Griego v. State

Steffen, C. J.,

concurring in part and dissenting in part:

Believing strongly that the majority has misread and misapplied this court’s opinion in Keeney v. State, 109 Nev. 220, 850 P.2d 311 (1993), I am forced to dissent from the reversal of Griego’s sexual assault convictions.

Simply stated, the majority has reversed Griego’s convictions for sexually assaulting the two minor victims, John and William M., under the erroneous conclusion that Keeney required the district judge to grant Griego’s request to have John and William examined by a psychologist. In reaching its conclusion, the majority has failed to recognize both the burden of proof below and the standard of review that governs our review of this appeal.

The four Keeney factors weighed dispositively by the majority are qualitatively subject to a demonstration by the defendant that there is a compelling reason for having the minor victims examined by mental health professionals. Keeney qualified the four factors by placing them within the context of a compelling standard of proof shouldered by the defendant. Keeney, 109 Nev. at 224, 227, 850 P.2d at 314, 316.

The proper standard of review on the instant issue is also set forth in Keeney immediately following the recital of the four factors analyzed by the majority. We held that “[i]t remains within the sound discretion of the district court whether to grant a defendant’s request for a psychological examination of the victim. The district court should base its decision on the facts and circumstances of each case and the law as reaffirmed herein.” Id. at 226, 850 P.2d at 315. It is thus clear that the standard of review the majority should have applied in deciding this issue is an abuse of discretion standard. Instead the majority simply substituted its own view of the weight of the proof and the facts for that of the trial judge and the jury.

In addition to the misperceived burden of proof and standard of review, I suggest that the majority’s analysis of the record is seriously flawed. Illustrative of the premise is the majority’s conclusion respecting the third Keeney factor, that corroborative *453evidence of Griego’s crimes, beyond the testimony of the two minor victims, is de minimis. First, Dr. Diane Goebel, a pediatrician, testified that John had anal fissures consistent with anal penetration or constipation. Second, pediatric nurse Katherine Peele testified that John had a wedge-shaped “tag” on the opening of his rectum caused by external trauma consistent with penetration. She also testified that William had a large healed scar with a fold of thickened skin on his rectum consistent with past trauma which could include penetration. Peele stated further that she had examined over 800 alleged victims of child sexual abuse and that William’s rectal scar was the largest she had ever seen. This evidence is hardly de minimis.

Moreover, we have held that the testimony of a victim and a percipient witness “constitutes substantial evidence supporting the conviction.” Washington v. State, 96 Nev. 305, 308, 608 P.2d 1101, 1103 (1980). The record reflects that the victim John M. testified as follows:

Q. Did anybody see you put your penis in Mr. Griego’s butt?
A. My brother did.
Q. And what’s your brother’s name?
A. William.
Q. Did William ever see anything else happen between you and Mr. Griego?
A. He seen some other stuff, but I can’t remember.
Q. Did you ever see anything between Mr. Griego and your brother William?
A. Yes.
Q. Can you tell us what you saw Mr. Griego do to your brother William?
A. I saw him suck on my brother’s private before.
Q. When you say “private,” what are you talking about? A. Penis.
Q. And what else?
A. That’s mostly all I saw.

The record also reflects the following testimony by the victim William M.:

Q. Did Mr. Griego do anything to your brother John?
A. Yes.
Q. What did you see him do to your brother John?
A. Well, I seen him try to put his penis up John’s butt.
Q. Where were you when this would happen?
A. Sitting down.
Q. And what did you see happen?
A. He tried putting his penis up John’s butt.

*454I suggest that the record evidence repels the notion embraced by the majority that the third Keeney factor was satisfied.

The majority, reweighing the facts and overruling the jury, have concluded that the facts demonstrate a reasonable basis for believing that the victims’ mental or emotional state may have affected their veracity. The majority thus concludes that the fourth Keeney factor was also satisfied. Singling out a small part of John M.’s testimony on cross-examination wherein the child answered “no” to defense counsel’s question, “[c]an you remember which things people told you and what you remember all by yourself,” the majority reaches the remarkable conclusion that “this reply unquestionably places John M.’s veracity in issue.”

I question the propriety of an appellate methodology that yields the conclusion, from a cold record, that John M.’s truthfulness was negatived by a quantitatively insignificant part of the child’s overall testimony elicited under the stress of defense counsel’s cross-examination. A review of the totality of John M.’s testimony explains why the jury, endowed with the office of fact finder in our criminal justice system, believed the young victim.

Similarly, the majority casts aside the deference usually accorded on review to live testimony and demeanor heard and observed by the jury. From the lifeless appellate record, the majority determines that a combination of the “multitude” of defense witnesses who described John and William M. as habitual liars, and the evidence of bad feelings between Griego and the father of the two victims, overrides the jury’s “on site” determination that the two minor victims were being truthful.

According no deference to the district court’s discretionary call and the discernment of veracity by the jury, the majority, who places its imprimatur on Griego’s conviction of lewdness with one young neighborhood boy, Robert C., concludes that despite all the inferences to be drawn from the Robert C. incident, the veracity of the two other victims is sufficiently questionable to require a new trial after the victims have been examined by another mental health expert. I strongly disagree.

