Carrier v. Com.
| Decision Date | 17 June 2004 |
| Docket Number | No. 2002-SC-0509-DG.,2002-SC-0509-DG. |
| Citation | 142 S.W.3d 670 |
| Parties | Clifford CARRIER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from the Livingston Circuit Court.
Linda Roberts Horsman, Frankfort, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, Dennis W. Shepherd, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
Appellant, Clifford Carrier, entered a conditional guilty plea in the Livingston Circuit Court to fifteen counts of sexual offenses against minors. He received a sentence of ten years. On appeal, the Court of Appeals affirmed the convictions, rejecting Appellant's claim that incriminating evidence contained in records obtained from his psychologist should have been suppressed, as the evidence was (1) wrongfully obtained, and (2) protected by the psychotherapist-patient privilege contained in KRE 507. This being a matter of first impression in Kentucky, we granted discretionary review. After hearing oral arguments and reviewing the record, we reverse the decision of the Court of Appeals and remand for a new trial.
The sexual offenses at issue were committed between May 1, 1990, and December 12, 1993. Although claims of sexual abuse perpetrated by Appellant were investigated in 1993, no charges were brought at that time. In January 1999, after the abuse victims reached adulthood, the county attorney filed an ex parte motion in the Livingston District Court styled "Verified Motion for Records." On the basis of a state police investigation of sodomy and sexual abuse committed by Appellant against small children, the motion sought all records pertaining to Appellant in the possession of Dr. John Runyon, Appellant's psychologist. The motion alleged that three victims had made accusations against Appellant, and that a Ms. Laverne Carrier (Appellant's ex-wife) was willing to testify that Appellant had confessed his sexual offenses to Dr. Runyon.
The motion and subsequent order read as follows verbatim:
Comes now the Commonwealth of Kentucky, by and through the Livingston County Attorney, and moves this Honorable Court for an Order directing the release of all records, files, documents, and all other information relating to Clifford L. Carrier, d.o.b. 10/03/26, SS# XXX-XX-XXXX, in the possession of Psychological Associates and/or Dr. John C. Runyon. As grounds for this motion, the Commonwealth states that Detective Kevin Pelphrey, Kentucky State Police, is conducting an investigation regarding sodomy and sexual abuse, by Mr. Carrier, of small children. Detective Pelphrey has the testimony of three (3) victims regarding said criminal sexual activity. Mr. Carrier advised Ms. Laverne Carrier, who is willing to testify, that he confessed his illegal sexual activity to Dr. Runyon, of Psychological Associates. The requested information is material to the Commonwealth's investigation.
Respectfully Submitted
/s/ Billy N. Riley
Livingston County Attorney
P.O. Box 97
Smithland, KY 42081
(270) 928-2880
Verification
I hereby certify that, to the best of my knowledge and belief, the contents of the foregoing motion are true and correct.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Dr. John C. Runyon and/or Psychological Associates release to Detective Kevin Pelphrey of the Kentucky State Police, any and all files, documents, and other information in their possession or within their knowledge regarding Clifford L. Carrier.
ENTERED this the 26th day of January, 1999.
/s/ Jill Clark
Judge
CERTIFICATE OF EXECUTION
I hereby certify that the foregoing Order has been executed by personally delivering an exact copy of same to and receiving information from Mr. John C. Runyon and this the 28th day of January 1999 at 11:38 a.m.
/s/ Det. Kevin Pelphrey
Det. Kevin Pelphrey, K.S.P
Although the motion was styled Commonwealth v. Clifford L. Carrier, at the time the order was issued on January 26, 1999, there was neither a case nor controversy involving Appellant appearing on the docket of the Livingston District or Circuit Court. Interestingly, neither the motion nor the order were stamped "filed" by the district court, and, in fact, the only file stamp found on the motion is by the Livingston Circuit Court dated July 6, 1999, after Appellant's indictment on June 30, 1999. Similarly, the only stamp on the district court's order reflects that it was entered by the circuit court on July 7, 1999.
