State v. DENIS LR

• Decision Date: 08 July 2005
• Docket Number: No. 2003AP384-CR.,2003AP384-CR.
• Citation: 283 Wis.2d 358,2005 WI 110,699 N.W.2d 154
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. DENIS L.R., Defendant, DAWN R., Intervenor-Petitioner-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

283 Wis.2d 358

2005 WI 110

699 N.W.2d 154

STATE of Wisconsin, Plaintiff-Respondent, v. DENIS L.R., Defendant, DAWN R., Intervenor-Petitioner-Appellant-Petitioner.

No. 2003AP384-CR.

Supreme Court of Wisconsin.

Oral argument January 5, 2005.

Decided July 8, 2005.

For the intervenor-petitioner-appellant-petitioner there were briefs by Dwight D. Darrow and Darrow, Dietrich & Hawley, S.C., Sheboygan, and oral argument by Dwight D. Darrow.

For the plaintiff-respondent the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. LOUIS B. BUTLER, JR., J.

Dawn R. seeks review of a published court of appeals decision that affirmed a circuit court's order that concluded Dawn waived the therapist-patient privilege of her three-year-old daughter, Kirstin R., by volitionally disclosing a significant part of the matter or communication.¹

¶ 2. Kirstin received counseling at Choices Family Education Services (Choices Family Services). There, she told her therapist, Judy Droppers, that her grandfather, Denis L.R., sexually assaulted her. Brian Fears, the clinical director at Choices Family Services, reported the sexual assault to the authorities, and the State charged Denis with sexually assaulting Kirstin.

¶ 3. Dawn, who is also Denis's daughter, overheard Kirstin tell Droppers that Denis did not sexually assault her. Dawn relayed this information to her grandmother, Helen R. The circuit court conducted an in camera review of Kirstin's counseling records to look for any information that either inculpates or exculpates Denis. Apparently, the court found no information.

¶ 4. At issue in this case is whether the circuit court may conduct an in camera interview of Droppers. Since Dawn overheard Kirstin tell Droppers that Denis both did and did not sexually assault her, Droppers may have information that is relevant to both the State and Denis that, for some reason, Droppers did not reduce to writing.

¶ 5. After the circuit court concluded that Dawn waived Kirstin's privilege by telling Helen about what Dawn overheard, the court ordered an in camera interview with Droppers to determine if she had any relevant information related to the sexual assault. Dawn intervened in this criminal action to protect Kirstin's therapist-patient privilege. As noted, the court of appeals affirmed the circuit court's order by concluding that Dawn waived Kirstin's privilege. ¶ 6. Dawn argues the court of appeals decision should be reversed because she contends she could not claim Kirstin's privilege, as she is not Kirstin's "guardian" for purposes of Wis. Stat. § (Rule)905.04(c)(3) (2001-02).² Alternatively, Dawn argues that she could not have waived Kirstin's privilege because she did not intend to waive the privilege.

¶ 7. We do not address these issues regarding waiver because we conclude that there is no privilege here. Fears reported the sexual assault to the authorities, presumably pursuant to his mandatory reporting obligations under Wis. Stat. § 48.891. Under the circumstances presented, we conclude that Fears' reporting the abuse to the authorities under Wis. Stat. § 48.891 extinguishes Kirstin's privilege under Wis. Stat. (Rule) § 905.04(4)(e)2. Thus, there is no privilege with respect to any "confidential communications made or information obtained or disseminated for purposes of . . . treatment of the patient's . . . mental or emotional condition . . ." with respect to the sexual abuse. See Wis. Stat. (Rule) § 905.04(2). Therefore, any information the counselors at Choices have that is relevant to the prosecution or defense of Denis for the sexual assault is not privileged. Accordingly, we affirm the decision of the court of appeals on other grounds.

I

¶ 8. On May 6, 2002, the State charged Denis L.R. with repeated first-degree sexual assault of his granddaughter, Kirstin. See Wis. Stat. §§ 948.02(1) and 948.025(1). Kirstin was three years old. Dawn is Denis's daughter and Kirstin's mother. ¶ 9. The authorities first learned of the sexual assaults when Fears, the clinical director at Choices Family Services reported that Kirstin made statements during counseling that indicated that Denis sexually assaulted her on several occasions.

¶ 10. Denis's preliminary hearing was held on May 15, 2002. At the hearing, a social worker testified that she spoke with Kirstin on May 4, 2002. The social worker testified that Kirstin told her that "Papa," referring to Denis, put his "butt" in Kirstin's "butt." Through the use of anatomical drawings, Kirstin identified that "butt" referred to her and Denis's genitalia. The Sheboygan County Circuit Court, Honorable Timothy M. Van Akkeren, bound Denis over for trial and the State filed an information charging Denis with the same crime as stated in the criminal complaint.

