Opinion
C.A. No. 0612011124.
Submitted: April 5, 2007.
Decided: May 16, 2007.
On Defendant's "Motion for Production of Brady Materials." DENIED.
Renee L. Hrivnak, Esquire, Deputy Attorney General, Department of Justice, Delaware 19801.
Eugene J. Maurer, Jr., Esquire, Delaware 19801.
Dear Counsel:
Defendant filed a "Motion for Production of Brady Materials" on February 15, 2007. The entirety of the basis for the request for "Brady Materials" is as follows (as taken from Defendant's submissions):
1. The Defendant is charges with two counts of rape in the second degree involving the daughter of the defendant's then girlfriend.
2. Although the incident in question is alleged to have occurred between June 1, 2006 and July 4, 2006, disclosure of the incident was not made until on or about November 28, 2006. There was an approximate five month delay between the incident's alleged occurrence and the disclosure.
3. Immediately prior to the disclosure in this case, the alleged victim was committed to the Rockford Center for unspecified reasons of which counsel is currently unaware.
4. Given the propinquity of the commitment to Rockford to the disclosure in this case, it must be inferred that the two are connected in some way. The circumstance[s] surrounding the commitment of the alleged victim together with the nature of the psychological treatment that was rendered in relation thereto is relevant to the reasons why the disclosure in this case was made. It may well be that the treatment rendered prompted the disclosure or alternatively it may well be that the victim sought to divert attention from the reasons for her commitment onto the defendant which would make her situation more manageable. In either event or in any event, the above referenced materials are necessary for the defendant to understand and cross-examine upon the victim's motives in the disclosure made.
Def. Mot. for Production of Brady Materials, D.I. 5.
Defendant further alleges in his April 5, 2007 reply letter-memorandum:
It is, of course, standard practice to subpoena records of this sort from the Rockford Center for trial, at which time some objection will ordinarily be interposed either by the State or representatives of the agency whose records are being subpoenaed. The Court will then be asked to review the records in camera to determine whether there is evidence found therein of a relevant, impeaching and/or exculpatory nature. The records are never turned over to the defense in the first instance. This is so since, as noted, Superior Court Rule 17 does not by its terms allow for the pretrial subpoenaing of witnesses or records by the defense.
. . . .
Although the State has provided police reports as to the purported reasons for the commitment, the defense has reason to believe that there were other factors prompting the admission. Counsel has been provided information that the admission was prompted in part by the victim's sexual behavior with some young men. If that is, indeed, the case, then this information is necessary to determine whether or not a motion pursuant to 11 Del. C. § 3508 needs to be filed relating to the victim's motive in belatedly disclosing an alleged sexual assault by the defendant. The information sought could be relevant to motive. If the victim's sexual activity with others led to her admission, then pretrial consideration of the admissibility of such evidence will be fostered by requiring production of the documents, at least to be reviewed by the Court in camera.
Def. Reply, D.I. 10.
In response, the State asserts that it has provided discovery "above and beyond Rule 16" and that the additional discovery that Defendant is requesting is not discoverable before trial. Specifically, the State contends that Defendant has not shown that the documents are evidentiary and relevant. Rather, the State characterizes Defendant's request for the Rockford Center records as a "fishing exhibition."
The records sought are not in possession of the State; therefore they are not discoverable pursuant to Brady or Superior Court Criminal Rule 16. Therefore, at the time set for argument on the motion on March 12, 2007, the parties agreed that the Court should treat the motion as the functional equivalent of a request for a subpoena for records, returnable before trial, pursuant to Superior Court Criminal Rule 17(c).
State v. Block, 2000 WL 303351, at *2 (Del.Super.) ("The holding in Brady is similar to Rule 16 in that it applies only to evidence which is in the possession of the State.").
It is well established that Rule 17(c) "is not a pre-trial discovery [r]ule and that [the Court] must guard against it being used as such, thus rendering Rule 16 meaningless." Consequently, Delaware courts place a "heavy burden" on defendants who attempt to use Rule 17(c) to gain access to documents otherwise not available through pre-trial discovery and repeatedly deny such attempts.
State v. Hutchins, 138 A.2d 342, 345-46 (Del.Super. 1957).
