Goldsmith v. State

• Decision Date: 01 September 1993
• Docket Number: No. 146,146
• Citation: 651 A.2d 866,337 Md. 112
• Parties: Eugene Franklin GOLDSMITH v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 112

337 Md. 112

651 A.2d 866

Eugene Franklin GOLDSMITH v. STATE of Maryland.

No. 146, Sept. Term, 1993.

Court of Appeals of Maryland.

Jan. 12, 1995.

Mark Colvin, Asst. Public Defender, (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

M. Jennifer Landis, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

CHASANOW, Judge.

The issue this Court must resolve in the instant case is whether Maryland Rule 4-264 or the federal and/or state constitution entitles a defendant charged with child abuse and related sexual offenses to obtain pre-trial discovery review of the victim's psychotherapy records maintained by the victim's private psychotherapist. Our answer is no.

I.

The petitioner, Eugene Franklin Goldsmith, was charged with committing sexual child abuse, second degree rape, second and third degree sexual offense, and unnatural and perverted sexual practices on his adopted stepdaughter, whom we shall call Laura. ¹ The criminal information charged that the crimes had been committed on various occasions "on or between January 1, 1978 and December 31, 1981." Laura, who was 25 years old at the time of trial, testified that the crimes had occurred when she was between the ages of 7 1/2 and 13 or 14. The criminal charges were not instituted until more than 10 years after the alleged commission of the last criminal act.

Aware that the complaining witness was in therapy with a psychologist, the petitioner sought access to her psychotherapy records. Psychotherapy records are privileged under Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article, § 9-109, which codifies the privilege for communications between a patient and psychiatrist or psychologist. That privilege, which we will refer to as the "psychotherapist-patient privilege" or simply "the privilege" is:

"(b) Privilege generally.--Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental or emotional disorder."

§ 9-109. There are six exclusions to the statutory privilege, none of which would be applicable to the instant case. See § 9-109(d)(1)-(6). Therefore, Laura has a psychotherapist-patient privilege which she is unwilling to waive and which is entitled to protection unless and until it must yield to Goldsmith's constitutionally protected rights.

Goldsmith first filed a "MOTION FOR THE ISSUANCE OF A SUBPOENA FOR PRODUCTION OF TANGIBLE EVIDENCE PRIOR TO TRIAL" pursuant to Md.Rule 4-264. In that motion, he alleged (1) that the complainant has been in treatment with Dr. Gombatz, a psychologist, for over four years, and (2) that a police detective related that it took years of counseling for the complainant to summon the courage to bring these charges against her stepfather.

The reasons given for the request were:

"The issue involved in the Defendant's demand for the complainant's psychological treatment records is one of credibility. It is important to keep in mind that, unlike the scenario in Zaal [v. State, 326 Md. 54, 602 A.2d 1247 (1992),] where the victim was a 12 year old child, the complainant in this case is a 25 year old adult who has been in counseling for over four years. The conduct alleged in the criminal information occurred between 1978 and 1981. The Defendant would proffer that the complainant moved from his residence in the summer of 1983. According to the testimony of Detective Madison at the preliminary hearing, the alleged abuse ceased two years prior when the complainant was 15 years old. The Defendant has not seen or had contact with the complainant since 1983. In this situation, the Defendant submits that the Court must give him some latitude in obtaining information that may enable him to confront his accuser in some meaningful way."

The defendant requested that a "[s]ubpoena be issued pursuant to Md.Rule 4-264" to Michael Gombatz, Ph.D., commanding Dr. Gombatz to produce "[a]ll documents including but not limited to reports, summaries, psychological testing, interview notes, diagnosis, and correspondence, that reflect and relate in any way to your treatment and counseling of [the complainant]." The subpoena requested the documents and records be produced at the law offices of the defense counsel in Towson, Maryland. The State filed a response alleging the following:

"1. A doctor patient privilege exists which can only be waived by the patient. [The complainant] has not waived this privilege. [citing Beckette v. State, 31 Md.App. 85, 355 A.2d 515 (1976) ].

