*1
Co.,
having
placed
631,
petitioner,
been
on stat- Nationwide Mut. Ins.
307 Md.
endorsement,
utory
(1986);
renewed
notice of
A.2d 586
State Farm Mut. Auto. Ins.
during
policy
448,
several times
the course of
Shelly,
her
Co. v.
394 Mich.
(Colo.1992). the endorsement
When is considered as a
whole, language provision specifies liability coverage
the limits of to a household bodily injury.
member Additionally, pursuant to section Christopher GRAY, Petitioner, Shane (1994), approval by the Commis- required only if sioner is the endorsement or policy provision coverage part reduces as of a The DISTRICT COURT OF the ELEV- “general coverage approved by reduction DISTRICT, ENTH JUDICIAL and the satisfy require- the commissioner or to Anderson, III, Honorable E. John one of part ments of other sections of this An 7.” judges thereof, Respondents. however, coverage, increase in does not re- No. 94SA109. quire approval of the Commissioner. Be- I cause do not consider endorsement 6896S Colorado, Supreme Court of coverage, prior to reduce to this endorse- En Banc. policy general ment had a household exclusion, applicable. section 10-4-720 is not Oct. 1994. jurisdictions A hold household Rehearing Denied Nov. only exclusions invalid as to the amount of liability coverage required by the minimum compulsory insurance law. Where the minimum,
policy statutory limit exceeds the liability
the insurer’s is limited to the cover
age required by Stepho statute. v. Allstate Co., (1989);
Ins. Ga. S.E.2d 887 Young,
Dewitt v.
229 Kan.
(1981); Farm State Mut. Auto. Co. v. Ins. *2 Defender, Vela, Na-
David F. State Public Frei, Desmond, Deputy talie Robin State Denver, Defenders, petitioner. for Public III, Anderson, Judge, E. Dist. Cañón John City, respondents. Rodgers, Atty.,
Edward J. Dist. Eleventh Dist., City, for amicus curiae Judicial Canon Atty., Dist. Dist. Eleventh Judicial Gen., Norton, Atty. (1986), Stephen first-degree trespass Gale A. K. one count ErkenBrack, Gen., 18-4-502, Deputy Atty. Chief Timo- 8B C.R.S. Gen., thy Tymkovieh, Farley, pursu- M. Paul and five counts of violent Sol. crime Gen., August Lizza, Deputy Atty. ant to John First Gen., Parchman, Atty. Asst. Thomas S. Asst. 17, 1993, Gray On November entered *3 Gen., Section,
Atty. Human Resources Den- plea guilty by insanity not reason of ver, for amicus curiae State of Colorado. impaired asserted the affirmative defense of Council, Attys. Raymond Colorado Dist. T. mental He condition. also filed a to motion Director, Slaughter, Executive Katherine M. suppress medical records of his Denver, Clark, Atty., for Staff amicus curiae hospitalization time, when at such he Attys. Council. Colorado Dist. was evaluated and treated for mental health problems. later, Approximately six weeks Stanley Law H. Marks Office & Richard Gray filed a for a motion constitutional inter- Hostetler, Hostetler, Denver, A. A. Richard pretation 16-8-103.6, of section for amicus curiae Crim. Colorado Defense (1994 Supp.). Bar. hearing At requesting on the motion Opinion Justice delivered the VOLLACK interpretation constitutional of section 16-8- of the Court. 103.6, that, prosecuting attorney asserted pursuant original proceeding pursuant prosecu- section tion is entitled to records of directing to C.A.R. we a rule exami- issued County performed Gray nations ever life- respondent, Fremont District Court, why may time that with psychological to show it should deal cause not be might support condition which prohibited requiring petitioner, plea from of not Christo guilty by (Gray), reason of pher Gray guilty not Shane disclose to the impaired reason of mental prosecution psychiatric psychological condition. ex Con- versely, Gray produced aminations and contended such an inter- records pretation right violates his prior course of treatment effective assis- which occurred tance of counsel. the offense at issue.1 We issued a rule to discharge show cause and now the rule. Gray’s The district denied court motion to suppress regarding the medical records
I.
psychiatric hospitalization.
