Court of Appeals of Missouri, Eastern District, Second Division
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Not Final until expiration of the rehearing period. See MO R RCP Rule 84.16 regarding unpublished opinions.
Appeal from the Franklin County Circuit Court. Honorable John B. Berkemeyer.
FOR APPELLANT: Frank K. Carlson, Carlson Law Firm, Union, Missouri; Sarah K. Tupper -- Co-Counsel, Carlson Law Firm, Union, Missouri; Blake R. Fischer -- Co-Counsel, Eureka, Missouri.
FOR RESPONDENT: Andrew C. Hooper, Assistant Attorney General, Jefferson City, Missouri.
Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.
Philip M. Hess, Judge.
Brad Julius (Defendant) appeals from his judgment of conviction of sexual assault. On appeal, Defendant raises seven points, alleging that the trial court unduly restricted pre-trial discovery, committed four separate instructional errors, and erroneously declined to admonish the jury and grant a mistrial after the prosecutor misstated the law during closing argument. Defendant additionally claims that these errors had a prejudicial cumulative effect. We affirm.
In April 2011, Victim went on a date with a former boyfriend (friend), where they shared a bottle of wine. Afterward, the victim and her friend went to a bar in Union, Missouri, sharing a partial bottle of wine on the way. At the bar, Victim visited with her friend and he bought her another glass of wine. Victim then went to visit Defendant and his friend, Matt Rogers, who were also at the bar, during which time Victim continued to drink alcohol, consuming two or three " jack and Cokes." Victim told Defendant that she and her friend were just friends and that she did not want an intimate relationship with him. Defendant told Victim that it " look[ed]" like Victim's friend " want[ed] more" and Defendant asked for her phone number so that he could call and " check on" Victim later. After declining a ride from Defendant and Rogers, Victim returned to her home with her friend, where they opened another bottle of wine and talked.
During that time, Victim received several texts from Defendant, to which she replied that she was " fine" and did not need Defendant and Rogers to come over. Rogers then called Victim and asked whether he and Defendant could come over for some beers. Rogers indicated that if he and Defendant came over, Victim's friend would leave. Victim did not want her friend to spend the night, so she told Defendant and Rogers that they could come over. Victim's friend then left her house.
When Defendant and Rogers arrived, the three drank more wine and each had a shot of hard alcohol. After that, Victim was only able to remember " bits and pieces" of the night and felt like her body was " shutting down." Victim recalled going to the living room to listen to music and dance and then leaving to go lay down. As she walked into the kitchen, Defendant grabbed her upper body and told her that he and Rogers were " going to run a train on [her]." Defendant guided, and " kind of carried," Victim toward her bedroom where Defendant then had sexual intercourse with Victim. At the time, Victim could not move or talk. After Defendant and Rogers left, Victim lost consciousness. Several weeks later, Victim reported what had happened to the police. Defendant was arrested and charged with one count of sexual assault.
Before trial, Defendant conducted a deposition of Victim, during which Victim refused to disclose her ex-husband's phone number and her victim impact statement. Defendant recessed the deposition to a
later date. Defendant then filed a motion for sanctions for Victim's failure to answer questions during her deposition. Defendant also filed a notice to take the depositions of Victim's medical and psychological providers, Doctors Christy Bleckman and Timothy Jones respectively, and filed subpoenas for Victim's medical and psychiatric records. Victim moved to quash Defendant's request for discovery and for the subpoenas. The trial court granted Victim's motion to quash and denied Defendant's motion for sanctions.
Defendant then moved for reconsideration of the trial court's order sustaining Victim's motion to quash and denying Defendant's motion for sanctions. In his supporting memorandum, Defendant asserted that Victim had waived the physician-patient privilege as to Drs. Bleckman and Jones and that no in camera review of the requested records was necessary. Defendant further asserted that denial of access to the records would deprive him of his rights to a fair trial, to present a defense, and to confront witnesses against him. The information contained in the records, according to Defendant--including, Victim's contradictory out-of-court statements regarding the crime, false claims of prior rapes, her inability to recall the crime because of her use of psychiatric medications--was necessary to impeach Victim's credibility. The trial court, in denying Defendant's motion for reconsideration, did not conduct an in camera review of the records, but apparently considered the records privileged by indicating that it would weigh Defendant's need for the information against Victim's interest in keeping the records private. Ultimately, the trial court's order permitted further deposition of Victim limited to the events on the night in question, but permitted Defendant to " continue discovery (including deposition and records)" if Victim had sought professional medical, psychiatric or psychological treatment for conditions related to the crime since the date of the assault. The order prohibited discovery of medical, psychiatric or psychological conditions before the date of the crime unless the " medical, psychiatric or psychological professional" found the information " necessarily related" to the instant crime.
Ultimately, the jury convicted Defendant of sexual assault. The trial court sentenced Defendant to five years' imprisonment in the Department of Corrections. The trial court suspended execution of the sentence and Defendant was placed on probation for five years. This appeal followed.
