State v. Miller

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: VAN HOOMISSEN; BUTTLER; Although I agree with Richardson; YOUNG; RICHARDSON; JOSEPH, C.J., and NEWMAN; GILLETTE; While I agree with much of what the majority holds, I disagree on the pivotal question of the psychiatrist's testimony. I agree with the
• Citation: State v. Miller, 680 P.2d 676, 67 Or.App. 637 (Or. App. 1984)
• Decision Date: 11 April 1984
• Docket Number: No. C82-08-36632,C82-08-36632
• Parties: STATE of Oregon, Respondent, v. Jerry Lee MILLER, Appellant. ; CA A27112.

Page 676

680 P.2d 676

67 Or.App. 637

STATE of Oregon, Respondent, v. Jerry Lee MILLER, Appellant.

No. C82-08-36632; CA A27112.

Court of Appeals of Oregon In Banc.

Argued and Submitted Sept. 29, 1983.

Resubmitted In Banc Dec. 1, 1983.

Decided April 11, 1984.

Stephen A. Houze, Portland, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

VAN HOOMISSEN, Judge.

Defendant appeals his conviction for manslaughter in the first degree. ORS 163.118. The case was tried to the court on stipulated facts following the partial denial of defendant's pretrial motion to suppress evidence. The issue is whether the trial court erred in denying part of defendant's motion. We affirm.

Shortly before midnight on August 6, 1982, defendant telephoned his brother in California and told him that he had just "strangled a kid." ¹ The brother advised defendant to call a mental hospital or talk to someone who could help him with his problem. Minutes later, defendant telephoned Dammasch State Hospital. He told Edna Smith, the receptionist, that he wanted to speak to a doctor. When she asked why, defendant answered, "Murder. I just killed a man!"

Smith dialed Dr. Saville, a psychiatrist. Then defendant's line disconnected. Smith immediately called the Clackamas County Sheriff's office. As she was relating what had happened, defendant telephoned Dammasch again. Smith spoke with him and asked for his telephone number, which he gave her. She then dialed Saville on another line. After explaining the situation, she asked Saville to keep defendant on the line until the sheriff could trace the call and locate him. Saville agreed to do so. ² After connecting defendant with Saville, Smith gave his telephone number to the sheriff.

Defendant and Dr. Saville conversed for several minutes until Officer Pritchard arrived at the telephone booth defendant was using. He had been informed by his dispatcher that the man using that telephone was talking to Dammasch State Hospital and had stated that he had just killed someone. Pritchard took the telephone from defendant, confirmed that he was talking to Saville and asked her to remain on the line. He then patted down defendant and found a wallet with identification. After placing defendant in the back seat of his police car, Pritchard talked briefly with Saville. She stated that she would have to check with her supervisor before divulging any information about her conversation with defendant. Later, she made a full report of the conversation to the police.

Pritchard asked defendant whether he had "hurt anyone." He replied that he wanted to see a lawyer. Pritchard nevertheless continued to question him. Defendant then stated that he had hurt someone, that "I just couldn't wake him up," and that the victim was in defendant's hotel room, which was nearby. Pritchard elicited those statements without first advising defendant of his Miranda rights. Defendant gave his room key to Pritchard, who ordered an ambulance sent to the hotel. He then went there, entered defendant's room without a warrant and found the victim's body.

Defendant moved to suppress (1) his statements to Smith and Dr. Saville; (2) his statements to Officer Pritchard; (3) evidence seized from his person; and (4) evidence obtained during the warrantless search of his hotel room. His motion also sought the suppression of derivative evidence. The trial court suppressed only his statements to Pritchard.

Defendant first contends that the trial court erred in denying his motion to suppress evidence of his statements to Smith and Dr. Saville. He argues that those statements are protected by the "psychotherapist-patient" privilege. OEC 504. ³ OEC 504(1)(c) defines a "psychotherapist" as a person authorized to engage in, and in fact engaged in, the diagnosis or treatment of a mental or emotional condition. OEC 504(2) "limits the psychotherapist-patient privilege to communications made for the purpose of diagnosis or treatment, i.e., consultation which is not part of diagnosis or treatment is not privileged." Kirkpatrick, Oregon Evidence 88, 90 (1981). The state argues that defendant's statements to Smith are not privileged, because they were not made to a person "reasonably necessary for the transmission of the communication." It argues further that Dr. Saville did not "diagnose or treat" defendant; she was simply keeping him on the telephone until the police located him. Therefore, no psychotherapist-patient relationship was established.

