Miller v. District Court In and For City and County of Denver

Decision Date26 May 1987
Docket NumberNo. 87SA49,87SA49
PartiesFrederick M. MILLER, M.D., Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER and the Honorable Leonard Plank, One of the Judges Thereof, Respondents.
CourtColorado Supreme Court

Larry Pozner & Associates, P.C., Shelley Gilman, Denver, for petitioner.

Norman S. Early, Jr., Dist. Atty., Second Judicial Dist., Donna Skinner Reed, Deputy Dist. Atty., Denver, for respondents.

Richard F. Hennessey, Ted D. Gardenswartz, Denver, for amici curiae Colorado Psychiatric Society & The Denver Psychoanalytic Society.

Charles G. Michaels, Denver, for amicus curiae Civil Liberties Union Foundation of Colo., Inc.

Michael L. Bender, Mary J. Mullarkey, Denver, for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Richard A. Hostetler, Denver, for amicus curiae Colorado Criminal Defense Bar.

ERICKSON, Justice.

The respondent district court issued a contempt citation against the petitioner, Frederick Miller, when he refused to answer questions relating to murder charges against the defendant, Lawrence Aoki. We issued a rule to show cause, and now discharge the rule in part and make the rule absolute in part.


In February 1986, the defendant, Lawrence Aoki, was charged in the Denver District Court with two counts of murder in the first degree, section 18-3-102, 8B C.R.S. (1986), and two counts of mandatory sentence for a violent crime, section 16-11-309, 8B C.R.S. (1986). The charges arose out of the defendant's commission of two homicides on February 6, 1986, while he was allegedly suffering from a cocaine-induced mental disorder. The Colorado State Public Defender's Office was appointed to represent Aoki.

After the defendant was arrested, the Public Defender's office retained Dr. Frederick Miller, a psychiatrist, to perform a mental status evaluation of Aoki. The primary purposes of the examination and consultation were to determine the feasibility of a mental status defense and to advise defense counsel on trial tactics and strategy. Dr. Miller met with Aoki and advised him that his evaluation was protected by the attorney-client privilege, section 13-90-107(1)(b), 6 C.R.S. (1986 Supp.), and that any statements made during the evaluation would remain confidential until Aoki waived the privilege. After the evaluation, Dr. Miller reported his impressions and advice to defense counsel. Dr. Miller did not prepare a written report.

Aoki entered a plea of not guilty by reason of insanity, section 16-8-103, 8A C.R.S. (1986). While preparing for trial, the prosecution determined through an examination of jail records that Dr. Miller visited Aoki. Predicting that he would be a witness, the prosecution moved to endorse Dr. Miller as a witness at Aoki's upcoming sanity trial. On September 11, 1986, the district court permitted the endorsement over the objection of defense counsel. Defense counsel thereafter filed a "Petition for Relief Pursuant to [C.A.R.] 21," and sought an order prohibiting endorsement of Dr. Miller as a prosecution witness. We denied the petition.

On September 15, 1986, trial began on the issue of Aoki's sanity at the time of the commission of the offense. The district court denied Dr. Miller's motion to quash the prosecution subpoena, and Dr. Miller sought relief in this court pursuant to C.A.R. 21. We issued a rule to show cause, but ultimately discharged the rule pursuant to a motion filed by the prosecution. In the motion, the prosecution advised this court that Aoki's sanity trial had proceeded to a verdict without the testimony of Dr. Miller, and that the jury found the defendant sane. The prosecution therefore claimed that the "issue as to quashal [sic] of subpoenas [was] moot as there [was] no longer a case or controversy."

After we discharged the rule to show cause, the defendant entered a plea of not guilty by reason of impaired mental condition, section 16-8-103.5, 8A C.R.S. (1986). The prosecution again subpoenaed Dr. Miller to testify at a pretrial hearing on a motion to suppress and at the guilt phase of Aoki's trial. The purpose of the prosecution's intended examination was to establish the defendant's culpable mental state at the time of the commission of the crimes, and the voluntariness of incriminating statements made by the defendant after his arrest. Dr. Miller again moved to quash the subpoena, and the motion was denied by the trial court. Dr. Miller petitioned this court for an order requiring the district court to quash the subpoena. We denied the petition on January 15, 1987.

