State v. Miles

• Decision Date: 30 November 2005
• Docket Number: No. 2 CA-CR 2004-0329.,2 CA-CR 2004-0329.
• Citation: 123 P.3d 669,211 Ariz. 475
• Parties: The STATE of Arizona, Appellee, v. Dean Johnathan MILES, Appellant.
• Court: Arizona Supreme Court

123 P.3d 669

211 Ariz. 475

The STATE of Arizona, Appellee, v. Dean Johnathan MILES, Appellant.

No. 2 CA-CR 2004-0329.

Court of Appeals of Arizona, Division 2, Department B.

November 30, 2005.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Eric J. Olsson, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Stephan J. McCaffery, Tucson, for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant Robert Johnathan Miles was convicted of aggravated assault with a dangerous instrument, endangerment with a substantial risk of imminent death, and criminal damage in the amount of $10,000 or more. The trial court imposed concurrent, presumptive prison terms, the longest of which was 7.5 years on the aggravated assault conviction. Among the three issues raised on appeal, Miles argues that the trial court violated the physician-patient privilege by admitting certain medical evidence and that the evidence was insufficient to support a finding of criminal recklessness. We disagree and, finding no reversible error, affirm.

BACKGROUND

¶ 2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the jury's verdicts. See State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, 1137 (App.1999). On July 20, 2002, Miles was driving a pickup truck west on Drexel Road in Tucson when he failed to stop at a stop sign at Country Club Road. The front of Miles's vehicle collided with the passenger side of a 17,000-pound tanker truck in the middle of the intersection. The tanker truck was knocked onto its driver's side, the driver was injured, and the truck was destroyed. Miles's vehicle also was destroyed, and a passenger who had been riding with him sustained significant injuries that required four days of hospitalization.

¶ 3 Miles was tried on two counts of aggravated driving while under the influence of an intoxicant (DUI), aggravated assault against his passenger, endangerment of the tanker truck driver, and criminal damage based on the destruction of the tanker truck. During trial, the trial court granted Miles's motion for a judgment of acquittal on the DUI charges pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S., finding "the evidence [presented was] not sufficient to conclude beyond a reasonable doubt that the defendant was impaired." The jury found Miles guilty on the remaining counts. The aggravated assault and endangerment convictions were for dangerous-nature offenses because the jury also found that Miles had used a "dangerous instrument" (his vehicle) and had caused "serious physical injury" to both his passenger and the tanker truck driver.

DISCUSSION

I. Admission of evidence on passenger's injuries and medical treatment

¶ 4 Before trial, Miles moved in limine to exclude evidence of the passenger's medical records and any testimony by Dr. Warneke, the passenger's treating physician after the accident. Miles argued evidence of the passenger's post-accident treatment was precluded by the physician-patient privilege, which the passenger had not waived.¹ See A.R.S. § 13-4062(4) ("A physician or surgeon ... [shall not be examined as a witness] without consent of the physician's or surgeon's patient ... as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient.").

¶ 5 During a hearing on pretrial motions, the trial court denied Miles's request to exclude evidence of the passenger's injuries, treatment, and medical records, apparently based on its finding that Miles lacked standing to assert the privilege on behalf of the passenger.² Shortly before trial, Miles asked the court to reconsider that ruling, citing Tucson Medical Center, Inc. v. Rowles, 21 Ariz.App. 424, 520 P.2d 518 (1974). The trial court again denied Miles's request, finding Rowles "factually dissimilar and ... inapplicable to the matter at bar."

¶ 6 During trial, Warneke testified about the severity of the passenger's injuries, which included numerous cuts, a large loss of blood, and a dislocated hip. The passenger's post-accident medical records also were admitted into evidence. As noted above, in finding Miles guilty of aggravated assault, the jury found the offense was a dangerous offense because it had caused "serious physical injury" to the passenger. See A.R.S. §§ 13-604(W)(4)(d); 13-1204(A)(1).

¶ 7 As he did below, Miles contends the trial court erred in admitting the foregoing evidence because the passenger did not waive his physician-patient privilege. Without such evidence, Miles argues, his conviction for aggravated assault and the jury's related dangerous-nature finding should be vacated. "The question of whether a privilege exists is generally a legal question that is subject to our de novo review." State v. Wilson, 200 Ariz. 390, ¶ 4, 26 P.3d 1161, 1164 (App.2001). "We also review de novo the question of whether a party has waived a privilege, unless that question hinges on resolution of conflicting facts or witness credibility issues." Id. (citation omitted). Similarly, issues relating to a party's standing are reviewed de novo. See Alliance Marana v. Groseclose, 191 Ariz. 287, 289, 955 P.2d 43, 45 (App.1997).

