CRIME VICTIMS R.S. and S.E., Petitioners, v. THE HONORABLE PETER A. THOMPSON, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, TEDDY CARL VANDERS, Real Party in Interest.
No. 1 CA-SA 19-0080
ARIZONA COURT OF APPEALS DIVISION ONE
FILED 11-21-2019
Petition for Special Action from the Superior Court in Maricopa County No. CR2017-132367-001 The Honorable Peter A. Thompson, Judge JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Jamie Balson Attorney at Law, Sun City By Jamie Balson
Maricopa County Office of the Legal Advocate, Phoenix By Elyse Anne Fune, James P. Leonard Counsel for Real Party in Interest
OPINION
Chief Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge James B. Morse Jr. and Judge Kenton D. Jones joined.
S W A N N, Chief Judge:
¶1 In this case, we hold that the physician-patient privilege does not yield to the request of a criminal defendant for information merely because that information may be helpful to his defense.
¶2 Teddy Carl Vanders is charged with second-degree murder. On his request, the superior court ordered a hospital to disclose the deceased victim’s privileged mental health records for an in camera review. Siblings of the victim petition for special action relief from that order.
¶3 Vanders’s argument is that his constitutional rights overcome a statutory privilege. While it is true that the privilege cannot withstand a direct conflict with a constitutional right, a defendant’s due process right to a fair trial does not create a right to discovery any greater than those rights created by
FACTS AND PROCEDURAL HISTORY
¶4 On July 13, 2017, Vanders called 9-1-1 and told the operator that he had just shot and killed his long-term girlfriend, M.S., during a domestic dispute. He described the incident to the operator, saying “[M.S.] was acting evil and possessive. She was crawling around. It was insane and not normal.” He also said that M.S. had abused him throughout their relationship, and that he had “been threatened for many years.” He told the operator that M.S. had been to a mental hospital and that he thought she had been diagnosed with a mental illness.
¶5 Before trial, Vanders requested that the court compel “Magellan Hospital/Urgent Psychiatric Care Center” to disclose for an in camera review M.S.’s privileged mental health records from a visit six years before her death. Vanders claimed that “the nature of the requested records are essential to his listed [justification] defenses and to his ability to effectively examine witnesses.” In support of his motion, Vanders cited his statements to the 9-1-1 operator and two police reports from 2009 and 2011, both of which listed him as the victim of domestic assault. In the 2009 incident, M.S. was taken into custody after she admitted to hitting Vanders while both were intoxicated. In the 2011 incident, while the couple were intoxicated, M.S. broke open the couple’s gun safe to get a gun to kill herself, and Vanders physically restrained her. According to the report, M.S. was “hysterical and kept saying she wanted to kill herself,” and, once in custody, asked for an officer’s gun so she could kill herself. The police took her to Magellan Hospital “due to [her] current mental state,” where she voluntarily checked herself in and told staff that “she did need help and wanted to talk to them about suicide.”
¶6 Relying on State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232 (App. 1992), the superior court found that Vanders’s due process rights required disclosure of M.S.’s privileged records for an in camera review. The court granted Vanders’s motion, and M.S.’s siblings, as victims under Arizona’s Victims’ Bill of Rights (“VBR“), brought this special action challenging the ruling. See
JURISDICTION
¶7 Special action jurisdiction is appropriate when there is no equally plain, speedy, and adequate remedy by appeal,
DISCUSSION
¶8 The petitioners argue that the superior court erred by granting Vanders’s request for an in camera review of M.S.’s medical records because the records are protected under the VBR and the physician-patient privilege, and because Vanders failed to establish a superseding constitutional right to the protected records. Generally, we will not disturb the superior court’s ruling on a discovery matter absent an abuse of discretion. State v. Fields, 196 Ariz. 580, 582, ¶ 4 (App. 1999). But we review the legal principles on which the court bases its discovery ruling, including whether a privilege applies, de novo. State v. Zeitner, 246 Ariz. 161, 164, ¶ 8 (2019). Because we can resolve this special action based on the statutory privilege, we need not reach the court’s ruling regarding the VBR. See Goodman v. Samaritan Health Sys., 195 Ariz. 502, 505, ¶ 11 (App. 1999) (“It is sound judicial policy to avoid deciding a case on constitutional grounds if there are nonconstitutional grounds dispositive of the case.“).
I. VANDERS’S DISCOVERY RIGHT DOES NOT OVERCOME THE PHYSICIAN-PATIENT PRIVILEGE.
¶9 It is well-established that “[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977); see Brady, 373 U.S. 83; State v. Connor, 215 Ariz. 553, 561–62, ¶ 21 (App. 2007). In Brady, the Supreme Court held that the government’s failure to disclose evidence in its possession that was both favorable to the defendant and material to guilt or punishment violated the defendant’s due process rights. 373 U.S. at 87; see United States v. Bagley, 473 U.S. 667, 682 (1985) (“[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.“). Even considering the right established in Brady, “[t]he federal constitution gives the defense no greater right to discovery than exists under state law.” Roper, 172 Ariz. at 236 (citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987)).
