No. 89-334 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

EDGAR REYNOLDS, a/ k/a 

EDWARD REYNOLDS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Golden Valley, 

The Honorable Roy C. Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Donahoe, Attorney at Law, Helena, Montana 

; - For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena, Montana 

Gerry M. Higgins, Special Deputy County Attorney, 

Golden Valley County, Ryegate, Montana 

Submitted on Briefs: April 26, 1990 

Decided: June 7, 1990 0 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

Defendant Edgar Reynolds appeals a Golden Valley County jury 

verdict finding him guilty of sexual intercourse without consent. 

We affirm. 

Defendant presents three issues for review: 

1. Was defendant denied the right to a speedy trial by 

a delay of 243 days from arrest to trial? 

2. Did the trial court's refusal to order the release and 

disclosure of "Janey Doe's1' medical and psychiatric 

records deny defendant the right to confront witnesses 

against him or the right to due process? 

3. Was it plain error to permit the use of expert 

testimony to identify I1Janey Doen as the victim of sexual 

abuse? 

An information filed March 15, 1988 charged defendant Edgar 

Reynolds with sexual intercourse without consent in violation of 

9 45-5-503, MCA, or in the alternative, sexual assault in violation 

of 9 45-5-502, MCA. The alleged victim was defendant's sixteenyear-old adopted daughter, I1Janey Doe.'' 

Acting on information' that Janey Doe may have been sexually 

abused, Rochelle Beley, a social worker for the Montana Department 

of Family Services assigned to Golden Valley County, interviewed 

Janey in January, 1988. Ms. Beley noticed Janey had numerous cuts 

on her left arm. Fearing that the girl might be suicidal, Ms. 

Beley arranged for Janey Doe to meet with Sandi Burns, a Billings 

psychotherapist and expert on child sexual abuse. Ms. Beley also 

reported the suspected sexual abuse to the county attorney. 

In March of 1988, Janey Doe entered the 2-North Psychiatric 

Unit of Billings Deaconess Hospital for crisis intervention. After 

her release she returned to her home but was soon placed in a 
foster home in Ryegate. In June, 1988, Ms. Beley, after receiving 

a phone call from Janey, went to her foster home and found the girl 

sitting on the edge of the bathtub covered with blood. Janey Doe 

had used a razor to cut herself down her entire left arm, both legs 

and across her stomach. Janey was then admitted to Rivendell, a 

Billings treatment center for emotionally disturbed children. 

~ollowing a two-month stay at Rivendell, Janey was placed in a Park 

City foster home. 

After a change venue and three continuances the trial was held 

in Roundup on November 28-30, 1988. Janey Doe testified at trial 

that she had started cutting on herself in seventh or eighth grade 

because she could not deal with the defendant's sexual abuse. 

Defendant's abuse of Janey started before she was in the fourth 

grade and continued beyond November, 1985, when an earlier referral 

had been investigated. Typically, defendant would ask Janey to 

come into his bedroom and ''scratch his back.'' Defendant would then 

have her masturbate him. Sometimes defendant would insert his 

fingers or a vibrator into Janey's vagina, show her pornography or 

perform other sexual acts on Janey Doe. 

Defendant also testified at trial, denying having performed 

such acts against his adopted daughter. The jury returned a 

verdict of guilty of sexual intercourse without consent. At 

sentencing, defendant admitted sexually abusing Janey Doe and 

accepted responsibility for his actions. 

~dditional facts will be discussed as necessary. 

Issue 1: Was defendant denied the right to a 

speedy trial by a delay of 243 days from 

arrest to trial? 
From the time the defendant was arrested on March 21, 1988, 

the trial was delayed by .motion four times. During this time, 

however, defendant was free on bond. 

Originally set for May 25, the trial was first reset for 

August 8 at the omnibus hearing following defendant's indication 

that he intended to file a change of venue. On July 27, Janey 

Doe's guardian ad litem filed a motion to continue the trial, 

citing as reasons the fact that Janey was under the care of 

attending physicians and mental health professionals and requiring 

Janey to participate as a witness at the time scheduled for trial 

would likely cause her to experience additional psychological 

trauma and emotional harm and would not be in her best interests. 

