State v. Barbera
Annotate this Case
State v. Barbera (2003-144); 178 Vt. 498; 872 A.2d 309
2005 VT 13
[Filed 09-Feb-2005]
ENTRY ORDER
2005 VT 13
SUPREME COURT DOCKET NO. 2003-144
MARCH TERM, 2004
State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 1, Windham Circuit
John Barbera }
} DOCKET NO. 1496-10-01 Wmcr
Trial Judge: Karen R. Carroll
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant appeals from a judgment of conviction, based on a
jury verdict, of sexual assault on a person under the age of sixteen, in
violation of 13 V.S.A. § 3252(a)(3). He contends: (1) the evidence was
insufficient to support the judgment; and (2) the court violated his right
to a fair trial by denying his pretrial motion to compel disclosure of the
victim's mental health records and refusing to order a psychological
evaluation of the victim. We affirm.
¶ 2. In August 2001, K.R. was in residential treatment at the
Brattleboro Retreat. She was thirteen years old, and had been in the
custody of the Department of Social and Rehabilitation Services for a
number of years. Unhappy with the objections of staff to her plan to
pierce her nose, K.R. ran away from the Retreat on August 13. She
eventually ended up at a nearby Wal-Mart, where she met defendant, who
offered her cigarettes and drove her back to his house. According to her
testimony, K.R. was in the bathroom about to take a shower when defendant
entered and kissed her. A short time later, defendant asked his daughter,
who was eight years old, to go outside. He then put on a pornographic
video and sat down to watch with K.R. Over her objections, defendant then
removed K.R.'s pants, attempted intercourse, ejaculated, and engaged in
oral sex. Later, defendant brought K.R. to a bus station, gave her
cigarettes and money for a bus ticket to New York, and left. K.R. rode the
bus to New York City, where the next day she was taken into custody by the
police and brought to Bellevue Hospital. A forensic examination for sexual
assault was performed, and the Brattleboro police were notified. They
picked her up that day and returned her to the Retreat, where she was
interviewed by the police, her SRS caseworker, and her treating
psychologist, Dr. Sacco-Laurens.
¶ 3. Kathleen Faxon, who worked with defendant's daughter through
the Big Sister Program in Brattleboro, testified that defendant later told
her about the incident, claiming that "[a]ll I did was whip my dick out in
front of [K.R.]." The forensic examination performed in New York confirmed
the presence of semen in K.R.'s anal area. K.R.'s journal for the period
in question corroborated much of her testimony concerning the incident.
¶ 4. The jury returned a verdict of guilty on the charge of sexual
assault. (FN1) Defendant was sentenced to a term of fifteen to twenty
years. This appeal followed.
¶ 5. Defendant first contends the evidence was insufficient to
support the judgment of conviction of sexual assault based on contact
between his mouth and the victim's vagina, as charged in the information,
because the only evidence in this regard was the victim's testimony that
defendant had kissed "[m]y crotch." This argument was not preserved for
review on appeal. Although defendant moved for judgment of acquittal on
the basis of insufficient evidence at the close of the State's case, his
only claim as to the sexual assault count was that the victim's testimony
was uncorroborated. Defendant also filed a post-verdict motion for
judgment of acquittal in which he asserted a general claim of insufficient
evidence, but again failed to argue that the evidence was insufficient to
show contact between his mouth and the victim's vagina. Accordingly, the
claim was not preserved for review on appeal. See State v. Crannell, 170
Vt. 387, 407-08, 750 A.2d 1002, 1019 (2000) (failure to raise claim of
insufficient evidence in motion for judgment of acquittal at close of
evidence, or to renew claim in post-verdict motion, forecloses appellate
consideration of sufficiency of evidence).
