State v. Goodwin

• Decision Date: 30 October 2001
• Docket Number: No. 23629.,23629.
• Citation: State v. Goodwin, 65 S.W.3d 17 (Mo. App. 2001)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Raymond GOODWIN, Defendant-Appellant.
• Court: Missouri Court of Appeals

65 S.W.3d 17

STATE of Missouri, Plaintiff-Respondent, v. Raymond GOODWIN, Defendant-Appellant.

No. 23629.

Missouri Court of Appeals, Southern District, Division Two.

October 30, 2001.

Motion for Rehearing and Transfer to Supreme Court Denied November 21, 2001.

Devon F. Sherwood, Sherwood, Honecker & Bender, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.

NANCY STEFFEN RAHMEYER, Judge.

Raymond Goodwin ("Appellant") appeals from his conviction in a court-tried case for the class C felony of statutory rape in the second degree under § 566.034, RSMo 2000. Appellant was sentenced to a four-year term of imprisonment in the Missouri Department of Corrections. On appeal, Appellant contends the trial court erred 1) in denying Appellant access to the victim's hospital records, 2) in excluding testimony that Appellant was law-abiding, and 3) and in not declaring a mistrial when the prosecutor made a reference to Appellant's unwillingness to take a polygraph examination. We affirm.

This court reviews the facts in the light most favorable to the verdict. State v. Parker, 886 S.W.2d 908, 916 (Mo. banc 1994). Appellant does not contest the sufficiency of the evidence. In a light most favorable to the verdict, the facts are as follows: Commencing when the victim (Appellant's biological granddaughter) was twelve years old, Appellant began sexual contact with her. The sexual contact commenced with Appellant kissing his granddaughter on the mouth and progressed to Appellant's fondling of the victim, oral sex on the victim, having the victim manually stimulate Appellant's penis while he watched in front of the bathroom mirror, and sexual intercourse. During a period of four years, Appellant had sexual intercourse with his granddaughter more than fifty times. On April 5, 1995, the victim was hospitalized at Lakeland Regional Hospital ("Lakeland") after she left a note for her mother threatening to harm herself if she did not get some help. While in Lakeland the victim revealed the sexual contacts with her grandfather, thus beginning the investigation and criminal charges which culminated in Appellant's conviction.

Appellant complains of error in his Point I as follows:

THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DENYING DEFENDANT ACCESS TO [VICTIM'S] LAKELAND HOSPITAL RECORDS BECAUSE SAID DENIAL INFRINGED UPON DEFENDANT'S SIXTH AMENDMENT RIGHT TO CROSS-EXAMINE AND CONFRONT THAT WITNESS IN THAT THE RECORDS WOULD BE EXPECTED TO CONTAIN PRIOR STATEMENTS BY THE WITNESS ADMISSIBLE AS IMPEACHMENT OR AS SUBSTANTIVE EVIDENCE.

On September 29, 1995, the docket sheet reflects a "Motion for Discovery of Medical Reports and Notice" was filed. A copy of the motion was not filed with this court. The docket sheet reflects that on January 26, 1996, "COURT RULES MOTIONS, ATTY WAMPLER TO PROVIDE ORDER." Again, Appellant has not provided this court with a copy of any order, nor does the docket sheet reflect that Wampler, Appellant's attorney, provided the court with an order. Although there is an entry on February 26, 1996 that states, "ORDER (PROVIDED BY THE STATE PER COURT'S ACTION ON 1/26/96) ENTERED AND FILED, COPIES TO PA CARRIER AND ATTY WAMPLER," there is no copy of that order in the Legal File. We do not know the scope of the request for any hospital records. We do not know the specific reason for the request for the records.

Further, there is no evidence that Appellant was denied access to the records through the use of a subpoena at trial. A representative of Lakeland was subpoenaed by Appellant on the first day of trial. Due to scheduling difficulties, it was clear that the State's case would not be completed. Appellant's counsel asked for and received from the trial court a directive to the Lakeland representative that the subpoena was still in effect and that the custodian of records had to reappear for the presentation of Appellant's case. At no time was the issue of the subpoena for Lakeland ever addressed again. A review of the docket sheet indicates that no further orders concerning the subpoena were ever issued. The court did not quash the subpoena. It may be that Appellant chose not to proceed with his attempt to get the records as a matter of trial strategy. We cannot convict the trial court of error for failing to take action Appellant never requested it take. State v. Zelinger, 873 S.W.2d 656, 660 (Mo.App. S.D.1994). It is hard to discern from the Point Relied On and the record on appeal how the trial court denied access to the victim's hospital records. Rule 81.12(a) requires that the Appellant file a record on appeal that contains all of the record, proceedings, and evidence necessary for us to make a determination on appeal. Providian National Bank v. Houge, 39 S.W.3d 552, 554-55 (Mo.App. S.D.2001).

