Spencer v. State, 5414

• Decision Date: 08 April 1982
• Docket Number: No. 5414,5414
• Citation: Spencer v. State, 642 P.2d 1371 (Alaska App. 1982)
• Parties: Rick SPENCER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1371

642 P.2d 1371

Rick SPENCER, Appellant, v. STATE of Alaska, Appellee.

No. 5414.

Court of Appeals of Alaska.

April 8, 1982.

James H. Cannon, Jane F. Kauvar, Asst. Public Defenders, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

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

OPINION

SINGLETON, Judge.

Rick Spencer was convicted of first degree murder and sentenced to life imprisonment. The judgment of conviction provides that he shall not be eligible for parole until he has served twenty years. He appeals challenging both his conviction and the sentence imposed. On the merits, he argues primarily that the court prejudiced his defense by denying him discovery of certain psychiatric records of his wife, Monika Barber Spencer, and of Michael Bowlin, a fellow pretrial detainee. Ms. Spencer and Mr. Bowlin were major witnesses against Spencer at trial. ¹

We will set out the facts only to the extent necessary to illustrate the issues present.

In December of 1976, Rick Spencer, Monika Barber, Donald Grunewald, and another man were sharing a house in Fairbanks. On January 7, 1977, Grunewald's body was found in an abandoned gold dredge outside town. Police interviewed the other residents of the house on January 8, 1977. Two days later, Monika Barber was interviewed again at the Alaska State Trooper headquarters in Fairbanks. Rick Spencer and Monika Barber left Fairbanks that same day and left Alaska within ten days. The investigation into Grunewald's death continued, and it included seizure of several items from the house in Fairbanks.

Over the next eighteen months, Rick Spencer and Monika Barber lived together in various parts of the United States. During this period, Monika Barber received mental health counseling and treatment for alcoholism at various hospitals, frequently on an in-patient basis. Spencer reenlisted in the United States Army in California and was reassigned to Fort Benning, Georgia. On September 12, 1977, the two were married in Alabama.

Sometime in July of 1978, Monika Barber Spencer and Rick Spencer separated. Monika was subsequently arrested, convicted, and sentenced for grand larceny in Lewiston, Idaho. On January 5, 1979, Monika's mother contacted Investigator McCann to say that her daughter wished to speak with him. When McCann interviewed Monika in jail on January 31, 1979, Monika gave a detailed account of her activities and those of her husband around the time of Grunewald's death. This account differed greatly from her previous accounts, and it included a great many incriminating statements made to her by Rick Spencer. Many of the details she gave were verified when officers checking them out found material evidence, which in turn connected Spencer to the killing of Grunewald.

Monika Barber Spencer testified before a grand jury on October 16, 1979, and an indictment was returned for first degree murder against Rick Spencer.

After pleading not guilty at his arraignment, Spencer moved for pretrial discovery of "(a)ny record of previous commitments or residence in any mental health institution or treatment facility of any witness whom the prosecuting attorney intends to call at trial." He relied on Alaska Rule of Criminal Procedure 16. Three weeks later, on February 22, 1980, Spencer moved that the state be required to furnish him with "the medical, including psychiatric records, of Monika Barber or a release of physician/patient, psychotherapist/patient privilege signed by Monika Barber or alternatively that her testimony be suppressed" at trial. The memorandum in support of this motion specified two hospitals at which Monika had allegedly received treatment, but also stated that without "being provided ... access to such information defendant can't even know for sure who treated Monika Barber Spencer."

At an omnibus hearing on March 13, 1980, in front of Judge Van Hoomissen, the prosecutor stated that Monika Spencer had signed a waiver of her records to his office and that he had sent record requests to the institutions she had named, giving copies to defense counsel. The court proposed in camera inspection, but defense counsel suggested that Dr. Irvin Rothrock, a psychiatrist practicing in Fairbanks, help the court evaluate the records to determine whether there was anything that would affect Monika's ability to perceive at relevant times. Judge Van Hoomissen agreed to have Dr. Rothrock evaluate the records and inform the court and counsel. Defense counsel was specifically told that he could consult with Dr. Rothrock regarding the records.

