State v. Guffey
| Decision Date | 16 May 2018 |
| Docket Number | A155924 |
| Citation | 422 P.3d 293,291 Or.App. 729 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Richard E. GUFFEY, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Janet Lee Hoffman, Portland, argued the cause for appellant. With her on the briefs was Sara F. Werboff.
Michael A. Casper, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.
Defendant appeals a judgment convicting him of first-degree sexual abuse, ORS 163.427. In his first three assignments of error, he challenges pretrial rulings in which the trial court quashed subpoenas for school and Department of Human Services (DHS) records pertaining to the complainant (V) and his cousin (IA) without conducting an in camera review of the records.1 He claims that he was entitled under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), to the production of the records or an in camera review of them because they contained evidence that was favorable and material to his defense. We conclude that defendant failed to meet his burden of making a threshold showing of materiality and favorability with regard to V’s school records and IA’s DHS records. However, defendant did make a sufficient threshold showing with regard to IA’s school records, and thus the trial court erred in denying defendant’s request for an in camera review without first engaging in an exercise of discretion to determine whether such a review would be appropriate. We therefore vacate and remand for the trial court to determine whether to review IA’s school records in camera .
When V was six years old, he lived with his mother (Jones), his aunt, and his older cousin, IA. V and his family attended the First Baptist Church, and V participated in a church-sponsored after-school program called the Good News Club. Although defendant was a member of a different church, he occasionally attended events at the First Baptist Church and volunteered with the Good News Club. Jones first met defendant at a First Baptist Church Halloween party in October 2010, when he introduced himself and told her that he knew V from the Good News Club.
Shortly after they met, Jones began working for defendant as a house cleaner. V would sometimes join his mother while she cleaned defendant’s house. On those occasions, V and defendant would spend time together. One day, V asked to spend the night at defendant’s house, to which defendant and Jones agreed.
In May 2011, V spent a night with defendant at defendant’s house. He and defendant played with puzzles and watched a movie. While the movie was playing, defendant told V to come over and sit beside him in an armchair. When V complied, defendant reached into V’s pants and touched his penis. After the movie, V went to sleep in the downstairs guest room, while defendant spent the night upstairs in his bedroom. The next morning, defendant dropped V off with Jones at defendant’s church. Jones asked V if he had had a good time at defendant’s house, and V said yes.
At some point in the spring of 2011, Jones told defendant that she would no longer have any contact with him. Jones testified that she had gotten into a conflict with members of the First Baptist Church and had posted a message related to that conflict on her Facebook page. When defendant asked her to remove the message, she complied but sought to explain to defendant her reasons for posting the message. However, defendant would not listen to her explanation, and she became angry because she felt that defendant was not supporting her. She told defendant that she would not be able to clean for him anymore. Jones also cut off contact with several members of the First Baptist Church and, sometime in the spring of 2011, she and her family were banned from the church.
In the fall of 2011, Jones and V were home watching television when V placed his hand on Jones’s upper right thigh. She told V that that was inappropriate and then asked if anyone had touched him like that before. V told her that defendant had put his hand down V’s pants and touched him on the night of the sleepover. Jones did not report the incident to law enforcement; although she considered what happened to be inappropriate, she did not think it was a crime.
In October 2011, Jones sent a note to a member of the First Baptist Church stating that V had "lost his innocence due to an ‘inappropriate relationship’ with a revered gentleman." In January 2012, Jones emailed a different member of the church and again made a reference to V being sexually abused. The recipient of the email contacted the church’s pastor, who then reported the incident to law enforcement in early February 2012. The police spoke with Jones and, after she reported V’s disclosure about defendant, they initiated a criminal investigation.
On February 29, 2012, V was interviewed by Wimalasena, a forensic interviewer with the Lincoln County Children’s Advocacy Center (CAC); the interview was recorded and, ultimately, played for the jury. During the interview, V described his home life and stated that, sometimes, he would get into physical altercations with his cousin, IA. He recounted one incident when IA got mad because V had told on him, and IA dragged V across the floor. V told Wimalasena that IA had also punched and kicked him. V then described the night that he had spent at defendant’s home. He stated that, while he and defendant were watching a movie, defendant put his hand in V’s underwear and touched and squeezed his "private part." V stated that he told defendant that he was scared, and that defendant then went upstairs to go to sleep.
Jones also provided information to CAC and stated that V was performing at an above-average level in school, was not having difficulties with other children, and was not on an Individualized Education Program (IEP). She also reported that there were " ‘no incidents of exposure to fighting or violence’ " and that V had no " ‘sexual exposure’ "—meaning that V had not seen nudity or sexual activity on television, movies, videotapes, computers, or magazines and that there was no pornography in the home.
Defendant was indicted on two counts of first-degree sexual abuse.2 Before trial, defendant issued several subpoenas duces tecum to obtain V’s and IA’s school records, as well as IA’s DHS records. V, IA, and DHS each moved to quash the subpoenas on the ground that the records were confidential. In response to the motions to quash, defendant argued that all of the records that he sought contained favorable and material evidence, and that he was entitled to disclosure of the records under Brady and its progeny.
Defendant contended that V’s and IA’s school records contained evidence relevant to support his theory of defense and to impeach Jones. He explained that information that he had received in pretrial discovery contradicted Jones’s statements made at the CAC interview that V was performing well in school and that he had not been exposed to violence or sexual activity at home. Specifically, defendant had received reports and emails during discovery that indicated that (1) IA had been sexually abused when he was three years old; (2) IA had physically abused V; (3) IA had brought pornography to school that he had obtained from home; (4) IA had stabbed another student with a pencil; (5) IA had damaged his aunt’s car; (6) IA had made false allegations against his mother and Jones about having been stabbed with a fork; (7) V had made an allegation of abuse against the pastor of the First Baptist Church, which had not been prosecuted; and (8) V was seeing a school counselor and was being coached on how to be a witness at trial.
Thus, defendant argued, he was entitled to the production of specific portions of V’s and IA’s school records that pertained to those incidents and that showed "any specific changes in behavior including the disclosure of any IEP for either child." He argued that the information could be used to impeach Jones’s credibility and was relevant to his theory of defense, which was that the allegations of abuse against defendant were false and "designed to hurt the church for interfering in the family’s problems with [IA] and for ultimately rejecting the Jones family."
With respect to IA’s DHS records, defendant claimed that they contained information that IA had been physically and sexually abused, that IA had physically abused V, and that IA had brought pornography to school. Defendant argued that the records were relevant to challenge the adequacy of Wimalasena’s interview with V because they demonstrated a failure by CAC to conduct an adequate review of V’s home life when it was evaluating V’s disclosure of sexual abuse.
In the alternative, defendant requested that the trial court conduct an in camera review of the school and DHS records to determine if they contained any exculpatory or material impeachment evidence.
The trial court granted the motions to quash and denied defendant’s request for an in camera review of the records. With regard to the school records, the court concluded that defendant had failed to establish that the information sought was relevant or that it was information that was not already available to him through other sources. With regard to V’s school records, the court explained:
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...to show bias requires "a rational relationship between the [bias] issue and the proffered evidence"); see also State v. Guffey , 291 Or. App. 729, 737-38, 422 P.3d 293 (2018) (a threshold showing of materiality for DHS records was not made under the defendant's theory, where the defendant f......