State v. Pinder

Decision Date22 July 1996
Docket NumberNo. 96-0946,96-0946
Citation678 So.2d 410
Parties21 Fla. L. Weekly D1680 STATE of Florida, Petitioner, v. Randall PINDER, Respondent.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Attorney General, Tallahassee; and Sharon A. Wood, Assistant Attorney General, West Palm Beach, for petitioner.

Dawn S. Wynn, Assistant County Attorney, West Palm Beach, for Palm Beach County Victim Services. David A. Roth of Roth & Duncan, P.A., West Palm Beach, for Victim-V.P.

David W. Olson, West Palm Beach, for respondent.

GROSS, Judge.

This is a petition for writ of certiorari from a trial court order granting a criminal defendant's motion to compel and requiring an in camera hearing directed at the testimony and file of victim services counselors. Because neither due process nor the Sixth Amendment require disclosure of communications protected by section 90.5035, Florida Statutes (1995), we grant the writ and quash the order under review.

Randall Pinder is charged with attempted first degree murder, armed kidnapping, armed burglary and sexual battery. The factual basis of the charges, as contained in the probable cause affidavit, is that Pinder unlawfully entered the victim's 1 home, sexually assaulted her at knifepoint, and drove her at gunpoint to a drainage ditch, where he cut her throat and shot her in the head. At her deposition, the victim said that she had memory problems as a result of the shooting, but remembered the incident in detail. She answered numerous questions posed by Pinder's attorney. 2 She testified that she had discussed the attack with her mother, siblings and daughter. The victim refused to discuss what she had said to her sexual assault counselors. Defense counsel deposed Vilma Sosa and Betty Butler, counselors with Palm Beach County Victim Services. Ms. Sosa described her general duties:

If I'm the on-call counselor and I go out on the case, I would be called by either Crisis Line or the police department. And I would meet the victim at the hospital and be with her or him through the entire procedure of collecting of evidence, explaining to them what's going on.

If need,[sic] get ahold of family members, go back with the victim to the police department to be with them during the taped interview, talk to them about possible venereal diseases, assist them in getting an appointment with their physician or follow-up.

Give them information regarding what possible feelings of agitation and concern that they're going to be sensing ... explain to them a little bit about the court system, explain to them procedures of what depositions are, court matters, and so forth. And generally [be] there to listen to them.

In response to questions concerning the victim's consultation with them or whether their office had a file on the victim, both counselors asserted the sexual assault counselor-victim privilege under section 90.5035, Florida Statutes (1995). 3

Pinder moved to compel the two counselors to respond to questions concerning statements made by the victim about the incident, or alternatively for the court to conduct an in camera hearing to question the counselors or inspect their files. The trial court ordered Palm Beach County Victim Services to make its file pertaining to the victim available to the court for an in camera inspection. The court also required the two counselors to separately make themselves available to the court for an in camera hearing to respond to the court's "inquiries regarding statements made to them by [the victim]." The court's order noted that the purpose of the in camera proceeding was not to circumvent the section 90.5035 privilege, but to determine the existence of "exculpatory information as to the defendant herein which may outweigh any interest of Victim Services or [the victim] in preserving the secrecy of any such information." From this order, the state seeks certiorari review.

Pinder defends the trial court's order on due process grounds. Aside from the general reference to Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), Pinder mainly relies on Advisory Opinion to the House of Representatives, 469 A.2d 1161 (R.I.1983). However, both of these cases predate Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), which is where legal analysis in this case necessarily begins.

The defendant in Ritchie was charged with sexually assaulting his daughter. Before trial, Ritchie subpoenaed the files of Pennsylvania's Children and Youth Services (CYS), the state agency charged with investigating child abuse. A statute provided that the agency's files were confidential. However, the privilege against disclosure was not absolute; it was subject to eleven statutory exceptions, including one which allowed disclosure to a "court of competent jurisdiction pursuant to a court order." Id. at 43-44, 107 S.Ct. at 994. After a limited in camera hearing, the trial judge denied a motion to compel disclosure of the agency's records. Ritchie went to trial and was convicted. On appeal, Ritchie argued that nondisclosure of the state agency's file interfered with his confrontation rights under the Sixth Amendment of the United States Constitution. The Pennsylvania Supreme Court agreed with Ritchie, relying in part on Davis, where the Supreme Court held that a trial judge's prohibition against questioning a witness about his juvenile criminal record violated the Confrontation Clause.

A plurality of the Supreme Court refused to apply a broad reading of Davis. The plurality characterized confrontation as a trial right, satisfied by a defendant facing the state's witnesses and by defense counsel's cross examination of them.

