Gray v. District Court of Eleventh Judicial Dist.

• Decision Date: 11 October 1994
• Docket Number: No. 94SA109,94SA109
• Citation: 884 P.2d 286
• Parties: Christopher Shane GRAY, Petitioner, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT, and the Honorable John E. Anderson, III, one of the judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 286

884 P.2d 286

Christopher Shane GRAY, Petitioner, v. The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT, and the Honorable John E. Anderson, III, one of the

judges thereof, Respondents.

No. 94SA109.

Supreme Court of Colorado,

En Banc.

Oct. 11, 1994.

Rehearing Denied Nov. 29, 1994.

David F. Vela, State Public Defender, Natalie Frei, Robin Desmond, Deputy State Public Defenders, Denver, for petitioner.

John E. Anderson, III, Dist. Judge, Canon City, for respondents.

Edward J. Rodgers, Dist. Atty., Eleventh Judicial Dist., Canon City, for amicus curiae Dist. Atty., Eleventh Judicial Dist Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Farley, Deputy Atty. Gen., John August Lizza, First Asst. Atty. Gen., Thomas S. Parchman, Asst. Atty. Gen., Human Resources Section, Denver, for amicus curiae the State of Colorado.

Colorado Dist. Attys. Council, Raymond T. Slaughter, Executive Director, Katherine M. Clark, Staff Atty., Denver, for amicus curiae Colorado Dist. Attys. Council.

Law Office of Stanley H. Marks & Richard A. Hostetler, Richard A. Hostetler, Denver, for amicus curiae Colorado Crim. Defense Bar.

Justice VOLLACK delivered the Opinion of the Court.

In this original proceeding pursuant to C.A.R. 21, we issued a rule directing the respondent, the Fremont County District Court, to show cause why it should not be prohibited from requiring petitioner, Christopher Shane Gray (Gray), to disclose to the prosecution psychiatric and psychological examinations and records produced in the course of treatment which occurred prior to the offense at issue. ¹ We issued a rule to show cause and now discharge the rule.

I.

Gray is charged with one count of criminal attempt to commit murder in the first degree pursuant to sections 18-2-101 and 18-3-102, 8B C.R.S. (1986), one count of first-degree burglary pursuant to section 18-4-202, 8B C.R.S. (1986), one count of theft pursuant to section 18-4-401, 8B C.R.S. (1986), one count of second-degree kidnapping pursuant to section 18-3-302, 8B C.R.S. (1986), one count of aggravated intimidation of a witness or victim pursuant to section 18-8-705(1)(b), 8B C.R.S. (1986), one count of first-degree assault pursuant to section 18-3-202, 8B C.R.S. (1986), one count of second-degree burglary pursuant to section 18-4-203, 8B C.R.S. (1986), one count of first-degree trespass pursuant to section 18-4-502, 8B C.R.S. (1986), and five counts of violent crime pursuant to section 16-11-309, 8A C.R.S. (1986).

On November 17, 1993, Gray entered a plea of not guilty by reason of insanity and asserted the affirmative defense of impaired mental condition. He also filed a motion to suppress medical records of his psychiatric hospitalization in 1990, when at such time, he was evaluated and treated for mental health problems. Approximately six weeks later, Gray filed a motion for a constitutional interpretation of section 16-8-103.6, 8A C.R.S. (1994 Supp.).

At the hearing on the motion requesting a constitutional interpretation of section 16-8-103.6, the prosecuting attorney asserted that, pursuant to section 16-8-103.6, the prosecution is entitled to any records of any examinations ever performed on Gray in his lifetime that may deal with any psychological condition which might support a plea of not guilty by reason of insanity or not guilty by reason of impaired mental condition. Conversely, Gray contended that such an interpretation violates his right to effective assistance of counsel.

