No. 84-451 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMARTIN DOUGLAS MENDENHALL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In a.nd for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Margaret L. Rorg argued, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

James McLean argued, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Ed McLean argued, Deputy County Attorney, Missoula 

Submitted: October 22, 1985 

Decided: December 31, 1985 

' .; . I '* 5Fc31 ..-a 

Filed: - 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal of a conviction from the District 

Court of the Fourth Judicial District, Missoula County, 

Montana. Following a jury trial, Martin Douglas Mendenhall 

was found guilty of sexual intercourse without consent, in 

violation of § 45-5-503, MCA, and was sentenced to the 

maximum twenty years in the Montana State Prison. He was 

given an additional ten years, to be served consecutively, as 

a persistent felony offender. He was designated a 

non-dangerous offender, but must serve his sentence without 

benefit of parole. We affirm. 

The sixteen year old victim was raped the evening of 

January 6, 1984, while walking alone on a Missoula street. 

She identified her attacker as Martin Mendenhall, a man she 

did not know. Mendenhall denied attacking the victim 

claiming he was not in the vicinity at the time. 

Mendenhall claims denial of his Sixth Amendment right to 

confront witnesses because of the court's refusal to furnish 

him with the victim's Youth Court record, St. Patrick 

Hospital's and Shodair Children's Hospital's treatment 

records for use on cross-examination, and by the court's 

refusal to give certain of his jury instructions. 

The Sixth Amendment guarantees the right of an accused 

to "be confronted with the witnesses against him," and this 

right is guaranteed to defendants in state proceedings as 

well as federal proceedings. Pointer v. Texas /1965), 380 

U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. 

The release of hospital treatment records for use on 

cross-examination is a question of first impression in 

Montana. There are two pertinent statutes, however: 
Privileged information-exemption from 

compulsory legal process. (1) Except as 

provided in subsection (2) , con£ idential 

health care information is not subject to 

compulsory legal process in any type of 

proceeding, including any pretrial or 

other preliminary proceedings, and a 

person or his authorized reprensentative 

may refuse to disclose and may prevent a 

witness from disclosing confidential 

health care information in any 

proceeding. . . 

Section 50-16-314, MCA. 

Records of chemically dependent persons, 

intoxicated persons, and family members. 

(1) The registration and other records 

of treatment facilities shall remain 

confidential and are privileged to the 

patient. . . Section 53-24-306, MCA. 

The victim had been a pa-tient for a short time in the 

adolescent chemical dependency treatment program at Shodair 

Children's Hospital in Helena, Montana. Mendenhall argues 

access to these treatment records, as well as Youth Court and 

other hospital records was necessary to building a d.efense 

because examination of them would be a foundation for an 

expert in the field of chemical dependency to testify as to 

the victim's possible biases, prejudices or ulterior motives 

which might surface in her testimony against Mendenhall. 

Mendenhall relies heavily on Davis v. Alaska (1974), 415 U.S. 

308, 94 S.Ct. 1105, 39 L.Ed.2d 347 and State v. Camitsch 

(Mont. 1981), 626 P.2d 1250, 38 St.Rep. 563. These cases, 

however, can be distinguished. 

Although Davis supports the Sixth Amendment right to 

confront witnesses, the witness in Davis, on probation for 

burglary, had a possible motive for testifying because of his 

probationary status. This could be brought out only on 

cross-examination. The records in Davis were criminal 

records. The witness was not the victim. In the case at bar 

the witness is the victim. The records requested are not 
only Youth Court records, but hospital recordg, which are 

protected by statute. 

The Davis court acknowledged a state interest in 

protecting the anonymity of a juvenile offender. 

Nevertheless, the confrontation clause requires a criminal 

defendant be allowed to impeach the credibility of a 

prosecution witness by cross-examination directed at possible 

bias. The confrontation clause does not require a criminal 

defendant be allowed to impeach the credibility of a victim 

by compromising the confidentiality of medical treatment or 

Youth Court records. The Mendenhall jury was aware the 

victim had a drinking problem and was at liberty to determine 

its effect on her credibility as a witness. 

Mendenhall's reliance on State v. Camitsch, supra, is 

likewise misplaced. Although the defendant's motion in 

Camitsch was expressly based on a desire to examine records 

for information he could use to challenge the witnesses' 

testimonial competency and to impeach their credibility, the 

witnesses were not victims and the records were not hospital 

records. This Court's said refusal of the district judge to 

allow defendant's counsel to examine Youth Court records of 

complaining witnesses for evidence bearing on the competency 

and veracity of those witnesses denied the defendant the 

right to confront the witnesses against him and was error. 

