People v. Turner

• Decision Date: 28 March 2005
• Docket Number: No. 04SA178.,04SA178.
• Citation: 109 P.3d 639
• Parties: In re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: Robert R. TURNER, Jr.
• Court: Colorado Supreme Court

109 P.3d 639

In re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: Robert R. TURNER, Jr.

No. 04SA178.

Supreme Court of Colorado.

March 28, 2005.

Molly Chilson, Salida, for Petitioner, Alliance Against Domestic Abuse.

Cynthia Sheehan, Jonathan D. Reppucci, Denver, for Defendant.

Julie Kunce Field, Fort Collins, for Amici Curiae Colorado Coalition Against Domestic Violence, Colorado Coalition Against Sexual Assault, Colorado Organization for Victim Assistance, National Coalition Against Domestic Violence, National Network to End Domestic Violence, National Center on Domestic and Sexual Violence, Domestic Violence Legal Empowerment Appeals Project and 35 other individuals and organizations.

Pamela A. Dayton, Denver, Esteban A. Martinez, Northglenn, for Amicus Curiae Colorado Criminal Defense Bar.

Miles Madorin, Staff Attorney, Denver, for Amicus Curiae Colorado District Attorney's Council.

KOURLIS, Justice.

In this original proceeding pursuant to C.A.R. 21, the Alliance Against Domestic Abuse (the "Alliance") seeks reversal of a Chaffee County Court pretrial order compelling the Alliance to provide certain documents under a subpoena duces tecum relating to M.P. The subpoena was issued by the defendant, Robert Turner Jr., who is charged with domestic violence against his girlfriend, M.P. The Alliance moved to quash the subpoena, and the defendant moved to compel production. The county court held an evidentiary hearing, and ultimately ordered the Alliance to produce a broad outline of any assistance provided to M.P. The court reasoned that the victim-advocate privilege set forth in section 13-90-107, C.R.S. (2004) protects only "communications" from the victim to the victim advocate, and not advice or assistance given by the victim advocate in return.

The Alliance petitioned us for issuance of a Rule to Show Cause, which we granted. We now make that Rule absolute. We hold that the victim-advocate privilege attaches to records of assistance provided by the victim advocate because those records are a part of "any communication" made to such advocate by the victim of domestic violence. Accordingly, the defendant has the burden of demonstrating that the victim waived the privilege either expressly or by implication, which he failed to do. Lastly, we reject the defendant's contention that his right to compulsory process and his right to cross-examine witnesses are violated by our construction of the statute.

I. BACKGROUND

On November 20, 2003, the Chaffee County District Attorney brought two domestic violence charges of assault and harassment against Robert Turner, Jr., stemming from allegations that he battered his girlfriend, M.P.

During pretrial discovery, defense counsel discovered that M.P. had contacted the Alliance, a private, non-profit domestic violence victim advocacy center located in Salida, Colorado, in connection with the charges.

On April 14 and 16, 2004, defense counsel served the Alliance with two separate subpoenas duces tecum demanding production of records of M.P.'s contact with the Alliance. The first subpoena required the Alliance to produce "any and all records, notes and files regarding any and all assistance provided to [M.P.]." The second requested the same information "pursuant to [M.P.'s] reports of domestic violence/abuse on or about November 20, 2003 and thereafter."¹

On April 20, relying on section 13-90-107, the Alliance noted its refusal to comply with the subpoena in a letter to defense counsel. In response, defense counsel filed a Motion to Compel with the county court, arguing that records of assistance provided by the Alliance to M.P. were properly discoverable because the victim-advocate privilege only applies to communications made by a victim of domestic abuse, and not to "assistance" provided by the organization. On April 29, 2004, contending that the plain language and underlying purpose of the statute attaches the privilege to records of assistance provided, the Alliance moved to quash the subpoena.

The county court conducted an evidentiary hearing on May 5, 2004, taking arguments from the defendant and the Alliance on the question of whether the defendant's request for records or reports of the kinds of assistance the Alliance provided M.P. fell within statutorily privileged "communications" made to victim advocates by a victim of domestic violence.

The court agreed with the defendant that the victim-advocate privilege was not intended to protect records of assistance provided by a domestic abuse agency. The court held that although evidence of housing assistance had "marginal relevance," it was nonetheless not protected by the privilege and was therefore discoverable. Although the court did deny the defendant full access to all records of M.P.'s contact with the agency, it nonetheless ordered the Alliance to "provide a broad outline as to the type of assistance," provided to M.P., including for example, "emergency financial assistance."