¶10 We first examine whether Vanders’s state right to discovery entitles him to access M.S.’s privileged records. In Arizona, a criminal defendant’s right to disclosure is governed by
¶11 The physician-patient privilege is not absolute, but its exceptions generally are limited to those circumstances in which the legislature determined that society’s interests in disclosure outweigh a patient’s interest in privacy. See, e.g.,
¶12 When the defendant’s rule-based right to demand documents conflicts with a person’s statutory physician-patient privilege, the privilege must prevail. See State v. Hansen, 215 Ariz. 287, 289, ¶¶ 7–8 (2007) (holding that if the court is unable to harmonize an apparently conflicting statute and rule, it must determine whether the matter regulated is procedural or substantive, and if substantive, then the statute prevails). Such is the case here: both
II. WE DO NOT EMBRACE ROPER’S BROAD EXTENSION OF A DEFENDANT’S RIGHT TO PRESENT A COMPLETE DEFENSE.
¶13 Citing Roper, Vanders suggests that the due process right to present a complete defense transforms discovery into a constitutional right, which would overcome the statutory privilege.
¶14 Due process requires that a defendant receive a fundamentally fair trial, including “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); see also Oshrin v. Coulter, 142 Ariz. 109, 111 (1984). In Roper, this court extended that right to entitle the defendant to an in camera review, and potentially full disclosure, of the victim’s physician-patient privileged records, even when those records were not in the possession of the state. Roper, 172 Ariz. at 239.
¶15 The facts in Roper were unique and, importantly, the court did not know when it ruled whether the privileged records were in the state’s possession. The defendant in that case had stabbed her husband, who allegedly suffered from a multiple-personality disorder and was manifesting one of his violent personalities at the time of the offense. Id. at 237. The defendant alleged that she acted in self-defense, and asserted that she knew her husband suffered from multiple personalities and that she had joined him in at least some counseling sessions for treatment of the disorder. Id. at 235, 237. Before trial, the defendant requested disclosure of her husband’s medical records. Id. at 234. The superior court granted the request and ordered an in camera review of the records based on its finding that the defendant showed that the records were “important” and that the privilege had been partially waived. Id. at 234–35.
¶16 On appeal, this court held that when a defendant’s due process right to a fair trial directly conflicts with the physician-patient privilege or the VBR, then due process is the superior right. Id. at 239. Although the court acknowledged that a defendant
¶17 This court instructed the superior court to examine the records in camera and order disclosure of those records that were “essential to presentation of the defense of self-defense” or “essential to the determination of the ability of the victim to perceive, recall, and/or accurately relate the events of the day in question.” Id. at 235. The court did not discuss what standard the superior court should have applied to determine whether the defendant was entitled to an in camera review in the first place.
¶18 Roper largely based its holding on cases involving privileged materials already in the state’s possession (and therefore subject to Brady), or on cases concerning a defendant’s Sixth Amendment trial-based confrontation rights. For example, the court cited United States v. Agurs, 427 U.S. 97 (1976), and McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988)—both involving information known to the government—for the proposition that “a defendant’s due process rights were generally recognized to be violated if the victim possessed exculpatory information that was not disclosed to the defendant.” Roper, 172 Ariz. at 238. And the court cited Michigan v. Lucas, 500 U.S. 145 (1991), and Davis v. Alaska, 415 U.S. 308 (1974)—both analyzing, under a Sixth Amendment framework, a trial court’s erroneous exclusion of protected records relevant to impeachment—for the broad proposition that “state laws providing for nondisclosure of information to defendants must, in some situations, yield to the constitutional confrontation rights of the accused.” Roper, 172 Ariz. at 240. These Confrontation-Clause-based cases did not concern court-ordered disclosure of privileged records by third parties, but instead addressed whether the defendant could use protected information, to which the defendant already had access, for impeachment. Lucas, 500 U.S. at 147–48, 152–53; Davis, 415 U.S. at 318–20; see also Ritchie, 480 U.S. at 52 (explaining that the effect of interpreting the Confrontation Clause to require pretrial access to information “would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery“).
