State v. McQuillen

689 P.2d 822, 236 Kan. 161, 1984 Kan. LEXIS 396

• Court: Supreme Court of Kansas
• Decided: October 26, 1984
• Docket: 56,139
• Status: Published

Opinions

The opinion of the court was delivered by

Lockett, J.:

The State appeals from the dismissal of the information against Patrick T. McQuillen for its failure to bring the defendant to trial within 180 days. K.S.A. 22-3402. The information charged McQuillen with rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506).

The defendant was charged with rape and aggravated sodomy in a complaint filed November 18, 1982. After the preliminary hearing the defendant was bound over for trial December 6, 1982. Arraignment took place immediately. On January 20, 1983, the defendant’s case was set for trial on February 7, 1983. Defendant claimed consent to intercourse.

In preparation for trial the State had the victim, Ms. H., examined by Dr. Modlin, a psychiatrist, to determine if she was suffering from “rape trauma syndrome.” January 19, 1983, the defendant filed a motion to compel the victim to submit to a similar examination by defendant’s psychiatrist, Dr. Parks. The court sustained the motion January 26, 1983, continuing the trial at the defendant’s request to March 28,1983. March 28,1983, the date set for trial, the court was informed that the defendant’s psychiatrist had been unable to complete his evaluation of the victim. The defense was ready to proceed with the trial if the judge would prohibit all expert witnesses from testifying. The State, to keep the trial court from denying it the use of its expert witness’ testimony, requested a continuance of the trial to allow the defendant’s psychiatrist to complete his evaluation of the victim. The victim, on her own volition, had discontinued sessions with the defendant’s psychiatric expert because of a personality conflict. At the hearing on the motion to continue, the prosecutor stated the victim was willing to resume sessions with the defendant’s psychiatrist. At the March 28, 1983, hearing, the trial court granted a continuance to the State and set trial for June 27, 1983. After Dr. Parks completed his evaluation of the victim, a copy of his report was delivered to the State on June 1, 1983.

January 26,1983, the defendant filed two motions; (1) a motion in limine seeking to prohibit testimony by the State’s expert psychiatrist concerning rape trauma syndrome; and (2) a motion to determine the applicability of K.S.A. 60-447a (Weeks), now K.S.A. 1983 Supp. 21-3525, commonly referred to as the rape shield statute. June 17, 1983, a hearing on both motions was held. June 23, 1983, the district court issued a memorandum decision and order. The court ruled:

“[I]t is the conclusion of this Court that expert testimony concerning whether or not the complaining witness in this case suffers from rape trauma syndrome, should be excluded because its probative value is substantially outweighed by the danger of confusion, unfair prejudice, or misleading the jury as well as the practical considerations stated. There appears to be a substantial likelihood that the admission of such testimony would be violative of the provision of K.S.A. 60-447a.

.“The Motion in Limine filed by the defense is sustained and expert testimony as to whether or not the complaining witness may be suffering from rape trauma syndrome will not be permitted to be offered by either party at trial.”

June 24, 1983, the State filed a notice of interlocutory appeal. The defendant and his counsel appeared for trial on June 27, 1983. The State did not appear. The district court continued the case while the appeal was pending and released the defendant from the obligations of his bond.

August 10, 1983, the Court of Appeals dismissed the State’s interlocutory appeal for lack of jurisdiction. The State requested the district court set the case for jury trial at its earliest convenience. Trial was set for September 20, 1983, by the court.

September 14, 1983, the defendant filed a motion to dismiss the information on the ground he had been denied a speedy trial. The district court later sustained the motion, ruling the State had failed to bring the defendant to trial within 180 days pursuant to K.S.A. 22-3402. The State appeals from the dismissal.

The State contends the trial court erred in dismissing the information for its failure to provide MeQuillen with a speedy trial.

K.S.A. 22-3402(2) controls the defendant’s statutory right to a speedy trial. That statutory section provides:

“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”

The purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial. The statute establishes certain maximum time limits within which a defendant must be brought to trial. State v. Ransom, 234 Kan. 322, 325, 673 P.2d 1101 (1983).

