People v. Stanaway

• Decision Date: 01 January 1994
• Docket Number: Nos. 12,96823,Nos. 92269,13,s. 92269,s. 12
• Citation: 446 Mich. 643,521 N.W.2d 557
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Scott STANAWAY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Stanley Howard CARUSO, Defendant-Appellee. Calendar,
• Court: Michigan Supreme Court

Page 557

521 N.W.2d 557

446 Mich. 643

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Brian Scott STANAWAY, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Stanley Howard CARUSO, Defendant-Appellee.

Nos. 92269, 96823.

Calendar Nos. 12, 13, Jan. Term, 1994.

Supreme Court of Michigan.

Argued Jan. 13, 1994.

Decided Aug. 29, 1994.

Gary L. Walker, Marquette County Pros.Atty. by Terrence E. Dean, Matthew J. Wiese, Asst. Pros.Attys., Marquette, for plaintiff-appellee in No. 92269.

Mark P. Stevens, Marquette, for defendant-appellant in No. 92269.

Cheryl L. Hill, Diversion Counselor of the Juvenile Div., Marquette, for amicus curiaeFrancis Van Der Maarel, Diversion Counselor of the Juvenile Div. of Marquette County Probate Court.

Summers & Pence, Steven L. Pence, Lynn A. Moon, Community Mental Health, Marquette, for amicus curiae Alger-Marquette Community Mental Health.

William A. Forsyth, Kent County Pros.Atty., Timothy K. McMorrow, Chief Appellate Atty., Vander Werff Law Office, P.C., Godfrey Vander Werff, Sara E. Vander Werff, Grand Rapids, for defendant-appellee in No. 96823.

David A. Moran, Detroit, for amicus curiae, Crim. Defense Attorneys of Michigan.

Opinion

BRICKLEY, Justice.

This case presents the question whether, and under what circumstances, records of a psychologist, a sexual assault counselor, a social worker, or a juvenile diversion officer regarding a witness should be discoverable by the accused in a criminal trial.To the extent the records are privileged under M.C.L. § 330.1750;M.S.A. § 14.800(750),M.C.L. § 600.2157a(2);M.S.A. § 27A.2157(1)(2),M.C.L. § 339.1610;M.S.A. § 18.425(1610), andM.C.L. §§ 722.826-722.829;M.S.A. §§ 25.243(56)-25.243(59), respectively, resolution requires a determination whether defendant's federal and state constitutional rights of due process require a pretrial review of the requested records before trial.¹

This Court is faced with the difficult task of reconciling the state's compelling interest in protecting the confidentiality of counseling and juvenile diversion records with the defendant's federal and state constitutional rights to obtain evidence necessary to his defense in a criminal trial.We hold that where 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.

The procedure we adopt today attempts to balance the Legislature's interest in protecting the confidentiality of the therapeutic setting with the possibility that there may be exculpatory evidence in such records necessary to prevent the conviction of an innocent person.

In People v. Stanaway, we affirm the trial court's denial of an in camera review of the victim's counseling records.The defendant's generalized assertion of a need to attack the credibility of his accuser did not establish the threshold showing of a reasonable probability that the records contain information material to his defense sufficient to overcome the various statutory privileges.However, we hold that the trial court abused its discretion when it allowed the improper impeachment of a prosecution witness with hearsay testimony that was highly prejudicial.We reverse Stanaway's conviction and remand for a new trial because the error was not harmless.

In People v. Caruso, we remand to the trial court for a determination of whether an in camera review of the victim's counseling records is warranted.If the defendant has demonstrated a good-faith belief, grounded in articulable fact, that there is a reasonable probability that the records contain material information necessary to his defense such an inspection should be conducted by the trial judge.

