STATE of Minnesota, Appellant, v. Jerry EXPOSE, Jr., Respondent.
No. A13-1285.
Supreme Court of Minnesota.
Dec. 9, 2015.
872 N.W.2d 252
The court has independently reviewed the file and approves the recommended disposition.
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. Respondent Charles Mayer Goldstein is publicly reprimanded.
2. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.
3. Respondent shall be placed on probation for a period of 2 years, subject to the following conditions:
(a) Respondent shall cooperate fully with the Director‘s Office in its efforts to monitor compliance with this probation. Respondent shall promptly respond to the Director‘s correspondence by its due date. Respondent shall provide the Director with a current mailing address and shall immediately notify the Director of any change of address. Respondent shall cooperate with the Director‘s investigation of any allegations of unprofessional conduct that may come to the Director‘s attention. Upon the Director‘s request, respondent shall provide authorization for release of information and documentation to verify respondent‘s compliance with the terms of this probation;
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct; and
(c) Respondent has stated that he is not presently engaged in the practice of law. If respondent resumes the practice of law, he shall maintain law office and trust account books and records in compliance with
BY THE COURT:
/s/ __________________________
David R. Stras
Associate Justice
Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant State Public Defender, and Ted Sampsell-Jones, Special Assistant State Public Defender, Saint Paul, MN, for respondent.
Lori Swanson, Attorney General, Saint Paul, MN; and John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant Ramsey County Attorney, Saint Paul, MN, for appellant.
OPINION
STRAS, Justice.
This case requires us to determine whether the therapist-client privilege, which prohibits therapists from disclosing information or opinions in court that they acquired from their clients in a professional capacity, contains an exception for threatening statements. The district court concluded that the privilege does not apply to “statements of imminent threat of harm.” The court of appeals reversed, holding that the statute codifying the privilege,
I.
As a condition of his probation for a prior conviction, respondent Jerry Expose, Jr. was required to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became upset and made a threatening statement about D.P., a caseworker assigned to an ongoing child-protection case involving Expose‘s children. Expose said that D.P. had told him recently that his continued noncompliance with a requirement of his case plan would delay the commencement of unsupervised visits with his children. Expose then became visibly angry and said that
N.M. responded to the threatening statement by informing Expose that she was a mandated reporter, to which he replied, “I don‘t give a f—k.” N.M. then “proceeded to help him de-escalate and calm down,” but Expose made additional statements about D.P., including that “[e]verybody has to go to their car at some point.”
Based on her training, N.M. determined that Expose‘s statements were not idle threats. Instead, she concluded that Expose had made specific threats of physical violence against an identifiable person that triggered her statutory duty to warn. See
The State charged Expose with one count of making terroristic threats,
At trial, the State called N.M. as its first witness. Expose again objected to N.M.‘s testimony, this time on the ground that the therapist-client privilege prohibited N.M. from testifying without his consent. The district court denied Expose‘s motion, concluding that “the privilege does not apply to statements of imminent threat of harm to a person or persons.” According to the court, the statements were admissible “[a]s an exception to the privilege.”
The State called two other witnesses. D.P. testified that N.M. told her what Expose had said during the therapy session. Expose repeatedly objected to D.P.‘s testimony as inadmissible hearsay, but the district court overruled his objections. A member of the “Critical Incident Team” within D.P.‘s agency also testified, outlining the steps he took to address the threat. He clarified that D.P. told him about the alleged threats and that his involvement was limited to ensuring D.P.‘s safety.
The jury found Expose guilty of making terroristic threats, and the district court sentenced him to a stayed term of 28 months in prison. Expose appealed his conviction, arguing that N.M.‘s testimony was inadmissible under the therapist-client privilege,
The court of appeals agreed and reversed Expose‘s conviction. State v. Expose, 849 N.W.2d 427 (Minn.App.2014). As a threshold matter, the court rejected the State‘s argument that Expose had failed to timely object to N.M.‘s testimony. See id. at 431-32. The court next held that the therapist-client privilege prohibited N.M. from testifying about information she learned during Expose‘s therapy sessions, including the content of Expose‘s alleged threats. Id. at 432-34. In doing so, the court rejected the State‘s argument that the therapist-client privilege includes a “threats exception.” Id. at 434-36. The court further held that the error in admitting N.M.‘s testimony was prejudicial because Expose‘s privileged statements were inadmissible through the testimony of any witness, including D.P., even though the statute codifying the therapist-client privilege only explicitly addresses disclosures
We granted review of three issues: (1) whether Expose timely objected to N.M.‘s testimony; (2) whether the therapist-client privilege is subject to a “threats exception“; and (3) whether the therapist-client privilege extends to the testimony of third parties.
