State ex rel. White v. Gray

Decision Date24 August 2004
Docket NumberNo. WD 64085.,WD 64085.
Citation141 S.W.3d 460
PartiesSTATE of Missouri, ex rel. Theodore WHITE, Jr., Relator, v. The Honorable Jon GRAY, Respondent.
CourtMissouri Court of Appeals

Appeal from the Circuit Court, Jackson County, John I. Moran, J Phillip R. Gibson, Kansas City, for relator.

Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, for respondent.




Relator Theodore White, Jr., filed a petition for writ of mandamus on April 27, 2004, seeking to compel the Honorable Jon R. Gray, Family Court Administrative Judge for Jackson County, to order that court records of the adoptions of J.L. and D.S. be disclosed to Mr. White. Mr. White seeks to utilize the records in his defense of the criminal charges pending against him in the Circuit Court of Jackson County, Case No. CR1998-02401. Judge Gray denied Mr. White's request for disclosure of the adoption records because he found that section 453.121, RSMo 2000,1 prohibited the disclosure. Although he felt compelled to deny the request for disclosure, Judge Gray, nevertheless, found that "[t]he Court's review of the material sought leads the Court to likewise conclude that such information is or may be relevant to [Mr. White's] defense in the criminal case and that [Mr. White's] constitutional rights may compel disclosure in response to compulsory process."

In his petition to this court, Mr. White argues that the information contained in the adoption records is "directly relevant to" and "essential to" his defense. On May 10, 2004, this court issued its preliminary writ ordering Judge Gray to immediately disclose relevant portions of the adoption file or file an answer before this court as to why he should not take such action. He chose to file an answer. Following oral argument on May 20, 2004, an order was issued making the preliminary writ absolute and ordering Judge Gray to transfer the requested adoption records to Judge Atwell, the circuit judge presiding over Mr. White's criminal trial, for an in camera review, to determine whether information in the record should be disclosed to Mr. White because it is relevant and material to Mr. White's defense to the charges for which he is presently on trial. This opinion sets out the legal basis for the ordered disclosure.

Factual and Procedural Background

The facts relevant to this proceeding, taken as true, are drawn from Mr. White's "Petition for Writ of Mandamus With Suggestions In Support Thereof." McCarney v. Nearing, Staats, Prelogar & Jones, 866 S.W.2d 881, 886 (Mo.App.1993). In December 1991, Mr. White married Tina McKenna.2 Ms. McKenna had two children from a previous marriage, J.L. and D.S. Sometime in 1995, Mr. White filed a petition to adopt J.L. and D.S. Ms. McKenna fully supported the petition, and the children's biological father voluntarily terminated his parental rights. A guardian ad litem was appointed for the children, who interviewed the children both together and separately about Mr. White and the adoption. In addition, prior to the adoption, the Division of Family Services (DFS) performed a home study and psychological testing. DFS and the guardian ad litem both filed written reports with the court and may have testified as to their findings and recommendations. Following the court's own inquiry of Mr. White, Ms. McKenna, and the children, the Juvenile Division of the Circuit Court of Jackson County approved Mr. White's petition for adoption of the children on January 25, 1996.

On March 21, 1998, J.L. told Ms. McKenna that Mr. White had been touching her inappropriately. Following Ms. McKenna's report of the incidents to the Lee's Summit Police Department, an investigation was undertaken, which eventually led to Mr. White being charged with multiple counts of sexual abuse of J.L. The incidents were alleged to have occurred during the summer of 1995 through March 8, 1998. Therefore, some of the incidents of which J.L. complained allegedly occurred prior to Mr. White's adoption petition being granted. Following a February 1999 trial, Mr. White was convicted and subsequently sentenced to prison. When Mr. White appealed, this court reversed his conviction because the prosecution failed to disclose that Ms. McKenna and Richard McKinley, the lead detective for the sex crimes unit for the Lee's Summit Police Department and lead detective on Mr. White's case, had been engaged in a sexual relationship for nearly a year before the trial. State v. White, 81 S.W.3d 561, 568-70 (Mo.App.2002). Evidence of the relationship would have served to impeach the police work and Ms. McKenna's testimony, and the failure to disclose the information deprived Mr. White of a fair trial. Id. at 570. Mr. White's case was remanded to the Jackson County Circuit Court for a retrial.

