Harris v. State

420 Md. 300

22 A.3d 886

Lamar Cornelius HARRIS

v.STATE of Maryland.

No. 79

Sept. Term

2010.

Court of Appeals of Maryland.

June 24, 2011.

Brian M. Saccenti, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner.James E. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.GREENE, J.

Petitioner, Lamar Cornelius Harris, has been charged with first degree murder and conspiracy to commit first degree murder emanating from the death of a correctional officer on July 25, 2006, at the Maryland House of Corrections, in Jessup, Maryland.¹ To date, court proceedings have stalled in the preliminary stages due to disagreement about the propriety of the trial judge's pretrial rulings ordering discovery of certain records and testimony pertaining to Harris's court-ordered competency evaluation and subsequent in-patient treatment at Clifton T. Perkins Hospital Center (“Perkins Hospital”). Petitioner ultimately seeks appellate review on the merits regarding the trial judge's denial of Harris's motion for a protective order resulting from service of a subpoena on one of Harris's treating physicians as well as service of a subpoena duces tecum on Perkins Hospital. Because we conclude that the discovery orders are not appealable at this time, we do not address the merits of Harris's challenges to those orders.

FACTS AND PROCEDURAL HISTORY

On May 23, 2008, Harris, through counsel, filed a “Motion for Competency Evaluation,” requesting that the Circuit Court order an inpatient evaluation to be conducted at Perkins Hospital.² Thereafter, the trial judge ordered Harris's commitment to the Maryland Department of Health and Mental Hygiene (“DHMH”) for purposes of conducting an examination as to his competency to stand trial and that he be confined within the Maryland Department of Corrections, or at a facility determined by DHMH, for the purposes of the evaluation. DHMH designated Perkins Hospital.³

On June 26, 2008, Harris, through counsel, filed a “Motion for Counsel to be Present During Competency Evaluation and to Maintain all Recordings of the Evaluation Process.” DHMH opposed the motion averring that the presence of attorneys would compromise the evaluation process and furthermore that there was no danger to the defendant of having potentially incriminating statements used against him because such statements would not be admissible at trial to prove the criminal offense or enhance a sentence.⁴ Defense counsel then filed a motion to stay the competency evaluation pending a ruling on its motion to allow counsel to be present during the evaluation. The stay was granted. Apparently, unaware of the stay, the Director of Pretrial Services at Perkins Hospital sent a letter to the trial judge on July 3rd requesting an extension of 30 days to complete the evaluation. That request was granted.

One week later, prior to the performance of the competency evaluation and prior to the scheduled hearing on defense counsel's motion to permit counsel to be present during Harris's evaluation, defense counsel moved to withdraw the motion for a competency evaluation and to rescind the order for DHMH to conduct the evaluation as well as withdraw the allegation of incompetence.⁵ The trial judge considered these motions at a hearing on July 15, 2008. Defense counsel explained to the trial judge that according to the expert opinion of a forensic neuropsychiatrist, Harris was not competent to stand trial and, therefore, in counsel's view the evaluation by DHMH was no longer necessary. At that time, the trial judge did not permit Harris to withdraw his request for a competency evaluation, thus the standing order for DHMH to conduct an evaluation was not rescinded. The trial judge also concluded that Harris was not entitled to have counsel present during the competency evaluation because it was not a critical stage of the proceedings, however, the trial judge ordered that Perkins Hospital should make an audio recording of the entire evaluation and disclose the recording to counsel unless the court ordered otherwise.

Subsequently, Harris submitted to a competency evaluation conducted by Perkins Hospital. By report dated August 27, 2008 and filed September 4, 2008, Dr. Danielle Robinson opined that Harris was not competent to stand trial.⁶ The court then scheduled November 20 and 21, 2008 for a competency hearing. On October 7, 2008, the court received a letter from Perkins Hospital indicating that Harris's mental state had shown improvement since the first competency evaluation report, consequently, the court ordered that, prior to the November competency hearing dates, DHMH should conduct “additional mental health evaluations as may be necessary to enable the Court to exercise its duty to determine the competency of the Defendant.”

