No. 89-532
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs- i
_ .l
L.
i
2 1990
WILLIAM DONNELLY ,
CLERK OF SLIFJE?E~d1C.1E
COU
Defendant and Appellant. STATE OF MQN'FANA
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McClean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Byron W. Boggs, Esq., Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia J. Schaeffer Jordan, Asst. Attorney
General, Helena, Montana
Robert Deschamps, 111, County Attorney, Missoula,
Montana
Submitted on Briefs: August 9, 1990
Decided: September 4, 1990
Filed: s
Justice John Conway Harrison delivered the Opinion of the Court.
Defendant William Donnelly appeals a Missoula County jury
verdict finding him guilty of incest. We affirm.
Defendant raises five issues for review:
1. Whether the District Court erred in not allowing defense
counsel to review the complete psychological record of the victim.
2. Whether the District Court erred in allowing expert
testimony that the victim was a sexually abused child.
3. Whether the District Court erred in denying defendant's
motion for a mistrial on the basis of surprise.
4. Whether the District Court erred in denying the
defendant's motion for a new trial in finding the victim competent
to testify.
5. Whether the District Court infringed the defendant's right
against self-incrimination when it ordered that parole be
conditioned on successful completion of a sex offender's course.
An information filed May 4, 1988 charged defendant William
Donnelly with incest in violation of 5 45-5-507 (1)(3) , MCA. The
facts constituting the offense were that from 1980 through 1987
defendant, as a continuing course of conduct, had sexual
intercourse and sexual contact as defined in § 45-2-101, MCA, with
the victim, defendant's minor adopted daughter, "Janey Doe."
Janey Doe testified at trial about a particular incident which
occurred in March of 1987. This particular incident began with an
argument between Janey Doe and defendant regarding which television
program would be watched. The argument progressed into a ''tickling
matchttand culminated into a traumatic sexual experience of oral,
anal, and vaginal sex between defendant and Janey Doe. Janey Doe
testified that she silently endured years of defendant's sexual
abuse before telling anyone for fear that her father would kill
her. Defendant flatly denies all allegations of sexual contact
with Janey Doe.
The first trial in the District Court, Fourth Judicial
District in the County of Missoula, was held on September 14-16,
1988, and resulted in a hung jury. A second trial followed from
which this appeal is taken.
At the omnibus hearing for the first trial, defense counsel
requested Dr. Cook's psychological records pertaining to Janey
Doe's treatment. The District Court denied defendant access to Dr.
Cook's records but granted access to Dr. Wedell's records, Janey
Doe's child psychologist. On April 21, 1989 at the second trial,
the District Court reasserted the previous order denying access to
Dr. Cook's records. The District Court also granted defense
counsel's request for an update of Dr. Wedell's records.
Discussion in chambers focused on whether an expert could
testify that someone has .been a victim of sexual abuse. Over
objection of the defense, the court allowed such expert testimony.
This ruling is at issue in defendant's appeal.
At trial, Dr. Wedell, testified concerning general symptoms
often found in children who have been sexually abused, including
disruption in development, acting out, withdrawal or aggression,
low self-esteem, nightmares and flashbacks, depression, antisocial
behavior, and self-destructive behavior. Dr. Wedell also testified
that there is a direct link between severe sexual trauma in
childhood and the development of multiple personality disorder.
She also testified that child victims often block out the sexual
trauma and often gradually disclose the sexual abuse over a long
period of time. Dr. Wedell concluded that Janey Doe fit the
profile of a sexually abused child.
Janey Doe was learning disabled, was frightened and had
nightmares that her father would kill her. Following the
disclosure she became increasingly self-injurious, pulling her hair
out, sticking herself with needles and cutting herself. Janey Doe
felt I1uncleanl1
and unworthy of visiting the Church of Jesus Christ
of Latter Day saints Temple in 1987. Janey Doe suffered, as well,
from multiple personality disorder.
Defense moved for a new trial on the ground that the victim
was incompetent to testify on the grounds that she suffered from
multiple personality disorder. The motion was briefed, argued, and
denied. The District Court order stated that the victim was "able
to discern truth from falsity and her credibility is a proper
question for the jury.
