State v. Moody
Decision Date | 31 December 1984 |
Citation | 486 A.2d 122 |
Parties | STATE of Maine v. George MOODY. |
Court | Maine Supreme Court |
David W. Crook, Dist. Atty., John Alsop (orally) Asst. Dist. Atty., Augusta, for State.
Levey & Gleason, P.A., John S. Gleason (orally), Winthrop, for defendant.
Before McKUSICK, C.J., NICHOLS, ROBERTS, VIOLETTE and GLASSMAN, JJ., and WERNICK, A.R.J.
On April 24, 1984, the Defendant, George Moody, was convicted of two counts of unlawful sexual contact, 17-A M.R.S.A. § 255 (1983 & Supp. 1984-1985) 1 and one count of gross sexual misconduct, 17-A M.R.S.A. § 253 (1983 & Supp. 1984-1985), 2 following a jury trial in Superior Court (Kennebec County). Challenging these convictions, the Defendant raises ten points on appeal. We consider only three of these issues and sustain his appeal.
The Defendant called as a witness Peter Allen, Ph.D., a clinical psychologist, associated with the Kennebec Valley Mental Health Center. Dr. Allen had received a referral from the Department of Human Services with respect to the complainant, the daughter of the Defendant's girl friend of several years. 3 The complainant, who was fourteen years of age at the time of the trial, had visited Dr. Allen on several occasions. At trial the Defendant asked the psychologist to relate what the complainant had told him with respect to any alleged sexual abuse. The State interposed an objection based on the Physician and Psychotherapist-Patient Privilege, M.R.Evid. 503. The presiding justice then excused the jury and permitted the attorneys to conduct a voir dire of the witness.
The voir dire revealed that the complainant had not declared to Dr. Allen that the allegations of sexual abuse were true; on one visit, when the Defendant was present, she had expressly denied that the allegations were true. After the completion of the voir dire, the presiding justice upheld the State's claim that the complainant's communications with Dr. Allen were privileged, except for those which took place when the Defendant was present. The Defendant now contends that this ruling constituted prejudicial error. We agree.
Under the general rule of privilege codified in M.R.Evid. 503(b), 4 a patient may refuse to disclose, and may prevent others from disclosing, confidential communications made for the treatment of her mental or emotional condition. Dr. Allen met the complainant to diagnose and treat such mental and emotional problems as may have resulted from the alleged sexual abuse. As such, the general rule of privilege applied to their conversations, except for those that took place when the Defendant was also present. See M.R.Evid. 503(a)(4) (definition of "confidential").
By virtue of the plain language of the rule, the privilege, however, is conditional; if the appropriate individual fails to assert the privilege, it is waived. 5 M.R.Evid. 503(d) expressly provides that this is a privilege that may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient.
In the case at bar neither the complainant, her father, nor her mother asserted the privilege. Nor did Dr. Allen assert the privilege on behalf of the complainant, which he would have been presumed to have authority to claim. M.R.Evid. 503(d). Instead the State purported to assert the privilege. Nothing in the plain language of M.R.Evid. 503, which applies to both criminal and civil actions, 6 indicates that the prosecutor is a permissible claimant. We thus find that the presiding justice erred in sustaining the State's claim of privilege. For this reason, if for no other, we must vacate the judgment.
Two other issues that the Defendant has raised on this appeal are almost certain to arise upon a new trial. As such, we discuss them in the interest of judicial economy. See State v. Edwards, 458 A.2d 422, 425 (Me.1983); State v. Ayers, 433 A.2d 356, 363 (Me.1981).