In preparation for this retrial, Mr. White requested that the juvenile court disclose to him the adoption records of J.L. and D.S., because he believed that the records contain information relevant to his defense or are likely to lead to the discovery of admissible evidence.3 The matter was referred to Judge Gray. On April 16, 2004, following review of the records Judge Gray denied Mr. White's request, finding that section 453.121 prohibited disclosure. Even though he felt compelled to deny the request, Judge Gray found that the records contain information that "is or may be relevant to [Mr. White's] defense in the criminal case and that [Mr. White's] constitutional rights may compel disclosure in response to compulsory process."

On April 27, 2004, Mr. White sought relief from this court by filing a petition for a writ of mandamus. Respondent filed suggestions in opposition to Mr. White's petition. This court granted a preliminary order in mandamus. Oral argument was held on May 20, 2004, and, on that same day, this court entered its order making the preliminary writ of mandamus absolute, with this opinion to follow.


"A writ of prohibition [or] mandamus is the proper remedy for curing discovery rulings that exceed a court's jurisdiction or constitute an abuse of the court's discretion." State ex rel. Atchison, Topeka & Santa Fe R.R. v. O'Malley, 888 S.W.2d 760, 761 (Mo.App.1994). "Prohibition lies to prevent the forced disclosure of information during discovery, particularly when the information is protected by a statute, rule or privilege." Id. Mandamus lies to require the disclosure of information during discovery when the information is relevant to the lawsuit or reasonably calculated to lead to the discovery of admissible evidence. State ex rel. Rowland v. O'Toole, 884 S.W.2d 100, 102 (Mo.App.1994).

Mr. White argues that because the adoption records at issue in this case may contain information relevant to his criminal case, he is entitled to such discovery and a writ of mandamus is, therefore, proper. Specifically, he alleges that he has a constitutional right to present witnesses and evidence in defense of the charges he faces, and relevant information for that purpose may be contained in the adoption records. Respondent argues that disclosure of adoption records is prohibited by section 453.120, except in limited situations authorized by the statutes, and that Mr. White's request does not fit within the limited disclosure exception contained in section 453.121.4

In asserting a right to disclosure, Mr. White does not contend that section 453.121 is unconstitutional. Instead, he argues that his constitutional rights to present a defense to the charges against him outweigh the state's interest in the privacy of the adoption records, as codified by section 453.120. In particular, Mr. White claims that any compelling interest the state may have in maintaining the privacy of adoption records, in general, simply does not exist in this case, because it is a step-parent adoption in which all of the identifying information is known to all of the parties and the biological father is now deceased. He relies on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in support of his claim that the denial of the disclosure of the adoption records in this case is unconstitutional. In Davis, the trial judge prohibited defense counsel from questioning a witness about the witness's juvenile criminal record based on a state statute that made the information presumptively confidential. 415 U.S. at 311, 94 S.Ct. at 1108. The United States Supreme Court found that such a restriction on the defendant's ability to cross-examine witnesses violated the Confrontation Clause, despite the state's legitimate interest in protecting the identity of juvenile offenders. Id. at 318-19, 94 S.Ct. at 1111-12.

Mr. White's reliance on Davis is misplaced. The Confrontation Clause is implicated only when there is "a specific statutory or court-imposed restriction at trial on the scope of questioning." Pennsylvania v. Ritchie, 480 U.S. 39, 54, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987). "The right to confront is satisfied if defense counsel receives wide latitude at trial to cross-examine witnesses; it does not include a right to pretrial disclosure of any and all information that might assist cross-examination." State v. Parker, 886 S.W.2d 908, 916 (Mo. banc 1994). Because Mr. White's claim is "only for pretrial disclosure of potentially helpful information" and "he does not assert that the trial court limited cross-examination," the Confrontation Clause is not implicated. Id. Davis is, therefore, inapplicable.

A United States Supreme Court case that concerns pretrial discovery of privileged information is Ritchie. In Ritchie, the defendant was charged with sexual crimes against his daughter. 480 U.S. at 43, 107 S.Ct. at 994. In the course of preparing his defense, the defendant served the Pennsylvania Children and Youth Services (CYS), which had investigated the allegations, with a subpoena requesting access to...

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