I

A.PEOPLE v. STANAWAY

DefendantBrian Stanaway was charged with three counts of third-degree criminal sexual conduct ² involving sexual intercourse with the complainant on three separate occasions during the summer of 1988 when she was fourteen years old.The complainant testified during direct examination that she discussed these incidents with a counselor over a year after they happened.The counselor reported the allegations to the police pursuant to the mandatory disclosure requirements of M.C.L. § 722.623;M.S.A. § 25.248(3).³

Before trial, Stanaway's defense counsel filed a motion that sought direct access to the records of a social worker in the juvenile diversion program and a sexual assault counselor regarding the complainant.The defendant argued that the records might contain inconsistent statements or might lead to exculpatory evidence, but admitted he had no basis for a good-faith belief that it was probable such information would be found. ⁴ This request was repeated on the morning of trial.Both motions were denied by the trial court.⁵ The complaining witness testified at trial that she knew the defendant and baby-sat for him and his wife for some time.She stated that the first incident occurred on a summer night in 1988.She had sneaked out of her home during the night to talk to the defendant's nephew, Terry Stanaway.The nephew was staying in a tent outside the defendant's house.She said the defendant asked her to have sex with him and she responded that she did not want to.She related that the defendant pulled down her pants and underwear and that sexual intercourse occurred outside, in the yard, near the tent.

A second incident occurred two weeks later.The witness stated she was visiting her aunt who lived on the same block as the defendant.She was in the backyard when another nephew of the defendant, Ricky Stanaway, called to her.Ricky indicated that the defendant was in the house and wanted to talk to her.Once in the house, Ricky told her the defendant was in the bathroom and that she should just knock and he would let her in.She knocked and entered and the defendant closed the door behind her.She said the defendant was naked and indicated to her that he wanted to have sex.She said she repeated that she did not want to.Again the defendant pulled down her pants and underwear and sexual intercourse occurred on the bathroom floor.

The witness testified that the third incident happened later that summer.She could not remember the circumstances of how it came to be that she was at the defendant's house but she said sexual intercourse took place on a single bed in a back bedroom.She remembered the defendant getting a towel to clean off the bed afterwards.

The defendant testified on his own behalf.He denied having any sexual contact with the complainant.He said there was no tent in the yard at the time in question.He said she was never in his house except to baby-sit and he and his wife would have been gone together.

The jury convicted the defendant on all three counts.In the Court of Appeals, defendant challenged the denial of discovery, the admittance of testimony by a police officer regarding a statement made by a nephew of the defendant, statements made by the prosecutor during closing arguments and the ineffectiveness of his trial counsel.The Court of Appeals affirmed the defendant's conviction in an unpublished opinion per curiam, issued August 14, 1991(Docket No. 130448).

On the basis of statements made by the prosecutor that suggested access to the records in question, this Court entered an order directing the trial judge to conduct an in camera review of the requested documents.That order was later modified in response to motions to intervene filed by the social worker, the rape crisis counselor, and the mental health clinic.Although the motions to intervene eventually were denied, the prosecutor instead was ordered to file a written response explaining the basis for the statements made during closing arguments regarding what the complaining witness told counselors.Specifically, the prosecutor was directed to identify which counseling records were made available to him or were in his possession before trial.Upon receipt of the prosecutor's response, indicating he did not have pretrial access to any of the counseling records, this Court directed the trial judge to make a finding of fact on the issue.After hearing testimony from the prosecutor who tried the case, the trial judge determined that the source of any references made by the prosecutor during closing arguments was the complainant's trial testimony.The judge further determined that none of the counseling records had been provided to the prosecutor.We granted leave to appeal.444 Mich. 875, 511 N.W.2d 677(1993).

B.PEOPLE v. CARUSO

DefendantStanley Caruso is charged with second-degree criminal sexual conduct.⁶ The charges are based on allegations by his niece that the defendant rubbed her private with his hand during a visit when she was eight years old.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.⁷The circuit court granted defendant's motion and entered an order for production of the records for an in camera review.

The Court of Appeals granted the prosecutor's interlocutory emergency motion for immediate consideration, but affirmed the trial court's order requiring production for an in camera review.⁸...