See State v. Madric, 1989 WL 124900 (Del.Super.) (stating that "the potential chilling effect on victims of crimes of release of such personal records has lead this Court and many others to deny requests for psychiatric examinations of victims in cases involving sex crimes unless the defendant meets a heavy burden of showing need for them"). See also State v. Wood, 2007 WL 441953 (Del.Super.); Block, 2000 WL 303351; State v. Redd, 1993 WL 258717 (Del.Super.); McBride v. State, 477 A.2d 174 (Del. 1984); Hutchins, 138 A.2d at 346.
This Court recently issued a decision that analyzed prior Delaware cases and thoroughly explained the purpose and scope of Superior Court Criminal Rules 16 and 17 as applied in sexual assault cases where medical records of alleged victims are sought by the defense prior to trial. In Wood, the Court outlined the procedure Delaware courts have adopted in such situations:
First, the defendant must be able to identify precisely the records he or she is seeking, and assert a "compelling basis" for the request. The Court will not permit a "fishing expedition" into the alleged victim's, or witness' medical and psychological history.
Second, defense counsel should attempt to procure the consent of the victim for release of the records before resorting to Rule 17 or the Court. Only in the event the victim refuses to consent should the defendant make an application to the Court pursuant to Superior Court Criminal Rule 17 for the issuance of a subpoena for the records to be reviewed by the Court.
Third, defendant must then demonstrate to the Court, with specificity, that the information he or she is seeking is relevant and material to his defense. Upon such a showing, the Court will then issue a subpoena for the records — returnable to the Court — for in camera review. The review should focus on whether the records are relevant and sufficiently material to the defendant's case that they should be turned over pretrial. The Court has discretion to decide the relevance to the victim's credibility. If so, they will be produced to the defense.
Finally, the State is only obligated to search for records relation to the alleged victim if the State is aware of their existence. Defendant may ask the State to inquire of the victim if these records exist although the State is not under an obligation to produce them. As noted, the State is only responsible for documents or records in its possession or control, or those that the victim has consented to disclosure. If the documents or records sought are not in the control or possession of the State, and the victim refuses to consent, then the defendant must first meet the criteria outlined above and either ask the Court for appropriate relief or wait until after the witness has testified at trial. Under no circumstances is the defendant entitled to the issuance of a subpoena duces tecum except for production on the day of trial, unless the defendant obtains prior Court approval.
Wood, 2007 WL 441953.
Id. at * 5-6.
Applying this procedure to the present facts, the Court finds that Defendant has not, on the present record, met his "heavy burden" to require an in camera inspection of the alleged victim's Rockford Center records at this juncture. Considering the highly personal nature of the records sought and the "long-standing policy supporting the privileged nature of those records," Defendant has not demonstrated a sufficiently "precise and compelling" justification for his request. Defendant apparently hopes to discover why the complaining witness waited almost six months before reporting the alleged incident with Defendant. However, the State has already produced a police report that contains reasons, which the State contends were given by the alleged victim, for her commitment to Rockford Center (skipping school, leaving her house at night, and threatening to kill her step-father) as well as information about when and how she reported the alleged incident.
Madric, 1989 WL 124900, at *3.
In addition, defense counsel has not attempted to obtain the alleged victim's consent for the release of these records. While the Court understands counsel's hesitancy to do so, the procedure set forth above requires defense counsel to at least ask the State to request the alleged victim's consent.
Block, 2000 WL 303351, at *4.
Moreover, the Court does not find that Defendant has made a strong enough showing that these records are material and relevant to his defense. The Court recognizes that Defendant's request may be in part an attempt to avoid possible delay of the trial should he decide to file a motion pursuant to 11 Del. C. § 3508; however, the State is not required to turn over impeachment evidence until that evidence becomes relevant and material through witness testimony.
Id. at *5. See also Wood, 2007 WL 441953, at *7 ("Delaware law does not require disclosure [of impeachment evidence] until after the victims testify").
For the reasons stated, Defendant's motion requesting the Court to subpoena the alleged victim's records from the Rockford Center for in camera review at this time is DENIED.
IT IS SO ORDERED