Pickens v. State, 6829

• Decision Date: 20 January 1984
• Docket Number: No. 6829,6829
• Citation: Pickens v. State, 675 P.2d 665 (Alaska App. 1984)
• Parties: George Gary PICKENS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 665

675 P.2d 665

45 A.L.R.4th 299

George Gary PICKENS, Appellant, v. STATE of Alaska, Appellee.

No. 6829.

Court of Appeals of Alaska.

Jan. 20, 1984.

James E. Gorton, Lynch, Farney and Crosby, Anchorage, for appellant.

Kristen Young, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

George Gary Pickens was convicted of sexual assault in the first degree. AS 11.41.410. On appeal, Pickens challenges his conviction on two grounds. First, he contends the trial court erred in denying his pretrial motion for a psychiatric examination of the victim, V.C. Second, Pickens argues that the evidence was insufficient to support the jury's verdict. Pickens also challenges his sentence, arguing that the sentencing court erred in considering prior incidents of sexual assault and in sentencing him to thirteen years with five years suspended. We affirm.

FACTS

On July 23, 1981, at approximately 3:00 a.m., V.C. went to Chilkoot Charlie's, a bar in Anchorage, with a group of friends. While she was at the bar, V.C. met Pickens and his friend, Larry McLachlan. She talked to them several times during the night and at one point went with Pickens to the parking lot to have some cocaine. When the bar was closing, V.C. discovered that her friends had left without her. She scanned the parking lot for an acquaintance who might give her a ride home. It was raining heavily. Pickens and McLachlan were standing outside the bar. They offered to give V.C. a ride home, and she accepted.

After V.C. got into the car, Pickens asked her if she wanted some more cocaine. V.C. said she did, and they drove to a friend's trailer. When they arrived at the trailer, Pickens went inside, purportedly to get the cocaine. He came back to the truck and V.C. went into the trailer to use the bathroom. By the time V.C. finished using the bathroom, McLachlan had left in the truck. Pickens was in the bedroom, and he asked V.C. to sit with him on the bed. She refused. V.C. asked another man in the trailer to give her a ride home. The man said that he did not have a car. Without speaking to Pickens, V.C. left the trailer and started walking home in the rain.

When Pickens realized that V.C. had gone, he followed her. He caught up with V.C. and convinced her to return to the trailer, stating that his friend had come back with a car and that he would give her a ride home. On their way back to the trailer, as they approached a condominium construction site, Pickens grabbed V.C., put one hand over her mouth, and carried her into the partially completed building. There he raped her.

At the approximate time of the sexual assault, a nearby resident heard a woman screaming, "no, stop it" and "leave me alone." This witness became concerned and called the Anchorage Police Department. Another local resident also heard a woman scream, "leave me alone," followed by a man saying, "shut up." He made a separate report to the police.

Police officers arrived at the scene in response to these reports and began searching the area. They found Pickens and V.C. in the partially constructed condominium. When V.C. saw the officers, she cried out that she had been raped. Pickens immediately ran out of the building, and the officers followed him. After a two-block chase and a ten to twenty minute struggle, they restrained Pickens. Pickens gave the officers a false name.

Pickens was charged with first-degree sexual assault and convicted by a jury. Superior Court Judge Seaborn J. Buckalew sentenced Pickens to thirteen years with five years suspended. This appeal followed.

REQUEST FOR PSYCHIATRIC EVALUATION OF V.C.

Prior to trial, Pickens requested that V.C. be compelled to submit to a psychiatric evaluation. He based the request on his right to discovery and his right to cross-examine witnesses at trial. Superior Court Judge Victor D. Carlson denied Pickens's motion. Pickens contends that Judge Carlson's ruling was incorrect.

In Braham v. State, 571 P.2d 631, 640 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978), the supreme court affirmed the denial of a defense request for psychiatric evaluation of a crime victim, stating: "It is within the discretion of the trial court whether to order a psychiatric examination of the mental condition of a witness." (Footnote omitted.) We conclude that Judge Carlson did not abuse his discretion when he denied Pickens's motion.

