Com. v. Barroso

• Decision Date: 18 December 2003
• Docket Number: No. 2001-SC-0793-DG.,2001-SC-0793-DG.
• Citation: 122 S.W.3d 554
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Francisco BARROSO, Appellee.
• Court: United States State Supreme Court — District of Kentucky

122 S.W.3d 554

COMMONWEALTH of Kentucky, Appellant, v. Francisco BARROSO, Appellee.

No. 2001-SC-0793-DG.

Supreme Court of Kentucky.

December 18, 2003.

A.B. Chandler, III, Attorney General, State Capitol, Vickie L. Wise, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellant.

Bruce P. Hackett, Deputy Appellate Defender of the Jefferson District, Louisville, Counsel for Appellee.

COOPER, Justice.

Appellee, Francisco Barroso, was indicted by a Jefferson County grand jury for rape in the first degree and robbery in the second degree, both perpetrated on May 22, 1999, against his former girlfriend, J.H., then age sixteen. At trial, Appellee and J.H. gave contradictory versions of what occurred. The jury believed J.H.'s version and convicted Appellee of both offenses. He was sentenced to concurrent terms of ten years and five years in prison.

On Appellee's appeal to the Court of Appeals, the Commonwealth conceded reversible error in permitting the prosecutor to impeach Appellee with evidence of a juvenile adjudication that occurred prior to the enactment of KRS 610.320(4). No further review was sought with respect to that issue. We note, however, that subsequent to the rendition of the Court of Appeals' opinion, we held in Manns v. Commonwealth, Ky., 80 S.W.3d 439, 442, 446 (2002), that a virtually identical statute, KRS 532.055(2)(a)6, was not subject to KRS 446.080(3) and the Ex Post Facto Clause because the statute related to practice and procedure, but that, for the same reason, the statute was unconstitutional because it violated the separation of powers. Ky. Const. § 28.

Relying on Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 701-03 (1994), the Court of Appeals further found reversible error in the trial judge's denial of defense counsel's request to inspect records pertaining to J.H.'s psychotherapy at Baptist East Hospital for exculpatory information, including information that would impeach her credibility as a witness. Instead, the trial judge conducted an in camera inspection of the records outside of the presence of counsel and unilaterally concluded that they contained no information relevant to Appellee's constitutional rights to due process and confrontation. We granted the Commonwealth's motion for discretionary review of this issue to consider the extent to which a criminal defendant's constitutional rights affect a prosecution witness's absolute privilege against nondisclosure of records of her own psychotherapy.

We note at the outset that this is not a case where the witness has voluntarily waived the psychotherapist-patient privilege, as in McKinney v. Commonwealth, Ky., 60 S.W.3d 499, 506-07 (2001), or where a prosecutor or grand jury has attempted to gain access to records of a criminal defendant's own psychotherapy, as in Stidham v. Clark, Ky., 74 S.W.3d 719 (2002), or where the evidence sought falls either outside the privilege or within an exception specified in the rule, itself, as in Myers v. Commonwealth, Ky., 87 S.W.3d 243 (2002). Rather, as in Eldred, supra, at 701-02, and Hodge v. Commonwealth, Ky., 17 S.W.3d 824, 843-44 (2000), the evidence sought here pertains to the psychotherapy of a witness who has not waived the privilege and falls squarely within its parameters. Thus, we reach the issue that was anticipated in Myers, supra, at 244 n. 1.

The issue arose in this case when the prosecutor, in response to a discovery order, provided defense counsel with copies of the records of Kosair Children's Hospital, where J.H. was medically examined on May 22, 1999, shortly after she reported to police that Appellee had raped and robbed her. Those records reflect that J.H. stated to a nurse while being examined that she had been previously hospitalized for depression and was taking antidepressant medications. The Kosair Children's records also contained a report reflecting that J.H. had been admitted to Baptist East Hospital for depression "some time ago" after she "broke up" with a boyfriend and her best friend moved out of town.