On July 7, 1989, the jury returned a verdict finding the
defendant guilty of incest. The District Court ordered the
defendant ineligible for parole until the successful completion of
the sexual offender program at the Montana State Prison and until
the defendant is thereafter accepted into an aftercare program.
A notice of appeal from the judgment was filed on July 27, 1989.
The Sentence Review Division affirmed the sentence on January 17,
1990, and this appeal followed. We affirm.
Additional facts will be discussed as necessary.
Issue 1: Whether the District Court erred in not allowing
defense counsel to review the complete psychological record of the
victim.
In the instant case Janey Doe had a history of psychological
problems which predated the sexual abuse she experienced. The
State attempted to prove, by way of expert testimony, that Janey
Doe's multiple personalities and bizarre self-destructive
activities were classic symptoms of I1abused child syndrome" and
that Janey fit the "abused child1! profile. The defense strategy
was to present alternate explanations for the observed personality
features of the victim. Toward this end, the defense requested
the entire psychological and medical file of Janey Doe,
particularly the records of Dr. William Cook, and Dr. Wedell. Dr.
Cook had seen the victim over an extended period of time prior to
Janey Doe's disclosure of sexual abuse. Dr. Wedell, on the other
hand, had counselled Janey subsequent to her disclosure of sexual
abuse. The District Court examined the requested information in
camera and (1) ordered that the records of Dr. Cook were protected
from discovery; and (2) granted defense counsel access to Dr.
Wedell's complete treatment file of Janey Doe.
In its order, the District Court balanced the needs of the
defense to have access to exculpatory evidence against the privacy
interests of Janey Doe. The court found that the requested records
from Dr. Cook were not exculpatory and not necessary for the
preparation of the defense. For these reasons, the District Court
denied defendant's motion for the release of Dr. Cook's records.
We agree with the District,Courtlsorder.
Appellant claims the denial of access to the victim's past
psychological records denied him the right to be represented by
counsel, the right to confront the witnesses against him, and the
right to compel the attendance of witnesses under the Montana
Constitution, Article 11, Section 24. These federal constitutional
issues have already been decided against defendant by the United
States Supreme Court in Pennsylvania v. Ritchie (1987), 480 U.S.
39, 107 S.Ct. 989, 94 L.Ed.2d 40. Defendant does not show, with
citation to any authority, that Article 11, Section 24 of the
Montana Constitution provides broader guarantees of confirmation
and compulsory process than those established by the United States
Supreme Court in Ritchie. As such, we refuse to interpret the
Montana Constitution more expansively as defendant now urges.
Moreover, this Court has recently rejected a similar argument
in State v. Reynolds (Mont. 1990), 792 P.2d 1111, 47 St.Rep. 1143.
In Reynolds we held, as defendant concedes, that defense counsel's
right to review the medical and psychological records of the victim
in an incest case is outweighed by the child's right to
confidentiality under the statutes. Our holding in Reynolds
controls this issue here.
Here, the District Court reviewed the requested psychological
records in camera. After in camera inspection the District Court
found that the information was not exculpatory nor necessary for
the preparation of a defense. Pursuant to this finding the
District Court ruled that the requested information was privileged
since the testimonial privileges protecting medical and
psychological records outweigh the defendant's limited right to
such information. This in camera inspection by the District Court
suffices to protect the con'frontation rights of the defendant. Due
to the privileged status of the medical and psychological records
requested by defendant, we hold that defense counsel Is right to
review the medical and psychological records of the victim in an
incest case is outweighed by the child's right to confidentiality
under the statutes. Sections 41-3-205, 26-1-807, MCA.
The defendant also claims that he was denied his right to
confront witnesses and his due process rights because of the
District Court's refusal to allow the defendant access to all of
Janey Doe's medical and psychological records. The right of
confrontation is a trial right, guaranteeing an opportunity for
effective cross-examination. The right of confrontation is not a
rule equivalent to a constitutionally compelled rule of pretrial
discovery. As long as the defendant was not prevented from cross-
examining the adverse witnesses his right to confront witnesses has
not been violated. Ritchie, 480 U.S at 54, 107 S.Ct. at 1000, 94
L.Ed.2d at 55.