626 P.2d at 1255. Subsequent review of the records, however, 

convinced the Court the error was harmless. In the instant 

case the district judge examined the records in camera and 

determined they were not relevant to the proceedings. We 

agree. 

Failure of the District Court to allow Mendenhall to 

inspect the victim's hospital and Youth Court records does 

not prejudice his Sixth Amendment right. The evidence 
against Mendenhall is overwhelming. The victim described the 

unknown defendant in detail, identified him easily in photo 

and live line-ups, easily identified his car, his boots, the 

location of the attack, and the tracks in the area. A piece 

of vinyl from his car seat was found. on her buttocks. His 

blood matched the semen found in her vaginal cavity. His 

hair matched those foreign hairs found in her pubic area. 

Camitsch "confine[s] the permissible use of . . . 

juvenile records to demonstrating, by cross examination, a 

witnesses' bias, prejudice, or motive." At 1256. Mendenhall 

has not shown how use of the records could have demonstrated 

this, nor how he could have built a defense based on their 

use. The victim's competency is not an issue. As noted 

above, the jury was aware of the victim's drinking problem 

and was free to determine its effect on her credibility. 

The documents in question in this case were medical 

treatment records. Some of them were released to the Youth 

Court by Shodair Hospital pursuant to a waiver executed by 

the victim's mother. She specifically denied any further 

waiver of the privilege. The documents cannot be used by the 

defendant in his attempt to impeach the credibility of the 

victim. They are protected by statute. 

Not being requested to do so, the Court leaves 

unanswered under what circumstances such records might be 

released. Under these facts the records cannot be released. 

Defend.antls Sixth Amendment right to confront witnesses is 

not infringed. Confrontation means more than being allowed 

to confront the witness physically. " . . . [C] ases 

construing the [confrontation] clause hold that a primary 

interest secured by it is the right of cross-examination." 

Douglas v. Alabama (1965), 380 U.S. 415, 418, 85 S.Ct. 1074, 

1076, 13 L.Ed.2d 934, 937. Mendenhall had adequate 
opportunity to cross-examine the victim in an effort to 

da.mage her credibility as a witness. 

Mendenhall's second. argument on appeal is whether the 

denial of two of his proposed jury instructions constitutes 

error. The argument is without merit. Proposed instruction 

No. 12 could not be given because of the court's refusal to 

allow inspection of the medical and court records. In fact, 

defendant's counsel agreed there was no testimony to support 

proposed instruction No. 12: 

A witness may be impeached, that is 

discredited, in one of the following two 

ways: (1) by evidence that at some 

previous time the witness has said or 

done something inconsistent with his or 

her testimony in court, or (2) by proof 

that the witness has a bad character for 

truth and veracity in the community in 

which he or she lives. 

If you believe that a b~itness has been 

impeached and thus discredited, it is 

your exclusive province to give the 

testimony of that witness such 

credibility, if any, as you may think it 

deserves. 

In any event a similar instruction was given. Proposed 

instruction No. 1 was also properly refused: 

You are instructed that a charge such as 

that made against the defendant in this 

case is one which is easily made, and 

once made, difficult to defend against, 

even if the person accused is innocent. 

Therefore, the law requires that you 

examine the testimony of the complaining 

witness in this case, [the victim's 

name], with caution, and be satisfied 

that the allegations made by her are true 

and accurate beyond a reasonable doubt, 

before you convict the defendant on the 

basis of her testimony. 

Mendenhall was unable to establish a motive for the 

complaining witness to fabricate, and there was considerable 

corroborative evidence. Subsequent to this trial the Court 

handed down State v. Liddell (Mont. 1984), 685 ~.2d 918, 41 

St.Rep. 1293, holding: 
. . . that a cautionary instruction that 

rape is easy to aJ-lege and difficult to 

defend against, or one calling for 

instructing the jury to view the victim's 

testimony with caution is an improper and 

unwarranted comment on the evidence and 

is not required under the law or by 

reason of public policy. Therefore, such 

an instruction should not be given. 

685 P.2d at 922, 41 St.Rep. at 1297. This holding adequately 

supports the propriety of denying Mendenhall's proposed jury 

instruction No. 1. 

The conviction of the District Court is affirmed. 

We concur: /