Dill v. People, 95SC363

• Decision Date: 25 November 1996
• Docket Number: No. 95SC363,95SC363
• Citation: 927 P.2d 1315
• Parties: Christopher DILL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1315

927 P.2d 1315

Christopher DILL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 95SC363.

Supreme Court of Colorado En Banc.

Nov. 25, 1996.

Rehearing Denied Dec. 16, 1996.

David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for Petitioner.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Robert M. Petrusak, Senior Assistant Attorney General, Criminal Enforcement Section, Denver, for Respondent.

Justice LOHR delivered the Opinion of the Court.

The Colorado Court of Appeals affirmed the judgment of conviction of Christopher Dale Dill (defendant) entered on a jury verdict finding him guilty of sexual assault on a child by one in a position of trust. ¹ People v. Dill, 904 P.2d 1367 (Colo.App.1995). We granted certiorari to determine whether the court of appeals was correct in holding that the trial court properly denied the defendant's motion for discovery of any notes and reports made by a psychologist during or resulting from meetings with the alleged victim (the child). See Dill, 904 P.2d at 1371. We affirm the judgment of the court of appeals.

I.

On March 6, 1992, the defendant was charged by information in Larimer County District Court with the class 3 felony of sexual assault on a child by one in a position of trust. See § 18-3-405(1),(2)(b), 8B C.R.S. (1986). The charge was based on an incident that occurred between June 1, 1988, and July 4, 1988.

At the time of the alleged assault, the child was six and one-half years old. She lived in Loveland with her mother, brother, and stepbrother. The defendant was staying with the family on weekends and was the biological father of the stepbrother.

The child testified at trial that the assault occurred late one weekend night when she went into the living room of the family apartment to lie on the couch. The defendant was in the living room. According to the child, the defendant laid down on the couch beside her and sexually assaulted her. The defendant then warned the child not to tell anyone or he might hurt her or her family. The child did not tell anyone about the assault at the time.

The child and her mother testified that the child first told her mother of the assault early in 1992 during a conversation precipitated by the child's attendance at a school assembly. The mother reported the matter to the Loveland Police Department and took the child for a medical examination, the results of which indicated that she had been subjected to sexual penetration some time in the past.

On January 18, 1992, the mother took the child to a child psychologist to evaluate the child's report of sexual abuse. The psychologist talked with the mother and child for about ninety minutes on that occasion to establish rapport with the child. At that meeting, the psychologist referred generally to the sexual assault allegations but did not ask the child for specific information. On January 24, 1992, the psychologist met with the child alone for about ninety minutes. During that meeting, which the psychologist tape-recorded, the child made several statements describing the sexual assault by the defendant in 1988. On the basis of information obtained in those two meetings, the psychologist prepared a written report dated February 24, 1992. She delivered both the written report and the tape recording of the January 24 interview to the Loveland Police Department. Thereafter, the psychologist met with the child from time to time for therapeutic purposes.

Prior to trial, defense counsel filed a Motion to Disclose Identity of and Information from Professionals, which included a request for disclosure of any information resulting from the initial meeting and any later contacts of the child with the psychologist. The motion also sought disclosure of notes, reports, and statements of the child generated by contacts with any therapist, alleging that "[a]ny therapist who is currently seeing [the child] has information that is potentially exculpatory in the form of statements by the victim and in the form of suggestions and reinforcement that have been given to the victim in the course of therapy." Prior to a hearing on the motion, the prosecution provided the defense with a copy of the psychologist's February 24 report and a partial transcript of the tape of the January 24 interview. The prosecution did not provide any notes or other materials from the January 18 interview or from the therapy sessions. ² The court heard argument on the motion, during which defense counsel contended that any privilege attaching to the child's statements to the psychologist had been waived or, in the alternative, that the materials should be reviewed in camera by the court to search for inconsistent statements or any other information to which the defense was constitutionally entitled. The court granted discovery of material from the January 24 interview, "which basically was to assist the Loveland PD," but denied discovery of material from further interviews "that appear to the Court to have been therapeutic." The court made no specific mention of the January 18 interview.

On November 4, 1992, defense counsel moved to exclude the testimony of the psychologist, based in part upon alleged discovery violations. The defendant asserted that none of the psychologist's notes produced during the course of her ongoing therapeutic relationship with the child had been provided to the defense and that without such notes defense counsel could not fully cross-examine the psychologist, "especially on the issue of whether or not [the child] suffers from post-traumatic stress disorder." After hearing argument, in which defense counsel asserted the right to disclosure of all of the psychologist's notes concerning all meetings with the child, the court denied the motion without elaboration.

At trial, the psychologist testified to statements made by the child in the course of the January 24 interview concerning the sexual assault and expressed the opinion, as an expert in child psychology, that the child was experiencing post-traumatic stress disorder. In addition, the mother, the Loveland Police Department detective who interviewed the child, and the doctor who examined her testified to statements made to them by the child, describing the sexual assault. The child also testified to the assault. Although the child's out-of-court statements and her testimony at trial were consistent as to the location and circumstances of the assault and the identity of the assailant, the degree of detail concerning the assault varied among the different accounts.

The defendant testified on his own behalf and denied that he had ever assaulted the child. The defendant also presented evidence from a psychologist, qualified as an expert in the fields of mental health and sexual abuse, that he did not exhibit the majority of the characteristics accepted as traits usually demonstrated by sexual offenders, and friends offered testimony that commission of the offense was inconsistent with the defendant's character.

At the conclusion of the trial, the jury found the defendant guilty as charged. The trial court entered judgment sentencing the defendant to ten years imprisonment. On appeal, the Colorado Court of Appeals affirmed the judgment of conviction. Dill, 904 P.2d at 1370, 1375. In doing so, the court rejected the defendant's argument that "the trial court erred in refusing to allow [the defendant] to examine the psychologist's notes and reports during her initial [January 18, 1992] and ongoing counseling sessions with the victim." Id. at 1371. The court noted that the defendant had received a copy of the psychologist's formal report and the notes used to prepare it and held that the child had not waived the psychologist-client privilege, § 13-90-107(1)(g), 6A C.R.S. (1987), ³ which protected communications between the child and the psychologist during ongoing therapeutic counseling sessions. The court of appeals also held that section 19-3-311(1), 8B C.R.S. (1996 Supp.), which abrogates the psychologist-client privilege as to communications between a victim and a psychologist that are the basis for a required report of child abuse under section 19-3-304, 8B C.R.S. (1996 Supp.), "does not concern communications relating to ongoing treatment of the victim." Dill, 904 P.2d at 1371. We granted certiorari to determine "[w]hether the trial court erred in refusing to allow discovery of [the psychologist's] notes and reports with respect to her meeting with the victim."

II.

At the outset, it is important to identify the materials as to which the defendant asserts that he was erroneously denied access. The record is clear that the psychologist based her February 24, 1992, written report on both the initial January 18, 1992, interview and the January 24, 1992, interview. Well before trial, the defendant received the written report, as well as the psychologist's notes on the January 24 interview and a partial transcript of a tape recording of that interview. The prosecution also offered the defendant access to the tape recording during a pretrial hearing.

The record is also clear that the psychologist did not prepare an additional report based solely on the January 18 interview. The record does not establish whether the psychologist made notes at the January 18 interview or preserved a record of that interview in any other form. If materials from the January 18 interview exist, they were not provided to the defendant. In addition, the defendant was not provided with any materials relating to the therapy sessions attended by the child and the psychologist after January 24, 1992. It is these two groups of materials to which the defendant asserts he was wrongfully denied access in...