People v. Wilkins

• Decision Date: 06 June 1985
• Parties: , 480 N.E.2d 373 The PEOPLE of the State of New York, Respondent, v. Robert J. WILKINS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 759

490 N.Y.S.2d 759

65 N.Y.2d 172, 480 N.E.2d 373

The PEOPLE of the State of New York, Respondent, v. Robert J. WILKINS, Appellant.

Court of Appeals of New York.

June 6, 1985.

Randall L. Reed, Norwich, for appellant.

Kevin M. Dowd, Dist. Atty., for respondent

OPINION OF THE COURT

MEYER, Judge.

A defendant who testifies in support of his justification defense that stab wounds on his body were inflicted by the decedent for whose murder he is being tried does not thereby waive the psychologist-client privilege established by CPLR 4507. It was, therefore, error, requiring reversal and a new trial, to permit the hospital psychologist, who interviewed defendant in order to determine whether he was suicidal, to testify, over defendant's objection and claim of privilege, that defendant had stated to him that his stab wounds were self-inflicted.

I

Indicted for murder in the second degree and manslaughter in the first degree based upon the death on May 16, 1982 of Gloria Diamond, defendant was convicted, after a jury trial, of manslaughter in the first degree. At the time of trial defendant was 26 years old. At the time of her death Gloria Diamond was 16 years of age. She and defendant had lived together, in an apartment which they rented, for approximately seven months until she left about a month before her death and went to live with her mother. There was evidence that defendant was troubled by her dating a new boyfriend and had told Gloria's sister that if he could not have her no one would.

On the evening of May 16th Gloria returned to the apartment at about 8:00 p.m., ostensibly to return the keys and some money defendant had sent her. They were together that evening for several hours during which, according to defendant, they had sexual relations, but then got into an argument which culminated in Gloria attacking him with two knives, cutting his left wrist with one and stabbing him in the stomach with the other. Apart from pushing her away, defendant had no recollection of what followed. The cause of Gloria's death, according to the medical examiner, was strangulation.

Between the time of the events in the apartment and midnight, defendant made several attempts to kill himself, by drinking ammonia, by driving his pickup truck at high speed into a viaduct, and finally by jumping in front of a car on the highway. While in an ambulance being given emergency treatment for his injuries, defendant asked to speak to Joseph Peptis, an off-duty State trooper who did not know defendant but whom defendant apparently recognized, and twice stated to him that, "I just killed my girlfriend." Given the address of defendant's apartment, Peptis proceeded there and found Gloria Diamond's body in the kitchen. After the body was checked for signs of life and the apartment secured, Trooper Peptis proceeded to the hospital where with Senior Investigator McElligott he interviewed defendant, advising him of his rights. Defendant responded, "You have your man, you have your corpus delicti, now you figure it out." Defendant then requested an attorney and was advised that he was under arrest for murder, second degree.

At the suppression hearing Trooper Peptis testified that the hospital interview occurred at 12:58 a.m. on May 17th. Two other State Police Investigators, Stephen Bernardi and Wayne Burrell, testified at the suppression hearing that they interviewed defendant at the hospital at 1:53 a.m. on May 17th and advised him of his rights, and that defendant stated that he was willing to talk without an attorney. Defendant then told them that he had tried to kill himself by stabbing himself and refused to talk further after saying that you have the corpus delicti, you have your man; the only thing you want from me is motive. According to Bernardi and Burrell no one else was present during their interview.

The suppression Judge held the statements to Peptis at the accident scene spontaneous and that ruling is not an issue on this appeal. Without differentiating the hospital statement to Bernardi and Burrell from that to Peptis and McElligott, or fixing the times of the several interviews, he held that defendant's original request to say nothing further was honored and that, in light of the time elapsed and the renewed warnings given, the hospital statements were admissible.

At the hospital defendant was also interviewed by Dr. K.C. Sharma, a licensed clinical psychologist, to determine whether he was suicidal, and during that interview as well, he stated that his stab wounds were self-inflicted. Defendant having testified in his own defense to Gloria's attack on him, as above recounted, with two knives, the People were permitted, over defendant's objection, to present in rebuttal Dr. Sharma's testimony concerning defendant's statements that he had stabbed himself.

