Douglas v. State
| Citation | 527 P.3d 291 |
| Docket Number | Court of Appeals Nos. A-12755,A-12756 |
| Decision Date | 17 March 2023 |
| Parties | John Robert DOUGLAS, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Justin Facey, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
In N.G. v. Superior Court , we addressed, but did not resolve, the question of whether there are circumstances under which a government witness's assertion of the psychotherapist-patient privilege must yield to a criminal defendant's constitutional right to a fair trial.1 In N.G. , we noted that the majority of jurisdictions addressing this issue had concluded that "if the defendant makes a sufficient preliminary showing, the defendant is entitled to have the trial court conduct an in camera inspection of a government witness's mental health records," and had further concluded that "the witness's psychotherapist-patient privilege can be overridden if the trial court concludes that portions of those records are sufficiently relevant to the defendant's guilt or innocence, or are sufficiently relevant to the witness's credibility."2
Although we noted this majority approach in N.G. , we did not directly adopt the majority rule under Alaska law because we concluded that resolution of N.G. did not require us to decide this issue.3 The current case, however, requires us to resolve this issue and to further define the legal standard that a defendant must meet to obtain in camera review of privileged mental health records that are in the hands of a third party and not known to the prosecution.4
The defendant in the current case, John Robert Douglas, was convicted, following a jury trial, of second-degree sexual assault for grabbing a woman's breast in an elevator.5 At the time of the incident, the woman (R.D.) had a full legal guardian who had been appointed ten years earlier after R.D. suffered a traumatic brain injury
from a serious car accident.6
Prior to trial, Douglas moved for discovery of neuropsychological records in R.D.’s guardianship file on the ground that these records likely contained information that could be favorable to the defense regarding R.D.’s ability to recall, comprehend, and accurately relate what occurred in the elevator. Douglas renewed this motion during trial, after it became clear that R.D. had memory issues and still suffered from some of the cognitive effects of the traumatic brain injury
.
The superior court denied both requests, ruling that it had no authority to order an in camera review under our decision in N.G. because the neuropsychological reports were privileged by statute and by Alaska's psychotherapist-patient privilege.
But, as just explained, N.G. did not resolve the question of whether Alaska's psychotherapist-patient privilege can be overridden in criminal cases, and our decision provided very little guidance on what type of showing a defendant must make to obtain in camera review of otherwise privileged mental health records. Accordingly, we now resolve those questions by formally adopting a test similar to the one used by the majority of jurisdictions that have addressed this issue. Under this test, a defendant is entitled to in camera review of privileged mental health records if the defendant can show a reasonable likelihood that the records contain exculpatory evidence that is relevant to the defense and unavailable from less intrusive sources. If the in camera inspection subsequently reveals materially exculpatory evidence — i.e. , evidence, including impeachment evidence, that is favorable to the accused and material to guilt or innocence — then that evidence must be disclosed to the defendant.
Because we conclude that Douglas met this standard, we remand this case to the superior court so that the court can conduct the requested in camera review and disclose any materially exculpatory evidence that may exist in the records. The parties may then litigate whether Douglas is entitled to a new trial or whether the failure to conduct the in camera review was harmless beyond a reasonable doubt under the facts of this case.
Background facts and prior proceedings
On May 30, 2014, R.D. went to pick up a check from her guardian at the Office of Public Advocacy. R.D. went into the building alone, although her mother waited for her outside the building.
After picking up her check, R.D. noticed a man (later identified as Douglas) standing next to her at the elevators looking at his phone. He bumped into her while they were waiting for the elevator, but she thought that it was accidental. When the elevator arrived, they both boarded the elevator. Douglas stood right next to R.D., even though the elevator was otherwise empty. The elevator stopped on another floor and three people got on. The elevator stopped again and the three people got off, leaving R.D. alone with Douglas.
According to R.D.’s testimony at trial, as the elevator doors closed, Douglas "grabbed [R.D.’s] boob and ... private part." Douglas grabbed R.D.’s right breast "[r]eally, really, really hard" with one hand and "dug[ ] ... really hard" into the "middle" of R.D.’s "vagina area" with the other. R.D. testified that she began to scream and Douglas punched her "[v]ery hard" in her forehead, above her right eye.