The district
Gray
charged
one count
physician/psychologist-
of criminal
court ruled that
attempt
degree
patient
to commit murder in the
privileges
first
not
do
pursuant
18-3-102,
apply
to sections 18-2-101 and
and psychological exami-
(1986),
8B C.R.S.
count of first-degree
one
nations
before
conducted
the date of the
burglary
18-4-202,
pursuant
section
question, regardless
8B offenses in
of whether
(1986),
pursuant
C.R.S.
one count of theft
defense intends
call a defense-retained
18-4-401,
(1986),
psychiatrist
section
8B C.R.S.
one count
as an
witness. The dis-
second-degree kidnapping pursuant
additionally
trict
to sec-
ruled that
16-
section
18-3-302,
(1986),
Gray’s
8B C.R.S.
one
8-103.6
count of
does not violate
Sixth Amend-
aggravated
right
of a
intimidation
witness or vic- ment
to effective assistance of counsel.
pursuant
18-8-705(l)(b),
tim
supplemented
8B The district court later
or-
its
(1986),
that,
first-degree
C.R.S.
one count of
der
Gray
placed
as-
and ruled
because
had
18-3-202,
pursuant
sault
to section
8B
his mental
pleading
C.R.S.
condition
issue
second-degree
guilty by
one count of
burglary
by asserting
reason of
pursuant
8B
affirmative defense of
jurisdiction
original
Halaby,
1.
Hoffman,
This court has
to issue a
McCrea & Cross v.
831 P.2d
prohibition
(Colo.
writ
1992);
of mandamus or
"where the
see also
v. District
proceeding
district court is
without
Court,
or in excess
(Colo. 1990);
334-35
White
jurisdiction,”
of its
C.A.R.
and "where the
Court,
(Colo.
v. District
P.2d
trial court has
discretion
abused its
and where
1984).
appellate remedy
adequate.”
an
would not be
condition,
psychiatrist
disclosures to a
re-
impliedly
had
waived his
he
perform
tained
defense counsel to
a men-
any privilege.
to assert
evaluation of the defendant’s
tal status
condi-
petition
for relief in
Gray thereafter filed
tion, but whom the defense did not intend to
prohibition
of a writ of
the nature
trial,
protected.
call as a witness at
were
stay proceed-
request
and a
to C.A.R.
Miller,
holding
P.2d at
This
was
petition.
ings pending resolution of this
We
based on the fact that the
is an
cause
the district court2 to show
ordered
agent
purposes
of defense counsel
why
requested
relief
the defendant’s
attorney-client privilege.
additionally
We
granted.
petition should not be
found that
the defendant’s assertion of an
now conclude that
the admission of
We
impaired mental condition defense did
psychiatric testimony
hospital records and
implied
waiver of his
to assert
create
*4
attorney-client privilege
neither violates the
attorney-client privilege
as to disclosures
deprives
of his
nor
the defendant
constitu-
psychiatrist
to a defense-retained
made
since
right
of counsel.
tional
to effective assistance
compromise a
to hold otherwise would
defen-
ability
freely
dant’s
to communicate
and con-
fidentially
II.
with a
retained to as-
therefore concluded
sist
defense. We
THE ATTORNEY-
SCOPE OF
that,
privilege,
absent a waiver of the
CLIENT PRIVILEGE
psychiatrist could not be forced to reveal
by
disclosures made to him
the defendant.
Gray argues
that the
13-90-107(1),
section
6A
under
(Colo.
Fuller,
People
In
v.
Waiver of A defendant who (d) places physician, surgeon, by registered A or mental condition at issue professional duly pleading guilty by insanity prac- nurse reason of authorized to pursuant profession pursuant asserting tice his to section to the laws of any impaired this state or affirmative defense of other state shall not mental 16-8-103.5, condition examined pa- without the consent of his any tient ... acquired confidentiality as to information waives claim of or attending by as patient which to communications necessary was made him physician psychologist to him to a or prescribe enable or act in the for the patient.... course of examination or treatment
such purpose mental condition for the hearing trial or on the issue of such (g) A psychologist licensed shall not be mental The court condition. shall order examined without the consent of his client prosecutor both the and the as to communication made names, exchange addresses, reports, given client to him or his advice thereon in any physician psy- statements of or professional employment.... course of chologist who has examined or treated the purpose attorney-client defendant for such mental condition. promote open is to candid and dis cussion attorney. analysis between the client and the governed Our case is not The attorney-client privilege applies only by our decision in Miller since Miller was statutory confidential attorney-client communications or to the based on the privi- counsel, client in advice, lege which, gaining decided, course of after Miller was was or direction respect rights Ghent’s amended. We therefore find Miller neither 16, 1987, approved 3. Act May psychiatrist, acting ch. sec. dant a defense-retained counsel, Colo.Sess.Laws agent 623. of defense does not fall under attorney-client privilege. the umbrella of the statutory contemplates psy- scheme that a chiatric psychological or examination aof defen- condition, of the at- the door controlling authority on the issue in n competency [pro- torney-client privilege persuasive nor in the revised terpreting ceeding] Colorado’s ....
