Opinion
Def. ID No. 9908000379.
Submitted: January 21, 2000.
Decided: February 22, 2000.
On Defendant's 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, Kenneth C. Wright, was indicted by the Kent County Grand Jury. He is charged with Unlawful Sexual Contact in the Second Degree, a felony, in violation of 11 Del. C. § 768; Unlawful Sexual Contact in the Second Degree, a felony, in violation of 11 Del. C. § 768; and Endangering the Welfare of a Child, a misdemeanor, in violation of 11 Del. C. § 1102.
On September 29, 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 on the State of Delaware a Request for Discovery and Inspection and a Request for Brady, Augurs and Jencks Materials. Thereafter, the State provided the Defendant with portions of the various police reports. The State did not disclose all of the police reports or all information referenced in the police reports.
Consequently, the Defendant has asked the State to produce, prior to trial, all information relating to the medical care received by the alleged victim and any information relating to psychological and/or counseling received by the alleged victim in connection with the alleged offenses committed by the Defendant. The State contests producing this information for the Defendant prior to trial. In addition, as a result of receiving the police reports, the Defendant has requested the notes prepared by a family services worker relating to her interview with the alleged victim that are referenced in the police reports. Although the police reports were turned over by the State, the notes referenced in the reports were not disclosed. It is the Defendant's contention that these notes should be given to the Defendant because they contain information relating to the medical or psychological treatment of the alleged victim in connection with the alleged offenses.
In addition, the police reports also reference a physical examination of the alleged victim conducted at A.I. DuPont Hospital. The Defendant is asking that the doctor's notes, nurse's notes and the examination report be provided to him. Furthermore, the police reports reference anatomical drawings that were brought to the interview of the alleged victim by the alleged victim's mother. Again, although these drawings were referenced in the police report, they were not turned over by the State. Finally, the police reports indicated that the alleged victim's mother told the police that the alleged victim had been receiving counseling from therapists. The Defendant requests that the therapists' records be disclosed pre-trial since they were mentioned in the police report; as well as, an audio tape that is allegedly in the possession of Dr. Kratza, that was also mentioned in the police reports.
The Defendant has additionally asked the State to produce all checklists, books or documents that any therapist, social worker, counselor, law enforcement officer or medical care provider relied upon as a basis for any opinion that the person arrived at in connection with the treatment and counseling of the alleged victim, and/or alleging that the alleged victim was sexually assaulted by the Defendant.
The State has opposed the production of all of these materials requested by the Defendant. In fact, it is the State's contention that it did not even have to turn over the police report in the first place, but did so to benefit the Defendant in preparing his defense.
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 before trial. First, any information regarding the procedures utilized by officers or counselors in investigating the allegations, and reports resulting therefrom, are not ripe until the proper witness is on the stand and the information becomes relevant at trial. This is also true for the remainder of the police reports in the possession of the State and the social worker reports referenced in the police reports that discuss issues that could affect the credibility of the alleged victim.
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 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 victim in this case, nor has he met the 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.