¶ 6. Defendant next contends the court erroneously denied his
pretrial motion to compel disclosure of the victim's mental health records
and to order a psychological examination of the victim by the defense
expert, thereby allegedly depriving him of his right to a fair trial. The
record reveals the following pertinent facts. In October and November
2001, defendant sent the State requests for discovery, seeking-among other
things-the victim's SRS, mental health, and medical records. The deputy
state's attorney, in response, informed defense counsel by letter that any
mental health records relating to the victim were not within the State's
custody and control and therefore not subject to compulsory disclosure
under V.R.Cr.P. 16, and, moreover, that such material was privileged. In
February 2002, defendant filed a motion to compel production of the SRS,
mental health, and medical records which defendant had previously
requested. Defendant argued that there was a strong likelihood the
records would confirm that the victim has "a long history of mental illness
which is so severe that it affects the reliability of her story." Defendant
cited previously disclosed information that the victim had informed the
investigating officers that she had run away from the Brattleboro Retreat
and had not taken her depression medication for several days prior to the
assault. Defendant supplemented the motion to compel with a separate
motion to dismiss for failure to provide discovery. The State opposed the
motions, asserting that it had complied with defendant's requests for
discoverable material within its possession and control
¶ 7. The court addressed defendant's motions in a brief entry
order in March 2002, ordering the State to produce certain SRS materials
for in camera review, but declining to order disclosure of the victim's
mental health records on the following grounds: "The defendant has failed
to make a particularized showing that mental health records are necessary
to the defense. The State does not have these records in its possession,
custody, or control, they apparently are not relying on these mental health
witnesses at trial and the items are protected by privilege." The court
subsequently disclosed some of the SRS records, including a redacted
treatment plan, dated July 25, 2001, which listed a number of the victim's
psychiatric diagnoses, including "PTSD" (post-traumatic stress disorder),
and the partial results and evaluation of the victim's performance on a
psychological test called "The Dissociative Experience Scale." (FN2)
¶ 8. Some six months later, in September 2002, defendant filed
another motion to compel, seeking an order not only requiring the victim to
produce her mental health records, but also to submit to a psychological
examination. Defendant asserted that the victim had exhibited an inability
to recall details of the assault and had become hostile and confused in
response to certain questions at her deposition. Defendant also noted that
the records released by the court after in camera review revealed that the
victim had been diagnosed with a number of psychiatric syndromes, including
post-traumatic stress disorder and "[d]issociation and severe emotional
developmental disability" which defendant claimed had "a pronounced affect
upon her ability to discern fact from fantasy [and] her ability to
understand the consequences of falsification." The State opposed the
motion, asserting that defendant had failed to adduce sufficient grounds to
justify a compulsory independent psychiatric examination, and that the
requested mental health records were not in its possession and were
otherwise privileged.
¶ 9. The motion was heard in October 2002. Defendant argued that
the mental health records and examination were necessary to provide an
adequate basis for his mental health expert, Dr. Lawrence Bart, to diagnose
the victim and determine whether she suffered from a mental illness which
affected her ability to accurately perceive, recall, and recount events.
The court, in response, questioned whether it had the authority to require
the victim to submit to an independent psychiatric examination absent a
prior examination by the State's expert, expressed "concerns about
requiring a victim to undergo what really is the most intrusive sort of
evaluation that a person could go through," and ultimately denied the
request for an examination, concluding that defendant had adequate
alternative means of evaluating the victim's mental health. In this
regard, the court noted that its in camera review had resulted in
disclosure of the victim's previous diagnoses, that defendant's expert
could testify about the symptoms associated with these diagnoses, and that
the expert could review the victim's deposition to assess her emotional
reactions and responses. The court did not specifically address the
renewed motion to compel disclosure of the victim's mental health records.
Later, the court granted defendant's supplemental request to have Dr. Bart
in the courtroom during the victim's testimony to allow additional
observation and evaluation.
¶ 10. Turning first to defendant's claim that the court erred in
denying his request for the victim's mental health records, we conclude-for
the reasons explained below-that defendant failed to properly preserve this
issue for review. In State v. Percy, 149 Vt. 623, 635, 548 A.2d 408, 415
(1988), we recognized "the possibility that a case will arise where due
process will require some access to privileged information about a victim
not held by the State." There, as here, defendant had filed a pretrial
motion to compel the State to disclose certain mental health records
relating to the victim of an assault. We upheld the trial court's denial
of the motion, concluding that defendant's request was fatally deficient in
two respects. First, we held that to overcome the important policies
protecting such sensitive information requires "the most compelling
justification," and that defendant -having failed to make any
particularized showing as to how the information would help his
defense-could not meet this standard. Id.