We note our holding in a recent case, State v. Thiel (Mont.
1989), 768 P.2d 343, 46 St.Rep. 182. In Thiel the district court
denied defendant access to the victim's child abuse files. We held
that this ruling did not violate defendant's right to confront his
accusers since defendant was afforded the opportunity to cross-
examine the adverse witnesses. Thiel, 768 P.2d at 345, 46 St.Rep.
at 185.
The reasoning in Thiel can be applied to the facts of this
case. Here, defendant requested and was denied access to certain
medical and psychological records of the victim in the possession
of private third parties. The defendant was afforded the
opportunity to cross-examine all adverse witnesses. Furthermore,
the defendant, as the victim's father, was well aware of the
victim's medical and psychological history. Had there been
anything in that history relevant to the victim's bias, motive or
prejudice, defendant would have been aware of this. Yet, defense
counsel made only a general request for all the records without
establishing a basis for his claim that they contained material
exculpatory evidence. Under these circumstances the District Court
acted properly in denying defendant access to Dr. Cook's
psychological records pertaining to Janey Doe. The defendant's
rights were fully protected by the District Courttsin camera study
of the requested psychological records pursuant to Montana's child
abuse confidentiality statute, 3 41-3-205, MCA. Relying on Ritchie
and Thiel, we hold that defendant Is rights to confront his accusers
were preserved in the instant case.
Issue 2: Whether the District Court erred in allowing expert
testimony that the victim was a sexually abused child.
The defendant argues that the District Court violated his
rights to due process and to a jury trial by allowing expert
testimony, over defendantts objection, that the victim was a
sexually abused child.
As a secondary issue, defendant complains that the expert
witness was also allowed to testify concerning the characteristics
of sex offenders. We shall not entertain this secondary issue.
Defendant failed to object at trial to the expert testimony on the
myths about sex offenders and general characteristics of sex
offenders. Therefore this issue is not properly before this Court
on appeal. We have previously stated that this Court will not
entertain the issue on appeal when expert testimony in child sexual
abuse cases has not been objected to at trial as improper. State
v. Eiler (1988), 234 Mont. 38, 52, 762 P.2d 210, 219; State v.
Patton (1979), 183 Mont. 417, 600 P.2d 194.
The admissibility of expert testimony was debated in pretrial
proceedings before the District Court in this case and decided
against defendant. The District Court allowed expert testimony as
to whether Janey Doe had been subject to sexual abuse, but ruled
that the precise issue of credibility could not be addressed in a
final conclusion of the expert.
The issue of whether expert testimony is admissible concerning
the credibility of a child alleged to have been the victim of
sexual abuse is well settled in Montana. The District Court order
allowing such testimony is consistent with our opinion in State v.
Geyman (1986), 224 Mont. 194, 729 P.2d 475. In Gevman we held that
expert testimony is admissible "for the purpose of helping the jury
to assess the credibility of a child sexual assault victim."
Gevman at 200, 729 P.2d at.479. Expert testimony offered for this
purpose is admissible so long as it does not impinge upon the
jury's obligation to decide ultimately the victim's credibility.
Dr. Wedell's testimony as detailed in the statement of facts
"merely enlightened the jurors on a subject with which many or most
jurors have no common experience they can use to judge the victim's
credibility." (Emphasis added.) Gevman at 200, 729 P.2d at 479.
The testimony of Dr. Wedell did not impinge upon the jury's
obligation to decide Janey Doe's credibility. The District Court
was proper in allowing expert testimony that Janey Doe fit the
profile of a sexually abused child. We hold that defendant's
rights to due process and to a jury trial were not violated by the
District Court in allowing this expert testimony.
Issue 3: Whether the District Court erred in denying
defendant's motion for mistrial on the basis of surprise.