II.
We begin with the preliminary question of whether Expose forfeited his objection when he failed, prior to trial, to assert the therapist-client privilege as a ground for the exclusion of N.M.‘s testimony. The State‘s forfeiture argument rests on
[d]efenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial by a motion to dismiss or to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver....
According to the State,
By its terms,
The nature of the “objection” in this case was different from cases in which we have applied
In fact, it would have been speculative for Expose to have objected before the trial to hypothetical questions that the State may never have intended to ask
III.
We turn now to the central question in this case, which is whether the therapist-client privilege contains a “threats exception.” The applicability of an evidentiary privilege is a question of law that we review de novo. State v. Heaney, 689 N.W.2d 168, 171 (Minn.2004).
The therapist-client privilege provides that every person may testify in any case except
(g) A registered nurse, psychologist, consulting psychologist, or licensed social worker engaged in a psychological or social assessment or treatment of an individual at the individual‘s request shall not, without the consent of the professional‘s client, be allowed to disclose any information or opinion based thereon which the professional has acquired in attending the client in a professional capacity, and which was necessary to enable the professional to act in that capacity.
The State argues that we should recognize a “threats exception” in light of another statute, which places a duty to warn on psychologists. The statute in question,
arises only when a client or other person has communicated to the licensee a specific, serious threat of physical violence against a specific, clearly identified or identifiable potential victim. If a duty to warn arises, the duty is discharged by the licensee if reasonable efforts... are made to communicate the threat.
The duty-to-warn statute does not mention the therapist-client privilege statute. According to the State, however, the two statutes are incompatible with one another because they create conflicting obligations for psychologists. The State urges us to construe the duty-to-warn statute as an exception to the therapist-client privilege. We decline the State‘s invitation to create a new, implied exception to the therapist-client privilege because the duty-to-warn statute and the therapist-client privilege statute address distinct problems and apply in different circumstances.
The duty-to-warn statute creates a discrete duty for psychologists to warn a “clearly identified or identifiable potential victim” of a “specific, serious threat of physical violence.”
The therapist-client privilege statute, in contrast, is an evidentiary statute that addresses when, and under what circumstances, therapists are competent to testify about “information or opinion[s]... the professional has acquired in attending to the client.”
Moreover, the State‘s incompatibility theory is undermined by the fact that, when the Legislature has created an exception to the therapist-client privilege in other statutes, it has done so by explicitly referencing the therapist-client privilege statute. For example, a statute dealing with child neglect and sexual or physical abuse of minors makes clear that “no evidence relating to the neglect or abuse of a child... shall be excluded... on the grounds of privilege set forth in section 595.02, subdivision 1, paragraph (a), (d), or (g).”
These examples, as well as the exceptions found in the therapist-client privilege statute itself noted above, demonstrate that the Legislature knows how to create an exception to the therapist-client privilege when it wishes to do so. It has not done so here. The inference to be drawn from the Legislature‘s decision to create exceptions to the therapist-client privilege in some statutes, but not others, is that it did not intend to create an exception to the privilege in those statutes that
Alternatively, the State argues that we should construe the duty-to-warn statute as an implicit exception to the therapist-client privilege under our “inherent authority” to promulgate rules of evidence, even if neither statute supports such a reading. To be sure, we have the authority to establish and amend the rules of evidence. See
The Minnesota Rules of Evidence contain provisions that are consistent with the Legislature‘s limited grant of authority. In particular,
In summary, the therapist-client privilege statute lacks a “threats exception,” either by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence. The district court therefore abused its discretion when it allowed N.M. to testify about Expose‘s allegedly threatening statements without his consent.
IV.