privilege statute. legislative history of now review the We priv- ... This is a [Section] 13-90-107[:] which reveals that [;] ilege ... all is [it does] ma[k]e statute provide for broad dis- statute is intended they plead ... if want it clear was introduced closure. House Bill 87-1233 condition[,] insanity, impaired mental or hearings were legislature,5
in the 1987 incompetency psychol- or [the] concerning it a subcommittee ogist physician is not bound Judiciary Committee. the Senate Senate confidentiality.... Hearings, Deputy Judiciary Committee plain reading A of sections 13-90- Attorney May, Dan from the Fourth District 107(3) and 16-8-103.6 demonstrates that the District, purpose testified about the Judicial statutory attorney-client privilege does not statutory changes. extend to communications made to listen[,] say, Bill to do is [W]hat our needs eligible testify psychologists who are you plead insanity, fine.... if want concerning a criminal defendant’s mental is. Let’s see Let’s find out what the truth condition once that mental condition has been reports.... we’re all these doctors’ What plea therefore asserted as or defense. We trying prevent is to allow the defendant system.... Gray’s psychiat manipulate the hold that medical records of are not ric evaluations and treatments within attorney-client privilege.6 the ambit of the just really get ... What this public policy holding is consistent with Our truth.... asserts an [If weigh heavily in favor considerations which defense,] [the defendant] then *6 Gray’s medical records. of the disclosure open[s] defendant] the door. If [the purpose fundamental of a criminal trial The insanity as a want[s] [the defense] to use truth, [him,] OK, fair ascertainment of the and the say, is the benefit to then we let’s see deprived not be of valu get if all the trier of fact should that’s the truth or at least opens it. able evidence or witnesses.7 information that there is on It denied, 16, 1987, (1982), approved May cert. 464 U.S. 104 S.Ct. 5. Act ch. sec. that, (1983), Colo.Sess.Laws 622. 112 where the defendant 78 L.Ed.2d defense, testimony insanity raises an (1989), C.R.S. addi- 6. Section 11B protected psychiatric is not un defense’s tionally supports our determination that Bonds, attorney-client privilege. der the In Gray’s is entitled public interest in dis court determined that pro- hospitalization records. Section 27-10-120 outweighs privilege and found con closure vides: reasoning Stephen Saltzburg, vincing A. Records.... Psychi Privileges Lawyers Professionals: (2)(a) Nothing shall con- in this article atrists, (1980), Va.L.Rev. 635-42 where rendering privileged strued as or confidential argues the author (except any rec- information' written medical privileged under ords and information which psychiatrist’s examination of 13-90-107, C.R.S.) concerning ob- section likely to be more accurate on served behavior which constitutes a criminal insanity prosecution's. than that of the issue of upon premises offense committed facility providing psychiatrist generally will examine The defense this article or services under prosecution. defendant earlier than against any any criminal offense committed examination will thus be closer to the time person performing receiving while or services offense, are when defendant’s recollections under article. likelihood that defen- clearer and there is less (b) (1) provisions of subsection of this changed. More- dant’s mental condition apply psy- or section shall not over, undergoing might benefit a defendant chologists eligible testify concerning a crimi- examinations, examining several condition nal defendant’s mental reports psychiatrists in- unfavorable to his 16-8-103.6, tailoring responses sanity favorably subsequent more to his Pawlyk, examinations Wash.2d In State v. likely holding is also to be more defense. Defendant the court reaffirmed its Bonds, give cooperative his own P.2d 1024 State v. 98 Wash.2d III. ... only phy- Waiver extends not psychologist privilege, sician and but to the WAIVER attorney-client privilege as well. add- See 13-90-107(3). ed subsection Gray’s argument We next address by pleading guilty by added.) reason of (Emphasis by asserting impaired mental con In addressing Gray’s its order motion to dition, he waived neither the suppress records, hospital his 1990 the dis- physieian/psychologist-patient privi nor the trict court ruled: lege. prosecutor [T]he seeks to [Dis- have the order, interpreted its which section 16- trict] Court extend the waiver of section 8-103.6, the district court stated: privileged 16-8-103.6 to otherwise commu- prior nication made even to the date of
The assertion in the Fuller dissent that offense- [T]he Court remains uncon- legislature intended waiver to be limit- vinced that the necessarily in- ed to examinations under [16- subsection tended section apply 16-8-103.6 to to com- 8-]103.5(4) supportable is not basis. prior munications to the date [the] The examination to be undertaken under of- .... that subsection is ordered the court Nonetheless, pursuant to section 16-8-106. it must since this Defendant has So placed be asked ... his mental whether defendant has condition at issue both successfully plea guilty by asserted a virtue of not with re- reason gard examinations, by giving notice of the [16-8-]106 privilege against other than the affirmative defense of self-in- condition, implied crimination set forth in there is an subsection waiver with [16- 8-]106(2). no, regard to Hospital And since the the Charter answer is it records. Court], highly unlikely See legislative Clark[ seems v. District [668 P.2d 3 (Colo.1983) purpose in enacting ].[8] section [16-8-J103.6 provide was to for waiver of a added.) (Emphasis which has never existed. Section Supp.), pertinent part:
states
Under
eligible
section [16-8-]103.6 those
Privilege.
