In Re Subpoena To Crisis Connection Inc.State Of Indiana

• Decision Date: 15 July 2010
• Docket Number: No. 19A05-0910-CR-602.,19A05-0910-CR-602.
• Citation: 930 N.E.2d 1169
• Parties: In re Subpoena to CRISIS CONNECTION, INC.State of Indiana, Appellee-Plaintiff,v.Ronald Keith Fromme, Appellee-Defendant.
• Court: Indiana Appellate Court

930 N.E.2d 1169

In re Subpoena to CRISIS CONNECTION, INC.State of Indiana, Appellee-Plaintiff,v.Ronald Keith Fromme, Appellee-Defendant.

No. 19A05-0910-CR-602.

Court of Appeals of Indiana.

July 15, 2010.

COPYRIGHT MATERIAL OMITTED

Jon B. Laramore, Matthew T. Albaugh, Trina K. Taylor, Baker & Daniels LLP, Indianapolis, IN, Attorneys for AppellantCrisis Connection, Inc.

S. Anthony Long, Long & Mathies Law Firm, Boonville, IN, Attorney for AppelleeRonald Keith Fromme.

OPINION

CRONE, Judge.

Case Summary

Crisis Connection, Inc., is a nonprofit organization that provides services, including counseling, to victims of domestic violence and sexual assault.In connection with a criminal case in which Ronald Keith Fromme is the defendant, Crisis Connection was ordered to produce records to the court for an in camera review.Crisis Connection appeals, requiring us, as a matter of first impression, to interpret Indiana's victim-advocate privilege and to determine whether it must be limited by a criminal defendant's constitutional rights.Concluding that an in camera review properly balances Fromme's constitutional rights and the victims' interest in privacy, we affirm.

Issues

I Are the records sought by Fromme subject to the victim-advocate privilege?

II.If so, is Fromme constitutionally entitled to have the trial court review the records in camera, notwithstanding the victim-advocate privilege?

Facts and Procedural History¹

Fromme has been charged with two counts of class A felony child molesting.Fromme served a subpoena duces tecum on Crisis Connection, seeking all records relating to the alleged victims, M.Y. and D.Y., and their mother.On February 28, 2008, Crisis Connection moved to quash the subpoena, arguing that the records sought are privileged.SeeInd.Code § 35-37-6-9(victim-advocate privilege).²

On August 4, 2008, Fromme filed a motion to compel Crisis Connection to produce the records.On August 14, 2008, the trial court held a hearing on the motion and ordered the parties to file responses.On December 22, 2008, Fromme filed a renewed motion to compel, and thereafter, both parties filed their responses.Another hearing was held, and on May 27, 2009, the trial court granted Fromme's motions in part:

1.Defendant's above motions shall be granted as to information requested regarding any reports made to Crisis Connection by or on behalf of [redacted], subject to the restrictions below, and shall be denied as to Defendant's request regarding similar information regarding [redacted].

2.The response of Crisis Connection shall be delivered to the Court, and the Court shall review said records to determine the relevance of any such records.The Court will then inform the parties of its decision.

3.In finding as above, the Court has determined that the items being sought are sufficiently identified, may be essential for the Defendant in determining the credibility of the complaining witnesses, and may be material to the Defendant's defense.

Appellant's App.at 17.

On June 9, 2009, Crisis Connection filed a motion to reconsider, or in the alternative, to certify the May 27 order for interlocutory appeal.A hearing on that motion was held on June 16, 2009, and Fromme filed a response on June 23, 2009.On October 5, 2009, the trial court denied the motion to reconsider and certified the May 27 order for interlocutory appeal.On November 18, 2009, we accepted jurisdiction.

Discussion and Decision

I.Structure and Scope of the Victim-Advocate Privilege

“Our standard of review in discovery matters is abuse of discretion.”Williams v. State,819 N.E.2d 381, 384(Ind.Ct.App.2004)trans. denied.This standard of review also applies to requests for in camera review to determine whether the evidence sought is discoverable.In re WTHR-TV,693 N.E.2d 1, 6(Ind.1998).An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts of the case.Williams,819 N.E.2d at 384.When a criminal defendant seeks access to confidential information, appellate courts“ ‘rely particularly heavily on the sound discretion of the trial judge to protect the rights of the accused’ ” as well as the party seeking to keep the information confidential.Rubalcada v. State,731 N.E.2d 1015, 1018(Ind.2000)(quotingUnited States v. Plescia,48 F.3d 1452, 1457(7th Cir.1995)cert. denied ).“We may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though this was not the reason enunciated by the trial court.”Williams, 819at 384-85.

