State v. Berberich, 81,640

• Decision Date: 16 April 1999
• Docket Number: No. 81,640,81,640
• Citation: 267 Kan. 215,978 P.2d 902
• Parties: STATE of Kansas, Appellant, v. Thomas A. BERBERICH, Appellee.
• Court: Kansas Supreme Court

Page 902

978 P.2d 902

267 Kan. 215

STATE of Kansas, Appellant, v. Thomas A. BERBERICH, Appellee.

No. 81,640.

Supreme Court of Kansas.

April 16, 1999.

Syllabus by the Court

1. Suppression rulings which seriously impede, although they do not technically foreclose, prosecution can be appealed under K.S.A. 22-3603.

2. Confidential relations and communications between a licensed professional counselor and such counselor's client are placed on the same basis as provided by law for those between an attorney and the attorney's client. The Professional Counselors Licensure Act defines a licensed professional counselor as a person who engages in the private practice of professional counseling and is licensed under this Act.

3. A lawyer is defined under the attorney-client privilege statute as a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation the law of which recognizes a privilege against disclosure of confidential communications between client and lawyer. K.S.A. 60-426(c)(3).

4. The physician-patient privilege statute defines a physician as a person licensed or reasonably believed by the patient to be licensed to practice medicine or one of the healing arts as defined in K.S.A. 65-2802 in the state or jurisdiction in which the consultation or examination takes place. K.S.A. 60-427(a)(2).

5. The physician-patient privilege, being in derogation of the common law, should be strictly construed and should not be construed to apply to matters not coming clearly within its provisions. A party claiming a privilege has the burden of proof, i.e., must show the privilege applies and establish the facts necessary to invoke it.

6. The counselor-patient privilege granted by K.S.A. 1998 Supp. 65-5810 extends only to licensed counselors and not to someone the client reasonably believes to be a licensed counselor.

James A. Brown, assistant Shawnee County district attorney, argued the cause, and Joan M. Hamilton, Shawnee County district attorney/acting Osage County attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellant.

William K. Rork, of Rork Law Office, of Topeka, argued the cause, and Michael Gayoso, legal intern, of the same firm, was with him on the brief for appellee.

ABBOTT, J.:

This is an interlocutory appeal by the State pursuant to K.S.A. 22-3603 from the trial court's order that statements made by defendant Thomas R. Berberich to Dr. Don Strong, a counselor, were privileged pursuant to K.S.A. 74-5323.

The issue is simple. The answer is complex. Dr. Strong was not a licensed counselor when the alleged statements by Berberich were made. By statute, confidential relations and communications between a licensed professional counselor and a counselor's clients are privileged. However, K.S.A.1998 Supp. 65-5810 states such relations and communications are placed on the same basis as provided by law for those between an attorney and an attorney's client. The definition of a lawyer under K.S.A. 60-426(c) includes a person the client reasonably believes is authorized to practice law. Thus, the question before us is whether the legislature, by adopting 65-5810 and other statutes to be addressed later in this opinion, intended to grant a privilege concerning communications between a client and a person who the client reasonably believes is a person licensed as a professional counselor. When the communications took place in this case, the applicable statutes used the term "registered," which has been changed to "licensed." So far as this opinion is concerned, the words are used interchangeably and have the same basic meaning. Readers are cautioned that the parties and trial judge used the terms interchangeably. "Licensed" seems more descriptive and understandable, so "licensed" will be used throughout the opinion. See K.S.A.1998 Supp. 65-5810.

John "Jack" Hanrahan, 12 years of age, was kidnapped from Topeka and subsequently murdered in May 1979. After an extensive search, his body was recovered from a creek in Osage County, Kansas. On January 24, 1989, after Berberich had been convicted of several felonies, his attorney, Eric Kjorlie, made arrangements with Dr. Strong to counsel Berberich. It is alleged that Berberich admitted to Dr. Strong that he killed Hanrahan. Nearly 9 years later, on January 30, 1998, the State charged Berberich with kidnapping and first-degree murder in Osage County, Kansas.