Having concluded that the district court erred in admitting N.M.‘s testimony about the content of Expose‘s statements, we must next assess whether the error was harmless. The court of appeals determined that it could not affirm Expose‘s conviction, even though the jury also heard about Expose‘s statements from D.P., who learned of the alleged threats from her telephone conversation with N.M. State v. Expose, 849 N.W.2d 427, 436-37 (Minn. App.2014). In reaching its conclusion, the court held that the therapist-client privilege prohibits any witness from testifying about confidential information acquired by a therapist while attending a client, even if the information is introduced through a
A.
To determine whether the therapist-client privilege extends to third-party testimony, we once again look to the text of the statute. The therapist-client privilege statute, by its terms, addresses only the competency of registered nurses, psychologists, and licensed social workers.
In response, Expose insists that such a narrow reading of the therapist-client privilege statute dilutes the privilege. However, Expose confuses the privilege with a therapist‘s professional duty of confidence. We have long construed evidentiary privileges narrowly. See Larson v. Montpetit, 275 Minn. 394, 402, 147 N.W.2d 580, 586 (1966). For example, in the analogous context of the physician-patient privilege, we said that,
[a]s with other privileges, the privilege is essentially designed to forbid compulsory disclosure by the person to whom the confidence was extended. It therefore does not exempt a third person who overheard the conversation or gained the information, with or without the knowledge of the patient, from testifying unless the third person is an agent of the physician.
State v. Staat, 291 Minn. 394, 398, 192 N.W.2d 192, 197-98 (1971). Expose does not provide a convincing reason to treat the therapist-client privilege any differently, particularly in the absence of textual support for his position. Accordingly, D.P.‘s testimony regarding Expose‘s allegedly threatening statements was not subject to the therapist-client privilege.
B.
We now address whether Expose is entitled to a new trial due to N.M.‘s disclosure of privileged information at trial. Because the district court‘s error in admitting the information does not implicate a constitutional right, a new trial is required only if the error “substantially influenced the jury‘s verdict.” State v. Sanders, 775 N.W.2d 883, 887 (Minn.2009).
The State urges us to affirm Expose‘s conviction because the jury heard the substance of the alleged threats through D.P.‘s testimony, even though she was not present when Expose made the statements. Expose, on the other hand, argues that D.P.‘s testimony constituted inadmissible hearsay, and thus we cannot consider it in our assessment of whether the district court‘s error was harmless. We need not address Expose‘s hearsay argument because we conclude that, even in light of D.P.‘s testimony, the erroneous admission of the privileged information through N.M.‘s testimony substantially influenced the verdict.
In assessing whether an error is harmless, the question is not whether the evidence was sufficient to support the conviction, but rather whether the error substantially influenced the verdict. See State v. Koppi, 798 N.W.2d 358, 365-66 (Minn.2011) (rejecting the proposition that harmless-error analysis is about assessing the sufficiency of the evidence presented at trial). Here, even if D.P.‘s testimony were
To convict Expose, the jury had to find that he acted with “reckless disregard of the risk” that his threats would cause terror.
In comparison, D.P.‘s testimony was less substantial. D.P.‘s testimony conveyed only what N.M. told D.P. that Expose had said, not the actual content or tone of Expose‘s statements. D.P.‘s testimony was also far less extensive than N.M.‘s testimony; in particular, it stopped short of N.M.‘s testimony on the critical element of Expose‘s mens rea. For example, only N.M. told the jury that she had warned Expose that she was a mandated reporter and had tried to calm him down, but that Expose had continued to make threats throughout the session. D.P. was also unable to describe Expose‘s body language or level of anger during the session, or compare Expose‘s statements with those of other upset clients. Thus, N.M.‘s testimony provided the key evidence that Expose had acted recklessly with respect to causing terror. Accordingly, because we cannot say that the error in this case was harmless, we reverse Expose‘s terroristic-threats conviction.
V.
For the foregoing reasons, we affirm the judgment of the court of appeals as modified and remand to the district court for further proceedings consistent with this opinion.
Affirmed as modified and remanded.
WRIGHT, J., took no part in the consideration or decision of this case.
HUDSON, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.
No. A15-1710.
Supreme Court of Minnesota.
Dec. 9, 2015.
ORDER
The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent John G. Hoeschler committed professional misconduct warranting public discipline—namely, filing and settling