State v. Roy

Decision Date15 June 1995
Docket NumberNo. 22695,22695
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. James A. ROY, Defendant Below, Appellant.

2. The public policy consideration which underlies the statutes preventing disclosure of confidential information held by counselors, social workers, psychologists, and/or psychiatrists is to enhance communications and effective treatment and diagnosis by protecting the patient/client from the embarrassment and humiliation that might be caused by the disclosure of information imparted during the course of consultation. Considering the existence and strength of these protections established by the Legislature, the only issue left for a trial court is whether a criminal defendant is entitled to judicial inspection of confidentially protected communications in camera and thereafter to their release if the inspection indicates their relevancy.

3. Before any in camera inspection of statutorily protected communications can be justified, a defendant must show both relevancy and a legitimate need for access to the communications. This preliminary showing is not met by bald and unilluminating allegations that the protected communications could be relevant or that the very circumstances of the communications indicate they are likely to be relevant or material to the case. Similarly, an assertion that inspection of the communications is needed only for a possible attack on credibility is also rejected. On the other hand, if a defendant can establish by credible evidence that the protected communications are likely to be useful to his defense, the trial judge should review the communications in camera.

4. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to certain limitations. The evidence may refer only to character for truthfulness or untruthfulness. A fair reading of Rule 608(a) of the West Virginia Rules of Evidence provides that a witness may be impeached by proof that the witness is untruthful. Under this rule, no distinction is made between nonparty witnesses and party witnesses. The rule applies with equal force to the defendant in a criminal case. The form of proof may be either "reputation" or "opinion" evidence.

5. Unlike Rule 404(a)(1) of the West Virginia Rules of Evidence, under Rule 608, a witness's character for truthfulness is placed in issue once the witness testifies. No more is required. The accused, by testifying, becomes subject to an attack on his credibility. In this regard, he is treated like any other witness; therefore, his credibility is placed in issue even though he should offer no direct testimony concerning his good reputation for truthfulness or concerning a character trait otherwise at issue.

Joanna Bowles, Asst. Atty. Gen., Charleston, for appellee.

Dwight R. Hall, Sims & Hall, Elkins, for appellant.

CLECKLEY, Justice:

On July 13, 1994, James A. Roy, the defendant below and appellant herein, was convicted of one count of third degree sexual assault following a jury trial in the Circuit Court of Randolph County. 1 He was sentenced to serve one to five years. The defendant appeals the September 21, 1994, order of the trial court which denied his motion for

[194 W.Va. 280] a new trial. He contends the trial court erred by failing to compel the State to turn over the entire file of the victim's psychiatric records. He also cites as error the testimony of his cousin regarding the defendant's reputation for truthfulness.

I. FACTS AND PROCEDURAL BACKGROUND

In 1992, fourteen-year-old Bobbi Jo D. 2 occasionally would babysit the two children of her friend, Patricia Skidmore. The defendant was dating Ms. Skidmore at that time and would periodically stay all night at her home. The defendant and Bobbi Jo did not have frequent contact with each other, but Bobbi Jo had developed somewhat of a crush on him. She reported that at one point the defendant told her she was cute for her age and that he fondled her breasts.

In December of 1992, Bobbi Jo watched the children one evening when Ms. Skidmore and the defendant went to the China Gardens restaurant. The couple returned home at approximately midnight, and Ms. Skidmore went to bed. The defendant went to the bedroom at first but came back down to the living room to be with Bobbi Jo. She was lying on the couch watching television. He looked at her and asked her if she "wanted it or not" and she said yes. He went to check on Ms. Skidmore and the children and came back into the living room. The defendant kissed her and laid on top of her. He pulled her shorts off and had sexual intercourse with her for approximately half an hour. He drank a beer and then went back to bed.

The same series of events occurred the following weekend when Bobbi Jo babysat at Ms. Skidmore's home. Upon returning home from their date, the defendant and Ms. Skidmore went to the bedroom. The defendant later returned to the living room. Once again, he and Bobbi Jo had sexual intercourse on the couch. Afterwards, the defendant told Bobbi Jo that Ms. Skidmore did not excite him anymore, but she did. Bobbi Jo could not remember the exact dates she was with the defendant, but she believed them to be in December of 1992.

