State v. Bell

469 P.3d 929

STATE of Utah, Respondent,

v.Calvin Roger BELL, Petitioner.

No. 20190043

Supreme Court of Utah.

Heard December 11, 2019

Filed June 23, 2020

Sean D. Reyes, Att'y Gen., Jonathan S. Bauer, Asst. Solic. Gen., Salt Lake City, for respondent

Herschel Bullen, Salt Lake City, for petitioner

Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Justice Petersen joined.

On Certiorari to the Utah Court of Appeals

Chief Justice Durrant, opinion of the Court:

Introduction

¶1 This case concerns a criminal defendant's request to view a sexual abuse victim's privileged mental health therapy records. Mr. Calvin Roger Bell was accused of sexually abusing his girlfriend's three-year-old child (Child). Before trial, he requested limited access to Child's privileged mental health therapy records, which request the district court denied.¹ We affirm because Mr. Bell fails to demonstrate that an exception to the mental health therapist-patient privilege exists under Utah Rule of Evidence 506. But even though we affirm the denial of Mr. Bell's request, we do note that Mr. Bell raises important constitutional and policy concerns regarding a criminal defendant's access to records that may contain exculpatory evidence, and so we refer rule 506 to our rules committee for review.

Background

¶2 When Child was three years old, Mr. Bell dated Child's mother (Mother). Mr. Bell moved in with Mother and Child in November 2011, and the three lived together intermittently until January 2013, when Child was placed in a foster home. At that time, Mother entered a residential substance abuse treatment center at House of Hope. Child joined Mother there in May 2013.

¶3 While living at House of Hope, Child disclosed to a staff member that Mr. Bell, whom she referred to as "dad," "was playing sexy" with her. The director reported this to Mother, and together they contacted Child Protective Services (CPS) to report the alleged abuse. After Mother reported the alleged abuse, in August 2013, a detective interviewed Child about her statement to the House of Hope staff member. As part of interview protocol, a detective asked Child if she would "promise to tell [him] the truth today?" Child told the detective that "no, she didn't want to talk." The detective then ended the interview and informed Mother it was not uncommon for children to refuse to talk. He encouraged Mother to have Child continue therapy. And he told Mother that he would schedule another interview with Child if Child became more comfortable and wanted to talk about the alleged sexual abuse.

¶4 Mother arranged sexual abuse counseling for Child at House of Hope. About five months after the initial interview with the detective, Child informed Mother that Mr. Bell had shown her a pornographic video. Mother contacted CPS again, and Child agreed to talk to the detective in January 2014. During the second interview, Child told the detective about details of the pornographic video, and described two incidents of sexual abuse—first, she stated that Mr. Bell put his "weenie" on her "no-no" where "pee" comes out, and second, she stated that, while on Mr. Bell's lap, he pulled down Child's pants and put his finger "under [her] bum."

¶5 Based on Child's allegations, the State charged Mr. Bell with (1) rape of a child;² (2) aggravated sexual abuse of a child;³ and (3) dealing in materials harmful to a minor by an adult.⁴ Before trial, Mr. Bell filed a motion to produce Child's mental health therapy records under Utah Rule of Criminal Procedure 14(b)(1). He specifically asked the district court to "order the [S]tate to produce for [in] camera review the therapy records of [Child] from the House of Hope or any collateral agencies addressing therapy related to neglect and/or abuse of [Child] from January 1, 2010 to May 8, 2014." He sought documentation of "therapeutic techniques and strategies used in treating [Child], names and contact information of all therapist[s] and case manager[ ]s working with [Child from January 1, 2010 to May 8, 2014] and all progress notes and statements regarding abuse."

¶6 Mr. Bell made two arguments in support of his assertion that he was entitled to Child's mental health therapy records under the Due Process Clause of the Fourteenth Amendment. First, he argued that the "records sought cont[ain] exculpatory evidence which would be favorable to the defense." Second, he argued the records are "material" because the case turns on Child's "credibility" due to her "age" and "suggestibility." Mr. Bell alleged that he needed the records to determine if the "therapeutic intervention" between her initial interview with Detective (when Child would not discuss the sexual abuse), and her second interview (when Child discussed the sexual abuse that resulted in charges against Mr. Bell), "tainted [Child's] testimony."

