People v. Davis-Christian

• Decision Date: 30 June 2016
• Docket Number: Docket No. 329924.
• Citation: 316 Mich.App. 204,891 N.W.2d 250
• Parties: PEOPLE v. DAVIS–CHRISTIAN.
• Court: Court of Appeal of Michigan — District of US

316 Mich.App. 204

891 N.W.2d 250

PEOPLE

v.DAVIS–CHRISTIAN.

Docket No. 329924.

Court of Appeals of Michigan.

Submitted June 14, 2016, at Lansing.

Decided June 30, 2016, at 9:10 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Stuart J. Dunnings III, Prosecuting Attorney, Joseph B. Finnerty, Appellate Division Unit Chief, and Kahla D. Crino, Assistant Prosecuting Attorney, for the people.

Abood Law Firm, East Lansing (by Andrew P. Abood ) for defendant.

Before: FORT HOOD, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

RONAYNE KRAUSE, J.

The prosecution appeals by delayed leave granted¹ the trial court's interlocutory order granting defendant's motion for an in camera review of the complainant's counseling records. For the reasons discussed in this opinion, we reverse.

I. FACTS AND PROCEDURAL HISTORY

Because of several alleged instances of criminal penetration and sexual contact between defendant and complainant, defendant was charged with three counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a), and one count of accosting a child for immoral purposes, MCL 750.145a. Defendant alleged that during the complainant's forensic interview regarding these incidents, the complainant stated that defendant's alleged assault of her had happened like the "last time," referring to a prior instance of sexual abuse perpetrated on the complainant by a nonparty in 2011.² Defendant asserted that complainant had attended counseling after the 2011 incident and moved to compel discovery of complainant's counseling records, arguing that the records were likely to contain material necessary to his defense, including possible impeachment material. The trial court granted defendant's motion; the prosecution objected, arguing that the counseling records were privileged communications and the complainant had not waived the privilege. The prosecution further argued that defendant had failed to establish a reasonable probability grounded in fact that the counseling records were likely to contain information necessary to prepare a defense. The prosecution agreed to the use of a protective order to turn over the police reports and corresponding forensic interviews associated with the prior sexual abuse. With respect to the counseling records, the trial court ruled that it would review them in camera because defendant's freedom was at stake. The prosecution filed an application for interlocutory appeal, which this court granted; the trial court stayed implementation of the order pending the outcome of this appeal.

II. ANALYSIS

A trial court's decision to conduct or deny an in camera review of records in a criminal prosecution is reviewed for an abuse of discretion. People v. Stanaway, 446 Mich. 643, 680, 521 N.W.2d 557 (1994). "The trial court abuses its discretion when its decision falls outside the range of principled outcomes or when it erroneously interprets or applies the law." People v. Lane, 308 Mich.App. 38, 51, 862 N.W.2d 446 (2014).

"Discovery should be granted where the information sought is necessary to a fair trial and a proper preparation of a defense." People v. Laws, 218 Mich.App. 447, 452, 554 N.W.2d 586 (1996). Nevertheless, defendants generally have no right to discover privileged records absent certain special procedures, such as an in camera review of the privileged information conducted by the trial court. MCR 6.201(C)(1) and (2). In a criminal sexual conduct prosecution, an in camera review "promotes the state's interests in protecting the privacy rights of the alleged rape victim while at the same time safeguards the defendant's right to a fair trial." People v. Hackett, 421 Mich. 338, 350, 365 N.W.2d 120 (1984).

Stanaway explained the proper procedure a court must use to determine whether to grant an in camera review of privileged material:

[W]here a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records must be conducted to ascertain whether they contain evidence that is reasonably necessary, and therefore essential, to the defense. Only when the trial court finds such evidence, should it be provided to the defendant. [Stanaway, 446 Mich. at 649–650, 521 N.W.2d 557.]