Waiver of
A defendant who
testify
any physicians
psycholo-
are
places his mental
condition at issue
gists who have examined or treated the
*7
pleading
guilty by
reason of
post-offense
the mental con-
for
pursuant
asserting
to section
dition at issue....
language
There is no
affirmative defense of
mental
excluding
limitation
pursuant
16-8-103.5,
condition
to section
psychologists.
or
...
confidentiality
waives
claim of
or
legislature
...
provided
[A]s the
privilege
has
at
as to communications made
8—]103.6,
section
privilege
waiver of
physician
or
him to a
psychologist
[16
or
in the
—
confidentiality occurs when the defendant
course of an examination or treatment for
places his mental condition at issue.
such mental
purpose
condition for the
impression
a more accurate
privilege
of his
pleads
physical
mental con-
When the
holder
a
Saltzburg argues,
agree,
dition.
and we
that
or mental condition as the basis of a claim or
for these reasons all available evidence of de-
only
as an affirmative
reasonable
put
fendant's mental condition should be
be-
thereby impliedly
conclusion is that he
waives
jury.
fore the
confidentiality respecting
claim of
that
Bonds,
Pawlyk,
(quoting
800 P.2d at 341
privilege
same condition. The
holder under
1035).
P.2d at
physical
these circumstances has utilized his
or
persuasive Saltzburg's
We find
discussion of
predicate
mental condition as the
for some
why
outweighs
full disclosure
the benefits of the
relief,
judicial
legal position
form of
and his
attorney-client privilege.
to that condition is irreconcilable with a claim
Gray
confidentiality....
8.
reasoning
maintains that the
trial court's
Clark,
faulty
misapplied
and that the trial court
Clark.
exchange the
Judiciary
Committee on
the Senate
psy-
or
any physician
and statements
Donley initially moved to
hearings, Senator
has examined or treated
chologist who
statutory
by adding
amend the bill
a new
such
condition.
for
mental
section,
have
section
which would
statute,
attorney-
plain reading of the
provided
on a
that
the waiver of the
Based
legisla-
only
that the
16-8-103.6 indicates
extends to communica-
section
client
statutory
physician
a
waiver to
has created
or
ture
tions between
confidentiality
privilege, which
patient
or
which occurred less than two
claim
attorney-client
physi-
years prior
to the
of the crime.
includes
commission
privileges.
Donley
The de-
cian/psychologist-patient
proposed
Senator
withdrew
protection
communica-
period
waives the
to restrict
time
fendant
amendment
records,
tions,
pre-
including
medical
that
the waiver
applying
after discussion
offense,
committee,
post-date the criminal
made
it
explained
date and
in which
was
physician
psychologist
only
to a
a defendant
relates
the mental condition
waiver
being
or treatment.
in the course
examination
used as a defense. The testi-
that
that,
tenders
in-
mony
conclude
where a defendant
that
We
demonstrates
in the
mental
as an issue
his or her
condition
for the waiver of
under sec-
tended
trial,
claim
apply
mental
the defendant waives
tion 16-8-103.6 to
to medical or
attorney-client
physician/psyeholo-
may
pre-dated
even
health records
privileges,
prosecution’s
gist-patient
and a
the criminal offense.9
testimony
psy-
of a
use of
defense-retained
legislative history demonstrates
chiatrist,
who is not called
the defendant
full
legislature intended
allow for
dis-
trial, is
trial.
testify at
admissible at
medical and
health records
closure of
mental
history
legislative
of and intent behind
concerning the mental condition that the de-
support for
16-8-103.6 lend further
case.
placed
in a criminal
fendant
issue
Representa-
holding.
sponsor,
that,
The bill’s
our
therefore hold
where a defendant
We
Phillips,
presenting
tive
her bill
plea
guilty by
reason of
tenders
explained
Judiciary,
House Committee
insanity or
defense of
asserts
affirmative
effect of
Bill 87-1233:
purpose
condition,
House
the defendant
impaired mental
right to claim
opening
is a matter
all evi- waives his
bill
[T]he
jury
privileges
physician/psychologist-patient
dence to
criminal
16-8-103.6, and consents
Supreme
Court
[T]he
cases....
