State v. Barbera, 2005 VT 13 (VT 2/9/2005)

• Decision Date: 09 February 2005
• Docket Number: No. 2003-144.,2003-144.
• Citation: 2005 VT 13
• Parties: State of Vermont v. John Barbera
• Court: Vermont Supreme Court

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2005 VT 13

State of Vermont v. John Barbera

No. 2003-144.

Supreme Court of Vermont

February 9, 2005

APPEALED FROM: District Court of Vermont, Unit No. 1, Windham Circuit, DOCKET NO. 1496-10-01 Wmcr, Trial Judge: Karen R. Carroll.

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

¶ 1. Defendant appeals from a judgment of conviction, based on a jury verdict, of sexual assault on a person under the age of sixteen, in violation of 13 V.S.A. § 3252(a)(3). He contends: (1) the evidence was insufficient to support the judgment; and (2) the court violated his right to a fair trial by denying his pretrial motion to compel disclosure of the victim's mental health records and refusing to order a psychological evaluation of the victim. We affirm.

¶ 2. In August 2001, K.R. was in residential treatment at the Brattleboro Retreat. She was thirteen years old, and had been in the custody of the Department of Social and Rehabilitation Services for a number of years. Unhappy with the objections of staff to her plan to pierce her nose, K.R. ran away from the Retreat on August 13. She eventually ended up at a nearby Wal-Mart, where she met defendant, who offered her cigarettes and drove her back to his house. According to her testimony, K.R. was in the bathroom about to take a shower when defendant entered and kissed her. A short time later, defendant asked his daughter, who was eight years old, to go outside. He then put on a pornographic video and sat down to watch with K.R. Over her objections, defendant then removed K.R.'s pants, attempted intercourse, ejaculated, and engaged in oral sex. Later, defendant brought K.R. to a bus station, gave her cigarettes and money for a bus ticket to New York, and left. K.R. rode the bus to New York City, where the next day she was taken into custody by the police and brought to Bellevue Hospital. A forensic examination for sexual assault was performed, and the Brattleboro police were notified. They picked her up that day and returned her to the Retreat, where she was interviewed by the police, her SRS caseworker, and her treating psychologist, Dr. Sacco-Laurens.

¶ 3. Kathleen Faxon, who worked with defendant's daughter through the Big Sister Program in Brattleboro, testified that defendant later told her about the incident, claiming that "[a]ll I did was whip my dick out in front of [K.R.]." The forensic examination performed in New York confirmed the presence of semen in K.R.'s anal area. K.R.'s journal for the period in question corroborated much of her testimony concerning the incident.

¶ 4. The jury returned a verdict of guilty on the charge of sexual assault.¹ Defendant was sentenced to a term of fifteen to twenty years. This appeal followed.

¶ 5. Defendant first contends the evidence was insufficient to support the judgment of conviction of sexual assault based on contact between his mouth and the victim's vagina, as charged in the information, because the only evidence in this regard was the victim's testimony that defendant had kissed "[m]y crotch." This argument was not preserved for review on appeal. Although defendant moved for judgment of acquittal on the basis of insufficient evidence at the close of the State's case, his only claim as to the sexual assault count was that the victim's testimony was uncorroborated. Defendant also filed a post-verdict motion for judgment of acquittal in which he asserted a general claim of insufficient evidence, but again failed to argue that the evidence was insufficient to show contact between his mouth and the victim's vagina. Accordingly, the claim was not preserved for review on appeal. See State v. Crannell, 170 Vt. 387, 407-08, 750 A.2d 1002, 1019 (2000) (failure to raise claim of insufficient evidence in motion for judgment of acquittal at close of evidence, or to renew claim in post-verdict motion, forecloses appellate consideration of sufficiency of evidence).

