State v. Connor

• Decision Date: 17 July 2007
• Docket Number: No. 1 CA-CR 05-0153.,1 CA-CR 05-0153.
• Citation: State v. Connor, 161 P.3d 596, 215 Ariz. 553 (Ariz. App. 2007)
• Parties: STATE of Arizona, Appellee, v. Daniel James CONNOR, Appellant.
• Court: Arizona Court of Appeals

161 P.3d 596

215 Ariz. 553

STATE of Arizona, Appellee, v.Daniel James CONNOR, Appellant.

No. 1 CA-CR 05-0153.

Court of Appeals of Arizona, Division 1, Department B.

July 17, 2007.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Cari McConeghy-Harris, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender ByBrent E. Graham, Deputy Public Defender, Phoenix, Attorneys for Appellant.

SNOW, Judge.

¶ 1Daniel James Conner("Defendant") was convicted of first-degree murder and sentenced to life in prison with the possibility of parole after twenty-five years.On appeal, Defendant argues the trial court erred by denying his pretrial motion for production of the victim's medical records and, at trial, admitting improper other-act evidence.For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On December 11, 2002, Todd T., ("victim"), an intellectually and emotionally challenged young man, was found dead inside his apartment.An autopsy revealed that he had been stabbed or cut at least eighty-four times.The injuries included several incisions to his throat, stab wounds to his back, cuts on his face and arms, the near severance of one finger, and numerous wounds to the chest, at least one of which resulted in the collapse of a lung.The cause of death was loss of blood with a possible component of respiratory failure due to bleeding into the lung cavity.

¶ 3 Blood spots on the victim's clothing and saliva from a cigarette butt found at the scene were matched to Defendant through DNA testing.When questioned by the police, Defendant initially denied being at the victim's apartment or knowing anything about the stabbing.Later in the interview, however, Defendant admitted to the stabbing, but claimed he acted in self-defense.

¶ 4 Prior to trial, Defendant moved to compel discovery of "any and all medical treatment, counseling, psychological and/or psychiatric records" of the victim.Defendant argued that the information "may be exculpatory and will likely solidify the Defendant's position that the decedent was the initial aggressor."

¶ 5 The victim's parents and the prosecutor objected to the request¹ and indicated that they did not have possession of the requested records, the request was precluded by the Victims' Bill of Rights, Ariz. Const. art. 2, § 2.1;A.R.S. §§ 13-4401, -4438 (2002), the records were subject to the physician-patient and other statutory privileges, and the records were not material to Defendant's self-defense claim and would not be admissible at trial.Following a hearing, the trial court denied Defendant's motion.Defendant was subsequently convicted after trial to a jury.

DISCUSSION

I.The Trial Court Did Not Err in Denying Defendant's Request for the Victim's Medical Records.

¶ 6"[W]hether a criminal defendant is entitled to discovery of certain evidence[, including medical records,] is a matter within the trial court's discretion."State v. Tyler,149 Ariz. 312, 314, 718 P.2d 214, 216(App.1986).This court will not disturb a ruling on a discovery request absent an abuse of that discretion.State v. Fields,196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672(App.1999).To the extent Defendant sets forth a constitutional claim in which he asserts that the information is necessary to his defense, however, we will conduct a de novo review.SeeEmmett McLoughlin Realty, Inc. v. Pima County,212 Ariz. 351, 355, ¶ 16, 132 P.3d 290, 294(App.2006)(the appellate court reviews constitutional claims de novo).

¶ 7 On appeal, Defendant does not contest that the victim's medical records are protected by both the Victims' Bill of Rights and the physician-patient privilege.However, he relies on State ex rel. Romley v. Superior Court(Roper),172 Ariz. 232, 836 P.2d 445(App.1992), to argue that his due process right to present a complete defense and to cross-examine witnesses entitles him to the records and overcomes both the physician-patient privilege and any rights the victim's parents have under the Victims' Bill of Rights.

