Jordan v. State

• Decision Date: 24 July 1992
• Parties: John W. JORDAN v. STATE. CR 91-351.
• Court: Alabama Court of Criminal Appeals

Page 333

607 So.2d 333

John W. JORDAN v. STATE.

CR 91-351.

Court of Criminal Appeals of Alabama.

July 24, 1992.

Rehearing Denied Sept. 18, 1992.

Certiorari Denied Nov. 20, 1992

Alabama Supreme Court 1911990.

Thack H. Dyson of Brackin and Dyson, Foley, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

John W. Jordan, the appellant, was convicted of sexual abuse in the first degree, a violation of Ala.Code 1975, § 13A-6-66(a)(3). He was sentenced to five years' imprisonment, was fined $1,000, and was ordered to pay court costs and a victims' compensation assessment of $1,000. On this appeal, he raises four issues.

I

After the jury was empaneled and sworn and the trial judge had given his opening instructions to the jury, the appellant made a motion challenging the prosecutor's use of peremptory strikes to remove black persons from the jury. This issue has not been preserved for appellate review. To be timely, "a Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ] objection, in a case in which the death penalty has not been imposed, must be made prior to the jury's being sworn. Bell v. State, 535 So.2d 210, 212 (Ala.1988)." Ross v. State, 581 So.2d 495, 496 (Ala.1991) (emphasis added by the court in Ross ).

II

After the direct examination of the victim, defense counsel asked the trial court to order the State to provide him with statements made by the victim to Baldwin County mental health counselor Mary Burns. The prosecutor responded that victims of sexual abuse, sexual assault, and other crimes are referred to Ms. Burns for counselling, but that Ms. Burns is not associated with a law enforcement agency, and he argued that her confidential communications with the victim in this case were absolutely shielded from disclosure by virtue of Ala.Code 1975, § 15-23-42.

Section 15-23-42, which is part of an act entitled "The Victim Counselor Confidentiality Act of 1987," provides, in pertinent part, that

"[a] victim, [or] a victim counselor without the consent of the victim, ... cannot be compelled to give testimony or to produce records concerning confidential communications for any purpose in any criminal proceeding."

Section 15-23-43 provides:

"(a) A victim does not waive the protections afforded by this article by testifying in court about the crime.

"(1) However, if the victim partially discloses the contents of a confidential communication in the course of testifying, then either party may request the court to rule that justice requires the protections of this section be waived, to the extent they apply to that portion of the communication.

"(2) Any waiver shall apply only to the extent necessary to require any witness to respond to counsel's questions concerning the confidential communication[s] that are relevant to the facts and circumstances of the case.

"(b) A victim counselor cannot waive the protections afforded to a victim under this section...."

Section 15-23-45 provides:

"This article shall not be construed to relieve victim counselors of any duty to report suspected child abuse or neglect...."

Defense counsel argued that the privilege for confidential communications under § 15-23-45 had been waived when Ms. Burns released her file to the Department of Human Resources (DHR) for "investigati[on] of this case." R. 114. He claimed that once Ms. Burns turned over her information to DHR, the victim counselor privilege of § 15-23-45 was subordinated to the requirements of § 26-14-8(b)(4). Section 26-14-8 provides, in pertinent part, as follows "Establishment of central registry; confidentiality of records and reports

"(a) The state department of human resources shall establish a statewide central registry for reports of child abuse and neglect made pursuant to this chapter. The central registry shall contain, but shall not be limited to:

"(1) All information in the written report;

"(2) Record of the final disposition of the report, including services offered and services accepted;

"(3) The names and identifying data, dates and circumstances of any persons requesting and receiving information from the registry;

"(4) The plan for rehabilitative treatment; and

"(5) Any other information which might be helpful in furthering the purposes of this chapter.

"(b) The state department of human resources shall establish and enforce reasonable rules and regulations governing the custody, use and preservation of the reports and records of child abuse and neglect. The use of such reports and records shall be limited to the purposes for which they are furnished and by the provisions of law under which they may be furnished. The reports and records of child abuse and neglect shall be confidential, and shall not be used or disclosed for any purposes other than:

....

"(4) For use by a court where it finds that such information is necessary for the determination of an issue before the court;

"....