Another person listed by the state as an anticipated witness in the Spencer trial was Michael Bowlin. While awaiting trial, Bowlin had been incarcerated with Spencer at the Fairbanks Correctional Center, and he claimed Spencer had made certain incriminating statements to him. His testimony was offered in exchange for the dismissal of some of his pending charges. ²

Spencer's counsel learned that Bowlin had been examined at the Alaska Psychiatric Institute while in custody, and he filed a motion on March 26 for release of the report of Bowlin's examination or, alternatively, for another psychiatric examination.

Spencer's trial began on April 1, 1980, with Judge Blair, rather than Judge Van Hoomissen, presiding. The prosecutor informed the judge that Dr. Rothrock's report on Monika Spencer was now completed and that reports from the various institutions had been filed with the court. He also indicated that a report on Michael Bowlin by Dr. Rothrock had been filed.

The trial judge examined the reports in camera, and on April 2, 1980, ruled that nothing would be disclosed except Dr. Rothrock's evaluation of Monika Spencer, at least for the time being. With regard to Ms. Spencer, Judge Blair stated, "I'm fairly convinced it's not going to do you any good in this case." With regard to Bowlin, he stated, "I just can't find anything in there that's gonna be beneficial to you. You have the dates when he was at API. You can question him all you wish...." The trial judge made the following comment regarding both Ms. Spencer and Bowlin: "If either of these persons says anything that's contrary or contradictory to anything that's in the record, why, we'll take that up at that time." Judge Blair also stated that nothing in either record was relevant and that "the doctor says both can testify."

Monika Spencer and Michael Bowlin both testified at trial. At no point did Judge Blair indicate that anything in any of the records had been contradicted in testimony. The jury found Rick Spencer guilty of first degree murder, and he appeals, in part, on the basis of Judge Blair's denial of his motions for discovery.

I. DID THE TRIAL JUDGE ERR IN REFUSING TO DISCLOSE PSYCHIATRIC AND MEDICAL RECORDS OF MONIKA BARBER SPENCER?

Alaska Rule of Criminal Procedure 16 sets forth the basic standards relating to discovery. Rule 16(a) provides:

Scope of Discovery. In order to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and the adversary system.

Criminal Rule 16(b)(1)(iv) requires disclosure to the accused of "(a)ny reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons." Because Dr. Rothrock's evaluation of Monika Spencer was ordered by the prosecution, and a copy of the evaluation was given to the defendant before trial, it is not necessary for us to determine whether Rule 16(b)(1)(iv) is limited to the defendant or applies to examination of third parties, including witnesses for the prosecution. The records of Ms. Spencer's past psychiatric and psychological treatment received by the district attorney in response to his letters to the hospitals and treatment centers, however, clearly fall outside of Rule 16(b)(1)(iv) and therefore must be considered under the broad directive of Rule 16(a). Consideration should also be given to Rule 16(d)(6) which allows for "showing of cause for denial or regulation of disclosure ... to be made to the court in camera ex parte," and requires a record to be made of the proceedings.

In Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978), the standards and procedures to be used in applying Rule 16 were set out. Generally, the court held that any material in the possession of the prosecution requested by the defense should be turned over to it unless (1) disclosure would injure third parties or handicap law enforcement, and (2) the matter to be disclosed was not relevant. Specifically, the court said:

Non-disclosure was proper only if (1) the prosecution showed that discovery of the evidence would be inconsistent with protection of persons or enforcement of the laws and (2) the trial judge concluded that the material was not relevant to the defense. If the district attorney failed to show that disclosure would harm enforcement or protection efforts, the material must be disclosed. The question of relevance would then be decided in an adversary context; both counsel would have the opportunity to make their respective arguments.

Disclosure is also required if the judge's in camera inspection showed that the material was relevant to the defense-whether or not the prosecutor had demonstrated that discovery would be inconsistent with enforcement or protection efforts. In the latter circumstance, the state must decide between continuing to prosecute, while incurring the problems posed by disclosure, and terminating ...