In attempting to show that the complainant had fabricated the allegations of sexual abuse, the Defendant called to the stand Deborah Truman, a friend of both the Defendant and his wife. Deborah testified that she had encountered the complainant in the neighborhood park one day and asked her whether the Defendant "bothered her in any way." Deborah stated that the girl replied, "No, that she just didn't like him." On cross-examination, the prosecutor asked Deborah why she had asked that question. Deborah responded that the complainant's grandmother "had mentioned it to my mom over coffee one afternoon that she had heard." The prosecutor asked Deborah to relate the substance of this conversation. The Defendant objected, arguing that the testimony was "rank hearsay" and "extremely prejudicial." The presiding justice overruled the objection, noting that the State was entitled to elicit the substance of the conversation because it did not go to the truth, but was a legitimate part of cross-examination and impeachment. Deborah proceeded to testify to the substance of that conversation. The Defendant now argues that the ruling admitting this testimony was erroneous. We agree.
As we have previously indicated, impeachment evidence is subject to an objection based upon unfair prejudice outweighing probative value. State v. Heald, 393 A.2d 537, 539-540 (Me.1978); State v. Cedre, 314 A.2d 790, 800 (Me.1974). In the instant case, the prosecutor was attempting to discover fabrication or bias in Deborah's testimony. Deborah's explanation that she had questioned the complainant because she had heard a conversation between Deborah's mother and the complainant's grandmother fully served any such purposes. Any minimal impeachment value in eliciting the substance of that conversation was far outweighed by the resultant prejudice to the Defendant. Although the presiding justice is accorded broad discretion in balancing probative value with unfair prejudice, we conclude that his ruling admitting the substance of this conversation constituted an abuse of that discretion.
The Defendant also asserts that the presiding justice erred in his conduct of the voir dire by not taking each prospective juror into a private setting and questioning the juror about any personal exposure to child abuse.
As is authorized by M.R.Crim.P. 24(a), 7 the presiding justice elected to conduct the voir dire himself. The presiding justice asked the prospective jurors a number of questions, including whether any had been exposed to a case involving sexual activity, and whether any juror would "have difficulty" with a case involving improper sexual conduct with minors. After completing this series of questions, the presiding justice requested both attorneys to come to the sidebar and there he asked them whether they had any objections to the questions which had been asked and whether they wished to request any additional questions. Defense counsel responded by asking the presiding justice to inquire into the reasons for any marital breakups the prospective jurors may have had, and whether child abuse had been a contributing factor. The presiding justice refused to do so. After vigorous objection from defense counsel, the presiding justice asked the prospective jurors the following question:
Have any of the prospective jurors been involved in a family situation where there was either allegations or in fact abuse of children that can be either involved in that kind of family situation and either as a child or in their family in some way? And that can be answered up at the sidebar here.
Defense counsel then requested the presiding justice to take each prospective juror into a private setting and question him individually as to his exposure to child abuse; the presiding justice denied the request. The Defendant now argues that this denial was error. Again, we agree.
The purpose of voir dire examination is to detect bias and prejudice in prospective jurors in order that the Defendant will be tried by as fair and impartial a jury as possible. State v. Lovely, 451 A.2d 900, 901 (Me.1982). As we have previously observed, the presiding justice, "above all others, is the immediate custodian and steward of justice in the circumstances and exigencies of the particular case." Lovely, 451 A.2d at 902, quoting Matter of Kozlov, 79 N.J. 232, 240, 398 A.2d 882, 885 (1979). In the conduct of voir dire, therefore, it is his responsibility to balance the competing considerations of...
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...is not considered a health care professional and cannot claim the privilege on behalf of the patient.11 See id.; see also State v. Moody , 486 A.2d 122, 124 (Me. 1984) (holding that the State could not claim the privilege on behalf of a patient).12 However, none of the individuals who are a......
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...considerations of fairness to the defendant, judicial economy, and avoidance of embarrassment to potential jurors." State v. Moody, 486 A.2d 122, 125 (Me.1984). While in the present case, the Superior Court conducted the initial voir dire examination, defense counsel was given the opportuni......
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...potential juror's direct or indirect involvement in any matter similar to that to be heard by the selected jurors. See, e.g., State v. Moody, 486 A.2d 122 (Me.1984) (whether juror victim of child sexual abuse). But individual voir dire is not required in every case. See, e.g., State v. Weym......