The defendant claims he was substantially prejudiced when the
State's expert witness changed her testimony during the second
trial from that of the first trial and from the opinion stated in
her professional notes. Defendant bases its claims of substantial
prejudice on surprise.
At the first trial, Dr. Wedell testified that Janey Doe had
been sexually abused. Dr. Wedell based this testimony on her
initial diagnosis that Janey Doe suffered from llpost-traumatic
stress disorder with a major depressive episode and identity
disorder.lV At the second trial, Dr. Wedell discarded this initial
diagnosis and replaced it with an evolving diagnosis of emerging
multiple personality disorder, based upon the fact that Janey Doe
would present herself at therapy sessions in completely different
ways. Again, Dr. Wedell concluded that Janey Doe was a victim of
sexual abuse.
The defendant claims this change in testimony was prejudicial
error based on surprise. However the record shows that there was
at least one reference to this second diagnosis of multiple
personality disorder in the first trial. Moreover, Dr. Wedell's
notes on Janey Doe's therapy, which were provided to defense
counsel, make several references to Janey's multiple personality
disorder. For instance, a note dated October 31, 1 9 8 8 contained:
personalities? [Janey Doe's mother] has been recognizing
llMultiple
2 or more very different [Janey Does].'' A note dated February 1,
1989 contained: "We discussed my concern that the mood swings are
more than just that and may reflect multiple per~onalities.'~ A
note dated February 29, 1989 contained: '1 am more and more
'
questioning a possible diagnosis of multiple personality disorder
for this young woman." A note dated April 19, 1989 quoted Janey
Doe as inquiring whether Dr. Wedell thought Janey was "2 people."
In view of all of these entries in the notes given to defense
counsel, we hold his claim of surprise is not substantiated.
In any event, the change in diagnosis from post-traumatic
stress disorder with major depression and identity disorder to
multiple personality disorder did not alter the ultimate
conclusion, at both trials, that the child had been sexually
abused. Furthermore, the changed diagnosis did not represent
exculpatory and material information which the prosecution has a
constitutional or statutory duty to disclose to the defendant.
Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215.
Defense counsel argues that had he known about the victim's
multiple personalities, he would have cross-examined the victim
about the disorder. Defense counsel suggests defendant was denied
the right to cross-examine witnesses by not being informed about
the victim's disorder. This argument is without merit. Since the
victim was expressly made available for recall, defense counsel had
the opportunity to question the victim about items appearing in the
psychologist's notes, and did not do so. The District Court did
not err in denying defendant's motion for mistrial.
Issue 4: Whether the District Court erred in denying the
defendant's motion for a new trial in finding the victim competent
to testify.
The defendant argues that the victim was incompetent to
testify since she suffered from multiple personality disorder.
Defendant contends that her two other personalities would have
given inconsistent testimony had they emerged. The District Court
ruled, in its order dated June 30, 1989, that the victim was
competent to testify and that the victim's credibility was properly
a question for the jury. We agree with the District Court's order.
The determination of competency of a witness to testify is
within the sound discretion of the district court and will not be
overturned unless an abuse of discretion is demonstrated. State
v. Newman (Mont. 1990), 790 P.2d 971, 47 St.Rep. 711. This Court
has recently reiterated that "what is important is the capacity to
remember the occurrence and the ability of the witness to relate
her impressions of what occurred." Newman, 790 P.2d at 974, 47
St.Rep. at 715; quoting Eiler at 43, 762 P.2d at 213. Any
inconsistencies within her testimony or possible fabrication would
affect Janey Doe's credibility not her competency. Eiler at 43,
762 P.2d at 213-14.
Here, the District Court determined that Janey Doe had the
capacity to express herself, to remember what occurred, and to
understand her duty to tell the truth. Janey Doe was fifteen years
old when she testified. The District Court assessed the competency
of the witness to testify based on its observation of the witness
and concluded:
It is true that [Janey Doe] suffers from
extensive and severe emotional damage because
of the incestuous actions of the defendant,
William Donnelly. However, she is able to
discern the truth from falsity and her
credibility is properly a question for the
jury .