A preliminary hearing was scheduled. The State and Berberich filed numerous motions, including an objection to Dr. Strong's testimony on the grounds of privilege. Berberich conceded Dr. Strong was neither a licensed counselor nor a licensed psychologist during the relevant period (January 1989), but became a licensed counselor from September 15, 1989, through September 30, 1993.

We must again caution readers that the parties and the trial judge refer to both "licensed counselor" and "licensed psychologist" throughout the record and briefs and specifically refer to statutes that apply solely to each. Dr. Strong became a licensed counselor on September 15, 1989. There is no indication he was ever "licensed" or applied for a license as a psychologist. His Masters degree and Ph.D. are in counseling. The trial judge and counsel cite to statutes concerning "licensed psychologists." It appears to us the applicable statutes are those applying to "licensed counselor." This is a distinction without a difference as far as this opinion is concerned because the applicable parts of the statutes are identical. It would have been helpful to the court if counsel had been more specific and also had used the statutory versions in effect in January 1989, rather than setting forth the current statutes.

The trial court heard the extended arguments of counsel on three different occasions. Counsel also submitted briefs. No witnesses testified. The trial court then held the communications between Berberich and Dr. Strong were privileged. He explained his opinion as follows:

"THE COURT: The issue of privileged communication between this defendant and Dr. Strong would appear to the Court to be a very fine line decision. The Court has generally reviewed the statutes pertaining to privilege as cited by both counsel as to privilege between licensed psychologists and as to privilege between attorney. Generally, the Court has reviewed the privileges set forth for doctors. With reference to the section covering privilege for lawyer/client, K.S.A. 60-426(a), this is a rather lengthy section of some three full paragraphs setting forth details of that privilege. The privileges found in the statute for doctors covers probably fifteen paragraphs. The Court notes that K.S.A. 74-5323 on privileged communications between a licensed psychologist and the psychologist's client is five lines, very simple. 'Confidential relations and communications between a licensed psychologist and the psychologist's client are placed on the same basis as provided by law for those between the attorney and the attorney's client.' No other explanations. The Court believes that ... this statute means to supplement the section covering attorneys 60-426 in its entirety. The Court does note that with privileges extended to doctors, the same wording as found in the lawyers privileges is contained, a doctor or physician is determined to be ... someone not only licensed but who the patient--can be who the patient reasonably believes to be a licensed doctor or physician, and that's generally the provisions of K.S.A. 60-426 covering attorney privilege.

"The Court believes that the attorney privilege should be adopted in its entirety and in interpreting the statute at K.S.A. 74-5323, covering ... licensed psychologists, and believes that the wording from the attorney section should be applied as to the patient's reasonable belief that he is dealing with a psychologist, licensed psychologist. The patient was referred there; he was in an emotional state; he needed help; he was in a mental facility, if I understand the evidence right; and his abilities to distinguish that he had a licensed psychologist would be nil from all that the Court can glean of arguments of both counsel. The Court believes that it must apply the wording from the privilege for attorneys in its entirety into this section the way it interprets the statute. In so doing, it would find that nothing in this act should be construed to require such privileged communications to be disclosed. And that would be the ruling of the Court in this matter."

Later, the trial judge further commented:

"The State has pointed out to the Court that Dr. Strong was not on or about January 24, 1989, a licensed or registered professional counselor. He was so licensed or registered from September 15, 1989 through September 30, 1993, but he was not so registered on January 24, 1989, during a period of which the defendant sought Dr. Strong's services as a psychologist or counselor and had sessions between Dr. Strong and the defendant Thomas Berberich.

"The State has cited a Kansas statute, Kansas Statutes Annotated 74-5323 providing for privileged communications between a licensed psychologist and the psychologist's client. That section of the law is very short and simply reads that the confidential relations and communications between a licensed psychologist and the psychologist's client are placed on the same basis as provided by law for those between an attorney and the attorney's client. Nothing in this act shall be construed to require such a privileged communication to be disclosed, and that's the end of that section of the statute which requires the Court to consider then the section pertaining to lawyer/client privilege which the psychologist's privilege section refers to.

"The defendant has cited that Kansas Statutes Annotated 60-426 providing for lawyer/client privilege, and provides that communications found by a Judge to have been...