S. (1986 Repl.Vol. 8B), the court is under no obligation to review social services child abuse records before there has been a sufficient offer of proof and it has made an initial finding of possible necessity. Section 19-10-115(2)(f) grants a court access to child abuse or neglect records upon its finding that access to such records may be necessary for determination of an issue before the court. Such access is limited to an in camera inspection unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.

On the record before us, we agree with the trial court that under the statutory test as set forth in People v. Exline, supra, the defense failed to meets its initial burden to show the necessity to provide the records.

Defendant points out, however, that in a related federal habeas corpus action, Exline v. Gunter, 985 F.2d 487 (10th Cir.1993), the court found a due process violation based upon the trial court's failure to review in camera the child victim's social services records. Applying principles expressed in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the court required the trial court to review the records to determine whether they contained information that probably would have changed the outcome of the trial.

The victim in Exline v. Gunter, supra, had been sexually molested by two other men prior to the alleged assaults by Exline. At trial one of the important issues was the credibility of the victim and the possibility that she had confused or fantasized encounters with Exline because of previous assaults by other men. Under such circumstances, the court concluded that, People v. Exline, supra, notwithstanding, under principles of due process, the defense had made an adequate offer of proof to cause the records to fall within the statutory exception to their otherwise confidential nature.

Defendant contends that Exline v. Gunter requires a similar result here. We do not agree.

We note first that even under Pennsylvania v. Ritchie, supra, a defendant cannot require the trial court to search the record in camera "without first establishing a basis for his claim that it contains material evidence." Pennsylvania v. Ritchie, supra, 480 U.S. at 58, 107 S.Ct. at 1002, 94 L.Ed.2d at 58. We note further that, apparently, no constitutional due process issue was raised in People v. Exline, supra. However, even if we assume that the analysis set forth by the Tenth Circuit is applicable here, we find no error.

Here, unlike in Exline v. Gunter, supra, the defendant failed to establish an evidentiary hypothesis as to how the requested information would be relevant to the sexual assault and kidnapping prosecution and necessary for the determination of an issue in his case. See People v. District Court, 743 P.2d 432 (Colo.1987).

Moreover, inasmuch as the existence of any mental health or social services records was not established, the defense request was speculative. Hence, absent some showing by the defense of the necessity for and the existence of such records, we conclude that the trial court did not err in determining that the defendant had failed to meet his initial burden of showing the applicability of an exception to the statute's rule of confidentiality. See People v....