Arraignment in this case occurred on December 6, 1982. Trial was finally set in this case for September 20, 1983. The relevant time period may be broken into segments:

Days Elapsed

0 12/ 6/82 Defendant arraigned

44 1/19/83 Defendant filed motion to examine victim by his expert

45 1/20/83 Court set case for trial 2/7/83

51 1/26/83 Court sustained defendant’s 1/19/83 motion. Trial reset for 3/28/83. Defendant filed additional motions: (1) motion in limine; (2) motion to determine effect of 60-447a

112 3/28/83 State requested a continuance to allow defendant’s expert to complete sessions with victim. Trial reset for 6/27/83

177 6/ 1/83 State received copy of defendant’s expert’s report

199 6/23/83 Court sustained defendant’s 1/26/83 motions

200 6/24/83 State filed notice of interlocutory appeal

247 8/10/83 State’s interlocutory appeal dismissed. Court set trial for 9/20/83

288 9/20/83 Court sustained defendant’s motion to dismiss for lack of speedy trial

The defendant admits the 49-day delay resulting from the January 26, 1983, continuance is chargeable to the defense. Defendant claims the second continuance granted by the court on March 28,1983, was requested by the State. Defendant claims on March 28,1983, the State failed to object to the court’s setting the trial on June 27, 1983; therefore, that delay caused by the March 28 continuance is chargeable to the State because the State in its effort to use Dr. Modlin’s expert psychiatric testimony was willing to delay trial to obtain the testimony.

Both parties agree the third delay was caused by the State’s futile interlocutory appeal and chargeable to the State. The State does not contend the Court of Appeals improperly dismissed its appeal for lack of jurisdiction. Rather, the State argues its interlocutory appeal tolled K.S.A. 22-3402; therefore, the 48 days that elapsed during the appeal are not chargeable to either party.

K.S.A. 22-3604 provides:

“(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.

“(2) The time during which an appeal by the prosecution is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under section 22-3402 of this code.” Emphasis supplied.

The State then attempts to analyze the Kansas statutory right to a speedy trial, K.S.A. 22-3402, using United States constitutional speedy trial principles. The statutory right and the constitutional right to a speedy trial are distinguishable. State v. Ransom, 234 Kan. at 325. The purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial. The statute establishes certain maximum time limits within which a defendant must be brought to trial. State v. Ransom, 234 Kan. at 325. An accused has the right to trial within the time fixed by the legislature, and when the State fails to commence trial within the time limit, the accused is entitled to be discharged. State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981). The balancing test cited by the State is utilized only in examining a defendant’s constitutional right to a speedy trial. See State v. Rosine, 233 Kan. 663, 664 P.2d 852 (1983); State v. Strong, 8 Kan. App. 2d 589, 663 P.2d 668, rev. denied 233 Kan. 1093 (1983).

The State points out that K.S.A. 22-3402(2) requires “any person charged with a crime and held to answer on an appearance bond” shall be brought to trial within 180 days after arraignment. Pursuant to K.S.A. 22-3604(1) the defendant was not subject to an appearance bond during the pendency of the interlocutory appeal by the State. Therefore, the State argues the statutory provision requiring that the defendant be tried within 180 days after the arraignment was tolled during the State’s ill-fated interlocutory appeal. This course of reasoning and construction of K.S.A. 22-3604(2) would prevent any interlocutory appeal taken by the State from figuring into statutory speedy trial calculations.

In State v. Grimes, 229 Kan. 143, Syl. ¶ 7, the State improperly appealed the granting of a new trial by the district court. This court said:

“The time that an unauthorized interlocutory appeal by the State is pending in the Supreme Court, including extensions of time secured by the defendant in order to respond in that matter, does not delay trial of the accused in the district court, and such time should not be charged against the accused in computing the 90 and 180-day time periods fixed by K.S.A. 1980 Supp. 22-3402.”

In Grimes, the State improperly appealed the granting of a new trial by the district court. Here, the State’s interlocutory appeal was dismissed for want of jurisdiction and hence was unauthorized. The time that an unauthorized interlocutory appeal by the State is pending in the Supreme Court delays the trial of the accused in the district court, and such time should be charged against the State in computing the 90- and 180-day time periods fixed by K.S.A. 22-3402.

We disagree, however, with the trial court’s reasoning that the March 28, 1983, continuance was chargeable to the State. That day the State informed the trial court the victim had completed three sessions with the defendant’s psychiatrist, Dr. Parks. During the fourth session with Dr. Parks, a conflict developed between the victim and the doctor. The victim refused to have any more discussions with the doctor and left. Defendant’s attorney admitted he had been unable to contact Dr. Parks immediately after he learned of the problem because he was involved in defending another person in a murder trial. Dr. Parks needed additional time with the victim in order to render his opinion.