2. These records are not subject to the Maryland Rules of Discovery.

3. To allow a victim's psychiatric records to be given to the defense violates her privacy.

4. Her psychiatric records are not relevant to the criminal charges against the defendant."

A hearing was held on the defendant's motion, and there was no proffer of any likelihood that relevant information would be obtained by reviewing the records. The proffer made by the defense counsel was as follows "Your Honor, I think that what's required under Zaal, and my understanding of it, is a nominal showing of relevance. And I think here where the issue is going to be the credibility of the Plaintiff, I would say to you that in the affidavit that Detective Madison attached to her arrest warrant of my client, she indicated that the complainant had been in counseling. And we later, at the preliminary hearing, found that it was with Dr. Gombatz for a period of over four years.

Where the facts are that you have an adult bringing charges that go back over ten years where, obviously, there's a question about the complainant's emotional state, and I think that's tied into the credibility. I mean, I simply don't know what her emotional state is. I think this in a way goes back to the fact that there have been no--you know, the complainant's mother hasn't been interviewed. We don't know--other than Detective Madison said today, something about the mother being emotionally unstable. I mean, that's news to me. But I mean, I think it's a fact that needs to be looked into.

But in terms of confrontation rights, it seems to me that the Defendant, in all the facts of this case, being charged with conduct that happened over a decade ago, where you know that the Defendant has been in counsel--not the Defendant, the complainant has been in counseling for over four years. I think that the--I think where credibility is the make or break issue, I think that some relief under Zaal whether that means that the court review these records in camera or preferable to the Defendant, would be that I, under some sort of monitored format, be allowed to look at these records."

The substance of the defense counsel's proffer was that the incidents at issue occurred over 10 years prior to trial, that the victim was in counseling, and the defense counsel complained "I simply don't know what her emotional state is." The defendant's motion for issuance of a discovery subpoena to produce records at defense counsel's law office was denied by written order dated September 1, 1992.

It is quite clear that the motions judge precluded the pre-trial discovery review of Dr. Gombatz's records. The defense was not precluded from calling Dr. Gombatz when the case actually went to trial. The defendant requested and was issued a subpoena pursuant to Md.Rule 4-265 for Dr. Gombatz to appear and produce his records at trial. The motions judge did not need to determine whether the defendant might be able to elicit exculpatory evidence from the psychotherapist at trial. Thus, the court did not hold that Laura's privilege outweighed the defendant's constitutional trial rights. As defense counsel made clear on the first day of trial:

"[DEFENSE COUNSEL:] The state has filed two motions to quash my subpoena, my trial subpoena duces tecum. One was to a psychologist named Dr. Gombatz. I think that we've resolved ... through discussions with the state I think we have resolved Dr. Gombatz's situation ...

COURT: Okay.

[DEFENSE COUNSEL:] ... which is that he's under subpoena. We've put him on call. If it becomes appropriate during the course of the trial that I could call him. He's under subpoena."

Although Dr. Gombatz was placed on call at trial by agreement of the parties, he was never called to testify.

At trial, Laura testified that the petitioner sexually abused her for approximately 5 1/2 years, up until she was about 14 years old. She said that the sexual activity, which included fondling, fellatio, cunnilingus, and on one occasion, attempted sexual intercourse, occurred on a regular basis, "more than twice a week." Laura testified that her mother moved out of the family home when she was 15. She did not tell her mother that Goldsmith had sexually abused her because she felt that her mother would neither have cared nor done anything about it.

When she was 17 and graduated high school, Laura moved from Goldsmith's home. She testified that at that time she reported the sexual abuse to the Department of Social Services. That agency's report, which was introduced in evidence, reveals the following:

"[Laura] informed Mrs. Purdon that her father had 'thrown her out' after she graduated from high school. She mentioned that her father had sexually abused her when she was 9 years old to 12 years old.... She had an appointment to discuss this with Protective Services, but did not appear. Numerous attempts were made to contact her, however, she did not return any messages.

This case was not investigated further as the allegations were vague and the 'victim' apparently did not wish to discuss the matter with Protective Services or the police.

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