The Appellate Division affirmed, 101 A.D.2d 957, 477 N.Y.S.2d 706, by a divided court, the majority holding that the psychologist-client privilege is no broader than the doctor-patient privilege and that defendant should not be permitted to absolve himself and at the same time assert privilege in order to prevent ascertainment of the truth of his claim. With respect to the statements to Investigators Bernard and Burrell, the entire court agreed that they had been made after defendant, during his second statement to Peptis, invoked his right to counsel and therefore should have been suppressed, but the majority held the error harmless beyond a reasonable doubt in light of defendant's earlier admissions to Peptis and to Dr. Sharma, and the medical evidence that Gloria had been strangled and that defendant's wounds were "hesitation" wounds (that is, self-inflicted by someone lacking the will to end his life).

The matter is before us by leave of one of the dissenting Justices at the Appellate Division. Defendant raises a number of points, none of which merit discussion except those relating to the testimony of Dr. Sharma and of Investigators Bernardi and Burrell. We conclude that it was error to admit the testimony of Dr. Sharma. We, therefore, reverse and remit for a new trial, noting that at the new trial the statements to Investigators Bernardi and Burrell, which should have been suppressed at the first trial, will not be admissible.

II

CPLR 4504, made applicable to criminal cases by CPL 60.10, proscribes disclosure by "a person authorized to practice medicine * * * [of] any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." Dr. Sharma testified that he saw defendant in the intensive care unit at the request of the hospital physician in order to give the physician his opinion concerning whether defendant was suicidal and that there was a relationship of confidence between him and defendant. There can be no question, therefore, that defendant's statements to Dr. Sharma that the wounds of his wrist and abdomen were self-inflicted, had they been made to a physician, would be privileged within the meaning of CPLR 4504. It has, however, long been the rule that when a patient puts in issue the condition for which he was examined by a physician he waives the privilege to the extent of permitting the physician to testify as to the facts upon which his opinion is based, but not on matters unrelated to the opinion concerning defendant's guilt of a crime (People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400; People v. Al-Kanani, 33 N.Y.2d 260, 264, 351 N.Y.S.2d 969, 307 N.E.2d 43; Matter of Lee v. County Ct., 27 N.Y.2d 432, 441, 318 N.Y.S.2d 705, 267 N.E.2d 452; People v. Carfora, 25 N.Y.2d 972, 305 N.Y.S.2d 363, 252 N.E.2d 859; People v. Finn, 64 A.D.2d 526, 406 N.Y.S.2d 800; see, People v. Smith, 59 N.Y.2d 156, 164, 464 N.Y.S.2d 399, 451 N.E.2d 157; Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857; Hethier v. Johns, 233 N.Y. 370, 135 N.E. 603; Capron v. Douglass, 193 N.Y. 11, 85 N.E. 827).

The reasons usually given for the latter rule are that by putting his or her condition in issue the defendant has made public what the statute was intended to protect and thus obviated the need for further confidence, and that it is unreasonable and unjust to permit a party to testify to whatever he pleases as to a given condition and at the same time prevent the opponent from contradicting the testimony (e.g., People v. Bloom, 193 N.Y. 1, 10, 85 N.E. 824; Capron v. Douglass, 193 N.Y. 11, 17, 85 N.E. 827, supra; see, Chafee,Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand, 52 Yale LJ 607, 610).

In most cases the admissibility or inadmissibility of a physician's testimony will be clear. Thus, in People v. Ricco, 56 N.Y.2d 320, 327, 452 N.Y.S.2d 340, 437 N.E.2d 1097, a defense of insanity was held not to permit the use of a statement obtained in violation of defendant's right to counsel as the basis for expression by a psychiatrist of an opinion that defendant was malingering rather than delusional, and in People v. Finn, (supra ), such a defense was held not to permit a psychiatrist to testify concerning incriminating statements made to him by defendant, but in the Edney, Al-Kanani and Lee cases an insanity defense was held to permit testimony concerning defendant's mental condition by a psychiatrist who had examined him at the request of his attorney or as part of the procedure relating to competence established by CPL article 730.

The defense involved need not, however, be one formally established by the Penal Law. The introduction by a defendant through several witnesses of testimony that at the time of the robbery with which he was charged and at a time two weeks later when complainant claimed to have seen him at Roosevelt Raceway he was unable to walk without crutches because of an ankle injury was held, in People v. Carfora, 25 N.Y.2d 972, 305 N.Y.S.2d 363, 252 N.E.2d 859, supra, to...