People v. Ullery
| Decision Date | 30 October 1997 |
| Docket Number | No. 95CA1020,95CA1020 |
| Citation | 964 P.2d 539 |
| Parties | 97 CJ C.A.R. 2537 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brent D. ULLERY, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Douglas J. Friednash, Special Assistant Attorney General, Denver, for Plaintiff-Appellee.
Katharine K. Nanda, Denver, for Defendant-Appellant.
Opinion by Judge DAVIDSON.
Defendant, Brent D. Ullery, appeals from the judgment of conviction entered on a jury verdict finding him guilty of criminal attempt, robbery of the elderly, aggravated robbery, possessing an illegal weapon, and first degree assault. At trial, defendant raised the affirmative defense of impaired mental condition. We reverse and remand.
Pursuant to 16-8-103.6, C.R.S.1997, because defendant raised the defense of impaired mental condition, the prosecution was entitled to names, addresses, reports, and statements of any physician or psychologist who treated or examined the defendant for such mental condition. Accordingly, the prosecutor requested discovery of the file of defendant's medical expert. Claiming attorney-client privilege and work product protection, defendant refused. In response to the prosecutor's motion to compel, the trial court ordered the release of the entire file pursuant to 16-8-103.6 on the grounds that, by raising such defense, defendant had waived all such privileges and protections.
Defendant argues that the automatic waiver of these privileges violates the attorney-client privilege and his constitutional right to effective assistance of counsel. He also claims that the expert's file was protected as attorney work product.
First, defendant's contention to the contrary notwithstanding, Gray v. District Court, 884 P.2d 286 (Colo.1994) is dispositive of his contention that, because it requires production of his expert's medical records, 16-8-103.6, C.R.S.1997, violates the attorney-client privilege.
In Gray v. District Court, supra, in rejecting a claim nearly identical to that of defendant, the supreme court held that, under 16-8-103.6, when a defendant tenders a plea of not guilty by reason of insanity or asserts the affirmative defense of impaired mental condition, there is a waiver of the physician/psychologist-patient privilege and the protection given to communications made to a physician or psychologist in the course of examination or treatment. The court also held that the attorney-client privilege is waived insofar as it extends to communications between the client and agents of the attorney, specifically the psychiatrist or psychologist.
In its determination, the Gray court specifically analyzed and rejected the defendant's contention that such waiver interfered with his Sixth Amendment right to effective assistance of counsel.
Defendant suggests that, even if he was required to disclose his expert's records of treatment or evaluation, such discovery was limited only to the expert's written reports. We disagree.
By its terms, 16-8-103.6 explicitly requires disclosure of all communications made by the defendant to a physician or psychologist in the course of treatment or examination. See Gray v. District Court, supra. As the Gray court determined, the legislative history of this section demonstrates that the General Assembly intended to allow for full disclosure of medical and mental health records concerning a mental condition that the defendant places in issue in a criminal case.
We conclude, therefore, that discovery under 16-8-103.6 includes all such medical records.
Nevertheless, defendant contends that, even if the attorney-client and physician/psychologist-patient privileges are waived under 16-8-103.6, his expert's file was protected under the doctrine of attorney work product. Defendant argues that the file is protected from disclosure in two ways: One, the doctrine protects opinions, theories, and conclusions of a defendant's attorney contained in the file; and, two, it protects the documents and notes of the expert as agent of the defense attorney. We agree with the first argument, but disagree with the second.
The attorney-client privilege and the protection given to attorney work product are different. Generally, the attorney-client privilege protects communications between the attorney and the client, and the promotion of such confidences is for the benefit of the client. On the other hand, the work product exemption usually applies to documents and tangible things prepared in anticipation of litigation or for trial, and its goal is to protect the attorney's thought process from discovery and, therefore, afford him or her the opportunity to prepare a case free from unnecessary intrusion by opposing parties and counsel. People v. Small, 631 P.2d 148 (Colo.1981); A v. District Court, 191 Colo. 10, 550 P.2d 315 (1976).
Although the doctrine is most frequently asserted as a bar to discovery in civil litigation, it applies with equal, if not greater, force in criminal prosecutions. People v. District Court, 790 P.2d 332 (Colo.1990); see United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).
In criminal cases, work product is defined as legal research, records, correspondence, reports and memoranda to the extent that they contain the opinions, theories, or conclusions of the attorney or members of his or her legal staff. Crim. P. 16(I)(e)(1). The work product of defense counsel has the same protection from discovery as the work product of the prosecution. Lanari v. People, 827 P.2d 495 (Colo.1992). See People ex rel. VanMeveren v. District Court, 187 Colo. 333, 531 P.2d 626 (1975).
We agree with defendant that the work product of defense counsel is not included within the scope of the waiver required by 16-8-103.6.
First, nothing in 16-8-103.6 can be read to abrogate that doctrine. The focus of 16-8-103.6, as discussed, is open disclosure of medical records under circumstances such as here, and, by its plain terms, its scope does not extend to the opinions, theories, or conclusions of defense counsel.
Similarly, nothing contained in the supreme court's analysis in Gray implies that the waiver of the physician-patient or attorney-client privilege extends to a waiver of attorney work product. As the court pointed out, the statute's purpose is to ascertain the truth of the defendant's mental condition which requires full access to defendant's medical reports and diagnostic assessments by experts who have examined defendant before or after the crime. Gray v. District Court, supra. However, disclosure of an attorney's thought processes simply does not advance that purpose. Hence, the policy reflected in 16-8-103.6 is not harmed by any protection given to attorney work product.
Therefore, and the People do not appear to contend otherwise, the doctrine precluded disclosure here of defense counsel's opinions, theories, or conclusions. See People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976) (); State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338 (Wash.1990) (same).
Defendant next argues that his expert was an agent of the attorney and, as such, his expert's documents and notes also should have been protected from disclosure under the attorney work product doctrine. We disagree.
In some jurisdictions, by statute or rule, an attorney's work product is defined to include the work product of an expert who has been hired or consulted by counsel. See, e.g., State ex rel. Corbin v. Ybarra, 161 Ariz. 188, 777 P.2d 686 (1989).
Here, however, the definition of work product set forth in Crim. P. 16(I)(e)(1) does not extend to work produced by experts, and by the plain language of the rule, such documents or notes are not protected from discovery. Compare Crim. P. 16(I)(e)(1) with Crim. P. 16(II)(b) (). See also Richardson v. District Court, 632 P.2d 595 (Colo.1981) (); cf. State v. Carter, 641 S.W.2d 54 (Mo.1982) (); State v. Edney, supra ().
Furthermore, as discussed, under 16-8-103.6, any privilege or confidentiality between a defendant and the psychologist or physician automatically is waived. And, since the purpose of the statute is, in "the interest of public justice," to provide for broad disclosure of medical records when defendant raises the defense involving his mental condition, see Gray v. District Court, supra, at 295, even if the scope of the attorney's work product were to include an expert's documents, under the circumstances here, the interest in full disclosure reflected in 16-8-103.6 would outweigh any interest in the protection of an expert's work. See Austin v. Alfred, 163 Ariz. 397, 788 P.2d 130 (Ariz.App.1990) (); see also Richardson v. District Court, supra ().
Although the trial court properly determined that all of the expert's medical reports, documents, and notes were discoverable, because we have concluded that protection for the work product of defense counsel was not...
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