Pickens relies primarily on Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838 (1966). In Ballard, the California Supreme Court established a test for determining whether the complaining witness in a sexual assault case should undergo a psychiatric examination. After rejecting the "polar extremes" of an absolute prohibition and an absolute requirement of a psychiatric examination, the Ballard court concluded:

We ... believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a necessity for an examination. Such 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 .... [W]e have accepted a middle ground, placing the matter in the discretion of the trial judge.

Id. 49 Cal.Rptr. at 313, 410 P.2d at 849.

Pickens contends that there was no corroboration of V.C.'s sexual assault and that he therefore met the necessity requirement of Ballard. Pickens asserts that "[n]o one testified that they actually saw the prosecutrix being carried, subdued, undressed, or raped." However, Pickens admitted that he carried V.C. into the empty condominium and that he had sexual intercourse with her. His only defense at trial was that V.C. consented. V.C.'s testimony was corroborated by two local residents who heard screaming and separately reported the incident to the police department. Moreover, medical evidence and the testimony of the police officers who responded to the scene were consistent with the allegation of rape. We find ample evidence corroborating V.C.'s testimony. See Anthony v. State, 521 P.2d 486, 494 (Alaska 1974); Dimmick v. State, 473 P.2d 616, 617 (Alaska 1970); Oxenberg v. State, 362 P.2d 893, 897 (Alaska 1961); Miller v. State, 629 P.2d 546, 548-49 (Alaska App.1981).

We also conclude that Pickens failed to make an adequate showing of a potential relationship between V.C.'s psychiatric condition and her veracity as a trial witness, the second prong of the Ballard test. Pickens relied exclusively on an affidavit of his counsel stating that V.C. threatened suicide two months prior to the sexual assault and that she had previous emotional problems. The affidavit also noted that V.C. had used cocaine and was intoxicated at the time of the offense. On the basis of this affidavit, Pickens argues that psychiatric testimony would have aided the jury in assessing how alcohol and cocaine might have affected V.C.'s credibility. Pickens does not indicate any specific reason to believe that V.C.'s prior emotional problems might have affected her veracity.

The general assertions that V.C. had previously suffered emotional problems of an unspecified nature and that she used cocaine and alcohol before the offense do not directly call into question her psychiatric condition or the relationship of her condition to her veracity as a witness. ¹ Defense counsel's speculation that a psychiatric evaluation of the victim might turn something up does not amount to a showing of necessity justifying a court-ordered evaluation. We think that, at the very least, it would have been incumbent upon Pickens to make a specific showing of good cause to believe, first, that V.C.'s ability to perceive events accurately or to relate those events truthfully was substantially impaired and, second, that this impairment was of such a nature that a psychological evaluation would be likely to confirm its existence or to provide material information as to its scope.

As noted in People v. Mills, 151 Cal.Rptr. 71, 74, 87 Cal.App.3d 302, 307 (1979), the Ballard test should be strictly applied:

[T]he policy [requiring strict application of Ballard ] springs primarily from consideration of one's dignity and humanity. It also reflects widespread acknowledgement that such crimes often go unreported, usually because of the outraged victim's fear of further embarrassment, shame or mortification.

We agree with the California court's concern regarding requests for psychiatric evaluations of sexual assault victims. Although the Alaska Supreme Court has not established a standard for evaluating such requests, it has been sensitive to the privacy interests of witnesses generally and reluctant to permit inquiry into a witness's mental health history absent a clear indication of relevance. For example, in Gunnerud v. State, 611 P.2d 69 (Alaska 1980), the court held that the defendant was not entitled to disclosure of an existing psychiatric report concerning an adverse witness. The court held:

We agree with the trial court that it would be an unwarranted infringement of [the witness's] privacy, and therefore inconsistent with the protection of persons, to grant access to [the witness's] private medical records unless the material was relevant.

Id. at 72 (footnote omitted). See Spencer v. State, 642 P.2d 1371, 1375-76 (Alaska App.1982). We perceive no reason to subject the victims of sexual assaults to a less protective rule than that applied to the victims of other types of offenses. Accordingly, we believe the same caution reflected in Gunnerud and Spencer is appropriate where the defense requests the psychiatric evaluation of a sexual assault witness. In no respect are victims of sexual assault inherently less credible...