However, the Stanaway Court explained that "disclosure should not occur when the record reflects that the party seeking disclosure is on ‘a fishing expedition to see what may turn up.’ " Id. at 680, 521 N.W.2d 557, quoting Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 95 L.Ed. 879 (1951). A defendant "is fishing" for information when he or she relies on generalized assertions and fails to state any "specific articulable fact" that indicates the privileged records are needed to prepare a defense. Id. at 681, 521 N.W.2d 557. The Michigan Supreme Court amended MCR 6.201(C) in 1996 to reflect the rule announced in Stanaway. MCR 6.201, 451 Mich. cx, cxi (staff comment).

MCR 6.201(C)(2) provides in part as follows:

If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records.

(a) If the privilege is absolute, and the privilege holder refuses to waive the privilege to permit an in camera inspection, the trial court shall suppress or strike the privilege holder's testimony.

(b) If the court is satisfied, following an in camera inspection, that the records reveal evidence necessary to the defense, the court shall direct that such evidence as is necessary to the defense be made available to defense counsel. If the privilege is absolute and the privilege holder refuses to waive the privilege to permit disclosure, the trial court shall suppress or strike the privilege holder's testimony.

The trial court in this case abused its discretion because it failed to apply the law as articulated in Stanaway and MCR 6.201(C)(2). In fact, the trial court explicitly disregarded Stanaway and articulated its own standard:

[B]ut as to the counseling records, yeah, I'm going to review them ... I don't care what Stanaway says, what you want to point to or don't point to. I don't know if this is relevant or not, but, quite frankly, the relevance comes in with the freedom of defendant or his incarceration. That's where the relevance is, because if there's something in there that puts him behind bars or frees him, there's the relevance, so I don't talk to anybody. I'm not allowed to. I'm going to read it and say yea or nay. It's very simple. [Emphasis added.]

The trial court's articulated standard would allow an in camera review of most—if not all—of the counseling records of alleged sexual assault victims. However, Stanaway rejected that type of sweeping discovery, keeping in mind the state's interest in protecting the victim's privacy rights. Addressing defendant Stanaway's assertion that the records were needed in an attempt to discover any prior inconsistent statement or rebuttal evidence, the Court responded, "This is no more than a generalized assertion that the counseling records may contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct. " Stanaway, 446 Mich. at 681, 521 N.W.2d 557 (emphasis added).

The parties do not dispute that the complainant's counseling records are privileged and that the need for an in camera review is controlled by Stanaway and MCR 6.201(C). Stanaway was a consolidated appeal that involved two defendants, Stanley Caruso and Brian Stanaway.³ In this case, the parties each rely on the factual circumstances and holding related to one of the defendants in Stanaway to the exclusion of the other; the prosecution turns to defendant Stanaway, while defendant turns to defendant Caruso.

The Supreme Court concluded that Stanaway's request for privileged counseling records was properly denied because his request fell "short of the specific justification necessary to overcome the privilege." Id. at 681–682, 521 N.W.2d 557. Stanaway had asserted that he needed access to privileged records to "unearth any prior inconsistent statements made by the complainant or any other relevant rebuttal evidence." Id. at 681, 521 N.W.2d 557. The Supreme Court determined that Stanaway was merely "fishing" because he had failed to state any "specific articulable fact" to indicate that the requested information was necessary for him to prepare a defense. Id.

Defendant asserts that this case is analogous to the Supreme Court's ruling with respect to defendant Caruso. The Court described the relevant facts regarding Caruso as follows:

Defendant Stanley Caruso is charged with second-degree criminal sexual conduct.... The allegation surfaced when the child wrote a note to her mother's live-in boyfriend about the alleged incident.

Before trial, defense counsel moved to obtain the complainant's counseling records, asserting that there was good reason to believe the complainant had been the victim of sexual abuse by her biological father. It was further suggested that this may not have been the first note written to the live-in boyfriend of a sexual nature. It was believed by the defense that the child had written at least one prior note in which she suggested she wanted to have sex with him in the car. [Id. at 654–655, 521 N.W.2d 557.]

The Court concluded:

Defendant...