When the elevator doors opened to the lobby, a receptionist saw R.D. and Douglas engaged in a struggle. The receptionist testified that at first she thought they were "horsing around" with Douglas pushing and pulling at R.D. and her telling him to "knock it off" and "[s]top it." But then she saw Douglas attempt to rip R.D.’s pants down and she heard R.D. screaming for Douglas to stop. The receptionist stood up from her desk and made eye contact with Douglas, who moved like he was going to leave. She then called building security.
While the receptionist was still on the phone with building security, Douglas came back to the elevators where R.D. was standing. The receptionist heard "a blood-curdling scream" followed by R.D.’s cries that Douglas was hurting her. The receptionist ran into the lobby. Douglas then ran out of the building and was chased by two co-workers of the receptionist who had been alerted to what was going on.
The receptionist called 911. While she was calling 911, the receptionist saw R.D. crying, walk outside, clutch her lower abdomen, and collapse.
The two co-workers caught up with Douglas at a nearby parking garage, and Douglas was apprehended by security personnel.
Anchorage Police Officer Heidi Schaeffer interviewed R.D. at the scene. R.D. was "very upset" but she declined medical attention. R.D. told the officer that Douglas had grabbed her breast and genital area during the assault. Officer Schaeffer noticed a red scratch on R.D.’s left forearm, but she did not take any photographs.
Officer Schaeffer took R.D. to the police car where Douglas was handcuffed. When R.D. and Officer Schaeffer both looked into the window, Douglas began making "crude" facial expressions, wagging his tongue back and forth. R.D. identified Douglas as her assailant. When Officer Schaeffer escorted Douglas to jail, she noticed that his jeans were buttoned, but unzipped.
A grand jury later indicted Douglas on one count of second-degree sexual assault for engaging in sexual contact ("hand to genitals and/or female breast") with R.D. "without consent."7
Douglas's pretrial motion for in camera review of R.D.’s guardianship file
At the grand jury hearing, R.D. testified that she had a full legal guardian. She characterized the guardian as someone who helps her with money issues. She also testified that she was in a car accident ten years earlier that left her with "[m]ajor" medical issues and caused her to walk slowly.
Following the grand jury proceedings, Douglas filed a motion requesting that the superior court provide discovery of the neuropsychological reports that were part of R.D.’s guardianship file. Douglas argued that these portions of the guardianship records were not privileged and instead were only "confidential" under Alaska law.8 According to Douglas, there was good cause to conduct an in camera review of these parts of the guardianship file because the appointment of the guardian necessarily meant that R.D. had been found to be incapacitated by a court. Douglas further argued that the "major" medical issues that R.D. alluded to at the grand jury hearing likely included traumatic brain injury
, and traumatic brain injuries can "affect [a person's] thinking skills, communication, and emotions."
The State opposed the motion, asserting that the neuropsychological and court visitor reports that Douglas wanted reviewed were privileged under Alaska law.9 The State characterized Douglas's motion as a "fishing expedition" based on mere "speculat[ion]" that R.D. had a traumatic brain injury
, and the State argued that there was no evidence that R.D. suffered from any cognitive deficits or that she had any difficulty perceiving or remembering the incident.
R.D. separately opposed the motion for in camera review, arguing that the requested portions of her guardianship file should be treated as absolutely privileged under Alaska law. She also argued, in the alternative, that any in camera review be limited to reports from the time of the events of this matter — May 30, 2014 — to the time of the motion.
The superior court denied Douglas's pretrial motion for in camera review of R.D.’s guardianship records. The superior court ruled first that the records were privileged under AS 13.26.241(b) (formerly AS 13.26.109(b)10 ) and Alaska Evidence Rule 504(b) (the psychotherapist-patient privilege), and that any in camera review would therefore be governed by this Court's decision in N.G. v. Superior Court .11 The court then found that Douglas failed...
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