During the fall of 1992, Bobbi Jo was receiving counseling at Youth Health Service. She was having difficulty dealing with the separation of her mother and stepfather. Although Bobbi Jo did not have a substance abuse problem, she was enrolled in the Substance Abuse Prevention Program funded by a federal grant to help prevent troubled teens from abusing drugs and alcohol. 3 In December of 1992, Bobbi Jo informed Catherine MacDonnell, a social worker/counselor 4 at the center, about the defendant. At first, Ms. MacDonnell believed Bobbi Jo was simply talking about a boy her age she was interested in dating. However, when Ms. MacDonnell learned that Bobbi Jo had sexual relations with the twenty-six-year-old defendant, she became alarmed. She spoke with her supervisors, and they reported the incident to Child Protective Services. Bobbi Jo's mother was also notified.

Ms. MacDonnell testified that Bobbi Jo suffers from a mild mental handicap. Although she was in the eighth grade when these events occurred, Ms. MacDonnell stated that Bobbi Jo operated at approximately a sixth-grade level. She stated that Bobbi Jo was not known to fabricate lies or fantasize any more than a typical teenager.

Allen LaVoie, Ph.D., a psychologist, 5 performed a battery of assessment tests on Bobbi Jo at the time of her admission to the Youth Health Service program and his report was made available to the defendant. He described Bobbi Jo as mildly mentally retarded. She appeared to function at a higher level because her verbal abilities outweighed her overall mental abilities. His testimony only related to Bobbi Jo's performance on those tests because he did not review her entire file and had no knowledge of her sexual conduct generally or her relationship with the defendant.

The defendant testified that he had no sexual contact whatsoever with Bobbi Jo. He stated that on the evening he and Ms. Skidmore went to the China Gardens restaurant, he went straight to bed with Ms. Skidmore. He claimed to have had sexual relations with Ms. Skidmore that evening and again the next morning. He denied being at the Skidmore residence the following weekend when the second episode allegedly occurred.

Ms. Skidmore corroborated the defendant's testimony as it related to the evening they went to the China Gardens. If he did go downstairs after she went to bed, she did not notice. She could not remember going out with the defendant the following weekend. At first, Ms. Skidmore did not believe the defendant and Bobbi Jo were intimate. After talking with Bobbi Jo, however, she changed her mind and concluded Bobbi Jo was telling the truth.

After the defendant testified, the State called his cousin, State Trooper David Paul Hawkins. Trooper Hawkins stated he had known the defendant his whole life. When asked his opinion of the defendant's truthfulness, he replied: "[A]ny time he gets in trouble he will lie to get out of it." Trooper Hawkins also stated the defendant had a poor reputation for truthfulness in the community.

II. VICTIM'S COUNSELING RECORDS

The defendant's first assignment of error is that the trial court erred in failing to compel the State to submit to the defense the entire file of the victim held by Youth Health Service. We find no such error was committed. The defendant contends his rights to discovery as provided by Rule 16 of the West Virginia Rules of Criminal Procedure were violated by the trial court.

In our analysis, we perceive no clear legal right on the part of a defendant to the counseling records of a victim to a sexual assault. In fact, courts have frequently been called upon to analyze the parameters of discovery in sexual assault cases and have found no significant difference between these cases and other criminal cases. Indeed, if there is any difference, it favors the confidential rights of the victim and not the defendant. Because of its recurring nature and the importance of this issue to the administration of criminal justice, we will review the contentions of the defendant in detail.

The defendant contends he was entitled to inspect the counseling records of the victim under the mandate of Rule 16 of the West Virginia Rules of Criminal Procedure. Specifically, Rule 16(a)(1)(D) states:

"Reports of Examinations and Tests.--Upon request of the defendant the state shall permit ...

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  • State v. Miller
    • United States
    • West Virginia Supreme Court
    • 13 Diciembre 1995
    ...exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial court. See State v. Roy, 194 W.Va. 276, 281-82, 460 S.E.2d 277, 282-83 (1995); State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 Rule 15(a) (1988) of the W.Va.R.Crim.P. discussed when a deposition of......
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    ...are likely to be useful to his defense, the trial judge should review the communications in camera.” Syllabus point 3, State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995). 6. “A defendant who wishes to cross-examine an alleged victim of a sexual offense about or otherwise introduce evidence ......
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