Opinion
ID No. 0607009414, IN-06-11-2659.
Submitted: November 6, 2007.
Decided: November 28, 2007.
Upon Motion of Defendant for Brady Material — DENIED in part and GRANTED in part.
Upon Motion of Defendant Pursuant to § 3508 — DENIED without prejudice.
Upon Motion of the State to Quash — DENIED in part and GRANTED in part.
James J. Kriner, Esquire, and James J. Maxwell, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, attorney for State of Delaware.
Robert M. Goff, Jr., Esquire, Wilmington, Delaware, attorney for defendant.
MEMORANDUM OPINION
The defendant, Nakia Davis, is charged with one count of rape second degree. The complaining witness as of the time of the alleged offense, sometime between June 1 and June 30, 2006, apparently had not reached her fourteenth birthday. The current trial date is set for December 4, 2007.
The Court has before it three motions in the case: (1) a motion to quash a defense subpoena issued to the Division of Child Mental Health and the Division of Family Services, (2) a motion for Brady material, and (3) a motion to permit evidence of alleged other sexual conduct of the complaining witness.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963).
Davis' counsel states, and the State does not dispute, that on a prior trial date (which one is unclear), the prosecutor allowed him to read, but not copy, diaries which the complaining witness wrote. Supposedly, the diaries recount "sexual encounters" with other males and "Kiki" which is or may be Davis' nickname. Counsel recites that there may have been entries reflecting sexual fantasies.
Defendant's Brady motion, ¶ 2.
In addition to being able to review these diaries, counsel states the prosecutor also allowed him to see crime reports. In those crime reports, he says there was a reference to a recent Terry Center admission by the complaining witness. Seeing that prompted him to have a subpoena issued for those records. That subpoena led to the motion to quash.
In the State's response to Davis' request to see the Terry Center records, it indicates arrangements were made for defense counsel to see them, but counsel has not yet done so.
That response was filed November 6, 2007. The Court has not been informed whether defense counsel has seen the records.
Defense counsel further recites that he asked the prosecutor on another occasion if there were crime reports reflecting investigation into other sexual incidents which the complaining mentioned in her diaries. Counsel goes on to state that prosecutor said there may have been other investigations, he did not provide any other specifics. The State's response to Davis' motion, the prosecutor states:
The State is unaware of and has not located, through reasonable investigation, any information relating to investigations, which would be considered exculpatory or otherwise subject to disclosure pursuant to Brady v. Maryland.
State's response to Davis' Brady motion.
In Davis' motion to allow him to introduce evidence of the complaining witness' (alleged) other sexual misconduct, he incorporates all of the claims noted above from his Brady motion.
The Court will first address Davis' Brady requests which encompass several items.
Terry Center Records
This request appears moot. Davis' subpoenas for them prompted the motion to quash. Counsel for the Division of Child Mental Health wrote the Court on October 9, 2007, saying that he had turned over the Terry Center records to the prosecutor. In turn, as noted, the prosecutor has informed the Court that he has made arrangements for Davis' counsel to review the records but counsel has not yet done so. At this stage, the Court sees no reason for it to further opine on this request.
Division of Family Services Records
The motions and communications with the Court are not as clear about whether these records are now in the hands of the prosecutor. The State's response to the Brady motion was:
The State is unaware of any information in the D.F.S. records that would be subject to disclosure pursuant to Brady v. Maryland. The defense has not articulated any reason to suspect there is helpful information in the file.
State's response to Brady motion.
The Court views this request, even with the subpoena, as more controlled by State v. Madric than State v. Wood. The issue is not what the defendant needs to show to get a subpoena under Rule 17. Both parties to this action rely upon Brady. Although Madric discussed the very limited role and use of subpoenas as a "discovery" tool in a criminal case, the emphasis of the opinion revolved around Brady.
1989 WL 124900 (Del.Super.).
2007 WL 441953 (Del.Super.).
Id. at 5.
That case requires the State to disclose to a defendant evidence favorable to a defendant which is material to the defendant's guilt or innocence. The defendant's request for the DFS records would fall within potential use for impeachment. That kind of evidence is encompassed within Brady. Normally, pretrial production of impeachment evidence is not permitted. It would be required after a witness has testified.
Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L.Ed.2d at 218; See also Michael v. State, 529 A.2d 752, 755 (Del. 1987).
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L.Ed. 2d 104 (1972).
McBride v. State, 477 A.2d 174, 181 (Del. 1984).
But there can be a pretrial obligation to disclose impeachment information which arises under Brady. As stated in Madric regarding pretrial or during trial disclosure and Brady's "materiality" prong:
The 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. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L.Ed.2d 481, 494.
Bagley requires reviewing courts to directly assess any adverse effect that the prosecutor's failure to disclose might have had on the preparation or presentation of the defendant's case. The reviewing court must also assess the effect of the nondisclosure given the totality of the circumstances. Michael, 529 A.2d at 757.
Paraphrasing Michael, this Court is called upon to determine, given the totality of the circumstances, whether there is sufficient probability of a different outcome of trial if the victim's full, prior mental health records are not disclosed to mandate such disclosure.
Madric, 1989 WL 124900 at *4.
The defendant has done virtually nothing to demonstrate why he should see the DFS records. He assumes, without offering any foundation, that there could be something of Brady nature in them. Even if the Court considers the other matters he cited in his " Brady" motion there still is nothing to warrant an in camera review or otherwise. While ambiguous, as noted earlier, the State's response to the defendant's request for these records implies it examined them and found nothing of a Brady nature in them. Further, the defendant has not made the showing that either Madric or Wood requires to overcome the motion to quash the subpoena.
