R.S. v. Thompson in and for County of Maricopa

247 Ariz. 575

454 P.3d 1010

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

Court of Appeals of Arizona, Division 1.

FILED November 21, 2019

Jamie Balson Attorney at Law, Sun City, By Jamie Balson, Counsel for Petitioners

Maricopa County Office of the Legal Advocate, Phoenix, By Elyse Anne Fune, James P. Leonard, Counsel for Real Party in Interest

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.

SWANN, Chief Judge:

OPINION

¶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 Ariz. R. Crim. P. ("Rule") 15.1 and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We hold that to be entitled to an in camera review of privileged records as a matter of due process, the defendant must establish a substantial probability that the protected records contain information critical to an element of the charge or defense or that their unavailability would result in a fundamentally unfair trial. Because Vanders did not establish such a probability, the court erred by granting an in camera review of the victim’s privileged records. We therefore accept jurisdiction and grant relief.

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, 836 P.2d 445 (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 A.R.S. §§ 13-4401(19), -4437(A).

JURISDICTION

¶7 Special action jurisdiction is appropriate when there is no equally plain, speedy, and adequate remedy by appeal, Ariz. R.P. Spec. Act. 1(a), and when the case presents a purely legal issue of statewide importance and first impression, Gilbert Prosecutor’s Office v. Foster , 245 Ariz. 15, 17, ¶ 5, 424 P.3d 416, 418 (App. 2018). We accept jurisdiction because there is no adequate remedy by appeal when a party challenges an order to produce privileged documents, see Roman Catholic Diocese of Phx. v. Superior Court (State) , 204 Ariz. 225, 227, ¶ 2, 62 P.3d 970, 972 (App. 2003), and this case presents a legal question of statewide importance that will arise again, cf. Duquette v. Superior Court (Lamberty) , 161 Ariz. 269, 271, 778 P.2d 634, 636 (App. 1989).

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, 2 P.3d 670, 672 (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, 436 P.3d 484, 487 (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, 990 P.2d 1061, 1064 (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, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ; see Brady , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ; State v. Connor , 215 Ariz. 553, 561–62, ¶ 21, 161 P.3d 596, 604–05 (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, 83 S.Ct. 1194 ; see United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (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, 836 P.2d at 449 (citing Pennsylvania v. Ritchie , 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (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 Rule 15.1, which provides, along with other discovery rights, that when a defendant claims a need for material or information, the court may order "any person" to produce that material or information if the court finds "(A) the defendant has a substantial need for the material or information to prepare the defendant’s case; and (B) the defendant cannot obtain the substantial equivalent by other means without undue hardship." Rule 15.1(g). On the other hand, a person’s medical records are protected from disclosure in a criminal case by A.R.S. § 13-4062(4), which prohibits the examination of "[a] physician or surgeon, without consent of the physician’s or surgeon’s patient, as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient."¹ This statute, though framed as a testimonial privilege, also protects against disclosure of privileged medical records. Zeitner , 246 Ariz. at 166, ¶ 18, 436 P.3d at 489. The privilege continues after the patient’s death. Sun Health Corp. v. Myers , 205 Ariz. 315, 319, ¶ 11, 70 P.3d 444, 448 (App. 2003).

¶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. , A.R.S. § 46-453(A) (exempting the privilege in cases involving "a vulnerable adult’s exploitation, abuse or neglect"); A.R.S. § 13-3806 (requiring physicians to report wounds that may have resulted from illegal activity); but see Benton v. Superior Court (State) , 182 Ariz. 466, 469, 897 P.2d 1352, 1355 (App. 1994) (suggesting that the judiciary also has limited the privilege, but focusing on cases holding that there was no valid privilege—not creating exceptions to a validly held privilege). The privilege-holder may enforce the privilege, but may also waive it. See Bain v. Superior Court (Mills) , 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986). Notably, there is no exception for court-ordered disclosure stemming from a defendant’s pretrial discovery requests or his constitutional right to present evidence. Cf. N.C. Gen. Stat. § 8-53 (North Carolina statute allowing disclosure of physician-patient privileged records if a court determines...