Colorado
pre-
post-offense
informa-
party
that a
does not waive
to disclosure
has twice ruled
con-
confidentiality
party
concerning the defendant’s medical
claim of
when that
issue
dition.10
places his
condition
Deputy
Attorney May
prosecution to rebut the
example,
tes-
but is called
District
For
*8
by
tified:
of mental illness has been considered
defense
factual
looking
probably
the best
courts in
at who
has
a number of state
federal
[Y]ou're
particular
knowledge
person....
closely
It is
precisely
of this
analo
which are
or
situations
you
confide
whom
presented
present
[a
not unusual to
doctor
the
gous to the situation
doing
many years prior to
the
seen]
many
We are aware that
courts have
case.
probably
doctor]
ha[s]
[most
the
[This
crime.
that,
insanity defense
a defendant enters an
when
defen-
reliable]
[the
information of whether
psychiatrists
testify as to
to call
to
and intends
why we
...
insane or
So that's
dant]
is
not.
issue,
attorney-
the
the defendant waives
that
put
time
we would
[a]
didn’t
limit in because
privilege
the
not extend
does
client
say
to know what that
[doctor]
want
psychiatrists.
nontestifying
defense-retained
because
[the defendant]
whether
is insane
Marshall,
(6th
Noggle
Cir.
v.
294
IV.
has considered direct state
interferences
decision-making process
counsel’s
to be a
RIGHT TO EFFECTIVE ASSISTANCE
See,
Sixth Amendment violation.
e.g., Geders
OF COUNSEL
States,
80,
1330,
v. United
425 U.S.
96 S.Ct.
Gray
that
next maintains
section 16-
(1976) (holding
295 psychiatrists originally re performed by legitimate all needs of examine If we a defendant use tained the defense where and his counsel effective a defendant defense, since, unlike Hutch- a status expert witnesses as discussed asserts mental of inson, a unduly guilt, are in- trial to is the there are none that a establish defendant concerning be- mental upon [16-8-]103.6 sole of evidence truded source protec- signifi there exist the substantial a cause condition. The state therefore has 8—]107(1). obtaining [16 afforded subsection to these tions cant access interest — Lange Young, v. 869 hand, yield evaluations. If, we to an on the other (7th denied, Cir.1989), 1008, F.2d 1013 cert. approach not and allow even of absolutist 2440, 1094, area, 490 U.S. 109 S.Ct. 104 L.Ed.2d improvement in this we need unnecessarily irrefutably subjugate 996 seeking process. truth question resolving presented, we opinion It of this Court that the jurisdictions find cases instructive other place not statutory scheme now in does presents where criminal right jeopardize a defendant’s to ef- itself insanity at trial and a claim defense advances And assistance of counsel. claims fective rights Sixth Amendment defendant’s counsel assistance of should of ineffective Many implicated. courts have found were of ordinarily focus on the facts individual statutory that schemes similar to Colorado’s eases. not a defendant’s Amend do violate Sixth People, v. 742 875 In Hutchinson P.2d rights. ment of courts (Colo.1987), this court assessed whether that, this issue have found reviewed handwriting expert, of a defense-retained use is an where mental state an accused “ intend to call as an the defense did not
whom
case, it
‘in
interest
issue in criminal
testify
prose-
whom the
expert to
trial and
permit
public justice’ for the trial court to
witness,
cution wanted
call as a
violated
full
and the defendant
both
Government
right
assistance of
to effective
reports
access to the
and conclusions”
prosecution’s
held that the
use
counsel. We
psychologists
have evalu
who
handwriting expert
of a defense-retained
defendant,
state of
ated
case-in-ehief,
during its
absent waiver
the de
does not interfere with
such access
circumstances, conflicts with the
compelling
guarantees.
Amendment
fendant’s Sixth
meaningful exchange guaranteed by the
Carr,
662, 663
437 F.2d
United States
II,
16,
Article
Sixth Amendment and
Section
denied,
(D.C.Cir.1970),
91
cert.
401 U.S.
Id.
Constitution.
at 880.
the Colorado
(1971);
also
L.Ed.2d 823
see
S.Ct.
analysis
on the
This conclusion was based
(6th Cir.)
Marshall,
Noggle v.
“[i]f [a]
fense,
pertaining
might speak
that defense
guardedly
evidence
defendant
or be
trial.”);
doctor,
to both sides at
knowing
must be available
less than candid with the
(Iowa)
Craney, 347
668
might
State v.
N.W.2d
out
the doctor
turn
to be a
(holding
him[,]
admission of
ex
against
witness
are not consider-
pert’s testimony
expert’s opin
that included
importance
ations of
sufficient
this case
sanity
ion on
and diminished ca
defendant’s
outweigh
and override the stated re-
expert’s nonincriminatory
pacity, and
obser
fairness,
quirements
justice
public
defendant,
proper
vations of the
was
and did
policy.
violation),
not
a Sixth
create
Amendment
Id. at 59.
denied,
255,
884,
cert.
469
105 S.Ct.
U.S.
83
deny
ability
To
to use
(1984);
Dodis,
v.
