                                No. 84-451
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1985




STATE OF MONTANA,
                 Plaintiff and Respondent,
         -vs-
MARTIN 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 2 2 , 1985
                                     Decided:   December 31, 1985

             '        . ;' .
Filed:
         5Fc31
         -
                  I
                  ..-a
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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 ~ . 2 d918, 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:       /