Crime Reports
Davis' request for "crime reports" involves two categories of such reports. One is the report for this case. At or around an earlier trial date, the prosecutor, the defendant relates, allowed his counsel to examine "crime reports in this matter." He seeks them now in his " Brady" motion. The only subject about which he says he learned from the review of the reports is of the Terry Center admission.
The State's response to the Brady motion took no position on the crime report request. Rule 16 does not, of course, require the State to produce "police reports" in general. Here, however, the prosecutor has apparently allowed counsel to read the investigative reports in this case. That should be allowed to happen again. To put it another way, the prior production of these reports renders moot the need to renew this request.
The second category of crime report which Davis seeks in his " Brady" motion are any reports concerning investigations into the victim's alleged encounters with other adult males. Unlike the "crime report" for this incident, the State had not shown any copies of such reports to defense counsel. This second category of report arises from diary entries referring to other alleged encounters with adult males.
The State's response to this second category is ambivalent. It seems to say that after a diligent search it found no investigative reports or that it found such reports but after examining them, ascertained there was no Brady material in them. That ambivalence is not helpful to the Court.
The Court will assume for purposes of this opinion that the State (1) found reports of other complaints but (2) learned nothing of a Brady nature when reading them. At this point, Davis' request does not rise to the level where the Court will order it to produce for pre-trial, in camera inspection of any such reports. But, direct and/or cross examination may prompt a need to revisit this issue at trial. To avoid trial interruption, the State may consider whether to let Davis' counsel examine any such report prior to the trial. In any event, if there are such reports of other incidents, the State should bring copies to court for the trial judge to review. There are serious issues of relevancy as well as the key issue of credibility to be weighed.
The disposition of Davis' " Brady" motion resolves, too of the Division's motion to quash.
Prior Sexual Conduct
Davis has filed a separate motion to allow him to admit alleged prior sexual conduct of the complaining witness. He invokes 11 Del. C. § 3508. The basis for this motion derives from his counsel's review of the complaining witness' diary entries. He says they mention other sexual encounters with adult males. The defendant was thirty-one at the time of this alleged offense and the complaining witness was thirteen. Davis also says his counsel's review of her diaries mentions some sexual fantasies.
This information was obtained from the bail commitment and probable cause documents.
Davis' motion is notarized. The State, in opposing it, argues that the motion is not supported by an affidavit. There is noseparate affidavit but counsel's signature and the statements in the motion were sworn to. Included in those statements was one incorporating all the points Davis had raised in his Brady motion. Those points were covered earlier in this opinion.
Concerning § 3508, the Supreme Court has said:
Evidence of the prior sexual conduct of an alleged rape victim is admissible only when the statutory procedure is followed and the Court determines that the evidence proposed to be offered by the defendant regarding the sexual conduct of the alleged victim is relevant. Before offering evidence of prior sexual conduct to attack the credibility of the complaining witness, the defendant must make a written motion stating that the defense has an offer of proof concerning the relevance of the evidence to be used to attack the complainant's credibility. If the Court finds that the offer of proof is sufficient, the court must order a hearing out of the presence of the jury and allow the complaining witness to be questioned regarding the offer of proof made by the defendant. At the conclusion of the hearing, the Court may issue an order allowing relevant evidence to be introduced by the defendant.
Wright v. State, 513 A.2d 1310, 1314 (Del. 1986).
While not in the preferable form or format for a § 3508 motion, Davis has minimally complied with the initial procedural threshold of that statute by the notarization. The important issue remains; however, has Davis made an adequate offer of proof to warrant going to the next step, that of having a hearing outside the presence of the jury?
Davis' reasoning for the admissibility of alleged other sexual conduct by the complaining witness is that such other activity would impeach her diary entries and testimony against him.
Since Davis has incorporated into his § 3508 motion the points he made in his " Brady" motion, he seeks the admission of the diary entries about alleged sexual encounters with other adult males. One such male is "Kiki" who is or may be Davis.
The decision to admit such prior or other conduct evidence involves a balancing test. The defendant has a constitutional right of confrontation which must be respected and scrupulously protected. On the other hand, the Court should avoid mini-trials within a trial or placing complaining witnesses in unduly embarrassing situations or, worse, be discouraged from reporting or testifying.
Id.
On the record presented, the Court finds Davis has made an insufficient showing to justify going to the next step in § 3508, that of an evidentiary hearing. In its basic terms, Davis' offer is that an under age complaining witness' other sexual encounters are a fortiori admissible under § 3508. This Court is not prepared to go that far.
The record presented does not show the circumstances of this alleged incident, the relationship, if any, between Davis and the complaining witness at or before the alleged rape, whether there may be a motive for her to name Davis, or the presence or absence of other witnesses or evidence.
In his " Brady" motion, Davis referred to alleged actual encounters and to recitations of sexual fantasies. As it stands now and on the record presented, the admissibility of any fantasies in her diary may be an easier call. And that admissibility may have nothing to do with § 3508. On the other hand, the record so far is less complete concerning supposed actual encounters and admissibility under § 3508. The Court will not rule out the fact that these "encounters" could become admissible after a more complete record is made or after any evidentiary hearing at trial.
Davis' § 3508 motion is DENIED without prejudice.
Conclusion
For the reasons stated herein:
1. Defendant Nakia Davis' Brady motion is DENIED in part and GRANTED in part.
2. Defendant Nakia Davis' § 3508 motion is DENIED without prejudice.
3. The Division of Family Services motion to quash is DENIED in part and GRANTED in part.
IT IS SO ORDERED.