In October 1999, defense counsel filed a motion in limine to suppress all evidence obtained from the psychological records. Following the denial of that motion, Appellant accepted the conditional plea agreement, and judgment was entered accordingly.
Appellant first argues that, contrary to the Court of Appeals' conclusion, the motion for production of his psychological records falls short of both the procedural requirements and probable cause necessary for issuance of a search warrant. Asserting that the district court's order was overly broad, Appellant notes that it authorized the seizure of all files, documents, and records relating to Appellant, rather than just those documents containing evidence of his alleged "confession of sex crimes against minors." Finally, Appellant contends that his ex-wife's allegation that he told her he had confessed to the psychologist did not constitute probable cause for issuance of a search warrant.
The Court of Appeals opined that the county attorney's "Verified Motion For Records" was "essentially the equivalent of a request for a search warrant." The court reasoned further that the detective's verification of the grounds upon which the motion was sought "would meet the requirements of RCr 13.10," and that there was probable cause for issuance of the order authorizing seizure of the records. We disagree.
Section 10 of the Kentucky Constitution mandates that "[t]he people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."1 The procedural requirements for the issuance of a search warrant are set forth in RCr 13.10, which provides, in pertinent part:
(1) Upon affidavit sufficient under Section 10 of the Kentucky Constitution and sworn to before an officer authorized to administer oaths as provided in Rule 2.022 for the swearing of complaints, a search warrant may be issued by a judge or other officer authorized by statute to issue search warrants.
Kentucky courts have repeatedly held that no search warrant shall be issued unless supported by an affidavit alleging probable cause. Beemer v. Commonwealth, Ky., 665 S.W.2d 912, 914 (1984); Embry v. Commonwealth, Ky., 492 S.W.2d 929, 932 (1973); Guth v. Commonwealth, Ky.App., 29 S.W.3d 809 (2000). Furthermore, both the Kentucky Constitution § 10 and the Fourth Amendment require that probable cause be supported by "oath or affirmation."
An oath or affirmation is a subscription to the truth of that to which it is made. An affirmation is a substitute for an oath, except that it does not invoke the Deity, where there is an expression of scruples against taking an oath. 58 Am. Jur.2d Oath and Affirmation § 2 (2002). "To make a valid oath or affirmation, there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and the intention to administer it on the other; mere intention, not accompanied by an unambiguous act, is insufficient." Bd. of Elections v. Bd. Of Educ., Ky.App., 635 S.W.2d 324, 327 (1982) (citations omitted). In order to have a valid statement under oath, the attention of the person to be sworn must be called to the fact that his or her statement is not a mere assertion, but must be sworn to, and he or she must do some corporal act in recognition of this. 58 Am.Jur.2d., supra, at § 16.
An affidavit is a written statement of fact under oath sworn to or affirmed by the person making it before some person who has authority under the law to administer oaths and officially certified by the officer under his or her seal of office. Id. § 3. An affidavit implies the taking of an oath as to the truth of its contents. Bd. of Elections, supra.
Here, although the county attorney filed a "Verified Motion for Records," the Court of Appeals construed it as the equivalent of an affidavit for a search warrant. However, contrary to the requirements of RCr 13.10, there is no indication that the motion was "sworn to before an officer authorized to administer oaths." This "affidavit" contains only bare allegations made by the county attorney and a certification by the detective. Notably, neither signature was even notarized. As such, the motion clearly fails to meet the procedural requirements of RCr 13.10 for an affidavit supporting a search warrant. The Constitutional demand of an oath or affirmation requires more than a mere verification of a police officer.
We note that in Spradling v. Hutchinson, 162 W.Va. 768, 253 S.E.2d 371 (1979), the West Virginia Supreme Court of Appeals held that there was no significant distinction between an "affirmation" and a "certification" since both are...
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