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Washington v. Diemel

filed: April 29, 1996.

THE STATE OF WASHINGTON, RESPONDENT,
v.
NICHOLAS LOUIS DIEMEL, APPELLANT.



Superior Court County: King. Superior Court Cause No: 93-1-02054-2. Date filed in Superior Court: November 22, 1993. Superior Court Judge Signing: Hon. Michael J. Fox.

Written by: Judge Grosse, Concurred by: Judge Becker, Judge Ellington

Author: Grosse

GROSSE, J. -- Nicholas Louis Diemel, convicted of third degree rape, contends the trial court erred in denying his motion for an in camera review and inspection of the complainant's counseling records. The trial court's determination that Diemel did not make the requisite particularized showing that the counseling records were likely to contain material relevant to the defense was a proper exercise of discretion. This threshold showing required by the trial court is entirely consistent with state and federal law, and we affirm.

The victim (hereinafter referred to as K) agreed to accompany Diemel on his sailboat. They originally met at a restaurant where K worked, and Diemel was an occasional customer. K also worked in a beauty salon on Lake Washington in Kirkland, so Diemel picked her up at a public dock near the salon about 4:30 one afternoon. They sailed from Kirkland to a restaurant on Lake Union in Seattle, had dinner, sailed after dinner, and ended their trip about 5:30 the next morning.

K alleges Diemel raped her, forcing her to have sex in the boat before it docked. She specifically denied the intercourse was consensual. She denies ever being intoxicated or having had enough alcohol to become intoxicated.

Diemel's version is significantly different. He claims K was a willing participant in all of their activities during the 13 or so hours they were together. He asserts K drank several bottles of wine and/or champagne and became intoxicated. Although he recognizes the intoxication may have impaired her judgment to a degree, Diemel claims the sex was with her consent.

After Diemel's boat docked, K left and called 911 from a

nearby phone booth. When police officers found her in the phone booth, K was quite upset and huddled in a corner. One officer testified he had a difficult time convincing her to leave the phone booth so the police could take her to the hospital. Another officer testified she indicated she had only one drink on the boat. The officer smelled a slight odor of alcohol on her breath, but did not believe she was intoxicated. At the hospital, a registered nurse obtained a blood sample from K. The sample tested at .08 some six to seven hours after K said she had her last drink.

Approximately two to three weeks after the incident, K was referred to a therapist who counseled her for seven months. Prior to trial, Diemel filed a written motion, affidavit, and brief requesting that the court conduct an in camera review of the records pertaining to this counseling, and order disclosure of any of the records relevant and helpful to the defense. In the affidavit he made three arguments in support of the motion.

First, because K maintained she was never intoxicated throughout the evening yet had a .08 blood alcohol level several hours after the alleged rape, she may have told her therapist something different about her drinking and intoxication than she admitted before. This information was to be used to impeach K's credibility. Second, defense counsel argued that K had confided to others that she was once in an abusive relationship and thus there might be a reason other than a sexual assault to explain the way she acted in the telephone booth. In support of this argument defense counsel stated he contacted a therapist who said that post-traumatic stress disorder resulting from some types of physical abuse, in conjunction with alcohol abuse, could have been the reason K cowered in the phone booth. Nonetheless, there was no affidavit from the unnamed expert. Third, defense counsel argued that K might have told her therapist about consenting to the sexual intercourse or foreplay with Diemel.

The trial court heard argument, reviewed the briefing of the parties, and denied Diemel's ...


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