¶7 The State opposed Mr. Bell's motion for production of Child's mental health therapy records. It argued that not only did the State not possess the records, but that the mental health therapy records sought by Mr. Bell were privileged under Utah Rule of Evidence 506. In addition, the State argued that Mr. Bell failed to provide sufficient evidence that the exception under rule 506(d)(1)(A) applied to the facts of his case. To establish an exception to the mental health therapist-patient privilege, the State argued Mr. Bell needed to convince the district court that Child had (1) a "physical, mental or emotional condition" that was (2) "an element of any claim or defense."⁵ And, the State argued, even if Mr. Bell had shown the exception applied, he still failed to establish Child's mental health therapy records "contain exculpatory evidence to a reasonable certainty" as required by our case law.

¶8 The district court denied Mr. Bell's motion for production of Child's mental health therapy records. It concluded he failed to make the "particular showings regarding relevance," or that the records were "reasonably certain to contain exculpatory information." The court of appeals affirmed. It held that even if Mr. Bell had established that Child suffers from a physical, mental, or emotional condition and that the condition is an element of a claim or defense,⁶ dismissal was proper because he failed to meet the " ‘reasonable certainty’ requirement" under our case law.⁷

¶9 We granted Mr. Bell's petition for certiorari. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

Standard of Review

¶10 Mr. Bell asks us to determine whether the court of appeals erred in affirming the district court's denial of his request for limited review of Child's privileged mental health therapy records. "When the existence of a privilege [ (or an exception to a privilege) ] turns on a question of law, we review for correctness."⁸ If "the existence of a privilege [ (or exception) ] turns on questions of fact, we give deference to the district court's underlying fact finding and do not set those findings aside unless they are clearly erroneous."⁹ "On certiorari, we review the decision of the court of appeals ... for correctness[,] and give its conclusions of law no deference."¹⁰

Analysis

¶11 Mr. Bell argues that the court of appeals erred in affirming the district court's denial of his request for limited review of Child's privileged therapy records. The crux of his argument is that the "reasonable certainty" test we use to determine whether privileged therapy records should be reviewed violates his due process rights under the rule established in the United States Supreme Court decision in Pennsylvania v. Ritchie .¹¹ But Mr. Bell fails to demonstrate that the therapy records in question are subject to an exception under Utah Rule of Evidence 506(d)(1)(A).¹² And because establishing an exception under the evidentiary rule is a threshold determination, we need not decide whether Mr. Bell has satisfied our "reasonable certainty" test or whether that test is unconstitutional.¹³ As a result, we affirm the court of appeals.

¶12 But even though we affirm the court of appeals without addressing Mr. Bell's constitutional argument, we note that he raises significant constitutional and policy concerns. As a result, we refer rule 506 to our rules committee for review.

I. Mr. Bell Failed to Establish an Exception to the Mental Health Therapist-Patient Privilege

¶13 Mr. Bell argues that the district court's refusal to allow limited review of Child's privileged mental health therapy records violated his right to due process. His primary argument is that the "reasonable certainty" test, which requires a criminal defendant to make an independent showing that the requested records will contain exculpatory evidence, is overly stringent and should be repudiated. But our "reasonable certainty" test applies only after a criminal defendant has established that an exception to the privilege under rule 506 of the Utah Rules of Evidence applies. Because Mr. Bell has failed to show that an exception to the privilege under rule 506 applies, his request for limited review of Child's mental health therapy records fails even if he were able to satisfy the "reasonable certainty" test.¹⁴ As a result, we affirm the court of appeals on this alternative basis.¹⁵

¶14 Under Utah Rule of Evidence 506(b), a patient has the privilege "to refuse to disclose ... information that is communicated in confidence to a physician or mental health therapist for the purpose of diagnosing or treating the patient."¹⁶ This privilege has three enumerated exceptions, one of which is at issue in this appeal.¹⁷ Rule 506(d)(1)(A) provides that a patient cannot assert the privilege "[f]or communications relevant to an issue of the physical, mental, or emotional condition of the patient ... in any proceeding in which that condition is an element of any claim or defense."

¶15 In other words, rule 506(d)(1)(A) creates an exception to the general rule that a patient's therapy...