People v. McCray , 23 N.Y.3d 193 ( 2014 )

OPINION OF THE COURT

Smith, J.

Defendant, prosecuted for rape, sought disclosure of the complainant’s mental health records. The trial court reviewed the records in camera and disclosed only a few of them. We hold that the court did not abuse its discretion.

I

Defendant, 40 years old, and the complainant, 18, met for the first time in April 2009. They had several telephone conversations after their first meeting, and agreed to go on a date on May 26, 2009.

Both of them testified to what happened that evening, and their accounts, up until the final, critical events, match in many respects. They visited a friend of defendant at his home, tried unsuccessfully to go to a bar (which excluded the complainant because of her age) and then went to the home of another of defendant’s friends, who left them to themselves. While there, they kissed, and touched each other intimately, but did not have intercourse. Defendant then led the complainant to an abandoned house.

Some time later, the complainant called 911 from a pay phone near the house, weeping and struggling to speak. She said that defendant had beaten her, made her beg for her life, and raped her. A police officer who approached her while she was on the phone saw blood on her clothes and her face. Photographs and hospital records show that she had abrasions and bruises on her left arm and left cheek, and lacerations to the inside of her mouth. Defendant, meanwhile, had gone to the home of a friend near the abandoned house, and (according to the friend’s testimony) banged on the door and asked to be let in because a woman was “exposing herself and . . . chasing him.” Defendant had a bite mark on his forearm.

The key issue at trial, of course, was what happened in the abandoned house. The complainant testified that defendant pinned her against a wall, forced his tongue into her mouth, rubbed against her and demanded sex. She refused and a struggle followed, in which each hit the other in the face, defendant choked the complainant and the complainant bit him. Eventually, the complainant said, she “gave in” and “let him have it because he said if I did, I could live.” They had intercourse, and she left the house.

Defendant testified that the couple engaged in foreplay and consensual sex. Afterwards, the complainant said “I want some money” or “I want to be compensated.” This led to a loud exchange of epithets, after which, defendant said, the complainant “grabbed my pants and . . . started heading out the door with them.” Defendant tackled her, and her face hit the floor. He then sat on her back, tried to retrieve his pants from underneath her, and noticed that she had removed some of his money and had it in her hand. As he tried to wrench it away, she bit him. Eventually, he retrieved his pants and his money, and the complainant got up and walked out.

The outcome of the case obviously depended on which witness the jury believed. Seeking information that would undermine the complainant’s credibility, defendant asked before trial that the People he directed to obtain her mental health records and turn them over to the defense. The court directed instead that the records be submitted to it in camera. From the thousands of documents submitted, the court selected 28 pages for disclosure, and withheld the rest.

The records that were disclosed showed, and the jury was informed at trial, that the complainant had very significant mental health problems. Her diagnoses, as summarized in her own testimony, included “Bipolar, Tourettes, post-traumatic stress disorder, epilepsy.” It was also brought out that she suffered from attention deficit disorder and hypersexuality; that she had reported that she “visualized” or “sense[d] the presence of” dead people; that she had cut her flesh with sharp objects; that her bipolar disorder caused her “on occasion” to be “explosive and angry” and to “physically strike out at people”; that at the time of the incident she was taking medications, was receiving treatment from a mental health facility, and was also seeing a counselor weekly or biweekly; that she failed “once in a while” to take her medications, and that on the night of the alleged rape she could not remember whether she had taken them that day; that, after the alleged rape and before the trial, she had been hospitalized for an overdose of drugs; and that that was not her first suicide attempt, though she said it was her first “serious” one.

Defendant was convicted of rape. The Appellate Division affirmed, holding among other things, after examining the undisclosed documents, that the trial court did not err in withholding them (People v McCray, 102 AD3d 1000 [3d Dept 2013]). Two Justices dissented, concluding that the undisclosed records “raise issues that would affect the victim’s credibility or her ability to recall events” and that some of them “would be extremely damaging to the People’s case” (id. at 1011). A Justice of the Appellate Division granted leave to appeal, and we now affirm.

II

While defendant presents the issue as one of interference with his rights of confrontation and cross-examination, we view this as essentially a Brady case (Brady v Maryland, 373 US 83 [1963]; see Pennsylvania v Ritchie, 480 US 39, 56 [1987] [evaluating under Brady the question of whether confidential investigative files concerning child abuse must be disclosed to a criminal defendant]). Under Brady, a defendant is entitled to the disclosure of evidence favorable to his case “where the evidence is material” (373 US at 87). In New York, the test of materiality where, as here, the defendant has made a specific request for the evidence in question is whether there is a “reasonable possibility” that the verdict would have been different if the evidence had been disclosed (People v Vilardi, 76 NY2d 67, 77 [1990]).

