State v. Wardle

1

2024 UT App 181

State of Utah, Appellee, v. Douglas Lawrence Wardle, Appellant.

No. 20230761-CA

Court of Appeals of Utah

December 12, 2024

Third District Court, Salt Lake Department The Honorable Amber M Mettler No. 211908187

Sarah J. Carlquist and Amy Powers, Attorneys for Appellant

Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

OPINION

HARRIS, JUDGE

¶1 The State has charged Douglas Lawrence Wardle with raping his then-ten-year-old niece (Niece) on two occasions in 2001. The charges were filed in 2021, soon after Niece reported the rapes to the police, telling them that she had "blocked" the incidents "out of her mind" for many years and had only "recently remembered" them after "experiencing medical issues" and undergoing "therapy." Prior to trial, Wardle filed a motion asking the district court to undertake an in-camera review of Niece's medical and therapy records generated around the time of her disclosures to police. The district court denied that motion concluding that Niece's records were privileged and were not subject to any exception to the privilege.

¶2 Wardle sought permission to take an interlocutory appeal from the district court's order denying his motion. We granted Wardle permission to do so, and we now address the merits of his appellate challenge. We conclude that, on this record Wardle has made the showing required to establish an exception to the privilege, and we therefore hold that the district court erred by determining that the requested records were privileged. Accordingly, we remand the case for further proceedings.

BACKGROUND^[1]

¶3 In April 2020, Niece contacted a local police officer (Officer) by telephone and stated that Wardle had raped her in 2001, when she was about ten years old. According to the written report Officer made of the call, Niece "said she blocked th[e] incident out of her mind and recently remembered it after having experienced medical issues." Niece stated that, in 2001, Wardle had come to live with her family for approximately three months. During that time, Niece's parents apparently worked long hours, and Niece told Officer that on one occasion when she was home alone with Wardle, he entered her bedroom while she was reading a book and raped her. She reported that, in the process, Wardle had strangled her and that she had "ended up passing out." She also remembered that she had been wearing a dress that day.

¶4 About a month later, Niece called Officer to provide more information about the incident she had reported earlier. She indicated that she had remembered these additional things on the same night as her previous phone call to Officer and that she "wrote them down" at that point, but that she "took a few days to call" back because she was finding the situation "difficult to cope with." During this second call, Niece explained that she had been wearing a blue shirt and bell-bottom jeans, not a dress. She remembered the name of the book she had been reading-a fantasy book-and that she had been telling Wardle about the story. She stated that the rape occurred at around four or five in the afternoon and that her blinds were partially open. She reported that Wardle had unbuttoned her pants to see if she was "wearing pretty underwear" and then started to take off her pants. She stated that, at this point, she had tried to move away, but that Wardle had pulled on her left leg, causing her to hit her head and feel dizzy. Niece also reported that she saw and recognized "a familiar man" outside her window and tried to call for help, but that the man could not hear her. She stated that she tried multiple times to push Wardle off her but that she was unable to do so. Officer noted in his report that Niece was "very emotional" while describing the events.

¶5 Some nine months later, in February 2021, Niece called Officer again. Officer's report of this call states that Niece "told [Officer] that she had been going to therapy and ha[d] remembered more about her childhood experiences with [Wardle]." Niece stated that the rape she had reported in the first two calls with Officer had been "the first time [Wardle] did anything to her, but that she was raped more than this." She told Officer that she now "remember[ed] being raped in her mother's room and . . . being touched on the vagina through a cut hole [in] her dancer pants while stretching in the front room." Niece also said that Wardle made her wear her mother's wedding ring, and that she had kept a journal of what was happening but that Wardle had "burned her journal over the kitchen sink."

¶6 In August 2021, the State charged Wardle with two counts of rape of a child, first-degree felonies. A few months later, the district court held a preliminary hearing and bound Wardle over for trial on both charges.

