People v. District Court In and For City and County of Denver, 87SA166

• Decision Date: 05 October 1987
• Docket Number: No. 87SA166,87SA166
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, Colorado, the Honorable John Brooks, One of the Judges Thereof, and Anthony Santistevan, Respondents.
• Court: Colorado Supreme Court

Page 432

743 P.2d 432

The PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT In and For the CITY AND COUNTY OF DENVER,

Colorado, the Honorable John Brooks, One of the

Judges Thereof, and Anthony Santistevan,

Respondents.

No. 87SA166.

Supreme Court of Colorado,

En Banc.

Oct. 5, 1987.

Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., David J. Dansky, Deputy Dist. Atty., Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Neil L. Tillquist, Asst. Atty. Gen., Denver, for respondents Dist. Court and Honorable John Brooks, One of the Judges Thereof.

David F. Vela, Colorado State Public Defender, Philip A. Cherner, Deputy State Public Defender, Denver, for respondent Anthony Santistevan.

VOLLACK, Justice.

The People seek relief in the nature of prohibition under C.A.R. 21, to prevent the district court from releasing records of the Denver Department of Social Services [hereinafter DSS] concerning a child named as a victim in the underlying prosecution of the defendant, Anthony Santistevan, for sexual assault on a child. We issued an order to show cause why defense counsel should not be prohibited from examining the records, and now make the rule absolute.

I.

The defendant was charged by information with sexual assault on a child pursuant to section 18-3-405, 8B C.R.S. (1986). The People contend that the defendant subjected A.S.B., a nine-year-old girl, to sexual contact while he was babysitting her. A.S.B. apparently informed her parents that the defendant had assaulted her and the parents contacted the police.

The defendant filed a motion pursuant to Colorado's "rape shield" statute, section 18-3-407, 8B C.R.S. (1986), requesting permission to present testimony about the victim's prior sexual conduct. Attached to this motion were several documents relating allegations made by the victim of previous sexual assaults by other persons. Also, in preparation for his defense, the defendant served the custodian of records for DSS with a subpoena duces tecum to produce any material in its possession relating to "abuse or possible abuse" of A.S.B. A hearing, at which DSS was represented by counsel, was held to discuss the release of the DSS records. The respondent court ordered that the records be submitted to the court to be kept in its custody. The court requested that the People notify the alleged victim's family in case they wished to exercise a privilege in the DSS records on behalf of the child. At the request of defense counsel and the prosecutor the court agreed to review the records.

DSS filed a motion to quash the subpoena duces tecum, claiming that the records were privileged under section 19-10-115(1), 8B C.R.S. (1986) and section 26-1-114(3)(a), 11 C.R.S. (1986 Supp.). A hearing on this matter was held on February 10, 1987. A.S.B.'s mother, M.B., appeared without counsel to object to disclosure of the DSS files. Counsel for DSS stated that there were two records relating to A.S.B. and her family, one dating back to 1977, and one relating to the alleged assault. DSS requested that the court inspect the records in camera to determine what documents would be relevant to this criminal case. On March 9, 1987, the respondent court ruled that the records were "privileged" and would not be disclosed. The defendant argued that section 18-3-411(5), 8B C.R.S. (1986), abrogated the privilege between victim-patient and physician. In response, the respondent court agreed to review the records once again.

On May 1, 1987, the respondent court advised the parties that it had reviewed the records for a second time and ruled that section 18-3-411(5) abrogated any privilege in the documents. The court ordered the release of the records in their entirety to the defense counsel. The respondent court entered no findings as to the relevancy of the records to the sexual assault prosecution. The People filed this petition for relief in the nature of prohibition to prevent the release of the DSS records. Attached to the petition was an index of the DSS records, containing eighty entries from 1977 until the present, and documenting DSS's involvement with M.B. and A.S.B. The records include complaints against M.B. alleging neglect of A.S.B., entries concerning foster care placement for A.S.B., and eligibility applications for public assistance, as well as inquiry reports regarding the subject matter of the current prosecution. The actual DSS file is not before this court for review.

II.

Generally, pre-trial discovery orders are not reviewable by this court in original proceedings. However, we have recognized an exception to this rule when a pre-trial discovery order will cause unwarranted damage which cannot be cured on appeal. People v. District Court, 719 P.2d 722 (Colo.1986); Bond v. District Court, 682 P.2d 33 (Colo.1984). If part or all of the DSS file is protected from disclosure by statutory privileges, then the damage will occur upon its disclosure. Therefore, we exercise our original jurisdiction in the present case.

III.

In its ruling to allow disclosure of the entire DSS file on A.S.B., the respondent court relied solely on section 18-3-411(5), which states, "the statutory privilege between the victim-patient and his physician and between the husband and the wife shall not be available for excluding or refusing testimony in any prosecution of an unlawful sexual offense." ¹ The respondent court apparently applied this statute to abrogate any statutory privilege which might apply to the DSS file. The People assert that this interpretation is incorrect, and we agree.

A legislative enactment must be given effect according to its plain and obvious meaning. People v. Owens, 670 P.2d 1233 (Colo.1983). Initially, we note that statutory privileges must be strictly construed and the claimant of a privilege bears the burden of establishing the applicability of the privilege. People v. District Court, 719 P.2d at 724. Section 13-90-107(1), 6 C.R.S. (1973 & 1986 Supp.), establishes the statutory privileges available for certain communications. By its language, section 18-3-411(5) applies only to "the statutory privilege between the victim-patient and his physician and between the husband and the wife." This statute eliminates the privileges provided under section 13-90-107(1)(a) (husband and wife) and (d) (patient and physician). Section 18-3-411(5) does not abrogate the other privileges created in section 13-90-107. If the General Assembly had intended section 18-3-411(5) to eliminate all the statutory privileges provided in section 13-90-107, it could have used the broad language required to express that intent. See People v. Reynolds, 195 Colo. 386, 578 P.2d 647 (1978). The DSS file on A.S.B. appears to contain a variety of reports that do not fit within the patient-physician privilege. Therefore, we conclude that the trial court erred in applying section 18-3-411(5) to release all the documents and reports contained in the DSS file.

IV.

The People assert that the district court abused its discretion by conducting an inadequate in camera review of the DSS records and that disclosure of the entire contents of the file was unwarranted by the district court's findings. We agree.

The courts have a duty to ensure that evidence which might tend to prove a defendant's innocence is not withheld from the defense. Cheatwood v. People, 164 Colo. 334, 435 P.2d 402 (1967). In light of this duty, a court may be required to grant an accused access...