State v. Camejo

• Decision Date: 27 May 1994
• Docket Number: No. 93-2436.,93-2436.
• Citation: 641 So.2d 109
• Parties: STATE of Florida, Petitioner, v. Raul CAMEJO, Respondent.
• Court: Florida District Court of Appeals

641 So.2d 109

STATE of Florida, Petitioner, v. Raul CAMEJO, Respondent.

No. 93-2436.

District Court of Appeal of Florida, Fifth District.

March 25, 1994.

On Motion for Rehearing May 27, 1994.

Norman R. Wolfinger, State Atty., and Stewart G. Stone, Asst. State Atty., Sanford, for petitioner.

Lister Witherspoon, IV, Miami, for respondent.

W. SHARP, Judge.

The state petitions for a writ of certiorari from this court to quash the trial court's interlocutory ruling in a criminal case which ordered the victim of a sexual battery to undergo a psychological evaluation by a named psychiatrist. The order further provides that the report shall be reviewed by the court in camera, revealed only to counsel for the state and defense, kept in confidence, and that the court will later determine whether and how the report will be used in the criminal proceeding and trial. Because the defense failed to demonstrate any compelling or extreme circumstances which might have demonstrated a need for the psychological evaluation of the victim, we think the order compelling the victim's examination constitutes a departure from the essential requirements of the law. Accordingly, we grant the writ.

In this case, the state charged Camejo with one count of sexual battery and one count of battery. It does not intend to use expert psychological testimony regarding the victim's mental or emotional condition in the case below.¹ The defense's motion for a psychological examination does not assert that the victim is or may be incompetent to testify. Rather, the motion seeks the examination primarily for the purpose of determining the veracity of the victim's account of the rape and battery. The motion states this case is essentially a swearing contest between the victim and Camejo, and therefore determining the victim's credibility is crucial.

The state disputes respondent's "swearing contest" characterization of the case. The state argues that there is independent evidence which corroborates the victim's allegations. The doctor who conducted the sexual battery examination was of the opinion that physical injury noted on the outside of the victim's vagina is consistent with forced nonconsensual sexual intercourse. Also, the victim sustained physical injuries to other parts of her body consistent with a violent attack. The state also asserts that the victim reported the crime at the first opportunity to a gas station clerk who observed her in an upset and traumatized state. Finally, the state notes that there was physical damage at the crime scene consistent with a violent attack.

The motion to compel the victim to undergo a psychological examination listed specific acts of the victim's alleged misconduct, unrelated to this case, for the purpose of establishing her emotional or mental instability. One additional act was that the victim twice telephoned Camejo after she was allegedly raped. However, this could be brought out at the trial by cross-examination or by testimony for Camejo for traditional impeachment purposes.

The allegations which the defense argued demonstrate the victim's mental instability were: 1) the victim was arrested for domestic violence after beating her mother; 2) a former boyfriend stated the victim had formed a fantasy future with him; 3) the victim had a previous domestic dispute with another live-in boy friend resulting in her being beaten; 4) statements from a former boyfriend that the victim was loud and wild when drinking; and 5) that the victim hit her ex-boyfriend's car with a shovel or stick, and on another occasion put a shovel through the windshield of a car belonging to a woman who dated the victim's ex-boyfriend.

Initially it should be noted that there is a difference between (a) a judge's authority to order a psychological examination, and (b) a judge's power to compel the victim to submit to the examination. The majority rule is that a court has the discretionary power to order a psychological examination under certain circumstances. See Anno., Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of Complainant in Sexual Offense Prosecution, 45 A.L.R.4th 310, 315 (1986). Florida follows the majority rule. See State v. Coe, 521 So.2d 373 (Fla. 2d DCA 1988); Dinkins v. State, 244 So.2d 148 (Fla. 4th DCA 1971). The minority rule is that the trial judge does not have the authority to order such an examination. However, even in those jurisdictions which permit a trial judge to order a psychological examination, virtually all agree that a judge lacks the power to actually compel the victim to submit to such an examination. Dinkins at 150; 45 A.L.R.4th at 315. In Wilk v. State, 217 So.2d 610 (Fla. 3d DCA 1969), it was implied that such an examination is not constitutionally required.² Later, in Dinkins, the court noted that under some circumstances, such an examination might be constitutionally compelled based on due process requirements.

