State v. Donnelly

• Decision Date: 11 October 1990
• Docket Number: No. 89-532,89-532
• Parties: STATE of Montana, Plaintiff and Respondent, v. William DONNELLY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 89

798 P.2d 89

244 Mont. 371

STATE of Montana, Plaintiff and Respondent, v. William DONNELLY, Defendant and Appellant.

No. 89-532.

Supreme Court of Montana.

Submitted on Briefs Aug. 9, 1990.

Decided Sept. 4, 1990.

Rehearing Denied Oct. 11, 1990.

Byron W. Boggs, Missoula, for defendant and appellant.

Marc Racicot, Atty. Gen., Patricia J. Schaeffer Jordan, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Missoula, for plaintiff and respondent.

HARRISON, Justice.

Defendant William Donnelly appeals a Missoula County jury verdict finding him guilty of incest. We affirm.

Defendant raises five issues for review:

1. Whether the District Court erred in not allowing defense counsel to review the complete psychological record of the victim.

2. Whether the District Court erred in allowing expert testimony that the victim was a sexually abused child.

3. Whether the District Court erred in denying defendant's motion for a mistrial on the basis of surprise.

4. Whether the District Court erred in denying the defendant's motion for a new trial in finding the victim competent to testify.

5. Whether the District Court infringed the defendant's right against self-incrimination when it ordered that parole be conditioned on successful completion of a sex offender's course.

An information filed May 4, 1988 charged defendant William Donnelly with incest in violation of Sec. 45-5-507(1), (3), MCA. The facts constituting the offense were that from 1980 through 1987 defendant, as a continuing course of conduct, had sexual intercourse and sexual contact as defined in Sec. 45-2-101, MCA, with the victim, defendant's minor adopted daughter, "Janey Doe."

Janey Doe testified at trial about a particular incident which occurred in March of 1987. This particular incident began with an argument between Janey Doe and defendant regarding which television program would be watched. The argument progressed into a "tickling match" and culminated into a traumatic sexual experience of oral, anal, and vaginal sex between defendant and Janey Doe. Janey Doe testified that she silently endured years of defendant's sexual abuse before telling anyone for fear that her father would kill her. Defendant flatly denies all allegations of sexual contact with Janey Doe.

The first trial in the District Court, Fourth Judicial District in the County of Missoula, was held on September 14-16, 1988, and resulted in a hung jury. A second trial followed from which this appeal is taken.

At the omnibus hearing for the first trial, defense counsel requested Dr. Cook's psychological records pertaining to Janey Doe's treatment. The District Court denied defendant access to Dr. Cook's records but granted access to Dr. Wedell's records, Janey Doe's child psychologist. On April 21, 1989 at the second trial, the District Court reasserted the previous order denying access to Dr. Cook's records. The District Court also granted defense counsel's request for an update of Dr. Wedell's records.

Discussion in chambers focused on whether an expert could testify that someone has been a victim of sexual abuse. Over objection of the defense, the court allowed such expert testimony. This ruling is at issue in defendant's appeal.

At trial, Dr. Wedell, testified concerning general symptoms often found in children who have been sexually abused, including disruption in development, acting out, withdrawal or aggression, low self-esteem, nightmares and flashbacks, depression, antisocial behavior, and self-destructive behavior. Dr. Wedell also testified that there is a direct link between severe sexual trauma in childhood and the development of multiple personality disorder. She also testified that child victims often block out the sexual trauma and often gradually disclose the sexual abuse over a long period of time. Dr. Wedell concluded that Janey Doe fit the profile of a sexually abused child.

Janey Doe was learning disabled, was frightened and had nightmares that her father would kill her. Following the disclosure she became increasingly self-injurious, pulling her hair out, sticking herself with needles and cutting herself. Janey Doe felt "unclean" and unworthy of visiting the Church of Jesus Christ of Latter Day Saints Temple in 1987. Janey Doe suffered, as well, from multiple personality disorder.

Defense moved for a new trial on the ground that the victim was incompetent to testify on the grounds that she suffered from multiple personality disorder. The motion was briefed, argued, and denied. The District Court order stated that the victim was "able to discern truth from falsity and her credibility is a proper question for the jury."

