State v. Fay

Decision Date12 September 2017
Docket Number(SC 19350).
Citation167 A.3d 897,326 Conn. 742
CourtConnecticut Supreme Court
Parties STATE of Connecticut v. William FAY

Allison M. Near, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, was Kevin Lawlor, state's attorney, Rocky Hill, for the appellee (state).

Rogers, C.J., and Palmer, Eveleigh, McDonald and Robinson, Js.*

PALMER, J.

In State v. Esposito , 192 Conn. 166, 179–80, 471 A.2d 949 (1984), this court held that, in certain circumstances, the privileged psychiatric records of a witness testifying for the state are subject to in camera review by the trial court so that the court can determine whether the accused's constitutional right of confrontation entitles him to access to those records; if the witness refuses to authorize such review, the witness' testimony generally must be stricken. In the present case, the defendant, William Fay, was charged with murder and, following a jury trial, was convicted of the lesser included offense of manslaughter in the second degree with a firearm in violation of General Statutes § 53a–56a. He claims that the trial court improperly declined to extend our holding in Esposito and thereby violated his constitutional right to present a defense when it refused to conduct an in camera review of certain records of the victim protected by the psychiatrist-patient privilege; see General Statutes §§ 52–146d1 and 52–146e ;2 even though the defendant alleged that-those records may contain information pertinent to the defendant's claim of self-defense.3 Although we agree with the defendant that the psychiatrist-patient privilege may be surmounted when an accused makes a sufficient showing that the privileged information is material to a claim of self- defense, we conclude that the record in the present case is inadequate for our review of the defendant's unpreserved claim of constitutional error under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). We therefore affirm the judgment of the trial court.

The following facts that the jury could have found, as well as the following procedural history, are relevant to our resolution of this appeal. On July 8, 2010, while at their shared apartment, the defendant shot the victim twice with the victim's own handgun, causing injuries to which he later succumbed. At trial, the defendant did not deny shooting the victim but claimed that he acted in self-defense.4 The defendant sought to bolster his self-defense claim by presenting evidence of the victim's underlying psychological state at the time of the shooting. He testified that the victim had a history of drinking and depression, both of which had worsened in recent months following the death of the victim's dog. According to the defendant, these bouts of drinking and depression had led to other violent encounters between them. The defendant also testified that the victim had been receiving treatment from a psychiatrist. In reliance on this evidence, the defendant filed several motions seeking records, as well as the testimony of the victim's treating psychiatrist, concerning any diagnoses or prescriptions that the victim had received relating to aggressive behavior, as well as the possible effects of any prescription medications on the victim's temperament at the time of the shooting.5 These motions are the subject of the current appeal.

On February 1, 2013, the trial court held a hearing to address the defendant's motions. At the hearing, the court expressed concern that it did not have sufficient medical expertise to review the victim's records in camera to determine whether the information contained therein was exculpatory. Nonetheless, the court granted the motions and directed the defendant to subpoena the victim's psychiatric records to the clerk of the court, promising to review the records prior to trial in anticipation of a subsequent motion to allow an expert to present testimony pertaining thereto. By the time jury selection commenced on March 21, 2013, the records had been produced to the clerk, but the court indicated that it was awaiting a motion by the defendant for the admission of the privileged records before reviewing them.6

Shortly before the commencement of the evidentiary portion of the trial, the defendant filed a motion for an evidentiary hearing to present the testimony of the victim's psychiatrist, and, the next day, the court conducted a hearing on the defendant's request. At the hearing, the defendant argued that his right of confrontation under the sixth amendment to the United States constitution outweighed any privilege that might exist with respect to the victim's psychiatric records, pointing out that the policies safeguarding the psychiatrist-patient privilege are less compelling when the patient is deceased. The state maintained that the right of confrontation was not implicated when, as in the present case, the patient was deceased and, therefore, would not be testifying. The state further argued that, without a waiver of the privilege by the victim's authorized representative, the psychiatrist-patient privilege barred even the court from reviewing the documents in camera. Although several bottles of medication prescribed for the victim were found at the victim's home, the state argued that information about the victim's prescription medication usage, without testimony from his psychiatrist or corroboration from his psychiatric records, would be either irrelevant or inadmissible as propensity evidence.7