"(c) Any violation of this provision of confidentiality shall be a misdemeanor and punishable accordingly."

The assistant district attorney stated that the DHR caseworker who had the responsibility for this case had "never even seen the [counselor's] records. They may be over there in [DHR's] custody, but they [were] not used as an investigatory tool by the department or by any other law enforcement agency." R. 114.

Defense counsel informed the court that it was his understanding that "when [a] child is referred to counselling, and particularly when DHR pays for it, that DHR requires the family to sign releases releasing [the counselor's] information ... back to DHR." R. 115. The prosecutor did not dispute DHR's possession of the records based on a release. Instead, he maintained that § 15-23-42, as well as § 26-14-8(c), guaranteed the confidentiality of counselor records in the possession of DHR.

The trial court ruled that although §§ 15-23-42 and 26-14-8(b)(4) appeared to be in conflict, the former was controlling, and victim counselor communications were "confidential and may not be used in this proceeding." R. 120.

On appeal, the appellant argues that the trial court's refusal to release the victim-counselor information to him or to conduct an in camera review of the information for prior inconsistent statements by the victim violated his right to confront and cross-examine the witnesses against him. Brief of the Appellant at 15. At trial, however, the appellant did not claim that the non-disclosure of the information denied him the right of confrontation and cross-examination and did not request the trial court to conduct an in camera review of the material he sought. He did not argue that the privileged material might contain prior inconsistent statements by the victim or other exculpatory information. In fact, the record discloses no statement of the grounds upon which the appellant claimed to be entitled to the privileged information other than defense counsel's argument that the privilege had been waived by the alleged release of the information to DHR.

While it is possible that grounds may have been stated in an off-the-record conference with the trial judge during a recess following the victim's direct examination, see R. 112, we are bound by what appears in the record before us. The appellant " 'bears the burden of bringing the record before an appellate court. He and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a corrected record.' " Welch v. State, 455 So.2d 299, 300 (Ala.Cr.App.1984) (quoting Harris v. State, 420 So.2d 812, 816 (Ala.Cr.App.1982)).

We need not determine whether the § 15-23-42 privilege violated the appellant's rights to confrontation and cross-examination because that issue was not presented to the trial court. See Thornton v. State, 527 So.2d 143, 144 (Ala.Cr.App.1987), cert. quashed, 527 So.2d 146 (Ala.1988). See generally Annot., Constitutionality, With Respect to Accused's Rights to Information or Confrontation, of Statute According Confidentiality to Sex Crime Victim's Communications to Sexual Counselor, 43 A.L.R.4th 395 (1986); Comment, Rape Victim-Rape Crisis Counselor Communications: A New Testimonial Privilege, 86 Dick.L.Rev. 539 (1982); Note, 55 Temp.L.Q. 1124 (1982). Compare Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987), where the court observed: "This is not a case where a state statute grants [the child protective agency] the absolute authority to shield its files from all eyes. Cf. 42 Pa.Cons.Stat. § 5945.1(b) (1982) (unqualified statutory privilege for communications between sexual assault counselors and victims)." In a footnote, the court stated: "We express no opinion on whether the result in this case would have been different if the statute had protected the ... files from disclosure to anyone, including law-enforcement and judicial personnel." Ritchie, 480 U.S. at 57 n. 14, 107 S.Ct. at 1001 n. 14. (Emphasis in original.)

Addressing the only argument made below for disclosure of the information, we conclude that the statutory privilege for victim counselor confidential communications was not waived by the victim's alleged release of the counselor's report to DHR.

In order to determine whether a testimonial privilege has been waived by extra-judicial conduct, it is necessary to examine two factors: (1) the "implied intention" of the holder of the privilege and (2) the element of "fairness and consistency." 8 Wigmore, Evidence § 2327 at 636 (McNaughton rev. 1961). Although the holder may subjectively intend not to abandon the privilege, if his conduct, viewed objectively, manifests a purpose not to insist on the privilege, then the privilege should fairly be deemed to have been waived.

"A privileged person would seldom be found to waive if his [subjective] intention not to abandon could alone control the situation. There is always also the objective consideration that when his...