On July 7, 1989, the jury returned a verdict finding the defendant guilty of incest. The District Court ordered the defendant ineligible for parole until the successful completion of the sexual offender program at the Montana State Prison and until the defendant is thereafter accepted into an aftercare program. A notice of appeal from the judgment was filed on July 27, 1989. The Sentence Review Division affirmed the sentence on January 17, 1990, and this appeal followed. We affirm.

Additional facts will be discussed as necessary.

Issue 1: Whether the District Court erred in not allowing defense counsel to review the complete psychological record of the victim.

In the instant case Janey Doe had a history of psychological problems which predated the sexual abuse she experienced. The State attempted to prove, by way of expert testimony, that Janey Doe's multiple personalities and bizarre self-destructive activities were classic symptoms of "abused child syndrome" and that Janey fit the "abused child" profile. The defense strategy was to present alternate explanations for the observed personality features of the victim. Toward this end, the defense requested the entire psychological and medical file of Janey Doe, particularly the records of Dr. William Cook, and Dr. Wedell. Dr. Cook had seen the victim over an extended period of time prior to Janey Doe's disclosure of sexual abuse. Dr. Wedell, on the other hand, had counselled Janey subsequent to her disclosure of sexual abuse. The District Court examined the requested information in camera and (1) ordered that the records of Dr. Cook were protected from discovery; and (2) granted defense counsel access to Dr. Wedell's complete treatment file of Janey Doe.

In its order, the District Court balanced the needs of the defense to have access to exculpatory evidence against the privacy interests of Janey Doe. The court found that the requested records from Dr. Cook were not exculpatory and not necessary for the preparation of the defense. For these reasons, the District Court denied defendant's motion for the release of Dr. Cook's records. We agree with the District Court's order.

Appellant claims the denial of access to the victim's past psychological records denied him the right to be represented by counsel, the right to confront the witnesses against him, and the right to compel the attendance of witnesses under the Montana Constitution, Article II, Section 24. These federal constitutional issues have already been decided against defendant by the United States Supreme Court in Pennsylvania v. Ritchie (1987), 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40. Defendant does not show, with citation to any authority, that Article II, Section 24 of the Montana Constitution provides broader guarantees of confirmation and compulsory process than those established by the United States Supreme Court in Ritchie. As such, we refuse to interpret the Montana Constitution more expansively as defendant now urges.

Moreover, this Court has recently rejected a similar argument in State v. Reynolds (Mont.1990), 792 P.2d 1111, 47 St.Rep. 1143. In Reynolds we held, as defendant concedes, that defense counsel's right to review the medical and psychological records of the victim in an incest case is outweighed by the child's right to confidentiality under the statutes. Our holding in Reynolds controls this issue here.

Here, the District Court reviewed the requested psychological records in camera. After in camera inspection the District Court found that the information was not exculpatory nor necessary for the preparation of a defense. Pursuant to this finding the District Court ruled that the requested information was privileged since the testimonial privileges protecting medical and psychological records outweigh the defendant's limited right to such information. This in camera inspection by the District Court suffices to protect the confrontation rights of the defendant. Due to the privileged status of the medical and psychological records requested by defendant, we hold that defense counsel's right to review the medical and psychological records of the victim in an incest case is outweighed by the child's right to confidentiality under the statutes. Sections 41-3-205, 26-1-807, MCA.

The defendant also claims that he was denied his right to confront witnesses and his due process rights because of the District Court's refusal to allow the defendant access to all of Janey Doe's medical and psychological records. The right of confrontation is a trial right, guaranteeing an opportunity for effective cross-examination. The right of confrontation is not a rule equivalent to a constitutionally compelled rule of pretrial discovery. As long as the defendant was not prevented from cross-examining the adverse witnesses his right to confront witnesses has not been violated. Ritchie, 480 U.S. at 54, 107 S.Ct. at 1000, 94 L.Ed.2d at 55.

We note our holding in a recent case, State v. Thiel (1989), 236 Mont. 63, 768 P.2d 343. In Thiel the district court denied defendant access to the victim's child abuse files. We held that this ruling did not violate defendant's right to confront his accusers since defendant was afforded the opportunity to cross-examine the adverse witnesses. Thiel, 236 Mont. at...