There are other reasons why I am troubled by the majority opinion. Succinctly stated, they are as follows:

(1) Despite the unanimous conclusion by this court, clearly evidenced and effectuated in Keeney, that Lickey v. State, 108 Nev. 191, 827 P.2d 824 (1992), needed to be retrenched, the majority effectually pledges re-obeisance to the very factors in Lickey that this court renounced in Keeney.

(a) The majority revitalizes the Lickey conclusion that “[njumerous jurisdictions, as well as general notions of fairness, dictate that failure to provide equal access to expert psychiatric witnesses prejudices the defense.” Lickey, 108 Nev. at 194, 827 *455P.2d at 825 (1992). The still-drying print from Keeney declared: “Lickey was never intended to create a simple equation (absent a compelling need to protect the child) granting a defendant the automatic right to have an alleged child-victim of sexual abuse examined by a defense psychiatrist or psychologist whenever the State has employed such experts. Such a mechanical balancing of the trial ledger would frequently subject children who are victims of sexual abuse to unfair, unnecessary trauma, and would constitute a needless and time-consuming expense unless the criteria enunciated in Washington [Washington v. State, 96 Nev. 305, 608 P.2d 1101 (1980)] exist.” 109 Nev. at 226, 850 P.2d at 315. The majority appears to have disregarded stare decisis and reinstated the wooden formula that “lack of equal access = prejudicial error.”

(b) The majority in the instant case declares “that absent an affirmative, compelling showing by the State that the alleged victim is in need of protection, the second Keeney factor favors examination of the alleged victim by a mental health expert employed by the defendant.” Keeney held that “[o]ur conclusion in Lickey was not intended to place the burden on the State to demonstrate a compelling reason for denying a psychological examination in every sexual assault case. 109 Nev. at 226, 850 P.2d at 315. Moreover, we emphasized at least twice in Keeney that the burden is on the defendant to show, by compelling reasons, that the defendant is entitled to have a mental health expert examine the victims. 109 Nev. at 224, 227, 850 P.2d at 314, 316.

The majority has seemingly readopted the position originally embraced in Lickey and retrenched by Keeney. In Keeney, we quoted from Lickey: “‘[U]nless competent evidence presents a compelling reason to protect the victim, it is error to deny a defendant the assistance of a defense psychologist or psychiatrist to examine the child-victim and testify at trial when the State is provided such assistance.’ ” 109 Nev. at 225, 850 P.2d at 314-15 (quoting Lickey, 108 Nev. at 195, 827 P.2d at 826, alteration in original). We then took pains to clarify our Lickey statement as noted:

In so concluding, we were convinced that Lickey had satisfied the mandates of Washington, and presented a compelling reason why a psychological examination of the victim should be permitted. Therefore, we held that the district court should have afforded Lickey an opportunity to have the child examined, absent a showing by the State that a compelling reason existed to protect the child-victim.

Keeney, 109 Nev. at 225-26, 850 P.2d at 315. The “mandates of Washington,” which we reaffirmed in Keeney, were discussed and identified as follows:

*456Whether a psychiatric examination of a victim of a sexual assault is appropriate is a matter left to the sound discretion of the trial court. [Citations omitted.] The trial judge should order an examination if the defendant presents a compelling reason for such an examination. Generally, there is no compelling reason for a psychiatric examination unless there is little or no corroboration of the victim’s allegations and the defense has questioned the effect of the victim’s emotional or mental condition upon her veracity.

Washington, 96 Nev. at 307, 608 P.2d at 1102-03 (citations omitted).

(2) The majority declares, with respect to Griego’s motion for a mistrial, that “the oral reference by the prosecutor (that Griego was in jail) simply was additional proof of what the jury already knew. Prejudice does not result from the jury hearing proof of what it has already seen.” It is elementary that statements of trial counsel are not proof or evidence of anything.

(3) The majority observes that Griego sought to bolster his claim of insufficiency of the evidence with respect to the conviction relating to Robert C. by directing our attention to the young people in the neighborhood who testified that Griego never exhibited any sexual deviancy toward them. The majority opinion then concludes that it is the province of the jury to determine the credibility and weight of conflicting testimony. I merely note that the testimony alluded to was not of a conflicting nature. The fact that Griego sexually molested three victims in his neighborhood is not in conflict with the proposition that he molested none of the other neighborhood children. The evidence alluded to by the majority was simply character evidence.

I realize that the last two points are of minor substantive importance and should ordinarily be corrected by the editing processes of a collegial body. I raise them only for purposes of highlighting what I respectftdly view as an essentially deficient opinion in almost all of its aspects. I fear the loss of respect for a court that engages in the form of undulating jurisprudence evinced by today’s opinion. I am also disappointed that the majority so easily disregards the burden of proof and standard of review that should have been dispositive of this appeal. In the aftermath of today’s opinion, surely confusion will reign in the minds of both prosecutors and defense counsel on the points of law announced by the court in support of its decision to reverse all but one of Griego’s convictions.

Respectfully, I dissent from all aspects of the majority opinion with the exception of the affirmance of Griego’s conviction on count XXI, lewdness with a minor.