The Alliance petitioned from that decision and we accepted original jurisdiction.

II. ORIGINAL JURISDICTION

We exercise our original jurisdiction with great care. Although we intercede in order to correct trial court abuse of discretion, we do so only when the rights implicated are important and there is a potential for irreparable harm. See Hoffman v. Brookfield Republic, Inc., 87 P.3d 858 (Colo.2004)

; Wesp v. Everson, 33 P.3d 191, 194 (Colo.2001). Moreover, although pretrial discovery orders are interlocutory and typically must await appeal, see In re Attorney D., 57 P.3d 395, 398 (Colo.2002), we have upon occasion exercised our original jurisdiction to review such orders, particularly where the impact of the ruling on the parties would be substantial and incurable at a later time and where the ruling raises significant questions about the administration of pretrial discovery in general. See Lazar v. Riggs, 79 P.3d 105, 106 (Colo.2003).²

We choose to exercise our original jurisdiction in this case both because the outcome has a significant impact on these parties, and because the question of discoverability of a victim advocate records is an issue of public importance that this court has not previously addressed. See Sanchez v. District Court, 624 P.2d 1314, 1317 (Colo.1981)

.

III. ANALYSIS

We are asked to interpret section 13-90-107(1)(k)(I), which reads as follows:

A victim's advocate shall not be examined as to any communication made to such victim's advocate by a victim of domestic violence, as defined in section 18-6-800.3(1), C.R.S., or a victim of sexual assault, as described in sections 18-3-401 to 18-3-405.5, 18-6-301, and 18-6-302, C.R.S., in person or through the media of written records or reports without the consent of the victim.

The defendant argues that the privilege does not extend to a victim's identity or the nature of the services provided by a victim's advocate organization. In essence, he asserts that the victim-advocate privilege is a one way protection, governing communications, or more precisely, statements made by the victim to the victim's advocate, but not "advice, information, assistance and/or services provided to the victim by a victim's advocate organization."

The Alliance counters that the victim-advocate privilege must be construed to include all communications between the victim and the agency, including records of assistance provided. Any other construction, in the Alliance's view, would weaken the entire purpose and thrust of the statute — namely, the protection of victims of domestic violence from any further abuse.

We agree with the Alliance. We hold that the plain language of the statute must be construed in a manner designed to serve the underlying objective of the privilege. Accordingly, the defendant may not obtain records of any assistance, advice or other communication provided by a victim's advocate unless he demonstrates that the victim³ has waived the privilege — which burden he has not here met. We also reject the defendant's contention that his right to compulsory process and confrontational rights are violated by our construction of the statute.

A. Nature of Domestic Violence and Need for Privilege

In order to analyze the statute, we must first put it in context. The General Assembly acted around a time when domestic violence had been recognized as a "disease of epidemic proportions eating at the fabric of our society." Dale R. Harris, The CBA Addresses Family Violence Issues, 26 Colo. Law. 27 (1997) (citing statistics from 1996, a year after the 1994 omnibus domestic violence bill became effective); see also U.S. Dep't of Justice, Office of Justice Programs Crime Data Brief: Intimate Partner Violence, 1993-2001 (2003) (noting 1.1 million nonfatal violent crimes by an intimate in 1993); Developments in the Law: Legal Response to Domestic Violence, 106 Harv. L.Rev. 1498, 1501 (1993) (noting Surgeon General's report that "abuse inflicted by intimates constitutes one of the leading causes of emergency room visits"). Domestic violence is defined in Colorado as "an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship;" see section 18-6-800.3(1), C.R.S. (2004), and includes harassment, injury, control, terrorism or damage to property, see Leslie A. Hagen & Kim M. Rattet, Communications and Violence Against Women: Michigan Law on Privilege, Confidentiality, and Mandatory Reporting 17 T.M. Cooley L.Rev. 183, 188 (2000). Moreover, domestic violence often does not consist of a single incident; it is recognized instead as a continual state of victimization that involves several crimes. See U.S. Dep't of Justice, Office of Justice Program, National Institute of Justice Research Report, Domestic and Sexual Violence Data Collection: A Report to Congress Under the Violence Against Women Act (1996).

Significantly, for purpose of this case, and contrary to common understanding, most victims of...