Defendant’s attorney claims it was the complaining witness who had caused the delay of the defendant’s trial by refusing to see Dr. Parks. On the March trial date he requested that the court exclude both the State’s and defendant’s psychiatrists’ testimony in an effort not to delay the trial. Defendant’s attorney agreed that if the court were to allow the psychiatrists to testify, a continuance requested by the State was necessary to allow Dr. Parks to complete his examination of the victim.

The time limitations for trial may be extended at the State’s request beyond the restrictions imposed by K.S.A. 22-3402(1) and (2). An extension can be obtained by the State where material evidence is unavailable, reasonable efforts have been made by the State to procure the evidence and there are reasonable grounds to believe such evidence can be obtained within the limitations contained within the statutes.

If the State fails to bring the accused to trial within the time limits fixed by statute, and the delay is not due to the application or fault of the defendant or to extensions of time allowed by K.S.A. 22-3402(3), Kansas appellate courts have not hesitated to enforce the legislature’s mandate and order a defendant discharged. However, delays which are the result of the application or the fault of a defendant are not counted in computing the statutory period. It is the State’s obligation, not the accused’s, to provide the defendant with a speedy trial in conformity with the Constitution and the statutes. State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). The record of the trial court as to the days to be charged against the State and the defendant is to be examined to determine whether or not a dismissal was warranted for the State’s failure to bring a defendant to trial within the limitation imposed by statute.

The State had the right to introduce evidence establishing that Ms. H. was suffering from stress similar to rape trauma syndrome. The defendant then had to be given the opportunity to establish that she was not suffering from such stress. Ms. H.’s personality conflict with the defendant’s psychiatrist, Dr. Parks, resulted in his inability to complete the diagnosis of Ms. H. Without additional sessions with Ms. H., Dr. Parks was unable to determine if she was suffering from the rape trauma syndrome. In an effort to have Dr. Modlin available to testify as to his findings, the State was forced by the court to request a continuance to allow Dr. Parks, the defendant’s expert, to complete his sessions with Ms. H. The court counted the delay caused by this continuance against the State.

Ms. H. was not an agent or officer of the State. Her status is that of a witness/victim, the focal point of the defendant’s alleged crime. There is no evidence that any agent of the State encouraged, assisted, or requested that Ms. H. terminate her sessions with the defendant’s psychiatrist. This was her own decision based on her personality conflict with Dr. Parks. Ms. H. was willing to see a third person if one was recommended. Ms. H. was under no court order to appear and be diagnosed by Dr. Parks. The State had requested that she appear after Dr. Parks had so requested. After the conflict between them developed, it was the State that convinced Ms. H. to return to Dr. Parks and complete the requested sessions. The State was willing to have the trial continued to allow the defendant’s psychiatrist to complete his evaluation of Ms. H. The State wanted to use its expert witness and, to ensure a fair trial for the defendant, the defendant’s expert had to complete his evaluation in order to determine if the victim was or was not suffering the rape trauma syndrome. The State did everything it possibly could to ensure that Ms. H. would cooperate with Dr. Parks. He was able, then, to complete the sessions with Ms. H., and his report was delivered to the State’s attorneys June 1, 1983.

Under these facts, when a defendant’s trial is delayed because a defendant’s psychiatrist is unable to complete his evaluation of the victim due to a personality conflict with the victim, and the victim was not encouraged, assisted, or requested by the State or its agents not to cooperate, that delay cannot be charged to the State. Otherwise, a defendant might employ a psychiatrist who could inadvertently create a situation which would prevent the psychiatrist from completing his evaluation before the time for a speedy trial had run.

The January 26 — March 28 continuance (61 days) was at defendant’s request and is chargeable to him. The time period running from when the continuance was granted on March 28, 1983, until when the report of the defendant’s psychiatrist was delivered to the State on June 1, 1983, a total of 65 days, was therefore also chargeable to the defendant. The 180-day time requirement to bring the defendant to trial had not expired when the court granted the defendant’s motion to discharge.