On February 9, 1987, a hearing was held on Dr. Miller's refusal to testify. The prosecution called Dr. Miller as a witness, and, in response to the prosecution's inquiry as to what Aoki told him regarding "the events of February 6, 1986, particularly as to [Aoki's] mental condition at that time," Dr. Miller declined "to answer any further questions about [his] examination of Mr. Aoki...." The district court entered an order of contempt against Dr. Miller, and imposed a fine of $100 per day until he agreed to testify. The district court later stayed execution of the fine pending resolution of this original proceeding.

Dr. Miller now petitions this court for an order under C.A.R. 21 compelling the district court to quash the subpoena of Dr. Miller and to vacate the contempt citation. We conclude that Dr. Miller could not be compelled at the February 9, 1987 hearing to disclose confidential statements made to him by the defendant, but hold that Dr. Miller's petition for an order requiring the court to quash the subpoena is premature.


We have never considered whether, absent a waiver, a defendant's disclosures to a defense-retained psychiatrist are protected by the attorney-client privilege. However, a majority of the courts that have addressed the question have held that such communications are protected from disclosure either under the attorney-client privilege or the sixth amendment to the United States Constitution. See, e.g., United States v. Alvarez, 519 F.2d 1036 (3d Cir.1975); United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976); Houston v. State, 602 P.2d 784 (Alaska 1979); People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793 (1975) 1; State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979); State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979); People v. Hilliker, 29 Mich.App. 543, 185 N.W.2d 831 (1971); State v. Kociolek, 23 N.J. 400, 120 A.2d 417 (1957); Ballew v. State, 640 S.W.2d 237 (Tex.Crim.App.1980). But see, e.g., Noggle v. Marshall, 706 F.2d 1408 (6th Cir.1983), cert. denied, 465 U.S. 1010, 104 S.Ct. 530, 78 L.Ed.2d 712 (1983).

Colorado's privilege statute, section 13-90-107(1)(b), 6 C.R.S. (1986 Supp.), provides:

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.

The attorney-client privilege extends to confidential communications by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations. 2 Losavio v. District Court, 188 Colo. 127, 133, 533 P.2d 32, 35 (1975); Denver Tramway Co. v. Owens, 20 Colo. 107, 128, 36 P. 848, 855 (1894). Although section 13-90-107(1)(b) does not by its terms protect disclosures to a defense-retained psychiatrist, we have held that the privilege may be applied to communications between the client and agents of his attorney. 3 See Bellman v. District Court, 187 Colo. 350, 531 P.2d 632 (1975) (statements made to an insurance investigator are privileged); A. v. District Court, 191 Colo. 10, 21, 550 P.2d 315, 324 (1976) (in order to come within the protection of the attorney-client privilege, there must be a communication between the client and his attorney or the attorney's agent), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977). See also Kay Laboratories, Inc. v. District Court, 653 P.2d 721, 723 (Colo.1982). The agency rule recognizes that the complexities of practice prevent attorneys from effectively handling clients' affairs without the help of others. The assistance of these agents "being indispensable to [the attorney's] work ..., the privilege must include all persons who act as the attorney's agents." 8 J. Wigmore, Wigmore on Evidence § 2301, at 583 (1961). See also 2 J. Weinstein & M. Berger, Weinstein's Evidence p 503(a)(3), at 503-27 to -28 (1986); United States v. Kovel, 296 F.2d 918 (2d Cir.1961); People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793 (1975); City of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951); People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964); Asbury v. Beerbower, 589 S.W.2d 216 (Ky.1979). It is now settled that a psychiatrist retained by defense counsel to assist in the preparation of the defense is an agent of defense counsel for purposes of the attorney-client privilege. See, e.g., People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793 (1975); State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979); Ballew v. State, 640 S.W.2d 237 (Tex.Cr.App.1982). See also Criminal Justice Mental Health Standards § 7-3.3(b), commentary at 7-85 (1984).

In this case, the trial court found that Dr. Miller was hired by defense counsel to examine the defendant and to assist counsel in entering a plea and preparing for trial. Because Dr. Miller is an agent of defense counsel who was retained for the purposes of providing a psychiatric evaluation of the defendant's condition, the defendant's confidential communications to him were privileged under section 13-90-107(1)(b). Absent a waiver, Dr. Miller could not be held in contempt at the February 9, 1987 hearing for his refusal...

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