Statutory privileges are strictly construed. State ex rel. Calley v. Olsen, 271 Or. 369, 381, 532 P.2d 230 (1975); Triplett v. Bd. of Social Protection, 19 Or.App. 408, 413, 528 P.2d 563 (1974); see 81 Am.Jur.2d, Witnesses § 141. In United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct 3090, 3108, 41 L.Ed.2d 1039 (1974), the Supreme Court stated:

"Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth."

In asserting the psychotherapist-patient privilege, defendant had the burden to show that both he and the nature of the evidence offered by the state were within the ambit of OEC 504. See Groff v. S.I.A.C., 246 Or. 557, 426 P.2d 738 (1967); State ex rel. Juv. Dept. v. Madison, 27 Or.App. 31, 33, 554 P.2d 1022, rev. den. 276 Or. 873 (1976).

OEC 504(1)(a) provides:

"* * *

"(a) 'Confidential communication' means a communication not intended to be disclosed to third persons except: Persons present to further the interest of the patient in the consultation, examination or interview; persons reasonably necessary for the transmission of the communication; or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient's family."

Smith was not a person "participating in the diagnosis and treatment" of defendant; therefore, that clause is inapplicable. Similarly, she was not someone "reasonably necessary to the transmission of the communication"; that clause appears to refer to someone who assists a patient in directly communicating with a psychotherapist, for example, a translator.

If any of the clauses of OEC 504(1)(a) is applicable to defendant's communications with Smith, it is that which makes confidential communications disclosed to "[p]ersons present to further the interest of the patient in the consultation, examination or interview." The simplest parsing of this clause leads us to conclude that it is not applicable, either. The use of the word "present" in the clause shows plainly that it is intended to refer to persons who are physically present at the time and place a psychotherapist is conducting a consultation, examination or interview. That excludes Smith. Even assuming that defendant's communications to Dr. Saville were privileged, Smith took no part in that exchange. Her role ended when she put defendant in touch with Saville. We conclude that defendant's statements to Smith did not fall within the ambit of OEC 504, because those statements were not "confidential communications." OEC 504(1)(a). ⁴ Smith's testimony was admissible. ⁵

We also conclude that defendant's statements to Dr. Saville were not privileged. They were not "communications made for the purpose of diagnosis or treatment of [defendant's] mental or emotional condition * * *." Dr. Saville testified that as soon as she identified herself, defendant told her that he had been having a homosexual encounter with someone, and had strangled him. She also testified that she could not, would not and did not diagnose or treat defendant. She did not anticipate that defendant would come to Dammasch Hospital as a patient. She "just wanted to keep him on the phone so the police could get there. That was all [she] was concerned with." The trial court found that Dr. Saville was not engaged in the "diagnosis or treatment of a mental or emotional condition." ⁶ The record supports that finding, and we are bound by it. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

Dr. Saville's representation that defendant's statements would be confidential is not controlling. First, before she said that, defendant had already admitted that he had strangled someone. Second, she testified that she could not, would not and did not diagnose or treat defendant over the telephone. Her only purpose in talking to defendant was to keep him on the telephone while the police tried to locate him and possibly rescue his victim. While she initially thought that her profession's ethical standards demanded confidentiality, she later made a full disclosure to the police. Third, the fact that defendant may have thought that his statements were privileged did not make them privileged. ⁷ See Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966). Construing the statute strictly, we agree with the trial court that no psychotherapist-patient relationship was established.

Even assuming that defendant's communications to Dr. Saville were privileged and that it was error to admit the evidence, we conclude that any error was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Naylor, 291 Or. 191, 629 P.2d 1308 (1981). Before contacting Dammasch, defendant telephoned his brother and told him that he had just "strangled a kid" during a homosexual relationship. Shortly thereafter, he telephoned Dammasch and told Edna Smith, "Murder. I just killed a man!" Thus, Dr. Saville's testimony that defendant admitted the homicide was merely cumulative of evidence already before the trier of fact. ⁸

Defendant next contends that his statements to Smith and Dr. Saville should be suppressed because they are "constitutionally...