Reconsidering its prior ruling, the trial court agreed with the state in concluding that "evidence relating to communications and records concerning the diagnosis or treatment of a patient's mental condition" was privileged by statute and did not fall under any applicable statutory exception. The trial court further concluded that it lacked the authority to create an extrastatutory exception to the statutory psychiatrist-patient privilege, relying, inter alia, on State v. Kemah , 289 Conn. 411, 428, 957 A.2d 852 (2008) ("in the absence of express consent by the patient, courts have no authority to create nonstatutory exceptions to the general rule of nondisclosure" [internal quotation marks omitted] ). Finally, the court observed that, although State v. Esposito , supra, 192 Conn. at 179–89, 471 A.2d 949, and several subsequent cases, permit the court to strike a witness' testimony to protect a defendant's right of confrontation, they do not allow the defendant to access privileged information without the patient's consent. Because the defendant had been unable to procure consent from the victim's authorized representative; see footnote 6 of this opinion; the court denied the motion. The defendant subsequently was convicted and sentenced to ten years incarceration, suspended after eight years, followed by a five year term of probation.

For the first time on appeal, the defendant claims that the trial court violated his sixth amendment right to present a defense and to compulsory process by refusing to examine the victim's psychiatric records or to consider testimony by the victim's psychiatrist in camera.8 The defendant contends that, contrary to the determination of the trial court, the psychiatrist-patient privilege is not so unyielding that psychiatric records cannot be disclosed in the interest of justice—initially, to the court only, for in camera inspection—when, as here, the psychiatric records of a homicide victim are alleged to be relevant to the accused's claim of self-defense.

The state argues that the defendant's constitutional claims are unpreserved and that the record is inadequate for review under Golding . We agree with the state that the defendant's claims are unpreserved because he relies on different constitutional provisions in this court than he did in the trial court. Nevertheless, as we discuss more fully herein, because his claim is of constitutional magnitude, he nevertheless is entitled to review under Golding if the record is adequate for such review. We agree with the state that it is not. Because, however, the issue of reviewability turns on our assessment of the relationship between the victim's privilege and the defendant's constitutional right to present a defense, we first address the question of whether, and, if so, when, a defendant in a homicide case is entitled to an in camera review of the victim's psychiatric records.9 For the reasons set forth herein, we conclude that a trial court, in certain circumstances, may be constitutionally required to review in camera the privileged psychiatric records of a homicide victim to determine whether information contained therein supports a claim of self-defense. Mindful of the important policies underlying this state's statutory psychiatrist-patient privilege, however, we further conclude that, before a court may undertake such an in camera review, the accused first must demonstrate a compelling need for the privileged records, a showing predicated on the relevance of the records to the claim of self-defense, the potential significance of the records in establishing that defense, and the unavailability of alternative sources of similar information.

The psychiatrist-patient privilege, which is codified at § 52–146e (a), prohibits the disclosure of any communications and records that identify a person who has communicated with a psychiatrist for the purpose of diagnosis or treatment without the express prior consent of the patient or his authorized representative.10 The privilege applies to "all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist ...." General Statutes § 52–146d (2). In general, we have interpreted the privilege broadly and its exceptions narrowly. See Falco v. Institute...

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8 cases
  • State v. Turner
    • United States
    • Connecticut Supreme Court
    • 18 Febrero 2020
    ...unless it was distinctly raised at the trial or arose subsequent to the trial." (Internal quotation marks omitted.) State v. Fay , 326 Conn. 742, 766, 167 A.3d 897 (2017). "It is well established, however, that an unpreserved claim is reviewable under Golding when (1) the record is adequate......
  • State v. Holley
    • United States
    • Connecticut Supreme Court
    • 12 Enero 2018
    ...properly excluded." (Citations omitted; internal quotation marks omitted.) Id., at 818–19, 135 A.3d 1 ; see also State v. Fay , 326 Conn. 742, 754 n.12, 167 A.3d 897 (2017) ("the right to present a defense, though deeply rooted, rests on somewhat indeterminate grounds—at times, its existenc......
  • Comm'r of Mental Health & Addiction Servs. v. Freedom of Info. Comm'n
    • United States
    • Connecticut Supreme Court
    • 29 Agosto 2023
    ...potential significance of the records in establishing that defense, and the unavailability of alternative sources of similar information." Id., 751. Members of the filing FOIA requests are not required to meet such a burden. Significantly, there was no claim in the present case of a compell......
  • Douglas v. State
    • United States
    • Alaska Court of Appeals
    • 17 Marzo 2023
    ...with the Jaffee Court's intent that the precise contours of the privilege be developed in specific cases"); State v. Fay , 326 Conn. 742, 167 A.3d 897, 909 (2017) (holding that "the balance of equities in criminal cases involving the psychiatrist-patient privilege of a homicide victim is si......
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