No. 89-334
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
EDGAR REYNOLDS, a/ k/a
EDWARD REYNOLDS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Golden Valley,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Attorney at Law, Helena, Montana
;- For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena, Montana
Gerry M. Higgins, Special Deputy County Attorney,
Golden Valley County, Ryegate, Montana
Submitted on Briefs: April 26, 1990
Decided: June 7, 1990
0
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
Defendant Edgar Reynolds appeals a Golden Valley County jury
verdict finding him guilty of sexual intercourse without consent.
We affirm.
Defendant presents three issues for review:
1. Was defendant denied the right to a speedy trial by
a delay of 243 days from arrest to trial?
2. Did the trial court's refusal to order the release and
disclosure of "Janey Doe's1' medical and psychiatric
records deny defendant the right to confront witnesses
against him or the right to due process?
3. Was it plain error to permit the use of expert
testimony to identify I1JaneyDoen as the victim of sexual
abuse?
An information filed March 15, 1988 charged defendant Edgar
Reynolds with sexual intercourse without consent in violation of
9 45-5-503, MCA, or in the alternative, sexual assault in violation
of 9 45-5-502, MCA. The alleged victim was defendant's sixteen-
year-old adopted daughter, I1Janey Doe.''
Acting on information' that Janey Doe may have been sexually
abused, Rochelle Beley, a social worker for the Montana Department
of Family Services assigned to Golden Valley County, interviewed
Janey in January, 1988. Ms. Beley noticed Janey had numerous cuts
on her left arm. Fearing that the girl might be suicidal, Ms.
Beley arranged for Janey Doe to meet with Sandi Burns, a Billings
psychotherapist and expert on child sexual abuse. Ms. Beley also
reported the suspected sexual abuse to the county attorney.
In March of 1988, Janey Doe entered the 2-North Psychiatric
Unit of Billings Deaconess Hospital for crisis intervention. After
her release she returned to her home but was soon placed in a
foster home in Ryegate. In June, 1988, Ms. Beley, after receiving
a phone call from Janey, went to her foster home and found the girl
sitting on the edge of the bathtub covered with blood. Janey Doe
had used a razor to cut herself down her entire left arm, both legs
and across her stomach. Janey was then admitted to Rivendell, a
Billings treatment center for emotionally disturbed children.
~ollowing two-month stay at Rivendell, Janey was placed in a Park
a
City foster home.
After a change venue and three continuances the trial was held
in Roundup on November 28-30, 1988. Janey Doe testified at trial
that she had started cutting on herself in seventh or eighth grade
because she could not deal with the defendant's sexual abuse.
Defendant's abuse of Janey started before she was in the fourth
grade and continued beyond November, 1985, when an earlier referral
had been investigated. Typically, defendant would ask Janey to
come into his bedroom and ''scratch his back.'' Defendant would then
have her masturbate him. Sometimes defendant would insert his
fingers or a vibrator into Janey's vagina, show her pornography or
perform other sexual acts on Janey Doe.
Defendant also testified at trial, denying having performed
such acts against his adopted daughter. The jury returned a
verdict of guilty of sexual intercourse without consent. At
sentencing, defendant admitted sexually abusing Janey Doe and
accepted responsibility for his actions.
~dditionalfacts will be discussed as necessary.
Issue 1: Was defendant denied the right to a
speedy trial by a delay of 243 days from
arrest to trial?
From the time the defendant was arrested on March 21, 1988,
the trial was delayed by .motion four times. During this time,
however, defendant was free on bond.
Originally set for May 25, the trial was first reset for
August 8 at the omnibus hearing following defendant's indication
that he intended to file a change of venue. On July 27, Janey
Doe's guardian ad litem filed a motion to continue the trial,
citing as reasons the fact that Janey was under the care of
attending physicians and mental health professionals and requiring
Janey to participate as a witness at the time scheduled for trial
would likely cause her to experience additional psychological
trauma and emotional harm and would not be in her best interests.
Defendant did not dispute the basis for the motion, but did object
to the continuance as impeding his right to a speedy trial.
Neither party requested a hearing on the motion. The motion was
granted and trial reset for September 13.
Citing the same reasons as in the first motion to continue,
Janey's guardian ad litem filed a second motion for continuance on
August 30, 1988. Again defendant did not dispute the basis for
the motion but did oppose the continuance as a denial of his right
to a speedy trial. Following a hearing on the matter, the second
motion for continuance was granted and trial set for November 14.
At this point the District Court required the guardian ad litem to
report the victim's condition to the court and counsel every two
weeks.
Defendant's counsel requested the final motion for
continuance, in order to accommodate a planned hunting trip and to
allow more time for witness interviews. The court granted the
motion and trial was reset for November 28. Defendant accepts
responsibility for the final two-week delay.
On the first day of the trial defendant filed a motion to
dismiss for lack of a speedy trial. Following argument on the
motion, the District Court denied the defendant's motion to
dismiss.
The Sixth Amendment to the united States constitution and
Article 11, Section 24 of the Montana Constitution guarantee the
defendant's right to a speedy trial. The United States Supreme
Court adopted a four-factor balancing test where the conduct of
both the prosecution and the defendant are weighed to determine
whether defendant's right to a speedy trial has been denied.
Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101. The four factors to be balanced are: (1) length of delay;
(2) reasons for the delay; (3) defendant's assertion of the right;
and (4) prejudice to the defendant. State v. Tilly (1987), 227
Mont. 138, 140, 737 P.2d 484, 486 (citing Barker, at 530, 92 S.Ct.
at 2192, 33 L.Ed.2d at 117).
Considering the length of and reasons for the delay factors,
we note 257 days passed from the time the information was filed on
March 15, 1988 to the time trial commenced on November 28, 1988.
A 257 day delay triggers a speedy trial inquiry. Tillv, at 140,
737 P.2d at 486; State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d
956, 958; State v. Chavez (1984), 213 Mont. 434, 441, 691 P.2d
1365, 1370. Such a delay gives rise to a presumption that the
defendant has been deprived of a speedy trial and shifts the burden
to the State to either offer a reasonable excuse for the delay or
demonstrate that the defendant was not prejudiced by the delay.
Tilly, at 141, 737 P.2d at 486. Should both excuse and prejudice
exist, these factors must be balanced. Id.
The 243-day delay was primarily the result of the two
continuances requested by Janeylsguardian ad litem and granted by
the District Court. In moving for the continuances, the guardian
stated that deep psychological harm to Janey would likely result
from her testifying at that time. Janey Doe, a material witness
for the State, was temporarily unavailable to testify because of
her emotional instability. The State provides a reasonable excuse
for delay when a material witness is unavailable to testify due to
illness largely caused by the defendant. till^ at 141, 737 P.2d
at 486 (quoting Barker, at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at
117).
Of the 257 days, the defendant accepts responsibility for
fourteen days caused by the defense attorney's request for the last
continuance which delayed the trial an additional two weeks,
leaving 243 days to account for. The State contends that the
defendant's motion for a change of venue occasioned a 74-day delay
chargeable to the defendant. We disagree. It is clear from the
court's order granting the change of venue that no delay in the
trial was anticipated by the District Court:
IT IS ORDERED that the DefendantIs Motion
for Change of Venue is Granted in that the
place of jury trial in this matter shall be
moved from Ryegate, in Golden Valley County,
- Roundup, in Musselshell County. Jury trial
to
herein, estimated to take three days, remains
set for 9:00 a.m. on August 8, 1988. Golden
Valley County will assume the costs of said
trial. (Emphasis in original.)
As the language of the order makes clear, the trial remained set
for August 8, 1988. We decline to attribute any delay to the
defendant for exercising his option to request a change of venue.
Turning to the third factor, there is no doubt that defendant
asserted his right to a speedy trial. Both times the guardian ad
litem filed for continuances, defendant objected to such motions,
citing his right to a speedy trial. Additionally, at the outset
of the trial, defendant filed a motion to dismiss for lack of a
speedy trial. Such assertions of the right to a speedy trial are
timely. State v. Steward (1975), 168 Mont. 385, 390-91, 543 P.2d
178, 182.
As to the fourth factor, prejudice to the defendant, the
Barker case identified three interests of a defendant which a delay
of trial may prejudice: (1) prevention of oppressive pretrial
incarceration; (2) minimizing anxiety to accused; and (3) limiting
the possibility the defense will be impaired. Tilly at 143, 737
P.2d at 487 (citing Barker at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at
118). Considering these interests as applied to the facts in the
case at bar, we find no prejudice to the defendant. Defendant had
been free on bond since four days after his arrest, and was free
to continue working as a long-haul trucker. The record does not
show nor does the defendant allege that he was unduly anxious or
concerned. "One may expect a certain amount of anxiety and concern
when accused of a crime. Tilly at 143, 737 P.2d at 488 (citing
Chavez, supra). Nor can we find evidence in the record that
defendant's defense was possibly impaired. Although defendant
contends that a Dr. Alpacka who had treated Janey Doe had left the
state and could not be located, we do not find this prejudicial
because neither the State nor the defendant knew what Dr. Alpacka Is
testimony would have been, Dr. Alpacka was not listed as a witness
by either party, and the record does not disclose the extent of his
involvement with Janeytstreatment. We find the defendant was not
prejudiced by the delay.
Accordingly, we hold the defendant was not denied his right
to a speedy trial.
Issue 11: Did the trial courtts refusal to
order the release and disclosure of Janey
Doe's medical and psychiatric records deny
defendant the right to confront witnesses
against him or the right to due process?
On the first day of trial defendant filed a motion to obtain
Janey Doe's medical and psychiatric records, arguing defendant was
entitled to copies of medical reports, psychological evaluations
or interviews of any of the counselors or psychiatrists that
treated Janey, including Rochelle Beley, Sandi Burns, Dr. Michael
Sievert and Dr. Harry Newman. Defendant reasoned that because the
State intended to call as expert witnesses psychotherapist Sandi
Burns, psychiatrist Dr. Michael Sievert, Ms. Burns and Dr. Sievert
would base their opinion testimony on conversations had with Janey
Doe and other notes and reports on which the experts relied.
