People v. Sexton

• Decision Date: 16 February 2012
• Docket Number: No. 10CA1206.,10CA1206.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Thomas Nathaniel SEXTON, Defendant–Appellant.
• Court: Colorado Court of Appeals

296 P.3d 157

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Thomas Nathaniel SEXTON, Defendant–Appellant.

No. 10CA1206.

Colorado Court of Appeals, Div. IV.

Feb. 16, 2012.

John W. Suthers, Attorney General, John J. Fuerst, III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Tameler Law Office, LLC, Karl S. Tameler, Pueblo, Colorado, for Defendant–Appellant.

Opinion by Chief Judge DAVIDSON.

¶ 1 Defendant, Thomas Nathaniel Sexton, appeals from the judgment of conviction entered on a jury verdict finding him guilty of possession of eight ounces or more of marijuana. We address, as an issue of first impression, whether section 13–90–107, C.R.S.2011, or section 18–18–406.3, C.R.S.2011, governs a medical marijuana patient-defendant's waiver of doctor-patient confidentiality during criminal trial proceedings. We conclude, as did the trial court, that section 13–90–107 controls here, and therefore we affirm.

I. Background

¶ 2 In August 2007, the Pueblo County sheriff's office conducted an aerial marijuana eradication program in which trained officers flew over rural areas looking for clandestine marijuana grow operations. While flying over what he later learned was defendant's property, one of the officers, a detective, observed “a marijuana grow.” He directed officers on the ground to the location to contact anyone who might be on the property. Finding no one there, the officers obtained a search warrant.

¶ 3 Once the warrant had issued, the detective entered the property. At that time, he noticed a piece of paper attached to a plywood board on a tree that said the property was a medical marijuana grow operation for the Colorado Compassion Club's certified members (“garden certificate”). He said that the garden certificate had places for ten members' numbers as well as several places for caregivers' signatures and information; however, the relevant information was missing or, where filled out, illegible. The detective discussed the garden certificate with the other officers conducting the search. They also called the district attorney's office to discuss the situation. However, because the 128 marijuana plants appeared grossly to exceed the legal limit, the officers proceeded to eradicate all the plants by pulling them out of the ground.

¶ 4 Defendant arrived on the property after the officers had completed the eradication. He showed the officers a notebook that contained medical marijuana registration cards for several patients, some of whom, himself included, had doctor recommendations for extended plant counts. Nonetheless, the officers confiscated the eradicated marijuana plants.

¶ 5 Once the plant material had dried out, officers separated the leaves from the stalks to obtain an accurate weight. The total weight, not including the stalks, was 20.4 pounds.

¶ 6 Defendant was charged with cultivation of marijuana and possession of eight or more ounces of marijuana. His primary defense was that his marijuana grow operation was legal under the Colorado Constitution. The jury acquitted defendant of cultivation, and found him guilty of possession. Defendant filed this appeal.

¶ 7 We reject most of defendant's contentions as without merit, moot, or not properly raised or preserved. However, although we do not agree with it, his argument regarding the waiver of his doctor-patient privilege requires statutory interpretation and, therefore, warrants a more extended discussion.

II. Medical Marijuana in Colorado

¶ 8 In Colorado, an individual may register with the state as a medical marijuana patient if he satisfies certain criteria, which include providing “written documentation stating that the patient has been diagnosed with a debilitating medical condition and [a] physician's conclusion that the patient might benefit from the medical use of marijuana.” Colo. Const. art. XVIII, § 14(3)(b)(I), (c). Once registered, the patient may raise medical use as an affirmative defense if he is thereafter charged with a violation of the state's criminal laws related to his medical marijuana use. See id. § 14(2)(a).

¶ 9 Each patient is limited to no more than two ounces of marijuana or six plants. Id. § 14(4)(a). “For quantities of marijuana in excess of these amounts, a patient ... may raise as an affirmative defense ... that such greater amounts were medically necessary to address [his] debilitating medical condition.” Id. § 14(4)(b).

III. Waiver

¶ 10 A medical marijuana patient's confidential information is protected from disclosure, generally, under section 13–90–107(1)(d), C.R.S.2011, and specifically, under section 18–18–406.3(5), C.R.S.2011.

¶ 11 Section 13–90–107(1)(d) provides:

A physician, surgeon, or registered professional nurse duly authorized to practice his or her profession pursuant to the laws of this state or any other state shall not be examined without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient....

