State Of Tennessee v. JOHN COTE AND SARAH COTE

• Decision Date: 28 September 2010
• Docket Number: No. 12833-III,No. E2008-02483-CCA-R9-CD,12833-III,E2008-02483-CCA-R9-CD
• Parties: STATE OF TENNESSEE v. JOHN COTE AND SARAH COTE In re: DR. SANDRA ELKINS
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE
v.
JOHN COTE AND SARAH COTE
In Re: DR. SANDRA ELKINS

No. 12833-III
No. E2008-02483-CCA-R9-CD

Court Of Criminal Appeals Of Tennessee
At Knoxville

August 25, 2009 Session
Filed September 28, 2010

Edward C. Miller, Public Defender, Dandridge, Tennessee, for the Defendant-Appellee, John Cote.

Ronald C. Newcomb, Knoxville, Tennessee, for the Defendant-Appellee, Sarah Cote.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the Appellee, State of Tennessee.

James A. H. Bell, Knoxville, Tennessee, for the Appellant, Sandra Elkins, M.D.

Interlocutory Appeal from the Criminal Court for Sevier County

Rex Henry Ogle, Judge

CAMILLE R. MCMULLEN, JUDGE.

John and Sarah Cote, the Defendant-Appellees in this case, stand accused of offenses involving the death of a minor child.¹ Dr. Sandra Elkins, the former Knox County Medical Examiner, performed the autopsy of the victim in the Cotes' case. In a pre-trial motion for discovery, the Cotes requested disclosure of Dr. Elkins's personal medical records; namely, prescription records, drug treatment records, mental health records, University of Tennessee personnel records, an audit report of the East Tennessee Regional Forensic Center, and any records from the Tennessee Board of Medical Examiners. The trial court granted an in camera review of the requested information. Dr. Elkins originally sought an interlocutory appeal of the trial court's order granting the motion for discovery pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Interpreting the Rule 9 appeal as a common law writ of certiorari, this court granted review. Following this court's order accepting the Rule 9 appeal as a writ of certiorari, the Cotes filed a petition for a writ of certiorari with the Tennessee Supreme Court, which was denied. In this appeal, Dr. Elkins and the State raise largely the same issues: (1) whether this appeal should be construed as a petition for a common law writ of certiorari pursuant to Tennessee Code Annotated section 27-8-101 or as a petition for a statutory writ of certiorari pursuant to Tennessee Code Annotated section 27-8-102, or both; and (2) whether the trial court erred by ordering Dr. Elkins's personal records to be disclosed for an in camera inspection. Because the Cotes failed to make a plausible showing that the requested information contained material evidence that was favorable to their defense, we reverse the trial court's order permitting an in camera review of the records and remand the case.

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Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed, Case Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and D. KELLY THOMAS, JR., J., joined.

OPINION

Background. The information provided within the record is extremely limited. It shows that John Cote filed a "Specific Motion for Discovery/Brady Request" with the trial court. The motion requested the trial court to order that the State disclose "any and all information that could [affect the reliability of pathological findings and the reliability of testimony of Dr. Sandra Elkins...." The motion sought specific records that are listed below in the trial court's discovery order. In support of his motion, John Cote alleged the following:

1. That, in preparation for trial in State v. John Blair, Sevier Criminal [Court], in March of 2007 counsel was advised that Dr. Elkins was observed to be "self[-]medicated" while giving testimony in a trial in Knox County.

2. That Dr. Elkins was most uncooperative with defense counsel during his preparation of the above referenced case ignoring phone calls and requests from defense counsel and his consultants.

3. That Dr. Elkins appeared to be heavily medicated during her testimony in March 2007 in the Sevier County trial.

4. That on or about January 24, 2008 Dr. Elkins stepped down from her post as Knox County medical examiner citing [a] stress[-]induced illness that was

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the result of her "whistle[]blowing" regarding Knox County taxpayers money being utilized for pathology work including autopsies from other counties. (see attached Knox [News] Sentinel article)

5. That it is widely believed that Dr. Elkins took leave due to substance abuse problems and/or mental illness.

6. That in the early morning hours of February 18, 2008 law officers went to the home of Dr. Elkins to check on her welfare due to a complaint by Larry Vineyard that she had threatened co-workers with bodily harm and that she may be suicidal. The responding officers reported that they found Dr. Elkins looking under her bed and she told them she was looking for her gun so she could shoot the officer in the back of the head. Dr. Elkins was handcuffed and taken to UT Hospital for a mental evaluation. (See attached police report)

7. Dr. Elkins has previously admitted abusing drugs she improperly prescribed for herself.

8. That Dr. Elkins performed the autopsy in this case and the pathology in this case is critical in that the autopsy alleges [the victim's] cause of death as a lethal dosage of morphine.

