People v. Ullery
| Decision Date | 21 June 1999 |
| Docket Number | No. 98SC92.,98SC92. |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Brent D. ULLERY, Respondent. |
| Court | Colorado Supreme Court |
Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Douglas J. Friednash, Special Assistant Attorney General, Robert Mark Russel, First Assistant Attorney General, Appellate Division Denver, Colorado, Attorneys for Petitioner.
David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.
This appeal was initiated by the People of the State of Colorado, (the State), seeking our review of the judgment of the court of appeals reversing the conviction of respondent, Brent D. Ullery, (Ullery). See People v. Ullery, 964 P.2d 539 (Colo.App.1997). After a trial before the Adams County District Court (trial court), Ullery was convicted of several crimes, including criminal attempt to commit first degree murder,1 robbery of the elderly,2 aggravated robbery,3 possessing a dangerous weapon,4 and first degree assault.5 Ullery asserted impaired mental condition as an affirmative defense. In preparation for trial, the State consequently subpoenaed the entire file of Ullery's expert psychiatrist. Ullery objected, alleging that the files contained privileged attorney work product. The trial court ruled that Ullery had waived any privilege by asserting his affirmative defense, pursuant to section 16-8-103.6, 6 C.R.S. (1998). The court of appeals reversed, holding that the attorney work product was not discoverable and that the trial court should have conducted an in camera examination to excise work product material, if any, contained in the file. See Ullery, 964 P.2d at 543.
The State appealed to this court and we granted the State's petition for certiorari to determine whether defense counsel's work product is included within the scope of the statutory waiver set forth in section 16-8-103.6. Section 16-8-103.6 provides that a person who asserts the affirmative defense of impaired mental condition "waives any claim of confidentiality or privilege as to communications made by him to a physician or psychologist." We hold that although section 16-8-103.6 does not specifically exclude attorney work product from its waiver of confidentiality and privilege, the statute does not include a waiver of attorney work product. Therefore, we conclude that the trial court erred when it failed to examine the subpoenaed documents, in camera, to protect attorney work product from discovery. We further hold that any error was not preserved and cannot be reviewed on appeal because Ullery failed to make a record sufficient for appellate review. Accordingly, we affirm in part and reverse in part.
On March 25, 1993, an elderly convenience store clerk was robbed at gunpoint. While fleeing the scene in his car, Ullery was stopped by a deputy sheriff (deputy) who signaled for Ullery to pull over. While the deputy approached Ullery's car, Ullery exited the car and fired a gun at the deputy. In return, the deputy fired his gun at Ullery, causing him to flee in his car. Ullery was eventually apprehended in a hotel parking lot by other police officers. During his arrest, Ullery said to the arresting officers, "I did it, and I want the death penalty." The officers advised Ullery of his Miranda rights,6 which he waived before confessing to committing the crimes charged.
Ullery raised the defense of impaired mental condition after being interviewed by Dr. John Glissman, a psychiatrist retained to examine Ullery. Prior to trial, the State served a subpoena duces tecum on Dr. Glissman requesting "all the written materials, tape recorded materials, videotape materials of any kind that were ... generated in association with [his] contact with Mr. Ullery." Defense counsel moved to quash the subpoena, asserting that the materials were being used in preparation for trial and citing Miller v. District Court In and For City and County of Denver, 737 P.2d 834 (Colo.1987) (). At a subsequent motions hearing, defense counsel elaborated, stating that:
If this Court wishes to have [Dr. Glissman's] handwritten notes that would be one thing, but in his records are all sorts of information that are part of my work product that I think are totally improper for the prosecution to obtain.... There's notes that I have made, letters that I have written, things that are clearly attorney-client privilege and my work product....
In response, the State contended that, because Dr. Glissman had been endorsed as a defense witness, the waiver contained in section 16-8-103.6 was applicable, and the materials were not protected by any privilege. The trial court agreed with the State, ruling, "I think any claim to work product or any other confidential material on the part of [defense] counsel as opposed to the doctor is waived when those communications are made, knowing that this material is going to be the subject of our court procedure."
Before his trial was held, Ullery filed a Petition for Relief in the nature of a Writ of Prohibition, pursuant to C.A.R. 21. Ullery asked that we exercise our original jurisdiction to review the trial court's ruling and that we stay the proceedings below. We denied Ullery's petition.
In the course of the proceedings before the trial court, the State filed a motion to compel discovery in accordance with the trial court's order. In response, Ullery requested an ex parte hearing in order to obtain appropriate protective orders regarding the confidential materials and to preserve the record for appellate review. The trial court denied the request for an ex parte hearing, but ruled that defense counsel could make At the same hearing, with the trial court's permission, Ullery elected to withdraw his endorsement of Dr. Glissman as a witness for trial, retaining him as an advisory witness only.
At trial, instead of relying upon the testimony of Dr. Glissman, Ullery utilized the testimony of two other witnesses. Dr. William Dahlberg and Dr. Suzanne Bernhard were certified by the trial court as experts in the fields of forensic psychology and psychology, respectively. Dr. Dahlberg testified that, at the time of the alleged offenses, Ullery suffered from "schizoaffective disorder bipolar depressed type" and "was extremely psychotic." Dr. Dahlberg also testified that Ullery suffered from visual and auditory hallucinations, that he believed that on the night in question Ullery was "under the influence of some extremely disruptive thought process," and that Ullery's actions were "out of his control altogether." Dr. Bernhard testified that Ullery suffered from an impaired mental condition that made him incapable of forming the requisite mental state at the time of the alleged offenses. Dr. Bernhard also testified that Ullery suffered from schizoaffective disorder, was suicidal, and experienced regular visual and auditory hallucinations in the form of voices that conducted "a running commentary [on] his behavior, [including] many, many insults."
Despite this testimony, the jury convicted Ullery of all charges. The trial court determined that Ullery was not competent to proceed with sentencing, and remanded him to the custody of the State Hospital. Once Ullery was determined to be competent, the trial court sentenced him to the Department of Corrections for thirty years for attempted first degree murder, ten years for robbery of the elderly, aggravated robbery, and first degree assault, and four years for possession of a dangerous weapon.
On appeal, Ullery contended, as relevant here, that the trial court erred in permitting discovery of the materials defense counsel alleged were attorney work product. The court of appeals agreed, and reversed and remanded for a new trial. See Ullery, 964 P.2d at 543-44. In so doing, the court of appeals held that section 16-8-103.6 does not include attorney work product within its scope, that Ullery had waived his privilege to withhold the records of Dr. Glissman, that the trial court should have conducted an in camera examination of the materials to excise the work product portions of the file, and that the error in failing to do so prejudiced Ullery since he was forced to substitute expert witnesses. See Ullery, 964 P.2d at 543-44.
The State contends that under section 16-8-103.6 any and all privileges, including attorney work product, were waived. Because we conclude that the statutory waiver contained in section 16-8-103.6 does not encompass attorney work product, we disagree. We therefore hold that, on a defendant's motion claiming attorney work product, the trial court should conduct an in camera examination to determine whether portions of the subject file contain defense counsel's work product. We further hold that if such an examination discloses attorney work product, the trial court should protect such portions of the file from the State's discovery request.
Section 16-8-103.6, which governs waiver of confidentiality and certain privileges when asserting the affirmative defense of impaired mental condition7 provides, in pertinent part:
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