L.Ed.2d 192
State
314
expert simply
such a defense
because the
(Minn.1982)
that,
(concluding
N.W.2d 233
not wish to
does
call
witness
where
raised a mental illness de
truth-seeking pro
would interfere -with the
fense,
expert, who
a defense-retained
had not
Further,
cess inherent
a criminal trial.
trial,
testify
been called
the defense to
at
prejudice
risk of
to the defendant can be
prosecu
could
as a
be called
witness
jury
informing
diminished
not
during
portion
mental illness
of a
expert
originally employed by
was
the defen
procedure
trial
this
is consistent with the
Schneider,
dant.
v.
402
See State
N.W.2d
attorney-client privilege and constitutional
(Minn.1987) (“Experts
788
are not the
counsel).
rights to effective
paid harlots of either side in a criminal case
(7th
Lange
Young,
F.2d
869
1008
portrayed
not be
should
such a
Cir.1989), the Seventh Circuit ruled that as a
light.”);
Speck,
41 Ill.2d
scope
attorney
matter
law
of state
(1968) (“A
N.E.2d
witness is not the
psychiatrist
client
allowed
—which
property
party
simply
either
to a suit and
defendant,
who interviewed the
but whom
may
party
because one
have conferred with a
witness,
had not been called as a defense
paid
witness and even
him for his
testify
called
state to
the issue
incompetent
advice
him
does
render
of defendant’s
not violate the
—does
testify
party.”),
part,
other
rev’d
rights.
Sixth
defendant’s
Amendment
U.S.
S.Ct.
[his] defense could ... choose a evaluates the defendant a later when might report intervening may chiatrist who make a adverse factors bias the defendant’s theory perceptions defense counsel’s de- initial [the] reactions. *11 regarding disclosure of defense the trial court’s instituted conclude that We therefore Gray’s hospital psychiatric examinations. in to disclose order this case records, statutory scheme the Colorado disclosures, do violate de-
regarding not I. as- effective fendant’s constitutional of counsel Sixth sistance History Facts and Procedural Constitu- Amendment to the United States Christopher Gray (“Gray”) Shane II, the Colorado tion or Article Section of charged attempt degree to commit first Constitution. murder, of and with the additional crimes theft, burglary, degree first-degree second V. kidnapping, aggravated intimidation of a wit- summary, In we that the admis- conclude victim, assault, first-degree ness or second hospital psychiatric records and testi- sion degree first-degree trespass, burglary, attorney-client mony neither violates the Maj. op. at five counts of violent crime. See deprives his privilege nor the defendant of right to effective assistance of constitutional discharge the 17,1993, counsel. therefore rule. Gray pleas We On November entered guilty of not reason of and assert- LOHR, J., part concurs and dissents impaired ed affirmative defense of SCOTT, J., joins part, and in the concurrence Gray day, that condition. On same filed and dissent. suppress motion to medical records from hospitalization. psychiatric rec- Tfiese part concurring Justice LOHR generated ords from examinations and were dissenting part: prior Gray’s al- treatments that occurred majority upholds trial an order leged offenses commission at issue. denying sup- motion the defendant’s 31, 1993, Gray filed On December a motion press pertaining records interpretation” for a of section “constitutional prior evaluation and treatment occur- (1994 Supp.), contend- 8A C.R.S. In alleged rence of criminal acts. addi- ing a construction of this statute that that tion, majority interprets section 16-8- him require would to disclose information (1994 103.6, Supp.), to effect by any concerning examination or treatment any physi- or waiver of physician he psychologist or whom does cian/psyehologist-patient privilege any de- intend at trial violate to call would certain pleads guilty fendant reason of who rights. his constitutional asserts or who the affirmative de- (in Gray’s mental condition trial court denied motion suppress pre-offense psychiatric plea and affirmative defense dissent such that jointly generally The trial court ruled are referred to as the “mental status récords. defense”). Thus, pre-offense psychiatric majority holds a defendant’s records may compel discovery privileged under subsections 13-90- of the would be 107(l)(d) (g), 6A psychiatrists names of & all defense-retained Supp.) privi- (physician/psychologist-patient all defense-commissioned held, however, leges). counsel’s The trial court reports regardless of defense inten- pleads a mental status examining psychiatrist to when a defendant call the Also, implicitly testify may waives at trial. testimony experts privilege pertaining pre-offense psychiat- use the these Maj. for a ruling I ric on the motion op. its ease in chief. at 292-293. records. interpretation” of section 16- to the denial of “constitutional concur with the 8-103.6, a de- suppression pre-offense psychiatric the trial court concluded that rec- However, majority’s fendant enters a mental status defense ords. I who believe confidentiality privi- interpretation claim of section 16-8-103.6 violates waives by the lege communications to effective as to accused’s constitutional Therefore, physician psychologist who has I assistance of counsel. dissent *12 post-of- charged Thus, examined or treated the defendant did is not occur until later. attorney-client fense for the mental condition issue. The the privilege inapplicable is to waiver, court, according trial to the extends psychiatric reports the issue of the whether only physician/psychologist-patient not compiled suppressed. in 1990 should be attorney-client privileges privilege to but the 13-90-107(l)(d), Subsection which codifies as well. The trial court further held that its physician-patient states, privilege, per- the in interpretation of section 16-8-103.6 not did part: tinent contravene an constitutional accused’s to effective of counsel. physician, registered A surgeon, profes- duly practice sional nurse to