¶ 11. Second, we held that the procedural method utilized by
defendant-a discovery request addressed to the State to disclose
information not in its possession and control-was inadequate. If the
defense believes that it has a legitimate need for such information in the
hands of other agencies, we explained, it must utilize its discovery powers
to seek to acquire it directly. "Ordinarily, this means use of depositions
and subpoenas if necessary. See V.R.Cr.P. 15, 17. Then, the trial court
can make an informed ruling that weighs the competing interests." Id. at
635-36, 548 A.2d at 415; see also State v. Roy, 151 Vt. 17, 34, 557 A.2d 884, 894 (1989) (defendant who sought access to state trooper's personnel
file should have attempted to subpoena records from custodian rather than
request disclosure from prosecution). We observed that this procedure was
used in Pennsylvania v. Ritchie, 480 U.S. 39, 57-60 (1987), the seminal
United States Supreme Court decision recognizing a due process right to in
camera inspection of privileged materials in the prosecutor's file, and was
"described in detail" in State v. Esposito, 471 A.2d 949 (Conn. 1984).
Percy, 149 Vt. at 636 n.8, 548 A.2d at 415 n.8. "We approve of the
procedure outlined in Esposito," we concluded. Id.
¶ 12. The procedure outlined in Esposito and utilized in many
jurisdictions contemplates service of a subpoena duces tecum upon the
custodian of the mental health records sought to be disclosed, in camera
review of the records by the trial court, and a determination as to whether
they contain information critical to the defendant's ability to impeach the
witness and therefore warrant disclosure. Esposito, 471 A.2d at 956;
accord D.P. v. State, 850 So. 2d 370, 373-75 (Ala. Crim. App. 2002);
Commonwealth v. Barroso, 122 S.W.3d 554, 562-64 (Ky. 2003); People v.
Stanaway, 521 N.W.2d 557, 574-75 (Mich. 1994); State v. Duffy, 6 P.3d 453,
458-59 (Mont. 2000); State v. Ramos, 858 P.2d 94, 98-99 (N.M. Ct. App.
1993). If the court concludes that, in its judgment, the records contain
no information that should be disclosed, then the material may remain under
seal and "be made available for inspection on appellate review." Esposito,
471 A.2d at 956. (FN3)
¶ 13. Here, despite repeated admonitions to defendant that the
requested mental health records were not in the State's custody and
control, nothing in the record indicates-nor indeed does defendant even
contend-that he attempted to subpoena the records from their custodian (the
Brattleboro Retreat), as directed by Percy. Thus, the court was not
afforded an opportunity to review the records in camera and determine
either that they contained material that should be disclosed, or that they
revealed nothing critical to defendant's ability to impeach the victim and
order that they remain under seal and available for appellate review. It
is defendant's responsibility to ensure an adequate record for purposes of
appellate review. See Lorrain v. Ryan, 160 Vt. 202, 207 n.1, 628 A.2d 543,
547 n.1 (1993) (appellant carries burden of producing an adequate record to
support points appealed). This did not occur here. Accordingly, we are
unable to address defendant's claim that the court erred in denying the
motion to compel disclosure of the victim's mental health records.
¶ 14. Defendant also contends the court erred in denying his motion
to compel the victim to undergo an examination by his expert psychologist.
Although we have alluded to the possibility that there may be cases which
would warrant a court-ordered psychiatric examination of a victim, this is
not such a case. (FN4) The claimed justification for the examination here
was to provide a more complete diagnostic basis for the expert's assessment
of the victim's ability to accurately perceive, recall, and recount events
in light of her acknowledged psychiatric diagnoses. The same argument,
however, could be made for any assault victim with a history of mental
illness. Moreover, defendant had received documents describing the
victim's diagnoses and performance on a psychological test known as the
dissociative experience scale, and his expert, Dr. Bart, was afforded ample
opportunity to review these materials and to assess the victim's responses
and reactions to extensive questioning both at her deposition and at trial.