¶7 In October 2022, Wardle filed a motion asking "for permission to serve a subpoena duces tecum, pursuant to a court order, requiring production of medical/mental health records pertaining to" Niece generated between March 2020 and March 2021, roughly the period in which Niece made her disclosures to Officer. Wardle acknowledged the existence of a privilege, set forth in rule 506 of the Utah Rules of Evidence, that protects medical and mental health records. But Wardle asserted that an exception to that privilege existed here because the records were "relevant to an issue of the physical, mental, or emotional condition of the patient . . . in [a] proceeding in which that condition is an element of any claim or defense." See Utah R. Evid. 506(d)(1)(A) (2022).^[2] Wardle claimed that the "condition" at issue was "the fact that [the memories] were recently recalled after medical issues, which caused [Niece] to recall an alleged event from twenty years prior." Wardle then argued that the condition is "germane to the identification defense-that [Niece] possibly misidentified" Wardle as the abuser-and that the condition is also "germane to a defense regarding her ability to testify competently." Wardle also argued that the condition is relevant "to impeachment regarding motive." Finally, Wardle asserted- pointing to the language Officer used in the reports indicating that Niece had "blocked" her memories of the events and had only "recently remembered" them after "experiencing medical issues" and undergoing "therapy"-that "there is a reasonable certainty that [Niece's] records contain exculpatory evidence."

¶8 The State filed no response to Wardle's motion. But an attorney representing Niece filed a memorandum in opposition to the motion, asserting that Niece did not suffer from a physical, mental, or emotional condition; that no such condition was an element of any claim or defense; and that Wardle had not shown that the sought-after records were reasonably certain to contain exculpatory evidence.

¶9 At oral argument on his motion, Wardle clarified that he was seeking only the medical and mental health records from the time period during which (and just before) Niece was in contact with police about the alleged incidents. Wardle argued that, according to the police reports, the initial incident "came to light because of [a] medical issue." And he argued that, after Niece attended therapy, "suddenly there is a new memory of a whole new allegation," and he pointed to language from the report indicating that the therapy helped Niece "remember more details about the allegations." Wardle also argued that the "mental or emotional condition" at issue was Niece's "poor memory" and that Niece indicated that the memories had suddenly surfaced after medical issues and after therapy. Wardle stated that he was seeking in-camera review of the records to "see what inconsistencies or what concerns there are about her memory about the event and the allegations," and he indicated that he was potentially interested in having an expert review the records.

¶10 In response, Niece's attorney argued that Niece's memory issues do not qualify as a "condition" because "memory is always going to be an issue, memory is not a diagnosable mental health condition." The attorney acknowledged that Wardle had "done a good job of narrowing down" the time period in his request, but she argued that the request was nonetheless "not made with any particularity" and that Wardle could not allege that the records "contain . . . things that relate to [the] case."

¶11 After argument, the court denied Wardle's motion. The court stated that, "while the request [was] somewhat limited as to time[,] it [didn't] specify a particular provide[r] or subject matter" and was therefore "lacking the particularity required" by rule 14(b)(2) of the Utah Rules of Criminal Procedure. The court also stated that Wardle "hasn't shown [that Niece] suffers from a physical, mental or emotional condition" because, in the court's view, a "poor memory of events alleged to have occurred some 20 years ago" does not qualify as a condition. The court also stated that, even if Niece's memory issues did qualify as a condition, that condition is not relevant to Wardle's defense. Finally, the court concluded that Wardle "failed to show to a reasonable certainty that the records . . . contain exculpatory evidence." Later, the court issued a written order memorializing its oral ruling.

¶12 Wardle timely filed a petition seeking permission to take an interlocutory appeal from that order. We granted Wardle permission to take such an appeal.

ISSUE AND STANDARD OF REVIEW

¶13 Wardle presents one issue for our review: whether the district court erred in determining that no exception to the rule 506 privilege applies here.^[3] To the extent that "the...