Gray petition authorized a for in filed relief the nature profession pursuant prohibition pursuant of writ of 21. the laws of this a C.A.R. any why trial state or other state exam- We ordered the court to show cause shall requested patient relief in the ined without peti- the the consent of his as majority granted.1 acquired attending tion should not be The information discharges patient now rule. necessary the the which was to enable him prescribe patient, or act for the ... II. purpose The privilege of this is to facilitate
Suppression of Pre-offense
diagnosis
by protecting
and treatment
Psychiatric Reports
patient from the embarrassment and humilia
Suppression
pre-offense
might
by
re-
tion that
be caused
disclosure
ports
governed by
applicability
of the
confidential information. Clark v. District
Court,
physician-patient
see,
privilege
(Colo.1983);
delineated
P.2d
8
e.g.,
668
(1987).2
13-90-107(l)(d),
(Colo.
People
subsection
6A
Taylor,
C.R.S.
v.
618 P.2d
psychiatric reports
1980);
Pre-offense
af-
are not
Community Hospital Association v.
by
attorney-client privilege,
Court,
fected
which
98, 100,
District
194 Colo.
570 P.2d
protects
(1977).
confidential
communications be-
prohibits
This
both
attorney
§
tween an
client. See
13-
testimonial disclosures in
pretrial
court and
90-107(l)(b),
6A C.R.S.
We have
discovery
scope
of information within the
also
Clark,
privilege.
patient reach, did not I first issue that statute states: defense. The mental status interpreting noted statutes we should interpretation that avoids constitu- seek *13 places mental condi- A who defendant Although acknowledging tional defects. guilty by by pleading not tion at issue language statutory suggest seems to the the insanity pursuant to section 16- of reason majority, I adopted here the construction 8-103, defense of asserting the affirmative expressed opinion interpreta- the that “[a]n to sec- impaired condition mental require of that would tion section 16-8-103.6 16-8-103.5, raising question of or the tion to confiden- the defendant waive proceed pursuant incompeteney to sec- tiality regarding with a defense conversations any of confiden- tion waives claim 16-8-110 expert violate the sixth amendment.” would tiality as communications or Id.; Nevertheless, I infra, part III. see physician psychologist made him to a or majority’s argument; of concede the force the or in the of an examination treat- course adopts it reflects the true the construction for the ment for such mental condition legislature. intent of the hearing the purpose any trial or issue of condition. The shall of such mental majority’s The construction reinforced (1994 the prosecutor 16-8-108(2), the and defen- order both 8A C.R.S. section names, addresses, exchange the copy dant Supp.). requires This section that “[a] any physician reports, statements of the report of of examination of or psychologist or who has examined treat- made at the instance of the defense shall for mental condition. ed the defendant such prosecution a reasonable furnished previous The ver- time in advance trial.” the defendant holds that once required only sion of this statute the defense pleads a status this statute copies provide with requires of all medical records disclosure containing reports or examinations informa- before or after .commission whether created as tion that the defense intended introduce majori- at of the criminal offense issue. 16-8-108(2), testimony. § 8A or evidence ty states: (amended (1987) by Ch. sec. C.R.S. statute, reading plain Based on a 16-8-108(2), § 1987 Colo.Sess.Laws legis- section 16-8-103.6 indicates 623). 16-8-108(2) amending By section statutory a lature created waiver legislature enacting section confidentiality privilege, or claim of statutory a scheme that intended to establish phy- which includes prosecution in where provide would cases privileges. The sician/psychologist-patient pleads mental status defense the defendant protection to commu- defendant waives array psychiatric with full an informa- as records, nications, including medical possible. the defendant as about post-date criminal of- pre-date and constitutionality of Although the sections fense, ... (1994 16-8-108(2), 8A C.R.S. 16-8-103.6 Supp.), they pertain post-offense (emphasis original). I exami- Maj. op. at 293 question, see of the defendant is convinced that this is mean- nations have become III, infra, no notwithstanding possible part there is constitutional ing of the statute A pre-offense regarding issue examinations. reading of 16-8-103.6 that alternative statutory defendant’s effective meant to effect implicated by requiring the statutorily privileges only for counsel is waiver provide with required See defense to court ordered examinations. (1994 reports. 16-8-103.5(4), pre-offense psychiatric Supp.); § 8A C.R.S. (1986); Therefore, majority that a 16-8-105(1), I concur § (Colo.1990) suppression Fuller, (Lohr, is not entitled to reports plea pre-offense psychiatric where the de- nesses trial or to conduct discussions physician-patient privi- effectively.” Id. at 183. fendant waives lege pleading guilty reason of Expert psychiatric testimony as to a insanity pursuant 8A chent’s state of mind is a crucial avenue of asserting C.R.S. affirmative investigation attorney. criminal defense pursu- mental condition Appeals The Fourth Circuit Court of in Unit- 16-8-103.5, 8A ant to section & ed Taylor recognized impor- States v. Supp.). tance of assistance to a attorney: criminal defense III. The assistance of a crucial Assistance Counsel
Effective
of respects
a number
to an effective
Confidentiality
Protections
place,
defense.
