Lickey v. State

827 P.2d 824, 108 Nev. 191, 1992 Nev. LEXIS 51
CourtNevada Supreme Court
DecidedMarch 5, 1992
Docket20308
StatusPublished
Cited by32 cases

This text of 827 P.2d 824 (Lickey v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lickey v. State, 827 P.2d 824, 108 Nev. 191, 1992 Nev. LEXIS 51 (Neb. 1992).

Opinions

OPINION

Per Curiam:

Appellant Austin Lickey (Lickey) was tried by a jury and convicted for sexually assaulting his granddaughter, who was seven years old at the time of the assaults. Lickey was sentenced to four consecutive life terms in the Nevada State Prison.

Prior to trial, Lickey filed a motion to have the victim and her mother examined by a defense psychiatrist. The purpose of the proposed examination was to refute the testimony of the State’s witness, a doctor of clinical psychology who, after interviewing [193]*193the child six times, opined that the victim had “Post Traumatic Stress Disorder-Secondary to Child Sexual Abuse.” The defense also wished to show that the victim’s mother, Barbara, had a long-standing enmity toward her father, Austin Lickey. In the motion to allow the defense a psychiatric examination and testimony, Lickey asserted that it was unfair to allow the State to rely on an examination conducted by its own expert and then deny the defense the opportunity to have the same benefit. On April 28, 1989, a hearing was held and the district court denied the motion. Relying on Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987), the court concluded that the veracity of the victim and her mother should be decided by the jury because multiple psychiatric examinations might intimidate the child. No evidence was introduced to show that another psychiatric interview would affect the child in any way. The court also found that other evidence supported the victim’s testimony.

At trial, the court admitted testimony regarding a prior bad act committed by Lickey. The court ruled that this evidence was admissible to show intent under McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978). Barbara testified that in 1983 or 1984, when she was living with her parents in Ruth, Nevada, she was sleeping on the couch when her father “put his hand underneath the blanket and went towards my bottom half and told me that’s how I could pay him back the twenty dollars.”

The primary evidence presented against Lickey at trial was the testimony of the victim, who was then eight years old. At the time of the alleged assaults, she was living with her grandparents in Ruth. She testified that the first incident occurred while she was playing with her Barbie doll in the living room of Lickey’s home. Lickey put his finger up her “private part” and started wiggling his finger, which hurt. A second incident occurred while she was standing on a chair in the kitchen stirring a pot of spaghetti on the stove. Lickey approached her, stuck his finger in her vagina, and began wiggling his finger. The third incident occurred one night while the victim was in bed. Lickey came into her bedroom and stuck some kind of silverware in her “private part.”

The final incident occurred in a car while traveling from Ely to Ruth. The victim testified that her grandmother was driving, and she was seated on the front seat between her grandmother and Lickey. Lickey was drunk and he struck his finger in her vagina and wiggled his finger. She told her grandmother, who became angry, pulled the car to the side of the road, and began slugging Lickey. A police car then pulled in front of the vehicle, and both the victim’s grandmother and the police officer exited their vehicles and had a conversation in front of Lickey’s vehicle. At trial, [194]*194through the use of an anatomically correct doll, the victim identified the vagina as the place Lickey touched her in each incident.

Lickey claims the trial court erred in denying his motion to have a defense psychiatrist examine the victim and testify at trial. Lickey argues that because the prosecution raised the issue of the effect of the victim’s mental well-being on her veracity, he should have been permitted to have a psychiatrist testify to support the defense’s theory that the victim lied about the cause of her injuries. We are convinced by this argument.

The district court permitted the prosecution to call a clinical psychologist specializing in child sexual abuse, who reiterated what the minor victim had told her during their interviews. The psychologist stated her expert conclusion that the victim had been sexually molested, and she opined that the victim was truthful. The prosecution had two evidentiary advantages over the defense. First, it was able to provide expert testimony that the victim was assaulted sexually and had post traumatic stress disorder as a result of these assaults, a conclusion the defense was not given the opportunity to controvert with its own expert. Second, the prosecution’s expert was permitted to testify as to the veracity of the victim-witness. Numerous jurisdictions, as well as general notions of fairness, dictate that failure to provide equal access to expert psychiatric witnesses prejudices the defense.

In determining that Lickey had no right to have a psychiatrist examine the victim and testify at trial, the district court relied upon Washington v. State, 96 Nev. 305, 608 P.2d 1101 (1980). In Washington, the defendant requested a psychiatric examination of the victim after trial, to support his motion for a new trial based on his contention that the victim was lying. This court concluded that the prosecution’s case was not so void of corroboration that an exam was warranted, and that in any event the decision to appoint a psychiatrist for the defense post-trial was within the discretion of the trial court. Id. at 307-308, 608 P.2d at 1102-03. In Washington, however, the prosecution had no expert of its own. Moreover, we did not address the issue presented in this case: to wit, whether the same standard applies if the trial court permits the prosecution’s expert to testify at trial but denies the defendant the same opportunity. The dissent opines that we misunderstand the issue. We suggest that the contrary is true and that the dissenting justice refuses to acknowledge the obvious differences between the Washington case and the one at issue here.

The assistance a psychologist offers a defendant is very important in sexual assault cases. See Warner v. State, 102 Nev. 635, 729 P.2d 1359 (1986). In Warner, we reversed a conviction for [195]*195sexual assault because of ineffective counsel. We held that defense counsel was ineffective in part because he failed to interview the complaining minor or request a court order requiring her to undergo a physical or psychological examination. If failure to request a psychological examination constitutes grounds for a finding of ineffective counsel, it logically follows that a defendant facing charges of sexual assault of a minor should be afforded an expert psychiatric witness.

The few jurisdictions which have examined this issue have agreed that in sexual abuse cases, the defense should have the same opportunity to present expert testimony as the prosecution. Cox v. State, 805 P.2d 374 (Alaska App. 1991) (court abused its discretion by denying defense opportunity to present expert to testify that children lie about sexual abuse); State v. Zeh, 509 N.E.2d 414

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Cite This Page — Counsel Stack

Bluebook (online)
827 P.2d 824, 108 Nev. 191, 1992 Nev. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lickey-v-state-nev-1992.