Opinion
Def. ID No. 9908014943.
Submitted: January 21, 2000.
Decided: February 22, 2000.
On Defendants Motion to Compel. Denied.
Stephen R. Welch, Jr., for the State of Delaware.
Michael J. Malkiewicz, for the Defendant.
ORDER
Before the Court is Defendant's Motion to Compel discovery. On October 4, 1999, Defendant, Edward J. Goldsborough, Sr., was indicted by the Kent County Grand Jury. He is charged with Unlawful Sexual Intercourse in the First Degree, a felony, in violation of 11 Del. C. § 775; Indecent Exposure in the First Degree, a misdemeanor, in violation of 11 Del. C. § 765; Indecent Exposure in the First Degree, a misdemeanor, in violation of 11 Del. C. § 765; Sexual Harassment, a misdemeanor, in violation of 11 Del. C. § 763; Rape in the First Degree, a felony, in violation of 11 Del. C. § 773; and Unlawful Sexual Contact in the Second Degree, a felony, in violation of 11 Del. C. § 768.
On September 30, 1999, the State of Delaware Department of Justice provided the Defendant with a letter containing the information typically sought under Superior Court Criminal Rule 16. Subsequently, on October 14, 1999, the Defendant served the State of Delaware with a Request for Discovery and Inspection and a Request for Brady, Augurs and Jencks Materials. Thereafter, the State supplemented its initial discovery disclosures.
From the Defendant's Motion it appears that he is seeking the production of:
(1) All psychiatric records, including counseling and school records, relating to an alleged victims' competency, ability to remember, ability to observe, and ability to tell the truth, as well as all medical records relating to this investigation.
(2) All information relating to past allegations of sexual assaults or sexual abuse that have been made by the alleged victims;
(3) All information, documents, checklists, books, procedural guidelines, and training manuals that were relied on, or were to be relied upon, by counselors, therapists, doctors and investigators when interviewing the alleged victims of sexual abuse.
The State has opposed the production of all of these material before the start of trial stating that this information is either not discoverable or does not have to be produced until after the proper witness has testified at trial.
This Court has recently held in State v. Block, Del. Super., Cr.A. No. IK99-09-0142, Witham, J. (Feb. 18, 2000) (Mem. Op.), that the information the Defendant is requesting in the case at bar is not discoverable before trial. Pursuant to the rationale set forth in Block, the information requested by the Defendant in the instant case is not discoverable until it becomes ripe and the proper witness has testified at trial. As stated in Block, any information regarding the procedures utilized by the State or counselors in investigating the allegations are not ripe until the proper witness is on the stand and the information becomes relevant at trial. In addition, the Defendant has not at this time enumerated any instances of prior allegation by the alleged victims. Regardless, this information is not discoverable until it becomes relevant at trial. Furthermore, in Block, this Court enumerated the correct procedure for the Defendant to utilize in obtaining the psychological, psychiatric or medical records of an alleged victim in a sexual assault or sexual abuse case. At the present time, the Defendant has not stated with particularity the records that he is seeking, nor has he demonstrated to the Court that these records are material enough to his defense to warrant their disclosure before trial. Thus, the Defendant has not met the burden imposed upon him by the Court in order to procure the medical, psychiatric or psychological records of the alleged victims in this case. The Defendant has also not met his burden to have these records produced for an in camera inspection by the Court.
Therefore, the Defendant's Motion to Compel is denied as to all counts. IT IS SO ORDERED.
Judge