Nonetheless, despite his non-compliance with Rule 81.12(a), we will review his point ex gratia. The Point Relied On simply alleges that the records "would be expected to contain prior statements by the witness admissible as impeachment or as substantive evidence." We surmise from Appellant's brief that his position on appeal is that the physician-patient privilege asserted by the victim at trial was outweighed by Appellant's right to cross-examine the victim by using her medical records. We will address what we believe to be Appellant's argument.

The accused does have the right to be confronted with the witnesses against him; however, the right to confront is satisfied if defense counsel receives wide latitude at trial to cross-examine witnesses. Parker, 886 S.W.2d at 916. "The 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. Ritchie, 480 U.S. at 58 n. 15, 107 S.Ct. at 1002 n. 15, quoting United States v. Valenzuela Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982)." Id. at 917.

In State v. Moorehead, 811 S.W.2d 425 (Mo.App. E.D.1991), the defendant claimed the trial court erred in not allowing him to introduce the victim's medical records in order to impeach the victim's testimony and to bolster the defendant's claim that the victim consented to sexual intercourse. The defendant claimed that the privilege must yield to defendant's Sixth Amendment right to confront the witnesses against him. The Eastern District held that the trial court properly recognized the existence of the physician-client privilege and appropriately limited defendant's use of the victim's medical records for impeachment. Id. at 428. The court found appellant was able to effectively cross-examine the victim and bring out the victim's unstable mental state without the use of the records. Id.

Here, we can not ascertain whether Appellant made a showing about the materiality or the exculpatory nature of the records in his pretrial request for the records or at trial. The only information we discern from the record is that Appellant's attorney stated at trial, before evidence was taken, that he wanted the Lakeland records to support his belief that the victim was using alcohol regularly and smoking marijuana during the time period Appellant was charged with molesting her. He clarified that he might want to argue later that the victim's use of marijuana affected her ability to "remember and relate the events."

The testimony in this case was that the victim had never told anyone of the sexual abuse until she was admitted to Lakeland. Because consent is not an issue in a statutory rape case, Appellant's basis for wanting the records cannot relate to whether or not the victim consented.¹ Appellant was granted a wide latitude in asking questions concerning the victim's use of drugs or alcohol that would affect her ability to remember the incidents, but there was no evidence that the victim was under the influence of drugs or alcohol during any or all of the incidents of sexual abuse. Appellant has not pointed out any evidence or testimony which reflects on the victim's ability to recollect the abuse. It appears that Appellant was able to pursue the point of the victim's drug and alcohol use despite not having the Lakeland records.

Appellant did not present specific facts to establish what information was contained in the records and how such information would be favorable to him. This alone is fatal to any claim of error concerning his access to the victim's Lakeland records. See State v. Seiter, 949 S.W.2d 218, 221 (Mo.App. E.D.1997). Point I is denied.

Because it is related to the Lakeland records, we next address a motion filed by Respondent asking this court to remand the case to permit the trial court to conduct an in camera review of those records. Although neither Appellant nor Respondent requested an in camera review of the records at trial, Respondent nonetheless contends that because the trial court did not conduct a review of the records, it is impossible to adjudicate Appellant's claim. Respondent cited State v. Newton, 925 S.W.2d 468 (Mo.App. E.D.1996) for that proposition and the procedure for an in camera review by the trial court.

In Newton, the issue was whether a key eyewitness was competent to testify at a murder trial. Defendant made the allegation that the psychological records contained vital impeachment evidence, specifically, that the key eyewitness to a murder may have experienced hallucinations at the time of the kidnapping and murder. Id. at 471. The appeals court determined that the trial court had improperly quashed the subpoena duces tecum but acknowledged that protection against public disclosure of the alleged privileged material was also necessary. Id.

The court of appeals ordered the case remanded to the trial court to conduct an in camera inspection of the evidence to determine if it was relevant and material. After the remand to the trial court, the ...