Defendant claimed that in order to effectively cross-examine these
witnesses and not be denied due process, defendant needed to
examine Ms. Burns' and Dr. Sievertts notes on Janey. Defendant
further argued that the State had access to information contained
in social worker Rochelle Beleyts investigative file on Janey Doe,
that such information may have been exculpatory, and the State was,
therefore, obligated to disclose the file to defendant. Defendant
also moved to prohibit the testimony of Burns, Sievert and Beley
on the basis that the State failed to disclose the information
contained in their investigative and psychological files.
The matter was heard on November 28. The discussion between
the District Court and counsel indicates that the defense had
received all medical and psychiatric reports that were in the
possession of the prosecutors. Discussion also showed defense
counsel had interviewed Ms. Beley and Ms. Burns before trial and
that the prosecutors and guardian ad litem themselves had not
examined the case files of the mental health professionals who had
treated Janey Doe.
The files of Rochelle Beley, including any reports therein
from Rivendell and ~illings Deaconess Hospital's 2-North
Psychiatric unit, were subjected to an in camera inspection by
defense counsel. The prosecutor also agreed to ask psychotherapist
Sandi Burns to bring her records for a similar in camera
inspection, but defense counsel made no further request for
inspection.
While allowing an inspection of Rochelle Beleyls file, the
District Court denied motions as to all other records. Dr. Sievert
did not testify at trial, nor did defendant subpoena him. Both Ms.
Burns and Ms. Beley testified at trial and defense counsel cross-
examined them without restriction.
We find that defendant was not denied either his right to
confront witnesses or his due process rights because of the
District Court's refusal to grant defendant's motion to obtain all
Janey Doe's medical and psychiatric records. We adopt the
reasoning of our sister court in Colorado which held:
[Tlhe right of a defendant to confront his
accusers is not equivalent to a
constitutionally compelled rule of pretrial
discovery. Rather, the right of confrontation
is a trial right, guaranteeing an opportunity
for effective cross-examination. See
Pennsylvania v. Ritchie, 480 U.S. 39, 107
S.Ct. 989, 94 L.Ed.2d 40 (1987). (Emphasis in
the original.)
People v. Exline (Colo. App. 1988), 775 P.2d 48, 49. Additionally,
the United States Supreme Court has held that:
The ability to question adverse witnesses,
however, does not include the power to require
the pretrial disclosure of any and all
information that might be useful in
contradicting unfavorable testimony.
Pennsylvania v. Ritchie (1987), 480 U.S. 39, 53, 107 S.Ct. 989,
999, 94 L.Ed.2d 40, 54. (Footnote omitted.)
As we noted in a recent case, because defendant was afforded
the opportunity to cross-examine all witnesses against him, the
court's ruling denying defendant access to the victim's child abuse
files of certain state agencies does not violate defendant's right
to confront his accusers. State v. hi el (Mont. 1989), 768 P.2d
We further hold that the medical records pertaining to the
victim's psychotherapeutic treatment are protected from disclosure
by various recognized testimonial privileges which outweigh the
defendant's purported need for or limited right to such information
in the hands of a non-adversary third party. Section 26-1-807,
, Y
MCA, provides an unqualified privilege for confidential
communications between a psychologist and client. The District
Court acted properly in denying defendant's motion to obtain access
to Dr. Sievert's, Sandi Burns1 and Dr. Newrnan1s records pertaining
to Janey Doe.
Issue 111: Was it plain error to permit the
use of expert testimony to identify the
defendant Janey Doe as the victim of sexual
abuse?
Defendant argues that even though no objection was made at
trial, the admission of testimony by Rochelle Beley and Sandi Burns
indicating Janey Doe had been sexually abused was improper because
it was not scientifically reliable. Defendant claims the issue is
reviewable, however, under Rule 103 (d), M.R. Evid., and our previous
decision in State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588,
as Itplain error. l1
The I1plain errorg1rule is subject, in criminal proceedings,
to subsection (2) of 5 46-20-701, MCA, which reads:
(2) Any error, defect, irregularity, or
variance which does not affect substantial
rights shall be disregarded. No claim
alleging an error affecting jurisdictional or
constitutional rights may be noticed on
appeal, if the alleged error was not objected
to as provided in 46-20-104, unless the
defendant establishes that the error was
prejudicial as to his guilt or punishment and
that :
(a) the right asserted in the claim did
not exist at the time of the trial and has
been determined to be retroactive in its
application;
(b) the prosecutor, the judge, or a law
enforcement agency suppressed evidence from
the defendant or his attorney that prevented
the claim from being raised and disposed of;
or
(c) material and controlling facts upon
which the claim is predicated were not known
to the defendant or his attorney and could not
have been ascertained by the exercise of
reasonable diligence.
Defendant presents no evidence that establishes the alleged
error was prejudicial as to his guilt or punishment and that meets
any of the three criteria listed in 5 46-20-701(2), MCA.
We have stated before that when expert testimony in child
sexual abuse cases has not been objected to at trial as improper,
this Court will not entertain the issue on appeal. State v. Eiler
(1988), 234 Mont. 38, 52, 762 P.2d 210, 219.
We affirm the decision of the District Court.
We concur: /1