¶ 8Roper, however, did not authorize a wholesale production of the victim's medical records to the defendant.In Roper,the defendant was charged with aggravated assault for stabbing her husband.Id. at 237, 836 P.2d at 450.The defendant wife alleged that her husband had multiple personalities, some of which were violent, and that she had stabbed him in self-defense when he was attacking her while manifesting one of these violent personalities.Id.The defendant's assertions were buttressed by her husband's multiple arrests and at least one conviction for domestic violence in which the defendant had been the victim, husband's extensive psychiatric treatment over the years, and that it had been the defendant, not her husband, who had made the 9-1-1 call requesting help on the night of the stabbing.Id.Because the defendant had attended the treatment sessions between her husband and at least one of his treating psychiatrists, she asked that the court find a general waiver as to all of her husband's treatment records and order them to be disclosed to assist in establishing her justification defense.Id. at 234-35, 836 P.2d at 447-48.The court, while declining to find a general waiver with respect to her husband's treatment records, agreed to review the records in camera to determine if any should be disclosed.The State petitioned for special action review of the trial court's decision.Id.

¶ 9 Upon accepting jurisdiction, we noted that the resolution of the question required a careful balancing of the defendant's federal and state constitutional rights to a fair trial with the victim's constitutional right to be free from pretrial discovery initiated by the defendant.Id. at 236, 836 P.2d at 449.After setting forth the factors that govern such balancing, and the unique facts of Roper in which the defendant had attended at least some of the victim's treatment sessions, we ordered that the trial court conduct an in camera review of the victim's medical records to determine if any needed to be turned over to the defense in light of these competing concerns.Id. at 240-41, 836 P.2d at 453-54.

¶ 10 In doing so, we authorized some infringement, limited to the extent required by the nature of an in camera review, on both the victim's right to be free of discovery under the Victim's Bill of Rights and the victim's physician-patient privilege in any documents in which that right had not been waived.Nevertheless, we did so in the context of a reasonable possibility that the information sought by the defendant included information to which she was entitled as a matter of due process, and to which her victim husband had arguably waived his physician-patient privilege as to her by including her in some of his treatment sessions.See, e.g., Bain v. Superior Court,148 Ariz. 331, 334, 714 P.2d 824, 827(1986)(stating the psychologist/client privilege may be waived when the patient pursues a course of conduct inconsistent with the privilege).We, thus, merely recognized the possibility that due process could override other rights, that some privilege might have been waived, and then authorized the trial court to weigh these competing rights after considering the evidence and the defendant's need for it in presenting her defense.

¶ 11 By contrast, in this case, Defendant presented no sufficiently specific basis to require that the victim provide medical records to the trial court for an in camera review.Here the Defendant makes no showing that the victim's physician-patient privilege may have been waived as to him, nor does he make any otherwise adequate showing that the information sought might contain materials necessary to fully present his justification defense or to the cross-examination of witnesses.In the absence of either showing, the trial court did not err by declining to order production of the documents to the defense or infringing on the victim's constitutional and statutory rights.

A.The Justification Defense

¶ 12 Due process requires that the defendant receive "`a meaningful opportunity to present a complete defense.'"Holmes v. South Carolina,547 U.S. 319, 126 S.Ct. 1727, 1728, 164 L.Ed.2d 503(2006)quotingCrane v. Kentucky,476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636(1986).Defendant argues that under the facts of this casehe is entitled to discover the victim's medical records to fully present his justification defense by establishing that, in his encounter with the victim, the victim was the initial aggressor.²

¶ 13 When the Defendant raises a justification defense, he is entitled to offer at least some "proof of the victim's reputation for violence."State v. Zamora,140 Ariz. 338, 341, 681 P.2d 921, 924(App.1984).However, he may do so only in limited ways.The defendant may offer into evidence specific instances of violence committed by the victim but "only if the defendant knew of them .. . or if they are directed toward third persons relating to or growing out of the same transaction, or so proximate in time and place and circumstances as would legitimately reflect upon the conduct or motives of the parties at the time of the affray."Id. at 340, 681 P.2d at 923.The defendant may also offer reputation or opinion evidence that the victim has a violent or aggressive character trait.SeeAriz. R. Evid. 404(a)(2)(permitting evidence of a pertinent trait of character of the victim offered by an accused);Ariz. R. Evid. 405(a)(where evidence of a character trait is admissible such evidence is limited on direct examination to reputation or opinion evidence).

1.The Victim's Specific Violent Acts.

¶ 14Arizona courts have long held that a homicide defendant who offers a defense of justification "should be permitted to introduce evidence of specific acts of violence by the deceased if the defendant either observed the acts...