State v. Seiter

• Decision Date: 10 June 1997
• Docket Number: No. 70666,70666
• Citation: 949 S.W.2d 218
• Parties: STATE of Missouri, Respondent, v. William SEITER, Appellant.
• Court: Missouri Court of Appeals

Page 218

949 S.W.2d 218

STATE of Missouri, Respondent, v. William SEITER, Appellant.

No. 70666.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 10, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 14, 1997.

Application to Transfer Denied

Aug. 19, 1997.

Bernard Edelman, Barry S. Ginsburg, Kenneth R. Schwartz, Clayton, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for Respondent.

CRANDALL, Judge.

Defendant, William Seiter, appeals from the judgment of convictions, after a jury trial, of two counts of sodomy of a child less than fourteen years of age, § 566.060, RSMo Cum.Supp.1993 (Counts I and II); of two counts of rape of a child less than fourteen years of age, § 566.030, RSMo Cum.Supp.1993 (Counts III and IV); and of two counts of sexual abuse in the first degree, § 566.100, RSMo Cum.Supp.1993 (Counts V and VI). He was sentenced to terms of imprisonment of fifteen years on Count I, of twenty years on Count II, of ten years each on Counts III and IV, and of five years each on Counts V and VI, all sentences to be served concurrently, except for Counts II and V which were to be served consecutively to each other. We affirm.

Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence established that in the summer of 1993, the victim, M.P., a girl of ten years of age, lived with her single mother and two brothers, aged two and twelve. Defendant was involved in a relationship with the victim's mother and the victim's younger brother had been born of that relationship. Every day from June 1 through September 1, 1993, defendant visited the victim's home during his lunch break. Usually, the victim was alone because her older brother was out with friends and her younger brother was at day care while her mother worked. The multiple acts which formed the bases of the crimes with which defendant was charged and for which he was convicted occurred at the victim's home during these visits.

In approximately January 1994, the victim informed her mother that defendant had attempted to touch her breasts. The victim's mother confronted defendant who admitted to this act. The victim's mother later ended their relationship.

In March 1995, during the course of an argument with her mother, the victim attempted to slash her wrists with a kitchen knife. Because of the victim's agitated state, her mother transported her to the hospital. There, the victim spoke with a social worker and informed the social worker of additional sexual contact to which she was subjected by defendant over the course of the summer of 1993.

Defendant did not testify at trial. The defense was that the victim and her mother had fabricated the charges against him.

In his first point on appeal, defendant contends the trial court erred in quashing subpoenas duces tecum. Defendant served subpoenas duces tecum on a social worker and a psychologist for the production of "[a]ny and all reports, treatment files, documents, personal notes, recordings or other documentation regarding treatment or counseling" of the victim or her mother. Defendant also served a subpoena duces tecum on the school district the victim attended for the production of "[a]ny and all school records, behavioral records, attendance records, Teacher's notes, disciplinary actions, report cards, medical records" referring to the victim.

The social worker and psychologist moved to quash the subpoenas on the basis that the information sought by defendant was confidential and privileged. The State moved to quash the subpoena served on the school district on the basis that it was over broad and not calculated to lead to relevant or discoverable material. The trial court quashed the subpoenas duces tecum as to all documents with the exception of the school attendance records.

Defendant argues the records requested contained relevant, material, and discoverable evidence that was "possibly exculpatory" and included "possible impeachment evidence." He asserts the trial court should have ordered sua sponte a review of the records in camera to assess the materiality of the evidence sought. He argues the court's ruling precluded his review of those records "to examine their contents and to determine what would have been material evidence."

The State is under a duty to disclose, even without request, exculpatory evidence. Rule 25.03(A)(9). The defendant is not entitled to information on the mere possibility that it might be helpful, but must make some showing as to how the information would be material and favorable. State v. Parker, 886 S.W.2d 908, 917 (Mo. banc 1994).

