Bobo v. State, 43237

• Decision Date: 29 October 1986
• Docket Number: No. 43237,43237
• Citation: 349 S.E.2d 690,256 Ga. 357
• Parties: BOBO v. The STATE.
• Court: Georgia Supreme Court

Page 690

349 S.E.2d 690

256 Ga. 357

BOBO v. The STATE.

No. 43237.

Supreme Court of Georgia.

Oct. 29, 1986.

Robert Altman, Axam & Altman, P.C., Atlanta, for Thomas gerald bobo.

Lewis R. Slaton, Dist. Atty., Atlanta, H. Allen Moye, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., for the State.

HUNT, Justice.

Thomas Jerald Bobo was indicted for burglary, aggravated assault, and murder arising from an incident in which the victim, Officer David Hagin, and the witness, Officer Colleen Sullivan, were shot while investigating a burglary in progress. Bobo's original conviction was set aside by this court at 254 Ga. 146, 327 S.E.2d 208 (1985).

Prior to retrial, Bobo moved for the disclosure of the psychiatric history and examinations of Officer Sullivan, the state's main witness. His defense continues to be that he was not the perpetrator. He sought to impeach her eyewitness identification testimony by showing that she suffered from "post-traumatic stress syndrome," which affected her memory and perception. The trial court ruled the communications privileged and denied the motion. We granted Bobo's application for interlocutory appeal.

OCGA § 24-9-21 provides: "There are certain admissions and communications excluded on grounds of public policy. Among these are.... (5) Communications between psychiatrist and patient."

1. Bobo contends that no privileged relationship existed between Sullivan and the psychiatrists whom she consulted. The record shows that Sullivan voluntarily sought assistance from the psychiatrists who examined her. The requisite confidential relationship of psychiatrist and patient is thus established. Kimble v. Kimble, 240 Ga. 100, 101, 239 S.E.2d 676 (1977).

2. He next contends that Sullivan waived the privilege by allowing psychiatric testimony to be made public in her workers' compensation cases. That is not the law. OCGA § 24-9-40 provides that "the privilege [of confidentiality of medical records] shall be waived to the extent that the patient places his care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding. This Code section shall not apply to psychiatrists." The psychiatrist-patient privilege is not waived when a party who claims it is seeking to recover damages for injuries of a mental and emotional nature. Wilson v. Bonner, 166 Ga.App. 9, 16, 303 S.E.2d 134 (1983). The privilege is not waived when a third party is present, who is a necessary or customary participant in the consultation and treatment. Sims v. State, 251 Ga. 877(5), 311 S.E.2d 161 (1984). Nor is the privilege waived when the person claiming it has made disclosures in separate, unrelated actions. See Associated Grocers Co-op v. Trust Co., 158 Ga.App. 115(3), 279 S.E.2d 248 (1981), for the proposition that disclosures that are not made pursuant to litigation do not defeat the attorney-client privilege.

3. Bobo contends that the statutory privilege must yield to his right of confrontation, which he asserts is superior to the statutory privilege and the public policy that it enunciates. ¹ He relies on United States v. Lindstrom, 698 F.2d 1154 (11th Cir.1983), which was a federal prosecution in the State of Florida. There the trial court had limited cross-examination of the key government witness about her prior psychiatric treatment, and had denied the defendants access to the witness's psychiatric records. The Court of Appeals ruled that the psychiatric history and records provided critical impeachment evidence.

The state argues strenuously that United States v. Lindstrom, supra, is distinguishable because no statutory privilege was involved in that federal prosecution and indeed that court found no such privilege to exist. We note here, however, that the court in making its decision relied upon Fed.R.Evid. § 501: "The privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience [except in civil actions governed by state law]." This so called "rule of reason" is explored fully in In re Zuniga, 714 F.2d 632 (6th Cir.1983), where the Sixth Circuit recognized the psychiatrist-patient privilege; then, balanced the interests protected by shielding the evidence with those advanced by disclosure and decided the privilege must yield.