The district court denied Gray's motion to suppress the medical records regarding his 1990 psychiatric hospitalization. The district court ruled that the physician/psychologist-patient and attorney-client privileges do not apply to psychiatric and psychological examinations conducted before the date of the offenses in question, regardless of whether the defense intends to call a defense-retained psychiatrist as an expert witness. The district court additionally ruled that section 16-8-103.6 does not violate Gray's Sixth Amendment right to effective assistance of counsel. The district court later supplemented its order and ruled that, because Gray had placed his mental condition at issue by pleading not guilty by reason of insanity and by asserting the affirmative defense of impaired mental Gray thereafter filed a petition for relief in the nature of a writ of prohibition pursuant to C.A.R. 21, and a request to stay proceedings pending resolution of this petition. We ordered the district court ² to show cause why the relief requested in the defendant's petition should not be granted.

condition, he had impliedly waived his right to assert any privilege.

We now conclude that the admission of hospital records and psychiatric testimony neither violates the attorney-client privilege nor deprives the defendant of his constitutional right to effective assistance of counsel.

II. SCOPE OF THE ATTORNEY-CLIENT PRIVILEGE

Gray argues that the attorney-client privilege under section 13-90-107(1), 6A C.R.S. (1987), applies to communications between a defendant and the physician or psychologist who is evaluating the defendant's mental condition at the request of the defense. Gray relies on two cases--Miller v. District Court, 737 P.2d 834 (Colo.1987), and the dissent in People v. Fuller, 791 P.2d 702 (Colo.1990)--to support his contention. Gray further contends that this court should narrowly construe section 16-8-103.6 and requests this court to interpret the statute consistently with the dissenting opinion in People v. Fuller. Gray additionally contends that his insanity or impaired mental condition defense does not create a waiver of the communication protection afforded under the attorney-client privilege.

In reexamining Miller and Fuller, we note that Miller was decided at the same time the legislature was enacting sections 13-90-107(3), 6A C.R.S. (1987), and 16-8-103.6, 8A C.R.S. (1994 Supp.). In Miller, we recognized that the attorney-client privilege extends to communications between the client and agents of the attorney and held that a defendant's disclosures to a psychiatrist retained by defense counsel to perform a mental status evaluation of the defendant's condition, but whom the defense did not intend to call as a witness at trial, were protected. Miller, 737 P.2d at 838. This holding was based on the fact that the psychiatrist is an agent of defense counsel for purposes of the attorney-client privilege. We additionally found that the defendant's assertion of an impaired mental condition defense did not create an implied waiver of his right to assert the attorney-client privilege as to disclosures made to a defense-retained psychiatrist since to hold otherwise would compromise a defendant's ability to communicate freely and confidentially with a psychiatrist retained to assist the defense. We therefore concluded that, absent a waiver of the privilege, the psychiatrist could not be forced to reveal disclosures made to him by the defendant.

In People v. Fuller, 791 P.2d 702 (Colo.1990), the defendant claimed that section 16-8-103.6, 8A C.R.S. (1989 Supp.), violated his right to effective assistance of counsel because the language of the statute created uncertainty as to whether statements made by a defendant during the course of a medical examination by a defense-retained psychiatrist would have to be disclosed to the prosecution. Fuller argued that the uncertainty of the statute, coupled with the trial court's refusal to rule on the issue, hampered defense counsel's investigation concerning Fuller's mental condition and therefore violated his constitutional right to effective assistance of counsel. Because Fuller did not raise an impaired mental condition defense subsequent to the denial of his challenge of the constitutionality of the statute, a majority of this court found that Fuller lacked standing to challenge the constitutionality of the statute on appeal.

Three justices dissented and, in analyzing the language of section 16-8-103.6, determined that section 16-8-103.6 implied a waiver of the defendant's claim to confidentiality The common law attorney-client, physician/psychologist-patient privileges have been codified in Colorado by section 13-90-107(1), 6A C.R.S. (1987). This statute defines these privileges and delineates their scope, as follows:

arising from communications with a physician or psychologist during court-ordered examinations in preparation for trial. The dissent concluded that such an interpretation would violate a defendant's Sixth Amendment right to counsel based on Miller and Hutchinson v. People, 742 P.2d 875 (Colo.1987). Fuller, 791 P.2d at 711-12.

(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.

....

(d) A physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient....

....

(g) A licensed psychologist shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment....

The purpose of the attorney-client privilege is to promote candid and open discussion between the client and the attorney. The attorney-client privilege applies only to confidential communications by or to the client in the course of gaining counsel, advice, or direction with respect to the...