State v. Davis

• Citation: 186 S.W.3d 367
• Decision Date: 27 December 2005
• Docket Number: No. WD 64128.,WD 64128.
• Parties: STATE of Missouri, Respondent, v. James Roger DAVIS, Appellant.
• Court: Missouri Court of Appeals

186 S.W.3d 367

STATE of Missouri, Respondent, v. James Roger DAVIS, Appellant.

No. WD 64128.

Missouri Court of Appeals, Western District.

December 27, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 31, 2006.

Application for Transfer Denied April 11, 2006.

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James R. Wyrsch, Kansas City, MO, for appellant.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before: EDWIN H. SMITH, C.J., THOMAS H. NEWTON, and LISA WHITE HARDWICK, JJ.

THOMAS H. NEWTON, Judge.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. James R. Davis was charged with statutory sodomy in the second degree, section 566.064 RSMo (2000). It was alleged that Mr. Davis arranged for his fifteen-year-old daughter M.C.D. to engage in sexual activity with Mr. Zachary W Rogers. During discovery, Mr. Davis requested M.C.D.'s counseling and psychiatric records from Mid-Missouri Hospital, Research Psychiatric Center, and Roxanne Durham, Ph.D. Mr. Davis wanted to determine if M.C.D. made any inconsistent statements or made any non-privileged statements to the counselors. The State and the Department of Mental Health (DMH) filed motions to quash all the subpoenas for counselors and counseling records. Mr. Davis also filed a 491.015 (rape shield law) notice to request the admission of M.C.D.'s past sexual conduct. In addition, Mr. Davis filed a motion in limine to exclude the prior consistent statements made by State's witness Mr. Rogers to two other people. The trial court denied the records request, Mr. Davis's motion in limine, and deferred its ruling as to the admissibility of M.C.D.'s prior sexual conduct including prior false allegations.

At the trial, Mr. Rogers testified that Mr. Davis arranged for him to engage in sexual activity with M.C.D. He was impeached about certain prior inconsistent statements and about a pending charge he was negotiating with the prosecutor's office. Mr. Rogers also told two witnesses about the sexual encounter before negotiations with the prosecutor's office, but after police contact and notice of Mr. Davis' arrest. The State introduced the testimony of the two witnesses to rehabilitate Mr. Rogers. The witnesses testified that Mr. Rogers stated, on separate and different occasions, that he engaged in sexual conduct with M.C.D. at Mr. Davis' request. M.C.D. also testified about the sexual encounter, and counsel for Mr. Davis requested permission to introduce statements in M.C.D.'s diary and witness statements about M.C.D.'s past sexual conduct that lead to the prior false allegations that M.C.D. was raped by R.L. The trial court ruled that the information was protected under the rape shield law. The jury convicted Mr. Davis of the charge, and he appeals.

LEGAL ANALYSIS

Mr. Davis contends that the trial court erred when it: (1) denied Mr. Davis' request for M.C.D.'s psychiatric or psychological counseling records because the counseling records might contain prior inconsistent statements of the victim and other exculpatory material; (2) ruled that Mr. Davis could not inquire of the victim or adduce extrinsic evidence that she falsely accused an individual of raping her; and (3) permitted the State to present extrinsic evidence of Mr. Rogers' prior consistent statements regarding Mr. Davis' alleged complicity in Rogers' sexual encounter with M.C.D.

In his first point, Mr. Davis argues that the trial court erred because it refused to review in camera M.C.D.'s psychological counseling records. The State claims Mr. Davis was not entitled to an in camera review of the records because he failed to show specific facts to justify it, and specifically failed to show that the counseling records contained any information regarding this case. "The abuse of discretion standard applies when reviewing claims of denial of meaningful discovery and concerning the relevancy and admissibility of evidence.... When reviewing a claim that a defendant was denied meaningful discovery, the appellate court will determine whether the trial court abused its discretion in such a way as to result in fundamental unfairness[, which] occurs when the state's failure to disclose results in defendant's genuine surprise and the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the evidence." State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004) (footnotes omitted).