Defendant did not dispute the basis for the motion, but did object 

to the continuance as impeding his right to a speedy trial. 

Neither party requested a hearing on the motion. The motion was 

granted and trial reset for September 13. 

Citing the same reasons as in the first motion to continue, 

Janey's guardian ad litem filed a second motion for continuance on 

August 30, 1988. Again defendant did not dispute the basis for 

the motion but did oppose the continuance as a denial of his right 

to a speedy trial. Following a hearing on the matter, the second 

motion for continuance was granted and trial set for November 14. 

At this point the District Court required the guardian ad litem to 

report the victim's condition to the court and counsel every two 

weeks. 

Defendant's counsel requested the final motion for 

continuance, in order to accommodate a planned hunting trip and to 
allow more time for witness interviews. The court granted the 

motion and trial was reset for November 28. Defendant accepts 

responsibility for the final two-week delay. 

On the first day of the trial defendant filed a motion to 

dismiss for lack of a speedy trial. Following argument on the 

motion, the District Court denied the defendant's motion to 

dismiss. 

The Sixth Amendment to the united States constitution and 

Article 11, Section 24 of the Montana Constitution guarantee the 

defendant's right to a speedy trial. The United States Supreme 

Court adopted a four-factor balancing test where the conduct of 

both the prosecution and the defendant are weighed to determine 

whether defendant's right to a speedy trial has been denied. 

Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 

101. The four factors to be balanced are: (1) length of delay; 

(2) reasons for the delay; (3) defendant's assertion of the right; 

and (4) prejudice to the defendant. State v. Tilly (1987), 227 

Mont. 138, 140, 737 P.2d 484, 486 (citing Barker, at 530, 92 S.Ct. 

at 2192, 33 L.Ed.2d at 117). 

Considering the length of and reasons for the delay factors, 

we note 257 days passed from the time the information was filed on 

March 15, 1988 to the time trial commenced on November 28, 1988. 

A 257 day delay triggers a speedy trial inquiry. Tillv, at 140, 

737 P.2d at 486; State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 

956, 958; State v. Chavez (1984), 213 Mont. 434, 441, 691 P.2d 

1365, 1370. Such a delay gives rise to a presumption that the 

defendant has been deprived of a speedy trial and shifts the burden 
to the State to either offer a reasonable excuse for the delay or 

demonstrate that the defendant was not prejudiced by the delay. 

Tilly, at 141, 737 P.2d at 486. Should both excuse and prejudice 

exist, these factors must be balanced. Id. 

The 243-day delay was primarily the result of the two 

continuances requested by Janeyls guardian ad litem and granted by 

the District Court. In moving for the continuances, the guardian 

stated that deep psychological harm to Janey would likely result 

from her testifying at that time. Janey Doe, a material witness 

for the State, was temporarily unavailable to testify because of 

her emotional instability. The State provides a reasonable excuse 

for delay when a material witness is unavailable to testify due to 

illness largely caused by the defendant. till^ at 141, 737 P.2d 

at 486 (quoting Barker, at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 

117). 

Of the 257 days, the defendant accepts responsibility for 

fourteen days caused by the defense attorney's request for the last 

continuance which delayed the trial an additional two weeks, 

leaving 243 days to account for. The State contends that the 

defendant's motion for a change of venue occasioned a 74-day delay 

chargeable to the defendant. We disagree. It is clear from the 

court's order granting the change of venue that no delay in the 

trial was anticipated by the District Court: 

IT IS ORDERED that the Defendant Is Motion 

for Change of Venue is Granted in that the 

place of jury trial in this matter shall be 

moved from Ryegate, in Golden Valley County, 

- to Roundup, in Musselshell County. Jury trial 

herein, estimated to take three days, remains 

set for 9:00 a.m. on August 8, 1988. Golden 

Valley County will assume the costs of said 
trial. (Emphasis in original.) 

As the language of the order makes clear, the trial remained set 

for August 8, 1988. We decline to attribute any delay to the 

defendant for exercising his option to request a change of venue. 

