State v. Scherf

429 P.3d 776

STATE of Washington, Respondent,

v.Byron Eugene SCHERF, Appellant.

No. 88906-6

Supreme Court of Washington.

Argued November 10, 2016

Filed November 08, 2018

Rita Joan Griffith, Attorney at Law, 4616 25th Avenue NE, PMB453, Seattle, WA 98105-4523, Mark A. Larranaga, Walsh & Larranaga, 705 2nd Avenue, Suite 501, Seattle, WA 98104-1715, for Appellant.

Seth Aaron Fine, Mary Kathleen Webber, Snohomish County Prosecutors Office, 3000 Rockefeller Avenue, Everett, WA 98201-4060, for Respondent.

Thomas W. Hillier, II, Perkins Coie, 1201 3rd Avenue, Suite 4900, Seattle, WA98101-3099, G. Ben Cohen, The Promise of Justice Initiative, 636 Baronne Street, New Orleans, LA 70113, Amy Weber, P.O. Box 17265, Chapel Hill, NC 27516, Amicus Curiae for The Charles Hamilton Houston Institute for Race & Justice, The Fair Punishment Project, The Promise of Justice Initiative.

JOHNSON, J.

¶ 1 While in prison serving a life without parole sentence, Byron Scherf murdered a prison guard. He was tried, convicted of aggravated murder, and sentenced to death. In his appeal, he raises multiple claims of error: procedural, statutory, and constitutional. Based on the holding of State v. Gregory, ––– Wash.2d ––––, 427 P.3d 621 (2018),¹ we vacate the sentence. For the following reasons, we affirm the conviction.

¶ 2 Scherf raises issues specific to the guilt phase that must be addressed.

Did the trial court err in denying Scherf's motion to suppress physical evidence pursuant to Superior Court Criminal Rule (CrR) 3.6?

¶ 3 Scherf alleges that the trial court erred in denying his motion to suppress physical evidence for three reasons, each of which we discuss in turn.

Privacy Right to Medical Records

¶ 4 First, Scherf argues that medical records seized from his cell at the Washington State Reformatory (WSR) should have been suppressed because he had a statutory right to privacy in the medical records found in his cell under the Uniform Health Care Information Act (Act), chapter 70.02 RCW. He argues that the medical records in his cell, which were viewed by Washington State Department of Corrections (DOC) officials during a search authorized by a warrant, were outside the scope of the warrant and then improperly used to establish probable cause for warrant 11-32, a subsequent warrant. He argues the portions of the affidavit supporting warrant 11-32 describing these medical records should not have been included because they were fruits of the illegal search. Scherf concedes that he has no Fourth Amendment privacy rights but asserts he had a statutory right to privacy under the Act.²

¶ 5 The Act regulates disclosure and access to medical and health care information. The legislature found that "[h]ealth care information is personal and sensitive information that if improperly used or released may do significant harm to a patient's interests in privacy, health care, or other interests." RCW 70.02.005(1). Therefore, the Act provides limitations as to when health care information may be disclosed without the consent of the patient:

Except as authorized elsewhere in this chapter, a health care provider, an individual who assists a health care provider in the delivery of health care, or an agent and employee of a health care provider may not disclose health care information about a patient to any other person without the patient's written authorization. A disclosure made under a patient's written authorization must conform to the authorization

RCW 70.02.020(1). The Act does not limit disclosure by the patient of his own health care information.

¶ 6 A "health care provider" is defined as "a person who is licensed, certified, registered, or otherwise authorized by the law of this state to provide health care in the ordinary course of business or practice of a profession." RCW 70.02.010(19). However, the legislature has also noted that

[p]ersons other than health care providers obtain, use, and disclose health record information in many different contexts and for many different purposes. It is the public policy of this state that a patient's interest in the proper use and disclosure of the patient's health care information survives even when the information is held by persons other than health care providers.

RCW 70.02.005(4).

¶ 7 Scherf argues that the medical records were effectively held by DOC because they were in Scherf's cell and, therefore, DOC had a duty to protect his privacy interest under RCW 70.02.005. The State argues that the Act does not limit disclosure by the patient of his personal medical or mental health records, so the protections of the Act do not apply to records Scherf chose to keep in his cell. Last, the State notes that Scherf kept the items in his cell and the records were not kept confidential because Scherf's cell was subject to periodic searches by the corrections staff under DOC Policy 420.320 (rev. Sept. 1, 2015).