¶ 6. Defendant next contends the court erroneously denied his pretrial motion to compel disclosure of the victim's mental health records and to order a psychological examination of the victim by the defense expert, thereby allegedly depriving him of his right to a fair trial. The record reveals the following pertinent facts. In October and November 2001, defendant sent the State requests for discovery, seeking-among other things-the victim's SRS, mental health, and medical records. The deputy state's attorney, in response, informed defense counsel by letter that any mental health records relating to the victim were not within the State's custody and control and therefore not subject to compulsory disclosure under V.R.Cr.P. 16, and, moreover, that such material was privileged. In February 2002, defendant filed a motion to compel production of the SRS, mental health, and medical records which defendant had previously requested. Defendant argued that there was a strong likelihood the records would confirm that the victim has "a long history of mental illness which is so severe that it affects the reliability of her story." Defendant cited previously disclosed information that the victim had informed the investigating officers that she had run away from the Brattleboro Retreat and had not taken her depression medication for several days prior to the assault. Defendant supplemented the motion to compel with a separate motion to dismiss for failure to provide discovery. The State opposed the motions, asserting that it had complied with defendant's requests for discoverable material within its possession and control

¶ 7. The court addressed defendant's motions in a brief entry order in March 2002, ordering the State to produce certain SRS materials for in camera review, but declining to order disclosure of the victim's mental health records on the following grounds: "The defendant has failed to make a particularized showing that mental health records are necessary to the defense. The State does not have these records in its possession, custody, or control, they apparently are not relying on these mental health witnesses at trial and the items are protected by privilege." The court subsequently disclosed some of the SRS records, including a redacted treatment plan, dated July 25, 2001, which listed a number of the victim's psychiatric diagnoses, including "PTSD" (post-traumatic stress disorder), and the partial results and evaluation of the victim's performance on a psychological test called "The Dissociative Experience Scale."²

¶ 8. Some six months later, in September 2002, defendant filed another motion to compel, seeking an order not only requiring the victim to produce her mental health records, but also to submit to a psychological examination. Defendant asserted that the victim had exhibited an inability to recall details of the assault and had become hostile and confused in response to certain questions at her deposition. Defendant also noted that the records released by the court after in camera review revealed that the victim had been diagnosed with a number of psychiatric syndromes, including post-traumatic stress disorder and "[d]issociation and severe emotional developmental disability" which defendant claimed had "a pronounced affect upon her ability to discern fact from fantasy [and] her ability to understand the consequences of falsification." The State opposed the motion, asserting that defendant had failed to adduce sufficient grounds to justify a compulsory independent psychiatric examination, and that the requested mental health records were not in its possession and were otherwise privileged.

¶ 9. The motion was heard in October 2002. Defendant argued that the mental health records and examination were necessary to provide an adequate basis for his mental health expert, Dr. Lawrence Bart, to diagnose the victim and determine whether she suffered from a mental illness which affected her ability to accurately perceive, recall, and recount events. The court, in response, questioned whether it had the authority to require the victim to submit to an independent psychiatric examination absent a prior examination by the State's expert, expressed "concerns about requiring a victim to undergo what really is the most intrusive sort of evaluation that a person could go through," and ultimately denied the request for an examination, concluding that defendant had adequate alternative means of evaluating the victim's mental health. In this regard, the court noted that its in camera review had resulted in disclosure of the victim's previous diagnoses, that defendant's expert could testify about the symptoms associated with these diagnoses, and that the expert could review the victim's deposition to assess her emotional reactions and responses. The court did not specifically address the renewed motion to compel disclosure of the victim's mental health records. Later, the court granted defendant's supplemental request to have Dr. Bart in the courtroom during the victim's testimony to allow additional observation and evaluation.

¶ 10. Turning first to defendant's claim that the court erred in denying his request for the victim's mental health records, we conclude-for the reasons explained below-that defendant failed to properly preserve this issue for review. In State v. Percy, 149 Vt. 623, 635, 548 A.2d 408, 415 (1988), we recognized "the possibility that a case will arise where due process will require some access to privileged information about a victim not held by the State." There, as here, defendant had filed a pretrial motion to compel the State to disclose certain mental health records relating to the victim of an assault. We upheld the trial court's denial of the motion, concluding that defendant's request was fatally deficient in two respects. First, we held that to overcome the important policies protecting such sensitive information requires "the most compelling justification," and that defendant-having failed to make any...