Turning to the third factor, there is no doubt that defendant 

asserted his right to a speedy trial. Both times the guardian ad 

litem filed for continuances, defendant objected to such motions, 

citing his right to a speedy trial. Additionally, at the outset 

of the trial, defendant filed a motion to dismiss for lack of a 

speedy trial. Such assertions of the right to a speedy trial are 

timely. State v. Steward (1975), 168 Mont. 385, 390-91, 543 P.2d 

178, 182. 

As to the fourth factor, prejudice to the defendant, the 

Barker case identified three interests of a defendant which a delay 

of trial may prejudice: (1) prevention of oppressive pretrial 

incarceration; (2) minimizing anxiety to accused; and (3) limiting 

the possibility the defense will be impaired. Tilly at 143, 737 

P.2d at 487 (citing Barker at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 

118). Considering these interests as applied to the facts in the 

case at bar, we find no prejudice to the defendant. Defendant had 

been free on bond since four days after his arrest, and was free 

to continue working as a long-haul trucker. The record does not 

show nor does the defendant allege that he was unduly anxious or 

concerned. "One may expect a certain amount of anxiety and concern 

when accused of a crime. Tilly at 143, 737 P.2d at 488 (citing 

Chavez, supra). Nor can we find evidence in the record that 

defendant's defense was possibly impaired. Although defendant 
contends that a Dr. Alpacka who had treated Janey Doe had left the 

state and could not be located, we do not find this prejudicial 

because neither the State nor the defendant knew what Dr. Alpacka Is 

testimony would have been, Dr. Alpacka was not listed as a witness 

by either party, and the record does not disclose the extent of his 

involvement with Janeyts treatment. We find the defendant was not 

prejudiced by the delay. 

Accordingly, we hold the defendant was not denied his right 

to a speedy trial. 

Issue 11: Did the trial courtts refusal to 

order the release and disclosure of Janey 

Doe's medical and psychiatric records deny 

defendant the right to confront witnesses 

against him or the right to due process? 

On the first day of trial defendant filed a motion to obtain 

Janey Doe's medical and psychiatric records, arguing defendant was 

entitled to copies of medical reports, psychological evaluations 

or interviews of any of the counselors or psychiatrists that 

treated Janey, including Rochelle Beley, Sandi Burns, Dr. Michael 

Sievert and Dr. Harry Newman. Defendant reasoned that because the 

State intended to call as expert witnesses psychotherapist Sandi 

Burns, psychiatrist Dr. Michael Sievert, Ms. Burns and Dr. Sievert 

would base their opinion testimony on conversations had with Janey 

Doe and other notes and reports on which the experts relied. 

Defendant claimed that in order to effectively cross-examine these 

witnesses and not be denied due process, defendant needed to 

examine Ms. Burns' and Dr. Sievertts notes on Janey. Defendant 

further argued that the State had access to information contained 

in social worker Rochelle Beleyts investigative file on Janey Doe, 
that such information may have been exculpatory, and the State was, 

therefore, obligated to disclose the file to defendant. Defendant 

also moved to prohibit the testimony of Burns, Sievert and Beley 

on the basis that the State failed to disclose the information 

contained in their investigative and psychological files. 

The matter was heard on November 28. The discussion between 

the District Court and counsel indicates that the defense had 

received all medical and psychiatric reports that were in the 

possession of the prosecutors. Discussion also showed defense 

counsel had interviewed Ms. Beley and Ms. Burns before trial and 

that the prosecutors and guardian ad litem themselves had not 

examined the case files of the mental health professionals who had 

treated Janey Doe. 

The files of Rochelle Beley, including any reports therein 

from Rivendell and ~illings Deaconess Hospital's 2-North 

Psychiatric unit, were subjected to an in camera inspection by 

defense counsel. The prosecutor also agreed to ask psychotherapist 

Sandi Burns to bring her records for a similar in camera 

inspection, but defense counsel made no further request for 

inspection. 

While allowing an inspection of Rochelle Beleyls file, the 

District Court denied motions as to all other records. Dr. Sievert 

did not testify at trial, nor did defendant subpoena him. Both Ms. 