Mr. Davis claims that his constitutional right to due process and right to confront witnesses¹ overrides the privilege of confidentiality, citing to the United Sates Supreme Court decision, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Nixon states that a general privilege of confidentiality can be set aside for the court to conduct an in camera review when a defendant demonstrates a specific need for evidence in a criminal trial. 418 U.S. at 713-15, 94 S.Ct. 3090; State v. Newton, 925 S.W.2d 468, 471 (Mo.App. E.D.1996).

In Taylor, the Missouri Supreme Court stated, however, that a "defendant is not entitled to information on the mere possibility that it might be helpful, but must make some plausible showing how the information would have been material and favorable." 134 S.W.3d at 26 (citation and internal quotations omitted). The policy behind the rule is to make sure that the "quest for [the privileged information] is not merely a desperate grasping at a straw." State ex rel. St. Louis County, Mo. v. Block, 622 S.W.2d 367, 372 (Mo. App. E.D.1981) (citation omitted).

The trial court should have determined if the records were actually privileged before quashing the subpoenas. State ex rel. Slattery v. Burditt, 909 S.W.2d 762, 765 (Mo.App. W.D.1995) (finding trial court should determine which material was protected under the attorney-client privilege or work product). Documents that are on their face privileged do not require an in camera determination such as a correspondence letter between an attorney and a client. State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 79-80 (Mo. banc 1984). The material that does not fall under the privilege is discoverable if it is relevant to the subject matter involved in the pending action. State ex rel. Dixon Oaks Health Ctr., Inc. v. Long, 929 S.W.2d 226, 231 (Mo.App. S.D. 1996). Evidence that is relevant includes that which is reasonably calculated to lead to the discovery of admissible evidence. Long, 929 S.W.2d at 231 (citation omitted). An in camera review could easily identify the different records, but the requesting party must make an adequate showing.

A showing must be more than a mere possibility that the material contains relevant or exculpatory evidence. There must be a showing of a factual predicate as to relevancy and materiality to justify a review. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." State ex rel. White v. Gray, 141 S.W.3d 460, 464 (Mo. App. W.D.2004) (citation and quotations omitted). In Goodwin² and Seiter,³ the cases relied on by the State, those defendants failed to make a factual showing as to relevancy and materiality because the record only reflected a generalized claim that the files would contain relevant material and possible exculpatory statements.

In this case, the record reflects a showing as to both materiality and relevancy. Mr. Davis presented specific facts to establish what information the records contained and how such information would be favorable to him. Mr. Davis cited to inconsistent dates as to when the abuse allegedly occurred as told to both the safe examiner and police detective by M.C.D., and included M.C.D.'s diary entries stating she told the counselor about the circumstances of the abuse. He claimed that the records would contain inconsistent statements and those statements would be crucial in impeaching M.C.D. The State contends that such information is irrelevant to the present case because it dealt with allegations of adjudicated charges that are not related to the information being requested in the records. We find such allegations of prior inconsistent statements sufficient to satisfy a showing when credibility is the sole determination for conviction. Prior inconsistent statements are relevant because they could lead to discovery of admissible evidence, and they are material because such evidence could reasonably undermine the confidence in the outcome. Because Mr. Davis made a plausible showing and alleged more than a mere possibility for entitlement, the psychological and counseling records should be reviewed in camera for relevancy and materiality after a determination of their privileged status.⁴ Point I is granted.

In his second point, Mr. Davis contends that the trial court erred when it prevented Mr. Davis from cross examining M.C.D. about false allegations of rape and excluding extrinsic evidence of false allegations of rape. "The scope of cross-examination and the determination of matters that may bear on a witnesses' credibility are largely within the discretion of the trial court. The trial court is vested with broad discretion over questions concerning the relevance and admissibility of evidence. Such discretion shall not be disturbed on appeal absent a clear abuse of discretion." Newton, 925 S.W.2d at 472 (citations omitted). "In matters involving the admission of evidence, we review for prejudice, not mere error and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Norville, 23 S.W.3d 673, 678 (Mo.App. S.D. 2000) (citation and quotations omitted). The presumption that excluded admissible evidence is prejudicial can be rebutted when the error is harmless. State v. Norman, 145 S.W.3d 912, 919-20 (Mo.App. S.D.2004) (citation omitted). The State has the...