The defense counsel has failed to point to evidence, nor have
we been able to find evidence, in the record which would support
a finding that the District Court abused its discretion in finding
the victim competent to testify. The District Court observed the
witness and concluded there was no evidence in her demeanor which
would suggest she was incompetent to testify. Furthermore, none
of the testimony from any of Janeyls emerging personalities
recanted her testimony which incriminated her sexually abusive
father. The District Court in this case did not abuse its
discretion in deciding that Janey Doe understood her duty to tell
the truth and had the ability to clearly communicate her accounts
of the events in question.
Issue 5: Whether the District Court infringed the defendant's
right against self-incrimination when it ordered that defendant be
ineligible for parole until he completes a sex offender's course.
The District Court, after reviewing a pre-sentence
investigation report, ordered the defendant "will be ineligible for
parole until the successful completion of the sexual offender
program at the Montana State prison and the defendant is accepted
into an aftercare program.I1 (Emphasis added.) Defendant takes no
exception to this condition on parole imposed by the District
Court. However, in order to be accepted into the sexual offender
program and receive treatment, defendant must admit to incest of
which he was convicted. Defendant contends that if he does not
admit to incest, he will be denied treatment, and thus denied
parole. As such, defendant argues that these requisite admissions
are, in fact, compelled in violation of his privilege against self-
incrimination.
The Fifth Amendment protects persons from testifying against
themselves. We fail to find the defendant was compelled to testify
in violation of his privilege against self-incrimination.
Our holding in Matter of C.L.R. (1986), 211 Mont. 381, 685
P.2d 926, controls. In Matter of C.L.R., the defendant was being
tried for homicide of his girlfriend's minor child. The child died
as a result of internal injuries sustained from being struck by
defendant. At the time of defendant's arrest, his girlfriend was
pregnant. Proceedings were begun, concurrent with the homicide
trial, to terminate his parental rights. Defendant moved to stay
these proceedings until his criminal proceedings were terminated.
Defendant reasoned that in order to testify at his hearing to
terminate parental rights, he would jeopardize his Fifth Amendment
rights to remain silent. He contended that if he refused to
testify, he would lose his parental rights. In this case we said:
[Alppellant suffered no compulsion to testify,
therefore no violation of the Fifth Amendment
occurred. Appellant clearly could remain
silent if he so desired without fear of
certain penalty for not testifying.
Appellantls determination to testify hinges
upon a tactical decision and not penalty of
certain loss of parental rights, as he
asserted.
Matter of C.L.R. at 387, 685 P.2d at 929. We held that parental
rights proceedings failed to infringe upon defendant's Fifth
Amendment rights even though testimony at the proceeding could be
used at the criminal proceeding. We felt no compulsion occurred.
a. This decision is controlling.
The key to this rests on whether the defendant was compelled
to testify or was merely required to make a "tacticalw decision
regarding his parole. Here, defendant's decision to remain silent
is a tactical one, not a compelled one. Defense counsel argues
that, in reality, defendant's testimony is in fact compelled since
it is a prerequisite for parole. It is possible that defendant may
be paroled sooner if he admits to incest than if he remains silent.
However, defendant may remain silent if he so chooses, and still
possibly be paroled at some future date based on good behavior.
Furthermore, failure to admit to incest will not result in
certain penalty to defendant, it will only result to preserve his
current ineligible parole status. In this case, the ~istrictCourt
ordered that the defendant was ineligible for parole until the
satisfaction of a condition subsequent. The condition subsequent
is partially satisfied by defendant's successful completion of the
sexual offender program at Montana State Prison. Failure to
satisfy this condition subsequent, i.e., failure to satisfactorily
complete the sex offender program, will not result in a penalty but
will merely result in defendant's continued ineligibility for
parole. We therefore hold that the District Court acted properly
in conditioning defendant's parole on the satisfaction of Montana
State ~rison'ssexual offender program and that defendant's rights
against self-incrimination were not violated thereby.
We affirm the District Court.
We concur:
/
chief Justice
Justices