Similarly, in Lindstrom, that court recognized all of the policy reasons for the privilege, but held such a "privilege" could not prevail where the privileged information was at the heart of the defendant's case. While the privilege should be given the utmost deference, when the privilege of a witness stands in the way of the defendant's right to confront the witnesses against him, then, upon a proper showing by the defendant, the balance must be tipped in favor of his constitutional rights and the search for the truth. See Hines v. State, 249 Ga. 257(2), 290 S.E.2d 911 (1982). Compare Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974) (right of confrontation is paramount to a state policy protecting juvenile offenders); Greene v. Wainwright, 634 F.2d 272 (5th Cir.1981) (right of confrontation requires that defendant be allowed to cross-examine the prosecuting police officer about his mental condition and the bizarre criminal actions he was involved in at the time of an alleged drug sale); United States v. Society of Independent Gasoline Marketers of America, 624 F.2d 461 (4th Cir.1979) (error to deny access to hospital records revealing delusional and hallucinatory state of chief witness); In re Robert H., 199 Conn. 693, 509 A.2d 475 (1986) (where defendant makes a proper showing, rape crisis counselor's testimony is admissible) with Hanlon v. State, 162 Ga.App. 46(3), 290 S.E.2d 285 (1982), where the evidence was not relevant. ²

Thus, we must also conclude that in a proper case a witness' statutory privilege must give way where countervailing interests in the truth-seeking process demand such a result. ³

4. In order to abrogate the psychiatrist-patient privilege, the defendant must make a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.

The privilege established by OCGA § 24-9-21(5) prohibits the defendant from engaging in a "fishing expedition" regarding a witness's consultations with a psychiatrist. Therefore, a defendant may not explore such evidence unless he makes allegations sufficient to establish a prima facie need for its discovery by a proper motion for a pretrial hearing. At the ensuing inquiry, the psychiatrist would be available to the defendant for discovery of his findings and any statements made by the patient-witness to him material to the issues on trial. The trial court must, consistent with the demands of due process, then delineate those communications available to the defense for use at trial. Conversely, any communications not central to the defense must remain privileged and inadmissible at trial. State v. Pierson, 201 Conn. 211, 514 A.2d 724 (Conn.Sup.Ct.1986). ⁴ In the case before us, such a special pretrial hearing was held in which the psychiatrists testified as to what their testimony would be if called as witnesses at the trial.

One, Dr. Villaneuva, had treated the witness during her surgical recuperation from the shooting and had diagnosed her as suffering from traumatic depressive reaction. He testified that the dominant characteristic of her mental state at that time was depression and that difficulty in concentrating was also an aspect of this reaction, which could be ongoing.

The other two testifying psychiatrists had treated the witness in relation to her claims for workers' compensation and pension benefits resulting from her disability to work as a police officer after undergoing this stressful experience. Dr. Berry first saw the witness just after the first trial in March, 1982, when she was referred to him by the police department chaplain, and Dr. Rolland examined her in July, 1983. Both psychiatrists testified that their conversations with her did not focus on the details of her ability to identify the perpetrator, but on the experience itself as the stressful event which resulted in her suffering from post-traumatic stress syndrome, the predominating feature of which is extreme anxiety, which in turn prevented her from returning to police work.

Other characteristics of this syndrome include memory loss and constant reliving of the traumatic experience. The defendant urges therefore that her psychiatric condition greatly affects her credibility as the only eyewitness and her resulting identification of the defendant as the perpetrator. Thus, he contends, his constitutional right to explore her mental condition is central to his defense that she has mistakenly identified him.

The gravamen of the doctors' testimony is that the witness suffers from post-traumatic stress syndrome which characteristically includes memory loss. No evidence was presented by them which directly shows that she is unable to identify or unsure of her identification of the defendant as the assailant.

On the other hand, other impeaching evidence is already available to the defendant. At the first trial a hypnotist, who was also a psychiatrist, at the request of the state, had attempted to hypnotize Officer Sullivan in order to enhance her ability to remember the perpetrator. The hypnotist testified that he was unsuccessful in this attempt in part because of her emotional state which he attributed to stress from the trauma of the incident. Because there is no psychiatrist-patient privilege where a witness agrees to be interviewed by an expert called by the state, Emmett v. Ricketts, ...