Point I: Pre-Trial Discovery
In his first point, Defendant claims that the trial court abused its discretion by sustaining Victim's motion to quash Defendant's subpoena of Victim's medical and psychiatric records, overruling Defendant's motion for sanctions for Victim's failure to answer questions during her deposition, and denying Defendant's motion for reconsideration of these same issues and limiting the reconvened deposition of Victim to the events on the date of the crime. According to Defendant, the trial court's actions in this regard deprived Defendant of
his rights to present a defense, to confront the witnesses against him, to due process of law, and to a fair trial.  While Defendant's initial brief does not elucidate what information was contained within the records of which he was deprived that would have assisted him in preparing a defense--and, thus, does not explain how the trial court's allegedly erroneous decisions prejudiced Defendant--Defendant's reply brief cures these deficiencies. We, therefore, review this point ex gratia.
In particular, Defendant's reply brief explains that Victim's psychiatric records would have shown that Victim saw Dr. Jones for counseling related to the event and that Victim's crime victim compensation records would have revealed that Victim had a pecuniary motive to obtain payment for her pre-existing psychiatric disorders and a remodel of a home. Victim's medical records, according to Defendant, would have shown that: (1) at the time of the crime, Victim was prescribed heavy psychoactive medications; (2) Victim had been treated for serious psychiatric disorders, including bi-polar disorder; (3) Victim had previously claimed in 2006 or 2007, and again in 2010, that she had been date-raped; and, (4) Victim had possibly been given a date-rape drug on the night at issue. Defendant claims that because he was not permitted discovery of these records, nor was he permitted to depose Victim as to the matters therein, that Defendant was deprived of the opportunity to cross-examine Victim as to her testimonial incapacity, her prior inconsistent statements of the alleged events, her pattern and practice of false accusations of rape, her motive to fabricate, her absence of then-present memory,
and her drug use at the time of the crime. The State responds by arguing that no abuse of discretion occurred because the requested information was neither material nor favorable to Defendant and Defendant was not prejudiced as a result.
" Claims that a trial court denied meaningful discovery are reviewed under the abuse of discretion standard." State v. Hawkins, 328 S.W.3d 799, 808 (Mo. App. S.D. 2010). " A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004) (quotations omitted). It cannot be said that the trial court abused its discretion if reasonable persons can differ as to the propriety of the trial court's action. Id. Further, when considering a claim that a defendant was denied meaningful discovery, this Court will determine whether the trial court abused its discretion " in such a way as to result in fundamental unfairness." State v. Artis, 215 S.W.3d 327, 337 (Mo. App. S.D. 2007) (citation omitted). " Fundamental unfairness occurs when the state's failure to disclose results in defendant's genuine surprise and the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the evidence." Id.
In the context of a pre-trial discovery dispute, like the instant case, a trial court is required to balance the State's interest in preserving the confidentiality of records that may contain privileged information, such as medical and psychiatric records, with a defendant's right to a fair trial. See Hawkins, 328 S.W.3d at 808-09. A defendant's due process rights, as well as his rights to confront witnesses and to present a defense are not, however, absolute. See, e.g., State ex rel. White v. Gray, 141 S.W.3d 460, 464 (Mo. App. W.D. 2004). When a defendant seeks potentially privileged information, the proper procedure for protecting confidentiality and the defendant's due process rights is for the trial court to conduct an in camera review to determine whether the records are actually privileged and, if so, whether, under the circumstances of the case, the asserted privilege should yield to the defendant's specific need for the evidence. Artis, 215 S.W.3d at 337; State v. Stewart, 18 S.W.3d 75, 94 (Mo. App. E.D. 2000).
Notably, Defendant in the trial court proceedings expressly asserted that no in camera review was necessary, and that the material was discoverable, because Victim had waived the physician-patient privilege. Regardless of whether Victim waived the privilege, " a defendant is not entitled to information on the mere possibility that it might be helpful, but must make some plausible showing [, which is supported by a factual predicate,] how the information would have been material and favorable." Taylor, 134 S.W.3d at 26-7 (quotations and footnote omitted) (emphasis added). Put another way, a defendant must allege specific facts showing
how the information is both favorable and material. State v. Davis, 186 S.W.3d 367, 372 (Mo. App. W.D. 2005). " 'Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.'" Gray, 141 S.W.3d at 464 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)). " The policy behind the rule is to make sure that the 'quest for [the privileged information] is not merely a desperate grasping at a straw.'" Davis, 186 S.W.3d at 372 (quoting State ex rel. St. Louis County, Mo. v. Block, 622 S.W.2d 367, 372 (Mo. App. E.D. 1981)). Further, material that is not privileged may be obtained through discovery if it is relevant to the subject matter in the action. State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 410 (Mo. banc 1996). " Evidence that is relevant includes that which is reasonably calculated to lead to the discovery of admissible evidence." Davis, 186 S.W.3d at 372.
Applying these standards, this Court has upheld the denial of discovery where a defendant merely alleged that it was possible that the victim's counseling records contained impeachment evidence, reasoning that the defendant was not entitled to the records on the mere possibility that the information might be helpful to his case. State v. Seiter, 949 S.W.2d 218, 220-21 (Mo. App. E.D. 1997). Similarly, this Court upheld the denial of discovery where a defendant made a general assertion that victim's hospital records would contain evidence that the victim used drugs at the time of crime that would be useful to impeach victim, because the defendant did not present specific facts to establish what information was in the requested records that would be favorable to him. State v. Goodwin, 65 S.W.3d 17, 21 (Mo. App. E.D. 2001). Comparatively, this Court concluded that the trial court erred in denying an in camera review of the victim's psychological ...