¶ 15. Based on these materials and observations, Dr. Bart was able
to testify with a reasonable degree of medical certainty that the victim
suffered from "post-traumatic stress disorder with some dissociative
characteristics." Dr. Bart explained at length the meaning of dissociation,
which he described as a "method of protection in which memory is changed in
order to not have to think about or re-experience the pain from an event."
People with the syndrome, he continued, "have some considerable difficulty
knowing which of their information came from imagination and which of their
information came from their environment. And . . . they really have
difficulty telling which is which." Dr. Bart's review of the victim's
diagnostic history and previous testing, and observations of "changes in
her emotionality and in her affect in response to questions," confirmed his
diagnosis that she suffered from the kind of disorder "in which memory
problems occur." Indeed, he concluded that the victim "in fact does have
significant problems with remembering accurately."
¶ 16. In view of the alternative sources of information that were
made available to Dr. Bart, and his unequivocal testimony at trial relating
to the victim's credibility, we are unable to conclude that the trial court
abused its discretion in finding that further invasion of the victim's
privacy through a court-ordered psychological examination was unnecessary.
See State v. Tonzola, 159 Vt. 491, 503, 621 A.2d 243, 249 (1993) (no error
in denying request for independent psychiatric exam where ample other
evidence was adduced relating to victims' ability to accurately recount
past events). Indeed, although Dr. Bart twice noted that he would have
liked to have interviewed the victim and seen all her records, he was also
insistent that it did not alter his diagnosis and conclusions concerning
the victim's memory problems. Accordingly, there was no compelling
necessity to have ordered a psychological examination of the victim in this
case. Thus, we discern no basis to disturb the judgment.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
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Footnotes
FN1. A second count of unlawful restraint had been dismissed by the court
at the close of the State's evidence.
FN2. Although apparently contained in the SRS casefile, these documents
appear to have been generated by other agencies.
FN3. There is some conflict among the courts as to whether-having found
that the records warrant disclosure-the trial court must obtain the
victim's waiver of the physician-patient privilege prior to release, on
penalty of precluding the victim from testifying, restricting the State's
ability to refer to the records, or some other appropriate sanction, see,
e.g., Esposito, 471 A.2d at 956, or whether the court may order disclosure
regardless of the victim's consent. See, e.g., Barroso, 122 S.W.3d at
564-65 (characterizing waiver requirement as "unworkable or unwieldy,"
particularly where the holder of the privilege is a minor and the court
must determine who has the authority to assert or waive the privilege on
the child's behalf). We did not address this specific issue in Percy, nor
need we consider it here, in light of defendant's failure to subpoena the
records in the first instance. Presumably, however, the court in this case
could have looked to SRS to assert or waive the privilege on K.R.'s behalf.
FN4. See State v. Weeks, 160 Vt. 393, 403, 628 A.2d 1262, 1267-68 (1993)
(reversing and remanding because state's expert exceeded his proper role at
trial, but noting that, absent reversal, Court "might be inclined to agree"
that denial of request for independent psychological examination violated
right to due process); State v. Tonzola, 159 Vt. 491, 502-503, 621 A.2d 243, 249 (1993) (finding no error in denial of request for independent
psychiatric evaluation of victims where defendant was able to adduce ample
evidence on issue of victims' competency by other means); State v. Ross,
152 Vt. 462, 466, 568 A.2d 335, 338 (1989) (recognizing that there may be
cases where due process right to reciprocal discovery requires court to
allow examination of victim by defense expert or prohibit state from
admitting testimony of its expert who had examined victim); Percy, 149 Vt.
at 635 n.7, 548 A.2d at 415 n.7 (citing a New Hampshire decision, State v.
Boisvert, 400 A.2d 48 (N.H. 1979), which allowed such examinations, and
noting that a court-ordered exam may actually involve "a lesser intrusion
on the victim's privacy" than disclosure of the victim's medical records
"since the use of the exam would have been apparent from the beginning");
State v. Gabaree, 149 Vt. 229, 231-32, 542 A.2d 272, 273-74 (1988) (holding
that where defendant failed to preserve the issue, denial of motion for
psychiatric examination of sexual assault victim was not plain error where
"defense counsel had ample opportunity to bring forth evidence of the
alleged victim's reputation for truthfulness").
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