Under this statute, the patient's waiver of the confidential relationship with his physician can be explicit or implicit. No written documentation is required. See, e.g., People v. Wittrein, 221 P.3d 1076, 1083 (Colo.2009); Cardenas v. Jerath, 180 P.3d 415, 424 (Colo.2008).

¶ 12 Section 18–18–406.3(5) concerns disclosure of a patient's confidential information from the medical marijuana registry, maintained by the Colorado Department of Public Health and Environment (department), and unlike section 13–90–107(1)(d), provides that a valid waiver must be in writing:

Any person including, but not limited to, any officer, employee, or agent of the department, or any officer, employee, or agent of any state or local law enforcement agency, who releases or makes public any confidential record or any confidential information contained in any such record that is provided to or by the marijuana registry of the department without the written authorization of the marijuana registry patient commits a class 1 misdemeanor.

(Emphasis supplied.)

¶ 13 At trial, citing the absence of a written waiver, defendant objected to the prosecution's attempt during its case-in-chief to present testimony from the physician who had recommended defendant's medical marijuana registry renewal with extended plant counts. The court excluded the testimony, determining that it was privileged and, implicitly, that the privilege had not been waived. However, after defendant had presented evidence sufficient to raise the affirmative defense of medical necessity for an extended plant count, the court allowed the physician to testify in rebuttal, reasoning that defendant had waived the doctor-patient privilege under section 13–90–107(1)(d) “by bringing his medical situation into evidence.”

¶ 14 Defendant does not dispute that assertion of the affirmative defense of medical necessity operates as a waiver of the doctor-patient privilege under section 13–90–107(1)(d), but, citing section 18–18–406.3(5), contends that it does so only if there is a written document confirming that waiver. He argues that because it was undisputed that there was no written waiver, the trial court erred by allowing the physician's testimony.

¶ 15 As a matter of statutory interpretation, we review de novo the trial court's determination that the controlling statute here was section 13–90–107, not section 18–18–406.3. See People v. Williamson, 249 P.3d 801, 803 (Colo.2011); People v. Hill, 228 P.3d 171, 173–74 (Colo.App.2009). We agree with the court that the absence of a writing to confirm defendant's waiver of his privilege here was of no consequence.

¶ 16 In interpreting statutes, our primary task is to ascertain and give effect to the legislature's intent. Williamson, 249 P.3d at 803;People v. Yascavage, 101 P.3d 1090, 1093 (Colo.2004). We do this by first looking to the plain language of the statute. Yascavage, 101 P.3d at 1093. “The language at issue must be read in the context of the statute as a whole and the context of the entire statutory scheme.” Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.2010); see In Interest of R.L.H., 942 P.2d 1386, 1388 (Colo.App.1997). Where the statute is clear and unambiguous, we apply it as written. Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo.2008); People v. Benavidez, 222 P.3d 391, 393 (Colo.App.2009).

¶ 17 However, if the statute is ambiguous or appears to conflict with another statute, to determine legislative intent we may consider the legislative history and declarations of purpose, the problem addressed, the statutory remedy, and the consequences of a particular construction. See Gerganoff, 241 P.3d at 935;Jenkins v. Panama Canal Ry. Co., 208 P.3d 238, 241–44 (Colo.2009); Lombard, 187 P.3d at 570. We favor a construction that harmonizes statutes and avoids conflicts. See People v. Mojica–Simental, 73 P.3d 15, 17–18 (Colo.2003).

¶ 18 Here, both sections 13–90–107 and 18–18–406.3(5) address patient confidentiality and a conflict between them is certainly possible. Thus, we look to resources beyond the statutes' plain language, including legislative history, to determine legislative intent.

¶ 19 Section 13–90–107(1)(d) protects the confidential nature of the relationship between a patient and medical staff as they consult for medical treatment. Hartmann v. Nordin, 147 P.3d 43, 49 (Colo.2006); Alcon v. Spicer, 113 P.3d 735, 738–39 (Colo.2005). Its express purpose is “to encourage [patient] confidence and to preserve it inviolate.” § 13–90–107(1), C.R.S.2011; see Cardenas, 180 P.3d at 424. The section is located under the headings, “Courts and Court Procedure, Witnesses,” and is titled, “Who may not testify without consent.” Thus, its unequivocal intent is to protect a patient's confidences from unauthorized disclosure in a trial setting. See Gerganoff, 241 P.3d at 936 (“[T]he heading of a statute, although not...