However, to the extent the court's order is based on interpretation of a statute, our review is de novo.SeeJacks v. State,853 N.E.2d 520, 522(Ind.Ct.App.2006)(holding admissibility of evidence is normally within the trial court's discretion, but ruling would be reviewed de novo when it turned on the interpretation of a statute).Indiana Code § 35-37-6-9, which establishes the victim-advocate privilege, has never been interpreted.“When a statute has not previously been interpreted, the express language of the statute and the rules of statutory construction control the statute's interpretation.Pursuant to these rules, an unambiguous statute must be construed to mean what it plainly expresses.”Orban v. Krull,805 N.E.2d 450, 453(Ind.Ct.App.2004)(citations omitted).Every word should be given effect, and “no part of the statute is to be construed so as to be meaningless, if it can be reconciled with the rest of the statute.”State v. Rumple,723 N.E.2d 941, 944(Ind.Ct.App.2000).“Our goal in statutory construction is to determine, give effect to, and implement the intent of the legislature.”State v. Prater,922 N.E.2d 746, 748(Ind.Ct.App.2010).Even when supported by sound public policy, evidentiary privileges “ ‘are not lightly created nor expansively construed, for they are in derogation of the search for truth.’ ”Hulett v. State,552 N.E.2d 47, 49(Ind.Ct.App.1990)(quotingUnited States v. Nixon,418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039(1974))trans. denied.

Indiana Code § 35-37-6-9 provides, in relevant part:

(a) The following persons or entities may not be compelled to give testimony, to produce records, or to disclose any information concerning confidential communications and confidential information to anyone or in any judicial, legislative, or administrative proceeding:

(1) A victim.

(2) A victim advocate or victim service provider unless the victim specifically consents to the disclosure in a written authorization that contains the date the consent expires.

(b) A victim advocate, victim service provider, or victim may not be compelled to provide testimony in any judicial, legislative, or administrative proceeding that would identify the name, address, location, or telephone number of any facility that provided temporary emergency shelter to the victim of the offense or transaction that is the subject of the proceeding unless the facility is a party to the proceeding.

The statute does not contain a statement of purpose, but other jurisdictions have compared their victim-advocate privilege to the psychotherapist-patient privilege.See, e.g., People v. Turner,109 P.3d 639, 643(Colo.2005).Other courts have noted that the victim-advocate privilege is meant to provide victims of lesser economic means with the same confidentiality that would exist if the victim were able to afford private psychotherapeutic treatment.See, e.g., Commonwealth v. Wilson,529 Pa. 268, 602 A.2d 1290, 1294(1992)cert. denied.The United States Supreme Court has recognized the importance of confidentiality to the psychologist-patient relationship:

Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace.

Jaffee v. Redmond,518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337(1996).

Crisis Connection argues that its records clearly fall within the victim-advocate privilege, which it characterizes as “absolute.”See, e.g.,Appellant's Br.at 4.Fromme does not dispute that Crisis Connection is a victim service provider.³Pursuant to Indiana Code § 35-37-6-3.5, any employee or volunteer of a victim service provider is a “victim advocate.”Indiana Code § 35-37-6-1 defines “confidential communication” as follows:

(a) As used in this chapter, “confidential communication” means any information:

(1) exchanged between a victim and a victim advocate in the course of the relationship between the victim and the victim advocate;

(2) exchanged or disclosed in a support group in which a victim is or was a participant; or

(3) exchanged in the presence of a third person who facilitates or facilitated communication between a victim and a victim advocate.

(b) The term includes communication that is verbal or written and includes:

(1) advice;

(2) notes;

(3) reports;

(4) statistical data;

(5) memoranda;

(6) working papers;

(7) records; and

(8) personally identifying information;

produced in the course of advocating for a victim.

Indiana Code § 35-37-6-1.5 defines “confidential information” as follows:

(a) As used in this chapter, “confidential information” includes:

(1) personally identifying information;

(2) descriptions of physical appearance;

(3)the case file; and

(4)the case history;

of a person who seeks, receives, or has received services from a victim advocate.

(b) The term does not include:

(1) information disclosed to a victim service provider or a victim advocate if the victim:

(A) files criminal charges;

(B) institutes a civil lawsuit; or

(C) reports allegations of criminal conduct to a law enforcement agency;

against the victim service provider or victim advocate; and

(2) alleged child abuse or neglect that is required to be reported under IC

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