¶ 11. At one point, Dawn consented to release Kirstin's medical and hospital records and her counseling records from Choices Family Services to the State, presumably to aid the prosecution of Denis. However, she revoked this consent before the State obtained any of the records.

¶ 12. Denis then filed a Shiffra³ motion for in camera inspection of, among other records, Kirstin's counseling records from Choices. As part of his materiality showing, Denis submitted an affidavit by Helen (Denis's mother, Dawn's grandmother, and Kirstin's great-grandmother). Helen averred that she "had discussions with Dawn regarding counseling services provided to Kirstin." During those discussions, Dawn told Helen "that Kirstin had been seeing a counselor by the name of Judy Droppers at Choice Family Services . . . on two or more occasions in May or June, 2002."⁴ Helen stated that Droppers "used play therapy, and in one of those sessions talked about some of the allegations surrounding the criminal investigation in this case." Helen further indicated that "[a]ccording to Dawn, on one occasion, Kirstin informed the counselor that nothing happened between her and [Denis], contrary to the allegations underlying the criminal case."

¶ 13. The State did not object to Denis's Shiffra motion, noting that it too needed the records to aid the prosecution of its case.

¶ 14. The circuit court, Honorable Gary Langhoff, ordered the State, to the extent it was legally capable of doing so under Wis. Stat. § 146.82(2)(a)11., (2001-02)⁵ to obtain all records relating to Kirstin from Choices Family Services. The court stated that it would then make further orders regarding any in-camera interviews with the counselors from Choices Family Services.

¶ 15. Choices reluctantly turned the records over to the State after the court issued a subpoena duces tecum.⁶ The court examined the records in camera but apparently did not find any inculpatory information pertaining to the sexual assault allegations or exculpatory information regarding Kirstin's alleged recantation.⁷

¶ 16. The State later moved to allow Kirstin to testify through videotaped deposition. At the motion hearing, on October 9, 2002, the State also raised the issue of whether Dawn waived Kirstin's privilege. The State took the position that she waived the privilege based on the information contained in Helen's affidavit, which was previously submitted by Denis with his Shiffra motion, and based on similar statements Dawn made to the assistant district attorney who was prosecuting the case. As noted above, Dawn had stated that Kirstin contradictorily told her counselors at Choices Family Services that Denis did and did not sexually assault her. Because that information went to the core of the counseling sessions, the State argued that Dawn waived Kirstin's privilege.

¶ 17. Denis opposed the State, arguing that Dawn did not disclose any significant part of any matter or communication because there were multiple purposes for Kirstin attending the counseling sessions and because the statements Dawn made regarding what Kirstin stated were relatively brief in time compared with the length of the overall sessions. At the motion hearing, Dawn testified that she took Kirstin and her sibling to Choices to receive counseling for "possible allegations of sexual assault and for [the] children to vent out other issues," including school problems and "stressors in the family." She stated that the children had two counseling sessions at Choices Family Services with Droppers. Dawn also stated that she was present during both of the sessions. During the sessions, Dawn testified she overheard Kirstin make a couple of brief statements to Droppers regarding the alleged sexual assault. According to Dawn, Kirstin said that "Pappy's butt touched my butt," during one session, and in the other session Kirstin denied that anything happened. Dawn agreed that she told her grandmother, Helen, about what she overheard, but maintained that she did not intend to waive any privilege by doing so.

¶ 18. The court took the matter under advisement. On October 22, 2002, the court, sua sponte, scheduled a hearing to determine whether a guardian ad litem should be appointed to represent Kirstin's interests. The State argued that one should be appointed because Kirstin's and Dawn's interests did not coincide, while Denis opposed the appointment. On November 11, 2002, the court concluded that a guardian ad litem would not be appointed because it could not "say that [Dawn was] not acting in [Kirstin's] best interests."

¶ 19. On November 22, 2002, the State moved for an in camera interview with Kirstin's counselor from Choices Family Services, Droppers. The court did not decide the issue, and, on December 20, 2002, the State moved the court to "reconsider or consider with finality" the State's motion for a determination that Dawn waived Kirstin's counselor-patient privilege.

¶ 20. The court concluded that Dawn did waive Kirstin's privilege. Although the statements Dawn overheard and restated to Helen were relatively brief in time and did not relate to all...