Defense counsel moved, shortly thereafter, for the Circuit Court to issue a “Subpoena to Produce Tangible Evidence” for service on the “Custodian of Records” at Perkins Hospital to disclose to the defense “the complete file of the testing, examination, and ‘raw data’ ” that supported the Psychology Consultation Report prepared by Dr. Cowan, a physician at Perkins Hospital, which was used as part of Dr. Robinson's first competency evaluation. Contemporaneously, Petitioner filed a second “Motion for Subpoena to Produce Tangible Evidence” requesting his “complete treatment file.” On October 29, 2008, the State obtained a subpoena requiring Dr. Sameer Patel, Harris's treating physician at Perkins Hospital, to appear and testify at the November competency hearing.⁷ On November 7, 2008, Defense counsel filed a motion for protective order seeking to quash the State's subpoena for Dr. Patel. The State then obtained and served a subpoena duces tecum on Perkins Hospital requiring the custodian of the institution's records to release all records, including treatment records, relating to Harris from the date of his admittance on July 24, 2008 through the motion date. There is no indication in the record that defense counsel filed a motion in opposition to the State's subpoena duces tecum.⁸ A second competency evaluation report was filed with the trial court on November 14, 2008 averring that Harris remained not competent to stand trial. Thus, physicians at Perkins Hospital have determined Harris to be incompetent, however, no competency hearing has been held by the court.

The trial court held a hearing on November 18, 2008 to address the outstanding motions with regard to competency. The trial judge ordered that the material requested in Petitioner's subpoena issued to Perkins Hospital should be furnished to the Petitioner's qualified expert as well as to the State, pursuant to its own subpoena duces tecum. Defense counsel then argued that only the defense was authorized to obtain the treatment records generated as a result of Harris's admission to Perkins Hospital. Defense counsel challenged the State's request to view treatment records, asserting Harris's patient-psychiatrist privilege in the records. The trial judge ruled that because Harris had put his mental competency in issue he had no privilege to maintain confidentiality in any of the medical records made for purposes of the competency evaluation or, otherwise, for treatment, and so the records should be disclosed to the defense and to the State.⁹

Thus, the trial judge rejected Harris's request for a protective order and ordered that Dr. Patel appear at the competency hearing, granted Harris's motions for production of tangible evidence, and explained why Perkins Hospital must comply with the State's subpoena duces tecum. DHMH immediately released to the Assistant State's Attorney involved in the case and to the defense counsel boxes containing copies of Harris's medical records from Perkins Hospital.¹⁰ Subsequently, the trial judge granted the State's motion for a postponement of the competency hearing in order to allow time to review the records. Approximately two weeks later, defense counsel moved to stay the trial judge's denial of the motion for a protective order and the trial judge's ruling to disclose Harris's medical records to the State, as well as noting an appeal to the Court of Special Appeals. The trial judge granted the stay on December 11, 2008 and ordered that “to the extent that the State has not already reviewed or discussed these records, they shall refrain from doing so until further order of the Court.” ¹¹

In an unreported opinion, the Court of Special Appeals dismissed Harris's appeal. That court held that the challenged orders were interlocutory discovery orders and therefore not appealable, final orders; and, moreover the case did not merit application of the collateral order doctrine as an exception to the final judgment rule. Defense counsel filed a motion for reconsideration suggesting that the intermediate appellate court's holding was defective because it did not address the potential application of the Perlman doctrine to Harris's case. See Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918).¹² The Court of Special Appeals declined Harris's motion to reconsider and therefore made no comment on the application of Perlman to this case.

We granted certiorari, Harris v. State, 415 Md. 607, 4 A.3d 512 (2010), to answer the following consolidated, reworded question:

Were the trial court's interlocutory orders authorizing disclosure of treatment records and testimony by the treating physician that are allegedly protected by the patient-therapist privilege immediately appealable under the collateral order doctrine, or, if not, should this Court adopt the exception to the final judgment requirement for appealability recognized by the United States Supreme Court in Perlman v. U.S., 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 ...