If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. In short, the Confrontation Clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."

Pennsylvania v. Ritchie, 480 U.S. at 52-53, 107 S.Ct. at 999 (citations omitted).

The Supreme Court also considered Ritchie's argument that nondisclosure of the agency's file violated his Sixth Amendment guarantee of compulsory process. Without delineating the scope of any Sixth Amendment protection, a majority in Ritchie concluded that the claim was best analyzed under the Due Process Clause of the Fourteenth Amendment. Id. at 56, 107 S.Ct. at 1001. Due process requires the government to turn over evidence in its possession favorable to the accused and material to guilt or punishment. Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. The Supreme Court concluded that, under the statute at issue, Ritchie was entitled to have the trial judge review the CYS file "to determine whether it contain[ed] information that probably would have changed the outcome of his trial." Id. at 58, 107 S.Ct. at 1002. Citing the Pennsylvania statute that provides an unqualified privilege for communications between sexual assault victims and their counselors, the Court noted that it was expressing "no opinion on whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law enforcement and judicial personnel." Id. n. 14. Rather, the statutory privilege at issue in Ritchie was not absolute, but only qualified. One statutory exception to disclosure expressly contemplated that CYS files might be used in judicial proceedings.

After Ritchie, the Supreme Court has declined several opportunities to rule on the constitutionality of an absolute privilege for communications between a rape victim and a crisis counselor. 4 Nor has the court elaborated on the constitutional analysis contained in that opinion. 5 Since the decision in Ritchie, state courts have generally upheld absolute sexual assault counselor/victim privileges in the face of defendants' pretrial claims of constitutional entitlement to privileged information. See People v. Foggy, 121 Ill.2d 337, 118 Ill.Dec. 18, 521 N.E.2d 86, cert. denied, 486 U.S. 1047, 108 S.Ct. 2044, 100 L.Ed.2d 628 (1988); Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290, cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992); State v. J.G., 261 N.J.Super. 409, 619 A.2d 232 (N.J.Super.Ct.App.Div.), cert. denied, 133 N.J. 436, 627 A.2d 1142 (1993)(victim counselor); People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995); see People v. District Court In and For City and County of Denver, 719 P.2d 722 (Colo.1986) (decided prior to Ritchie ). At least 23 states have enacted victim-counselor privileges. See Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women, 29 Fam. L.Q. 273, 296 n.131 (1995). Some statutes create only qualified privileges, in that they permit disclosure of communications under certain circumstances. For example, Washington allows the discovery of a rape crisis center's records if certain conditions are met, including a defendant's factual showing of a need for the information and a court's...

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  • In re Subpoena To Crisis Connection Inc.State
    • United States
    • Supreme Court of Indiana
    • 23 Junio 2011
    ...analysis of Brady is inapplicable because the records are not in possession of the government or government agent); State v. Pinder, 678 So.2d 410, 414 (Fla.Dist.Ct.App.1996) (counselors are not state agents as contemplated by Brady ); cf. WTHR–TV v. Milam, 690 N.E.2d 1174, 1176 n. 3 (Ind.1......
  • State v. Neiderbach, 11-1082
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    • United States State Supreme Court of Iowa
    • 23 Agosto 2013
    ...courts in the context of establishing a threshold requirement for the production of mental health records. See, e.g., State v. Pinder, 678 So. 2d 410, 417 (Fla. 1996) ("To obtain in camera review of confidential communications or records . . . a defendant must first establish a reasonable p......
  • State v. Neiderbach, 11–1082.
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    • United States State Supreme Court of Iowa
    • 22 Noviembre 2013
    ...courts in the context of establishing a threshold requirement for the production of mental health records. See, e.g., State v. Pinder, 678 So.2d 410, 417 (Fla.1996) (“To obtain in camera review of confidential communications or records ... a defendant [837 N.W.2d 226]must first establish a ......
  • In Re Subpoena To Crisis Connection Inc.State Of Indiana
    • United States
    • Court of Appeals of Indiana
    • 15 Julio 2010
    ...409, 619 A.2d 232 (1993); People v. Foggy, 121 Ill.2d 337, 118 Ill.Dec. 18, 521 N.E.2d 86, 92 (1988), cert. denied; State v. Pinder, 678 So.2d 410 (Fla. 4th Dist.Ct.App.1996); and State v. Gomez, 63 P.3d 72 (Utah 2002). Crisis Connection characterizes these cases as holding “that disclosure......
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