¶19 No decision binding on this court has held that a defendant’s due process right to a fair trial evolves into a general constitutional right to discovery, which could then work to overcome an individual’s physician-patient privilege. And those cases that have allowed invasion of the privilege are distinguishable. One line of cases, which generally relies on Davis, requires juvenile records to be disclosed to the defendant so the defendant can impeach adverse witnesses. See, e.g., State v. Morales, 129 Ariz. 283, 285–86 (1981) (holding that, based on the defendant’s showing of the content within a protected record, the statute protecting confidentiality of juvenile records maintained by the department of corrections was defeated by the defendant’s constitutional right to effective cross-examination); State v. Rodriguez, 126 Ariz. 28, 30–31 (1980) (finding an exception to the confidentiality of juvenile case dispositions under
¶20 Another line of cases has required disclosure of physician-patient privileged records where there is an exception to the privilege. See Ritchie, 480 U.S. at 43–44, 57–58 (noting a Pennsylvania statutory exception allowing disclosure of privileged documents to a “court of competent jurisdiction pursuant to court order“); Zeitner, 246 Ariz. at 163, ¶ 1 (finding a valid statutory exception to
¶21 We agree with Roper that when a defendant’s established due process right directly conflicts with a non-federal constitutional right, the due process right must prevail. See 172 Ariz. at 236; see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (holding a defendant’s right to present “trustworthy” and “critical” evidence outweighed state’s interest in adhering to hearsay rules). The physician-patient privilege often will directly conflict with the defendant’s ability to perfect his trial presentation, but only in the exceptional case will it directly conflict with a defendant’s fundamental right to a fair trial such that the privilege must yield to due process. Indeed, the privilege is designed to withstand even a party’s demonstrated need for the information it protects—if mere relevance were enough to defeat the privilege, it would provide no meaningful protection at all. See Jaffee v. Redmond, 518 U.S. 1, 18 (1996) (“An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” (citation omitted)); see also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.“).
¶22 Accordingly, we reiterate that a defendant does not have a general constitutional right to discovery from a third party, and we depart from Roper to the extent it implies that such a right exists. We also recognize, however, that the physician-patient privilege is not entirely impenetrable because in the exceptional case, the privilege could be applied to violate a defendant’s due process right to present a defense. See Swidler & Berlin v. United States, 524 U.S. 399, 408 n.3 (1998); see also Trombetta, 467 U.S. at 485; Edward J. Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary Privileges §§ 11.1, 11.3 (3d ed. 2019) (noting that even purportedly absolute privileges must occasionally yield to a defendant’s showing of truly compelling need).
III. A DEFENDANT MUST MAKE A SHOWING OF PREJUDICE BEFORE HE IS ENTITLED TO AN IN CAMERA REVIEW OF PRIVILEGED RECORDS.
¶23 In State v. Connor, this court deduced that Roper authorized infringement of the physician-patient privilege for in camera review “in the context of a reasonable possibility that the information sought by the defendant included information to which she was entitled as a matter of due process.” 215 Ariz. at 558, ¶ 10 (emphasis added). Despite the relatively permissive language of this standard for in camera review, defendants have not been successful in challenging the privilege. See, e.g., State v. Kellywood, 246 Ariz. 45, 48–49, ¶¶ 9–15 (App. 2018) (holding that the defendant did not make a specific enough showing that the victim’s communications with her counselor, during the time frame that the crime was committed, contained exculpatory information); State v. Sarullo, 219 Ariz. 431, 436–37, ¶¶ 19–21 (App. 2008) (affirming the superior
¶24 An in camera review is inherently less intrusive than outright disclosure, but it is nevertheless an intrusion and an encroachment on the rights guaranteed by
¶25 While we cannot expect a defendant to know the exact contents of the privileged records he has not yet seen, this standard does require that the defendant demonstrate a document-specific basis for invading the privilege. See Connor, 215 Ariz. at 558, ¶ 11. Because a defendant does not have an established constitutional right to discovery, the court must start with a strong presumption that the privilege prevents access to the information it protects.
IV. VANDERS FAILED TO ESTABLISH A SUBSTANTIAL PROBABILITY THAT HE IS ENTITLED TO THE PRIVILEGED DOCUMENTS AS A MATTER OF DUE PROCESS.
¶26 Vanders argues that
¶27 Vanders argued to the superior court that M.S.’s mental health records “are essential to his listed defenses and to his ability to effectively examine witnesses.” Vanders showed that M.S. had been the aggressor in at least two domestic disputes. On one of those occasions, in 2011, M.S. checked into a mental health facility to address suicidal tendencies after telling police and Vanders that she wanted to kill herself, and attempting to do so. Vanders also showed that he was the one to call 9-1-1 after he shot M.S., and that he made several statements to the 9-1-1 operator consistent with his story that he acted
¶28 Vanders has made no showing to suggest that M.S.’s hospital records from six years before her death would likely contain non-cumulative information to bolster his defense, and he does not articulate how diagnosis of a mental health condition from six years earlier would make his case or break the state’s case. And because Vanders was not aware of any specific diagnosis at the time he shot M.S., he did not—and cannot—establish how such a diagnosis may have impacted his actions that day. Vanders already has access to similar reliable evidence via a recording of the 9-1-1 call and the police reports from the two earlier domestic violence incidents. The police narrative in the 2011 incident report, for instance, vividly describes M.S.’s aberrant behavior. While the hospital records may be helpful corroborating evidence, there is little in this record to show that excluding the deceased victim’s medical records would deprive Vanders of the ability to refute an element of the state’s charge or to establish an element of his justification defense.
CONCLUSION
¶29 For the foregoing reasons, we accept jurisdiction and grant relief. M.S.’s mental health records are privileged, and Vanders has not established that upholding the privilege and denying his request for an in camera review of the records would violate his due process right to a fundamentally fair trial.
AMY M. WOOD • Clerk of the Court