¶ 8 Here, the medical records at issue were not held by a health care provider or facility. Importantly, RCW 70.02.005(4) does not carve out a duty to non-health-care providers but merely states it is "the public policy of this state that a patient's interest in the proper use and disclosure of the patient's health care information survives even when the information is held by persons other than health care providers." Plus, the information was held in the cell. The statute cannot be read to require DOC to obtain authorization from an inmate, especially in light of Fourth Amendment case law that clearly establishes that there is no expectation of privacy in items in an inmate's cell or taken from his or her cell. The information stored in Scherf's cell was not improperly used to establish probable cause for the issuance of warrant 11-32 because the records were not protected from disclosure by statute and Scherf had no expectation of privacy in his cell.

Probable Cause

¶ 9 Second, Scherf argues that the medical records seized should have been excluded from the affidavit in support of warrant 11-32 and, therefore, the affidavit was insufficient to provide probable cause.

¶ 10 The Fourth Amendment provides that warrants may be issued only upon a showing of " ‘probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ " State v. Maddox, 152 Wash.2d 499, 505, 98 P.3d 1199 (2004). Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the crime can be found at the place to be searched. State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999). In addition, probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched. A magistrate is entitled to make reasonable inferences from the facts and circumstances set forth in the affidavit.

¶ 11 We review the issuing magistrate's determination of probable cause for abuse of discretion and give probable cause determinations great deference.

State v. Clark, 143 Wash.2d 731, 748, 24 P.3d 1006 (2001). All doubts are resolved in favor of upholding the warrant. State v. Kalakosky, 121 Wash.2d 525, 531, 852 P.2d 1064 (1993).

¶ 12 The trial court held that search warrant 11-32 was supported by probable cause because "evidence of a crime" is broadly defined. Clerk's Papers (CP) at 2290. The trial court noted that "of' meant " ‘proceeding from; belonging to; relating to; connected with; [or] concerning.’ " CP at 2290 (alteration in original) (quoting State v. Rinkes, 49 Wash.2d 664, 666, 306 P.2d 205 (1957) ). The phrase "evidence of a crime" is recognized as broader than evidence proving a crime was committed. It also includes evidence relating to, connected with, or concerning a crime. Given this broad definition, the trial court concluded, "Evidence relating to the sentence the court is empowered to impose[, such as mitigation evidence,] is evidence of a crime," especially where the State is statutorily obliged to consider mitigation evidence when deciding what sentence to seek. CP at 2290; see RCW 10.95.040(1). Furthermore, the mental capacity of a defendant is a statutory consideration for a jury in a capital case. Thus, the trial court reasoned that any medical records indicating mental health issues are potentially relevant in a case with the potential of capital punishment.

¶ 13 Scherf argues that "evidence of a crime" does not include mitigation evidence. He argues that nothing linked the records to the death of Officer Jayme Biendl or his involvement in it and that all of those records predated the crime. Scherf also takes issue with Detective B. Scott Wells's speculation that the records could be used to defeat defenses Scherf might assert in this case.

¶ 14 The State argues, and the trial court held, that "evidence of a crime" includes evidence relating to sentencing factors. Br. of Resp't at 33. The State and the trial court noted that Blakely v. Washington³ requires every fact that enhances punishment be pleaded and proved to a jury. The State argues that any fact that bears on the decision the jury must make is all part "of the crime" under investigation. The State argues that it was reasonable to believe that the prison would have a medical file for Scherf that included medical and psychological evidence bearing on his mental and physical condition. In addition, the State argues that it was reasonable to believe that those files would have evidence that bore on Scherf's ability to form premeditated intent to kill.

¶ 15 We agree with the trial court. Here, probable cause exists based on the facts and circumstances and was sufficient to establish a reasonable inference that evidence of the crime, in the form of mitigation evidence, could be found at the place to be searched.

¶ 16 The police were investigating the crime of aggravated first degree murder when they sought...