State v. Buckley, Cr. N

• Decision Date: 20 October 1982
• Docket Number: Cr. N
• Citation: 325 N.W.2d 169
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Gary BUCKLEY, Defendant and Appellant. o. 827.
• Court: North Dakota Supreme Court

Page 169

325 N.W.2d 169

The STATE of North Dakota, Plaintiff and Appellee, v. Gary BUCKLEY, Defendant and Appellant.

Cr. No. 827.

Supreme Court of North Dakota.

Oct. 20, 1982.

John M. Olson, State's Atty., Bismarck, for plaintiff and appellee; argued by Asst. State's Atty. Gail Hagerty.

Pulkrabek & Tuntland, Mandan, for defendant and appellant; argued by Thomas M. Tuntland, Mandan.

SAND, Justice.

The defendant, Gary Buckley, appealed from a judgment of conviction and the resulting sentence for the offense of gross sexual imposition, a violation of North Dakota Century Code Sec. 12.1-20-03, a class B felony.

Buckley admitted that he had sexual intercourse with the victim in her apartment on 26 June 1981; however, he testified and asserted that the intercourse was consensual which was contrary to the assertion of the victim.

The victim's testimony, in substance, established that Buckley threatened and attacked her and dragged her into her bedroom and raped her. The scratches on her body and reddening of her face, according to the victim's testimony, occurred when Buckley dragged her into the bedroom.

Buckley's testimony, in substance, established that he and the victim were in her apartment and started kissing each other and then went into the victim's bedroom and engaged in consensual sexual intercourse. According to Buckley's testimony, the marks on the victim were caused when he told the victim that he was going to inform his "wife" ¹ that he and the victim had engaged in sexual relations, after which the victim "went beserk" and had to be physically restrained by him. Buckley further testified that the victim also threatened to charge him with rape at that time.

A jury ultimately returned a verdict of guilty and Buckley was sentenced to four years in the state penitentiary. Buckley appealed to this court.

The only issue raised by Buckley was that he was denied his constitutional right to confrontation when the trial court refused to allow any inquiry as to the victim's history of treatment for a mental condition.

Buckley made a pretrial motion for a psychiatric examination of the victim. Buckley's attorney submitted an affidavit in support of that motion which provided, in part, as follows:

"3. That the affiant has reason to believe that the complainant is a pathological liar. I have ascertained that she is emotionally unstable and has exhibited a pathological hate towards men in general. That the affiant believes through observations of the complaining witness on the witness stand that she was lying about past sexual conduct with the Defendant, emotionally unstable, and that her life is supported with various psychological assistance such as Al-anon."

The court, after a hearing, denied Buckley's motion; however, the court permitted Buckley to submit, through the state's attorney, ten questions to be answered by the victim. The court further stated that "if those answers ... show sufficient cause and reason, you [Buckley] may renew your motion for the psychiatric examination."

Through the ten questions, Buckley learned that the victim had been under the care of a psychiatrist for severe depression, diagnosed as depressive neurosis, and had been hospitalized for that condition for a period in excess of two weeks in July and August of 1979 (two years before the incident in question). An affidavit of Dr. J. Thakor, the psychiatrist who treated the victim in 1979, was submitted, along with responses to the ten questions. That affidavit provided, in part, as follows:

"That although he has not seen or treated [the victim] since August of 1979, and using as a base the information available to him, Dr. Thakor has no reason to believe (as a result of his treatment of her or knowledge of her) that she would not be a competent and truthful witness. Further, he does not believe the fact that she was diagnosed as suffering from depressive neurosis and sought treatment in 1979 should raise any inference as to her competency or ability to accurately recall and truthfully relate events while under oath in a court of law at this time."

Buckley did not renew his motion for a psychiatric examination of the victim.

During trial, Buckley attempted to cross-examine the victim concerning her past psychiatric care. The following questioning took place:

"Q. Now, you have been under the care of a psychiatrist in the past, haven't you?

"MS. HAGERTY: Your Honor, I object. There is no relevance.

"THE COURT: I don't know what the purpose is. Will you approach the bench, please.

"[A conference was had at the bench between the court and counsel, off the record.]

"[At the bench, on the record.]

"THE COURT: Mr. Tuntland has suggested that he is asking this for the purpose of attacking credibility. I have indicated I am going to sustain the objection. So do not pursue the matter.

"[In open court.]

"THE COURT: I will sustain the objection."

We believe some observations on a psychiatric examination of a complaining witness in a rape case will be helpful in resolving the issue raised by Buckley.

Some authorities have suggested that the complaining witness, in a case relating to a sex offense, should always be compelled to submit to a psychiatric examination. See, 3A, Wigmore, Evidence, Sec. 924a (Chadbourn rev. 1970). However, later case law, in what seems to be a majority of states, does not follow this concept. See, State v. Wahrlich, 105 Ariz. 102, 459 P.2d 727 (1969); Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416 (1966); People v. King, 41 Colo.App. 177, 581 P.2d 739 (1978); McDonald v. State, 307 A.2d 796 (Del.1973); State v. Filson, 101 Idaho 381, 613 P.2d 938 (1980); People v. Glover, 49 Ill.2d 78, 273 N.E.2d 367 (1971); State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979); People v. Davis, 91 Mich.App. 434, 283 N.W.2d 768 (1979); State v. Boisvert, 119 N.H. 174, 400 A.2d 48 (1979); State v. Romero, 94 N.M. 22, 606 P.2d 1116 (N.M.App.1980); People v. Souvenir, 373 N.Y.S.2d 824, 83 Mis.2d 1038 (Crim.Ct. City of N.Y. 1975); State v. Wounded Head, 305 N.W.2d 677 (S.D.1981); Forbes v. State, 559 S.W.2d 318 (Tenn.1977); State v. Demos, 94 Wash.2d 733, 619 P.2d 968 (1980). See, Requiring Complaining Witness in Prosecution For Sex Crime To Submit To Psychiatric Examination, Annot., 18 A.L.R.3d 1433 (1968). These authorities stand for the proposition that the trial court has discretion to order a psychiatric examination of a complaining witness where compelling reasons are shown on the record.

These authorities reflect, and apparently are in response to, the increased recognition that sex offense victims already have been put through a traumatic experience and are subject to further traumatic experience by being subjected to cross-examination concerning the incident. It necessarily follows that needless possibilities for increasing that trauma should be reduced as much as permissible. As an example, the Legislature has enacted NDCC Sec. 12.1-20-14 limiting the scope of examination of a complaining witness in a sex-offense...