A January 25, 2008 newspaper article from the Knoxville News Sentinel was appended to John Cote's motion. The article stated that Dr. Elkins "has temporarily stepped down from her post as Knox County medical examiner, taking leave for an undisclosed medical condition." Dr. Elkins's departure came after her "two-year campaign to expose what she alleges is the improper use of county employees for forensic work done on behalf of University Pathologists in death investigations outside of Knox County." Dr. Elkins's complaints reportedly led to a comprehensive audit of the Regional Forensic Center. Dr. Elkins claimed she was fired after her refusal to keep quiet about the alleged misconduct. The article also stated that the resulting stress from this incident caused her to seek medical treatment. At the time of her appointment as medical examiner, Dr. Elkins confirmed that in 1995 she received treatment for the misuse of stimulant diet pills that she prescribed for herself.

Also appended to the motion was a police report dated February 18, 2008. The report indicated that Larry Vineyard had police officers check on the welfare of his supervisor, Dr. Elkins. The report contained the following information:

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Vineyard advised Elkins has some mental issues and has made comments that she would kill herself and threatened the lives of a couple co-workers. Vineyard advised that Elkins may be in possession of a firearm.

Officers arrived at the residence and Vineyard, who was in possession of [a] key to Elkins' [s] condo, said he would go in and make contact with her and try to take the gun and talk Elkins into going to the hospital for a mental evaluation.

Vineyard along with the UT hospital security supervisor, Dickie Hogan[,] made entry into Elkins['s] Condo and confronted her. While inside the apartment Elkins was looking under her bed and other objects. Elkins told Officer Smith she was trying to find her gun to shoot him in the back of the head. Elkins was restrained and taken to UT hospital for a mental evaluation. While en[]route to the hospital, Elkins told Officer Smith that if she was uncuffed she would shoot him.

Dr. Elkins filed a response to John Cote's motion for discovery and Brady material. Dr. Elkins argued she was not required to disclose the requested records because: (1) the State was not in possession of the records; (2) the State informed Dr. Elkins that it did not intend to call her as a witness at trial; (3) the requested records were protected from disclosure by the federal Health Insurance Portability and Accountability Act (HIPAA); and (4) Dr. Elkins was not personally in possession of the records.

A hearing was held to address John Cote's motion for discovery and Brady material. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Sarah Cote joined in her codefendant's motion. The State told the trial court that it was not in possession of the requested records. The State also said it would not call Dr. Elkins as a witness. Instead, the State intended to call two witnesses who were present during the autopsy to testify. The State also asserted the current medical examiner for Knox County independently examined the victim's liver and brain and would testify regarding her findings and conclusions at trial. Counsel for Dr. Elkins said his client was currently hospitalized in a facility outside of Tennessee. No proof was offered by any of the parties at this hearing.

Based on the above arguments, the trial court issued a "Discovery Order," which stated:

Dr. Sandra Elkins performed the autopsy in this case and cause of death is an issue in the case. The court realizes that the public interest in maintaining the privacy of the requested records is strong; however, the defendant's Due

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Process Rights under the Fourteenth Amendment to the United States Constitution outweigh any and all competing interest. Pennsylvania v. Ritchie, 480 U.S. 39 (1987). The Court finds that the requested records are potentially relevant to the defense in this case and hereby orders the following records lodged with the clerk of the court for an in-camera [sic] inspection by the Court who will determine whether the records may be relevant to the trial of this cause.

The listed agencies as well as Dr. Elkins or her Attorney shall lodge the records with the clerk of the court within 30 days of their receipt of this order.

1. Any record of treatment for narcotic or other drug abuse by Dr. Sandra Elkins from 8-25-06 to 8-25-08. (Said records to be disclosed by the medical providers of Dr. Elkins, which names are to be furnished by Dr. Elkins'[s] counsel.)

2. Prescription records for Dr. Sandra Elkins from 8-25-06 to 8-25-07. (Said records to be disclosed by said

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