the first
Experts
Afforded Defense
presence absence of
testimo-
*14
Sixth Amendment
United
ny
presentation
is critical to
of the defense
II,
16,
States Constitution and article
at trial....
guarantee
of the Colorado Constitution
a
other,
expert
Moreover the use of an
for
right
criminal
to counsel.
defendant
Be
non-testimonial,
equally
can
functions
be
cause
counsel is essential
important. Consultation with counsel at-
ensuring that
a fair
accused receives
lay attorney
tunes
to unfamiliar but
trial,
it is well established that the
him,
concepts
central
and
medical
enables
right to
counsel includes the
effective assis
matter,
as an initial
to assess the sound-
E.g.,
of
tance
counsel.
McMann v. Richard
advisability
offering
ness and
of
the de-
son,
759,
14,
1441,
397
771 n.
90
U.S.
S.Ct.
psychiatrist
fense. The aid of a
informs
14,
(1970);
n.
1449
American Bar Association Standards for
Criminal Justice
importance
psy
Prosecution Function and
Because of
of expert
Function,
provides
guide
attorneys
which
chiatric
when counsel
Defense
professional practice,
clients,
requires
ing
many
defense coun
their
courts have held that
prompt
sel
conduct
thorough
investi
of
results
defense ordered
gation.
exams,
ABA standards
Criminal Justice
where
has
the defense
not elected to
for
trial,
findings
Prosecution Function and
Func
privi
introduce these
at
are
Defense
1993).
tion,
(3rd
4^-4.1
leged
standard
ed.
under
attorney-client privilege.
Commentary to
4-4.1
privi
standard
makes clear These courts
this information
importance
thorough investigation
of
leged
in
pled
in cases where the
defendant
lawyer
provide
by
order for a
guilty
insanity.
effective assis
not
of
reason
See United
Alvarez,
Commentary states,
(3rd
to a
tance
client. The
States v.
301 handwriting expert findings hired trial where defen psychiatric examination discoverable); attorney-client privilege v. the defense. The pled State dant (1979) calling from in its barred Toste, 424 178 A.2d 293 Conn. expert in chief an witness case hired testimony where defen (psychiatrist’s trial defense. covered defendant’s pled dant psychi
attorney-client privilege
though
even
Although
specifically
dealt
Hutchinson
at
by court on defense
atric exam ordered
handwriting expert,
need for a
we
with the
Kociolek,
motion);
N.J.
torney’s
v.
State
expert testimony
importance
identified
(where
(1957)
vides: Court, 165 ple ex rel. Juhan District Colo. noncooperative with the defendant is When 253, 263-270, P.2d 746-750 personnel and conduct- psychiatrists other required a that a In Juhan we held statute examination, ing opinion of the men- the prove insanity beyond a reason- defendant may of the be ren- tal condition do- to be unconstitutional. While able doubt per- by psychiatrists such or other dered the ing disposed considered and of so we confessions, upon admis- sonnel based such is argument that there a difference between sions, cir- and other evidence of the insanity phase trial that guilt and of the surrounding of the commission cumstances justifies standard. a different constitutional offense, well medical the as as the known We stated: defendant, history and of the and social argument is that in a criminal opinion may into evi- made such be admissible ease, though insanity is a full and permissible It even dence at trial. shall also be that issue stat- narcoanalytic complete a where to conduct interview medically separately tried no defendant drugs such are ute must be defendant with as 103.6, 16-8-108(2) psychiatrists applicable which the defen- defense-retained is 16-8-108(2) requires a defen- that section extent dant not intend to use at trial. dant does reports the of to disclose to (1984) guilty, (quoting
can
reason
Herring
be found
and for that