Burns and Ms. Beley testified at trial and defense counsel crossexamined them without restriction. 

We find that defendant was not denied either his right to 

confront witnesses or his due process rights because of the 
District Court's refusal to grant defendant's motion to obtain all 

Janey Doe's medical and psychiatric records. We adopt the 

reasoning of our sister court in Colorado which held: 

[Tlhe right of a defendant to confront his 

accusers is not equivalent to a 

constitutionally compelled rule of pretrial 

discovery. Rather, the right of confrontation 

is a trial right, guaranteeing an opportunity 

for effective cross-examination. See 

Pennsylvania v. Ritchie, 480 U.S. 39, 107 

S.Ct. 989, 94 L.Ed.2d 40 (1987). (Emphasis in 

the original.) 

People v. Exline (Colo. App. 1988), 775 P.2d 48, 49. Additionally, 

the United States Supreme Court has held that: 

The ability to question adverse witnesses, 

however, does not include the power to require 

the pretrial disclosure of any and all 

information that might be useful in 

contradicting unfavorable testimony. 

Pennsylvania v. Ritchie (1987), 480 U.S. 39, 53, 107 S.Ct. 989, 

999, 94 L.Ed.2d 40, 54. (Footnote omitted.) 

As we noted in a recent case, because defendant was afforded 

the opportunity to cross-examine all witnesses against him, the 

court's ruling denying defendant access to the victim's child abuse 

files of certain state agencies does not violate defendant's right 

to confront his accusers. State v. hi el (Mont. 1989) , 768 P. 2d 

We further hold that the medical records pertaining to the 

victim's psychotherapeutic treatment are protected from disclosure 

by various recognized testimonial privileges which outweigh the 

defendant's purported need for or limited right to such information 

in the hands of a non-adversary third party. Section 26-1-807, 
, Y 

MCA, provides an unqualified privilege for confidential 

communications between a psychologist and client. The District 

Court acted properly in denying defendant's motion to obtain access 

to Dr. Sievert's, Sandi Burns1 and Dr. Newrnan1s records pertaining 

to Janey Doe. 

Issue 111: Was it plain error to permit the 

use of expert testimony to identify the 

defendant Janey Doe as the victim of sexual 

abuse? 

Defendant argues that even though no objection was made at 

trial, the admission of testimony by Rochelle Beley and Sandi Burns 

indicating Janey Doe had been sexually abused was improper because 

it was not scientifically reliable. Defendant claims the issue is 

reviewable, however, under Rule 103 (d) , M.R. Evid., and our previous 

decision in State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588, 

as Itplain error. l1 

The I1plain errorg1 rule is subject, in criminal proceedings, 

to subsection (2) of 5 46-20-701, MCA, which reads: 

(2) Any error, defect, irregularity, or 

variance which does not affect substantial 

rights shall be disregarded. No claim 

alleging an error affecting jurisdictional or 

constitutional rights may be noticed on 

appeal, if the alleged error was not objected 

to as provided in 46-20-104, unless the 

defendant establishes that the error was 

prejudicial as to his guilt or punishment and 

that : 

(a) the right asserted in the claim did 

not exist at the time of the trial and has 

been determined to be retroactive in its 

application; 

(b) the prosecutor, the judge, or a law 

enforcement agency suppressed evidence from 

the defendant or his attorney that prevented 

the claim from being raised and disposed of; 

or 
(c) material and controlling facts upon 

which the claim is predicated were not known 

to the defendant or his attorney and could not 

have been ascertained by the exercise of 

reasonable diligence. 

Defendant presents no evidence that establishes the alleged 

error was prejudicial as to his guilt or punishment and that meets 

any of the three criteria listed in 5 46-20-701(2), MCA. 

We have stated before that when expert testimony in child 

sexual abuse cases has not been objected to at trial as improper, 

this Court will not entertain the issue on appeal. State v. Eiler 

(1988), 234 Mont. 38, 52, 762 P.2d 210, 219. 

We affirm the decision of the District Court. 

We concur: /1