For adult victims, such examinations have been ordered where the victim was incompetent, incredible, or uncorroborated.³ 45 A.L.R.4th at 355. For example, in State v. Kahinu, 53 Haw. 536, 498 P.2d 635 (1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 944, 35 L.Ed.2d 258 (1973), the court found that the lower court must order such an examination if the victim's testimony is uncorroborated. This amounts to an attack on the victim/witness' credibility. It was held to be a compelling reason because, as the court stated, the accused could fall victim to the "groundless fantasies or vindictiveness of a pathological female." But it should be noted that the cases which cite a lack of corroboration as a basis to order a psychological examination, appear to have been determined prior to the adoption of the rape-shield statutes. That is, these cases seem to have arisen in a time when victims were afforded little protection from attack on themselves during the prosecution of the offender. As one court stated in rejecting the court's inherent power to compel a victim witness to undergo a psychiatric examination:

The notion that psychiatric examinations should be routinely ordered in rape cases, ... is based on outmoded notions of the instability and duplicity of women in general and, as such, should be discarded altogether. Citing State v. Romero, 94 N.M. 22, 606 P.2d 1116, 1121 (1980).

United States v. Owen, 24 M.J. 390 (C.M.A. 1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988).

In State v. Gabrielson, 464 N.W.2d 434 (Iowa 1990), the court held that trial courts have no authority to order sexual abuse victims to undergo psychiatric examinations. The reasons cited by the court are persuasive. First, the court found no statutory authority or common law precedent granting a trial court such authority. Second, even if courts had the authority to order psychiatric examinations, they would be left in the awkward position of having no method of enforcing such an order because neither the trial court nor the state has the power to compel a sexual-abuse victim who is a nonparty to the case to submit to a psychiatric examination ordered by the court. Third, the interest of justice compels the conclusion that psychiatric examinations of victims designed to evaluate the complainant's credibility are improper. The court also cited the hardships victims of sexual abuse must endure, and that rape-shield statutes have been formulated to prevent these victims from suffering additional trauma. It noted that trial courts vested with authority to order sexual abuse victims to submit to such examinations will not be forwarding society's need to protect these victims. The court opined:

Forcing the victims of these crimes to submit to the indignity and embarrassment of a psychiatric examination could only exacerbate the current situation.

Gabrielson at 438. The court noted it did not wish to discourage reporting of these types of crimes and had an obligation to protect the victim from being put on trial. Id. Lastly, the court noted that it agreed with the position taken by the North Carolina Supreme Court that the possible benefits to an innocent defendant were outweighed by the resulting invasion of the victim's right to privacy and the danger to the public interest from discouraging victims of crimes to report such offenses.⁴

In State v. Maday, 179 Wis.2d 346, 507 N.W.2d 365 (Ct.App. 1993), the court held that because fundamental fairness dictated that a defendant be able to obtain access to all relevant evidence necessary in his or her case, a trial court had the discretion to grant a motion for psychological examination of a victim. However, before the court could grant such a request, the defendant must present evidence of a compelling need or reason for the examination, and the trial court was required to balance the rights of the defendant against the interests of the victim. There, however, the state announced its intention to present the testimony of experts on the victim's mental condition and behavior as supporting an inference that the victim had been sexually abused.

The Wisconsin court concluded that guidelines developed by the West Virginia Supreme Court presented a workable method of balancing the defendant's constitutional rights and the privacy needs of the victim. In citing State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903 (1992), the Maday court noted a balancing test which gave appropriate attention to the respective competing interests. Where the state manifests its intent to present expert testimony based on personal examination of a victim of a sexual assault, that the victim's behavior is consistent with the behaviors of other victims of sexual assault, the defendant may request a psychological examination of the victim. The defendant making this request must present the court with evidence that he has a compelling need or reason for the examination. The court should consider:

(1) The nature of the examination

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