On the morning of January 11, 2000, the first day of trial, defense counsel moved that the records of J.H.'s treatment at Baptist East Hospital be subpoenaed and examined by the trial judge "in the presence of the prosecutor and defense counsel" as required by Eldred, supra, at 702. Instead, the trial judge cleared the courtroom of spectators and ordered J.H. to give sworn testimony concerning her treatment at Baptist East Hospital. J.H., then age seventeen, was not requested to waive her psychotherapist-patient privilege nor even informed that she had such a privilege. We conclude that her compelled testimony did not constitute a voluntary waiver of the privilege. See KRE 509 (privilege waived by holder's voluntary disclosure); KRE 510 ("A claim of privilege is not defeated by a disclosure which was: (1) Compelled erroneously; or (2) Made without opportunity to claim the privilege."); cf. Riverside Hosp., Inc. v. Garza, 894 S.W.2d 850, 857 (Tex.App.1995) (production of privileged records pursuant to court order is not a voluntary waiver).

J.H. testified in response to the trial judge's questioning that she was admitted to Baptist East in November 1998 after attempting suicide by ingesting an overdose of pain medication (lbuprofen) and that she had received treatment for depression during that admission. After hearing J.H.'s testimony, defense counsel again requested that the records be obtained and produced for inspection. Pursuant to that request, the trial judge (despite characterizing the request as a "fishing expedition") entered an order requiring Baptist East to produce the records. The order was served, and the records were obtained on the morning of the second day of trial. The trial judge conducted an in camera inspection of the records during the noon recess and, as previously noted, unilaterally concluded that the records contained no exculpatory evidence or information otherwise pertinent to J.H.'s credibility as a witness. He denied defense counsel's request to personally inspect the records.

KRE 507(b), defining the psychotherapist-patient privilege, provides, inter alia:

(b) General rule of privilege. A patient, or the patient's authorized representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of the patient's mental condition, between the patient, the patient's psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

(c) Exceptions. There is no privilege under this rule for any relevant communications under this rule:

(1) In proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization;

(2) If a judge finds that a patient, after having been informed that the communications would not be privileged, has made communications to a psychotherapist in the course of an examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient's mental condition; or

(3) If the patient is asserting that patient's mental condition as an element of a claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of a claim or defense.

Other than the three specified exceptions, none of which applies here, the psychotherapist-patient privilege is an "absolute" privilege, i.e., one that is not subject to avoidance because of a "need" for the evidence. See Jaffee v. Redmond, 518 U.S. 1, 17-18, 116 S.Ct. 1923, 1932, 135 L.Ed.2d 337 (1996) ("Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.").¹ Compare KRE 506 (counselor-client privilege) and CR 26.02(3)(a) (work product privilege) which are "qualified" privileges. KRE 506(d)(2) allows an exception to the counselor-client privilege "[i]f the judge finds: (A) [t]hat the substance of the communication is relevant to an essential issue in the case; (B) [t]hat there are no available alternate means to obtain the substantial equivalent of the communication; and (C) [t]hat the need for the information outweighs the interest protected by the privilege." CR 26.02(3)(a) allows an exception to the work product privilege "upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

The issue here, however, is not whether Appellee's "need" for the evidence should be balanced against J.H.'s interest in maintaining the confidentiality of her psychotherapy, but whether the constitutional rights afforded to a criminal defendant by the Fifth, Sixth, and Fourteenth Amendments to United States Constitution and section 11 of the Constitution of Kentucky prevail over a state policy interest expressed in a statute or rule creating an evidentiary privilege. As a general proposition, constitutional rights prevail over conflicting statutes and rules.

The federal Constitution is the paramount law of the land. A statute of a state in conflict with it is void. State statutes, therefore, when they come within the domain of the powers of government over which the federal Constitution extends, must be read and applied with reference to the provisions of that instrument.

Commonwealth v. Int'l Harvester Co. of Am., 131 Ky. 551, 115 S.W. 703, 706 (1909), overruled on other grounds by Gay v. Brent, 166 Ky. 833, 179 S.W. 1051, 1058 (1915).

The ...