The State next complains the trial court erred in sustaining the defendant’s motion in limine to exclude the testimony of Dr. Modlin, the State’s expert witness, regarding the rape trauma syndrome, since the defendant claimed the victim consented to intercourse.

The trial judge in his memorandum opinion stated:

“It appears that only a few reported eases have dealt with the precise question of the admissibility of expert testimony to establish whether or not the complaining witness in a rape case suffers from rape trauma syndrome.

“Apparently, the first of these decisions was that of our Kansas Supreme Court in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982). In this decision, the Supreme Coux't held in substance that x-ape trauma syndx'ome is a scientifically x'ecognized phenomenon and when consent is the defense in a pi'osecution for x'ape, qualified expei't psychiatric testimony regarding the existence of x-ape tx-auma syndrome is x-elevant and admissible.

“Shox'tly after the decision of the Kansas Supreme Court in Marks, supra, the Supreme Court of Minnesota had occasion to deal with the same issue in the case of State v. Saldana, 324 N.W.2d 227. In a well-x-easoned opinion, the Supreme Court of Minnesota took the opposite viewpoint on this issue and revei'sed and remanded a lower court conviction for x-ape because such testimony had been admitted at trial. . . . Rape trauma syndrome, which describes the stages a rape victim typically goes through, is not a fact-finding tool but a therapeutic tool useful in counselling, and evidence of reactions of other people does not assist the jury in its fact-finding task. It was held that the expert testimony should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice, confusion or misleading the jury. The Court stated at page 230 of the opinion:

“ ‘To allow such testimony would inevitably lead to a battle of experts that would invade the jury’s province of fact-finding and add confusion rather than clarity.’

“In another decision, the Supreme Court of Minnesota followed its ruling in Saldana, supra. In State v. McGee, 324 N.W.2d 232, it reversed a rape conviction where a doctor was permitted to testify that the complaining witness suffered from symptoms consistent with rape trauma syndrome.

“In an opinion filed March 15,1983, in State v. Taylor, No. 45336, the Missouri Court of Appeals for the Eastern District treated the same issue and followed the decision of the Minnesota Supreme Court in Saldana, supra, after noting the Kansas decision in Marks, supra. A review of this opinion indicates that Missouri follows a more restrictive rule as to the admissibility of expert testimony than does Kansas. The rule in Missouri is that expert opinion testimony should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. The Missouri Court of Appeals also concluded in this decision that the admission of psychiatric opinion testimony will inevitably lead to violations of the Missouri rape shield statute, the same point being raised by the defendant in the instant case.

“After the events which have taken place in this case, the rationale expressed by the Minnesota Court in Saldana, supra, appears to be more persuasive. After considering the expert testimony of Dr. Gilbert Parks at the hearing on these Motions and examining some of the psychiatric treatises cited in the various opinions dealing with this subject, it is clear that rape trauma syndrome, while generally recognized in psychiatry as a valid diagnosis, is not employed by psychiatrists as a fact-finding tool but as a therapeutic tool useful in the diagnosis and treatment of victims of traumatic stress disorders.”

The trial judge ordered the evidence of the rape trauma syndrome excluded from the trial.

In the majority of the cases cited by the trial judge in his memorandum opinion, the defendants admitted that sexual intercourse had occurred but claimed it was consensual. An “expert” was allowed to describe the typical post-rape symptoms and behavior of rape victims and the expert then gave his opinion that the rape victim had not fabricated her allegations. The expert was then allowed to testify as to whether or not he believed the victim was telling the truth in stating she was raped by the defendant, thus creating the presumption that she was raped. This is the common thread in the cases where courts have found evidence of rape trauma syndrome to be inadmissible— the evidence offered by the expert was evidence affirming the rape by the defendant.

In State v. Saldana, 324 N.W.2d 227 (Minn. 1982), the court found that the scientific evaluation of rape trauma syndrome had not “reached a level of reliability that surpasses the quality of common sense evaluation present in jury deliberation.” 324 N.W.2d at 230. Kansas, however, reached an opposite conclusion in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982). California, which refused to allow testimony of rape trauma syndrome in People v. Bledsoe, 36 Cal. 3d 236, 203 Cal. Rptr. 450, 681 P.2d 291 (1984), has not, however, totally outlawed use of such evidence. The Bledsoe court observed that evidence of such has been admitted in a number of California cases where it has played “a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.” 36 Cal. 3d at 247-48.