In Parker, the accused sought production of the personnel records of police officer witnesses. Parker, 886 S.W.2d at 916. The trial court reviewed the records of an Officer White covering a five-month period on the basis that the accused claimed the victim told a roommate that White had been disciplined for failing to properly report the victim's complaints about the accused. Id. at 917. The trial court denied production of the other officers' files. Id. The Supreme Court of Missouri opined:

Here, [the accused] has made no showing about the materiality or exculpatory nature of the files of officers, other than White. Of course, a personnel file might include helpful information. This mere possibility--unsupported by any facts--is insufficient ... to justify production of personnel files of officers other than White.

Id.

In the present case, defendant referred to evidence in the requested records which might "possibly" be exculpatory and impeaching. Defendant was not entitled to the production of the records on the mere possibility that the information contained therein might be helpful to his case. Defendant did not present specific facts to establish what information was contained in the records and how such information would be favorable to him. Defendant thus failed to meet the threshold requirement for the trial court to order the production of the psychological and school records because he did not establish a basis for his claim that those records contained evidence material to his defense. We need not endeavor to catalog what he needed to show. See State ex rel. King v. Sheffield, 901 S.W.2d 343, 348 n. 7 (Mo.App. S.D.1995). It is sufficient to point out that defendant made no showing of the relevancy, materiality, and exculpatory nature of the information he sought from either the psychological or school records.

Defendant argues that at a minimum the trial court should have ordered sua sponte an in camera inspection of the records to determine their relevancy. He relies on State v. Newton, 925 S.W.2d 468 (Mo.App. E.D.1996) to support this proposition. In Newton, the accused challenged the competency of an important State witness who placed the accused at the victim's home at the time of the crimes. State v. Newton, 925 S.W.2d 468, 470 (Mo.App. E.D.1996). After a pre-trial hearing, the trial court denied the motions of the accused to find the witness incompetent to testify and to produce her psychological records. Id. at 471. The accused contended the records contained vital impeachment evidence; specifically, evidence the witness was experiencing hallucinations at the time of the crimes. Id. This court remanded the cause to the trial court to conduct an in camera inspection of the witness's psychological records. Id. at 473.

Upon remand, the trial court conducted an in camera inspection of the psychological records and determined that they did not contain material evidence bearing on the witness's competency to testify. This court issued an opinion holding that this determination by the trial court was not an abuse of discretion and declined to examine the records to make an independent relevancy determination. State v. Newton, Nos. 63939, 68569, slip op. at 2, 1997 WL 53012, --- S.W.2d ----, ---- (Mo.App.E.D.Feb. 11, 1997). The Supreme Court of Missouri accepted application for transfer on April 29, 1997. Whether the supreme court will modify the holding of Newton, 925 S.W.2d at 468, is uncertain at this point.

In addition, the case before us is distinguishable from Newton in that the accused in Newton made a showing as to the materiality and relevancy of the requested records. The accused showed that the psychological records might establish that the witness was hallucinating at the time of the crimes and that such records were relevant to the issue of the witness's competency to testify, an issue which was before the court on the accused's motions. In contrast, the present defendant made no showing as to the relevancy and materiality of the records and did not identify specifically what the records would have disclosed that would be favorable to his defense. Before the court was required to conduct an in camera review of the records, it was essential that defendant set forth a factual predicate to justify such a review. He did not do so. The trial court did not err in quashing the subpoenas duces tecum without conducting an in camera inspection of the requested records. Defendant's first point is denied.

In his second point, defendant challenges the admission into evidence of drawings and two letters the victim wrote to her mother almost two years after the occurrence of the sexual offenses. Prior to trial, defendant filed a motion in limine seeking to exclude the letters and drawings from evidence. The court overruled the motion. During direct examination of the victim, the State, over defendant's objection, introduced the letters and drawings into evidence and the victim read the letters in their entirety and gave a detailed description of the drawings. The jury took the letters and drawings to their deliberations.

Defendant argues the letters and drawings were used to improperly bolster the victim's testimony. The State contends the...