This case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought. In such a case, the trial court has a measure of discretion in deciding whether records otherwise entitled to confidentiality should be disclosed (see People v Gissendanner, 48 NY2d 543, 548 [1979]).

In sum, the issue here is whether the trial court abused its discretion in finding defendant’s interest in obtaining the records to be outweighed by the complainant’s interest in confidentiality; and defendant’s interest could be outweighed only if there was no reasonable possibility that the withheld materials would lead to his acquittal. Having examined those materials, we conclude that the court did not abuse its discretion.

As to most of the documents in question, we have no hesitation in agreeing with the courts below that they are either cumulative or of little if any relevance to the case. The jury knew that the complainant had “visualized” her deceased grandfather and had said that she “could sense the presence of dead people.” The undisclosed records contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had; the trial court could reasonably conclude they would add little force to defendant’s attacks on the complainant’s credibility.

There are also many references in the undisclosed documents to the complainant’s tendency to misremember or misunderstand events. It is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been. She certainly did not fantasize or misremember that she and defendant had a violent encounter: they both had the wounds to prove it. And their descriptions of that encounter are so starkly different that if one version is not a lie, the other must be. With one possible exception, which we discuss below, there is nothing in the undisclosed records suggesting that the complainant had a tendency to make accusations she knew to be false.

The undisclosed records do show that the complainant had made several previous complaints of sexual abuse. But — again with one exception — these were not complaints that anyone had used violence to force sex on her. And — subject to the same exception — nothing in the records suggests that the complaints were untrue. Certain of them may show that, before the complainant reached the age of consent, a number of boys or men took advantage of the hypersexuality that, as the jury knew, was among her mental problems. We agree with the Appellate Division majority that this is exactly what the diagnosis of hypersexuality would lead one to expect, and that the details of the complainant’s sexual experiences were of no more than marginal relevance to this case.

We also agree with the Appellate Division majority that, in all likelihood, proof of these details was prohibited by the Rape Shield Law (CPL 60.42), which bars, subject to certain exceptions, “[e]vidence of a victim’s sexual conduct” in sex offense cases. We recognize that this likelihood is not necessarily conclusive on the Brady issue. Inadmissible evidence can be material under Brady if it will be useful to the defense, perhaps as a lead to admissible evidence or a “tool in disciplining witnesses during cross-examination” (United States v Gil, 297 F3d 93, 104 [2d Cir 2002]). And even the question of admissibility cannot be decided definitively, because defendant has not seen the documents and has had no chance to make an offer of proof that might bring the evidence within an exception to the Rape Shield Law (see CPL 60.42 [5] [permitting the trial court to admit evidence that otherwise would be excluded, if it determines after an offer of proof that the evidence is “relevant and admissible in the interests of justice”]). But any evaluation of materiality under Brady involves a prediction about the impact of undisclosed material on a trial, and here the existence of a statute that would likely keep out of evidence not only the records themselves but the facts underlying them supports the view of the courts below that their impact, if any, would be slight.

The exception we have mentioned provides the strongest basis for defendant’s argument on appeal. Records from 2004, when the complainant was 13, say that she reported having been sexually assaulted by her father. She claimed that he pinned her against a wall and tried to rape her, but she escaped. The records show that her father had in fact been physically abusive, but they also show that the complainant’s mother did not believe the charge of sexual assault was true. One record refers to the allegation as “unfounded,” without further explanation. These documents give us some pause (cf. People v Hunter, 11 NY3d 1 [2008] [finding a Brady violation, under a “reasonably probable” materiality standard, where a prosecutor failed to disclose the complainant’s report that another man had committed a similar rape]).

But the complainant’s 2004 accusation of her father was far removed in time and quite different from the accusation she made in 2009 against defendant. It was an accusation of abuse by a family member, made not in a 911 call immediately after the event, but in the course of treatment by mental health professionals. And even if the accusation was not true, nothing in the records indicates that the complainant fabricated it, rather than misinterpreted or imagined something her father had done. It is, as we have said, almost impossible that a jury could think the complainant’s accusation in this case to be an honest but mistaken one, as the accusation against her father may have been.

We therefore hold that the trial court could reasonably think there was no more than a remote possibility that disclosure of the records it withheld would lead to defendant’s acquittal. The court was within its discretion in finding the records’ relevance to be outweighed by the complainant’s legitimate interest in confidentiality.

Defendant’s remaining arguments lack merit.

Accordingly, the order of the Appellate Division should be affirmed.