¶ 8 Under § 13-4062(4), "a person's medical records and oral communications to physicians are protected by the physician-patient privilege" unless the patient waives it. State v. Morales, 170 Ariz. 360, 363, 824 P.2d 756, 759 (App.1991). The state contends the passenger "apparently waived [the privilege] in a signed release." In its response to Miles's motion for reconsideration of the trial court's in limine ruling, the state asserted that the passenger had signed an "Authorization for Disclosure of Protected Health Information" sometime during his treatment and that the authorization "covered" and "permitted" Dr. Warneke's testimony.³ The record, however, contains no such form, and without it, we cannot conclude the passenger affirmatively waived his right to assert the privilege on either his medical records or Warneke's testimony.⁴ The absence of any showing of waiver, however, does not end our inquiry. We must still address the related questions of whether the physician-patient privilege applies in this context and whether Miles has standing to assert it.

¶ 9 In Benton v. Superior Court, 182 Ariz. 466, 467, 897 P.2d 1352, 1353 (App.1994), Division One of this court held: "[T]he State may, without the permission of a victim, obtain the victim's medical records when such records are needed for the prosecution of a criminal case." Benton involved an uncooperative victim of a domestic violence incident who refused to release her medical records to the state to use in its prosecution of her partner, the alleged abuser. In concluding that the victim's "medical records are neither protected by the Victims' Bill of Rights[, A.R.S. §§ 13-4419(C), 13-4434,] nor the physician-patient privilege," 182 Ariz. at 470, 897 P.2d at 1356, the court reasoned that, "since there was no physician-patient privilege at common law, it must be strictly construed." Id. at 469, 897 P.2d at 1355. The court further stated that "the public's interest in protecting victims outweighs the privacy interest reflected in the physician-patient privilege." Id. at 468, 897 P.2d at 1354; see generally State v. Karcher, 155 Ohio St. 253, 98 N.E.2d 308, 312 (1951) ("[C]ourts have sometimes sought, by main force, to set limits [on the physician-patient privilege] and prevent its evil effects, namely, in cases where the physician ... has acted on behalf of the victim of a crime.").

¶ 10 In State v. Wilson, 200 Ariz. 390, 26 P.3d 1161 (App.2001), this court distinguished Benton and upheld a claim of privilege. Wilson involved a defendant charged with having made and pursued a fraudulent workers' compensation claim. Relying on Benton, the state argued the physician-patient privilege should not apply to prevent the state from eliciting testimony from the defendant's treating physicians in the case against him. Id. ¶ 10. Although we agreed "`the physician-patient privilege has never been absolute,'" id. ¶ 11, quoting Benton, 182 Ariz. at 469, 897 P.2d at 1355, we declined to carve out a broad, crime-fraud exception to the privilege in the "particular context" of a criminal defendant's assertion of the privilege on his or her own behalf. Id. That context was materially different and distinguishable from Benton's, in which an uncooperative victim/third party sought to assert the privilege, not necessarily to protect her own privacy, but rather, to protect a criminal defendant who allegedly had assaulted and injured her.

¶ 11 Neither Benton nor Wilson, however, involved a situation such as this, in which a criminal defendant seeks to assert a privilege on behalf of a victim whose injuries and resulting need for medical treatment were caused by the defendant's actions. In this context, we agree with the view of most, if not all, courts that have addressed the issue: even assuming the physician-patient privilege applies to the victim, here, Miles's passenger, a criminal defendant does not have standing to assert the privilege on the victim's behalf in an attempt to shield himself or herself from prosecution. See 81 Am.Jur.2d Witnesses § 465 (2004) ("Because the physician-patient privilege is intended for the patient's benefit, the defendant in a criminal prosecution has no right to object to the testimony of a physician ... concerning communications made by the crime victim to the physician, or information gained from the victim by the physician in a professional relationship, since the privilege is personal to the victim or his or her estate.").

¶ 12 In State v. Boehme, 71 Wash.2d 621, 430 P.2d 527, 536 (1967), a case in which the defendant was convicted of assault for having attempted to poison his wife, the court held "the defendant could not assert the doctor-patient privilege...