The Saldana court held that the expert’s testimony could not be admitted to show that the victim was raped. This was also the conclusion in State v. Taylor, 663 S.W.2d 235 (Mo. 1984), where the Supreme Court of Missouri, en banc, found that a properly qualified expert in the psychological testing fields may testify that the patient, client or victim does possess and exhibit the characteristics consistent with those resulting from a traumatic stress reaction, such as rape. Under the circumstances of that case, Dr. Amanat, the expert witness, went too far in expressing his opinion that the victim suffered rape trauma syndrome as a consequence of the incident with the defendant at Mary’s Moonlight Lounge. That conclusion vouched too much for the victim’s credibility and added a quantity of factualness to the victim’s testimony on the critical issue of whether the defendant raped her.

In People v. Bledsoe, 36 Cal. 3d 236, the rape trauma syndrome testimony was introduced as a means of proving that a rape had occurred. The court held that such testimony was inadmissible for the purpose of proving the witness was raped, but went on to add that “nothing in this opinion is intended to imply that evidence of the emotional and psychological trauma that a complaining witness suffers after an alleged rape is inadmissible in a rape prosecution.” 36 Cal. 3d at 252.

In State v. Marks, 231 Kan. 645, the testimony of Dr. Modlin, the State’s expert witness, was based on the symptoms he noted during his psychiatric evaluation of the witness. Dr. Modlin testified that the witness was the victim of a “frightening assault, an attack” and was suffering from the post-traumatic stress disorder known as “rape trauma syndrome.” He never stated that the victim was raped or that the stress which caused her disorder was the result of a rape. He also did not testify that the cause of the victim’s disorder was intercourse with the defendant.

We disagree with the trial court’s determination that the court’s reasoning in Marks was incorrect. We reaffirm “[w]hen consent is the defense in a prosecution for rape, qualified expert psychiatric testimony regarding the existence of ‘rape trauma syndrome’ is relevant and admissible.” 231 Kan. 645, Syl. ¶ 8, emphasis supplied. The expert may testify that the patient/victim does possess and exhibit the emotional and psychological trauma consistent with rape trauma syndrome.

Finally, the trial court found admission of testimony concerning the rape trauma syndrome would violate the rape shield provisions of K.S.A. 60-447a (Weeks), now K.S.A. 1983 Supp. 21-3525, which states in part:

“(2) Except as provided in subsection (3), in any prosecution to which this section applies, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.”

The statute is not an absolute prohibition against the defendant presenting evidence of the complaining witness’ prior sexual conduct. Nor does the statute prohibit the prosecuting attorney from introducing' evidence of previous sexual conduct of the complaining witness. K.S.A. 1983 Supp. 21-3525(3). Expert testimony submitted by the State of the rape trauma syndrome when exhibited by the complaining witness would not violate the statute. Safeguards are still contained within the statute to protect the victim. A showing of relevancy is still necessary before the complaining witness’ prior sexual conduct may be admitted into evidence on behalf of the defendant.

The defendant claims this court’s approval of the rape trauma syndrome as substantive evidence in a rape trial, where consent is the issue, provides a legal method by which the defendant can evade K.S.A. 1983 Supp. 21-3525(3). The statute, however, applies only to prior sexual activity, not to whether the act in question was consensual. When consent to intercourse is the issue and the State’s expert has testified that the victim is-suffering from rape trauma syndrome, the defendant’s attorney may cross-examine the State’s expert to determine how the expert arrived at that conclusion. The defendant may bring in his own expert witness in rebuttal to testify that the victim is not suffering from rape trauma syndrome. Such rebuttal evidence, however, would not allow wholesale admittance of the victim’s past sexual conduct, unless that information was used by the State’s expert to make his determination of rape trauma syndrome. Otherwise, the trial court would still be required to determine the relevancy of such evidence before allowing its admission into evidence.

Nor may a defendant present evidence that the victim was not suffering from rape trauma syndrome where the State has not first introduced evidence that the victim was suffering from rape trauma syndrome. There are no statistics to show that there is any value to a negative finding that the rape trauma syndrome is not exhibited by the alleged victim. Negative evidence to be admissible must have some probative value.. Where consent is the defense in a prosecution for rape, expert testimony of the absence of the rape trauma syndrome is not relevant or admissible.

Reversed and remanded for trial.

Holmes, J., concurs in the result.