State v. Shiffra

• Citation: 175 Wis.2d 600,499 N.W.2d 719
• Decision Date: 31 March 1993
• Docket Number: No. 92-1986-CR,92-1986-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Shaun A. SHIFFRA, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 719

499 N.W.2d 719

175 Wis.2d 600

STATE of Wisconsin, Plaintiff-Appellant, v. Shaun A. SHIFFRA, Defendant-Respondent.

No. 92-1986-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 26, 1993.

Opinion Released March 31, 1993.

Opinion Filed March 31, 1993.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

The state appeals from a pretrial order suppressing the testimony of the victim of an alleged sexual assault. The trial court suppressed the testimony because the victim refused to allow an in camera inspection of her past mental health treatment records. The first issue is whether an in camera inspection is warranted under Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The second issue is whether preclusion of the alleged victim's testimony at trial is the proper sanction for her refusal to submit the records to an in camera review. We affirm.

On July 28, 1991, Shaun A. Shiffra encountered Pamela P. at a bar. After having a drink, the two left the bar to go to Shiffra's apartment. They planned to get a meal gift certificate and then proceed to a restaurant for dinner with another couple. The alleged sexual assault occurred while Pamela was looking at some shirts in Shiffra's bedroom. After the incident, Pamela had bruises on her breasts and left elbow and a "hickey" on her left breast. She reported the incident and made a statement to the police on the same evening.

On August 9, Shiffra was charged with second-degree sexual assault contrary to sec. 940.225(2)(a), Stats. Based on Pamela's testimony at the preliminary hearing, the court bound Shiffra over for trial. He subsequently pled not guilty. One day before trial, defense counsel moved for an adjournment based on evidence recently disclosed by the state. The motion stated in pertinent part, that "the State ha[d] provided the defendant with information which indicate[d] that ... the complaining witness has a history of psychiatric problems which may affect her ability to perceive and relate truthful information." The trial court granted the adjournment.

The order that is the subject of this appeal arose when defense counsel moved "for an order requiring the plaintiff and complainant, Pamela [P.], to reveal to the defendant her psychiatric history, psychiatric records and to execute an authorization to release medical information from any doctors, hospitals or counselors seen by Pamela [P.] with respect to her mental condition." Shiffra argued that "he should not be bound by [Pamela's] own self-reporting of the effects of her psychiatric disorders on her ability to perceive and relate truthful testimony."

At the hearing on the motion to compel, defense counsel stated that Shiffra viewed his contact with Pamela to be consensual at the time of the incident. After argument counsel said that he would not have any objection to an in camera review of the records. He stated:

I do not want anything from this woman's history other than evidence that she may suffer from some type of psychiatric disorder which causes her an inability to truthfully relate facts as she perceives them.... And that she may suffer from an inability or some disorder which causes her to have flashbacks to previous instances in her life and then they become sexual assaults of her because of her disorders.

The state opposed the motion on the grounds that the physical evidence corroborated Pamela's story and that her records were absolutely privileged under sec. 905.04, Stats. The state also suggested that defense counsel was on a "fishing expedition" because Shiffra had not yet articulated his theory of defense. Defense counsel responded by acknowledging Pamela's privilege and requesting that the court bar her testimony if she refused to disclose her psychiatric records. He also reiterated the defense theory that the sexual contact was consensual.

After hearing the arguments, the court stated, "[T]here has been provided to the Court, I think, an adequate showing to indicate that there may be psychological problems which do affect--or psychiatric which do affect the individual's ability to accurately perceive what is going on about here [sic ]." The court continued:

I think there has been a sufficient basis shown--provided to the Court for the Court to at least believe an in camera inspection be ordered for the Court to determine whether or not there is anything in the ... psychiatric or psychological reports which would be of materiality to the defendant, Mr. Shiffra.

The hearing was adjourned to give Pamela a chance to decide whether she would waive her sec. 905.04, Stats., privilege.

Pamela decided not to allow the court access to her records for an in camera review. Shiffra then brought a motion to bar Pamela's testimony. In its decision, the court acknowledged that it did not have the power to order the records' release. The court gave Pamela twenty-one days to disclose her records. When she failed to do so, the court issued an order barring Pamela from testifying at trial. The state now appeals.

We must first decide whether Shiffra is entitled to an in camera review of Pamela's past psychiatric and mental health treatment records. This question implicates Shiffra's constitutional right to due process of law. ¹ See Ritchie, 480 U.S. at 56, 107 S.Ct. at 1000. We review constitutional questions de novo, without deference to the trial court. State v. Littrup, 164 Wis.2d 120, 126, 473 N.W.2d 164, 166 (Ct.App.1991).

Under the due process clause, criminal defendants must be given a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). A defendant's right to discover exculpatory evidence does not include the authority to search the state's entire file. Ritchie, 480 U.S. at 59, 107 S.Ct. at 1002. Rather, an in camera review of evidence achieves the proper balance between the defendant's rights and the state's interests in protection of its citizens. See id. at 60-61, 107 S.Ct. at 1002-1003.

To be entitled to an in camera inspection, the defendant must make a preliminary showing that the sought-after evidence is material to his or her defense. State v. S.H., 159 Wis.2d 730, 738, 465 N.W.2d 238, 241 (Ct.App.1990); In re K.K.C., 143 Wis.2d 508, 511, 422 N.W.2d 142, 144 (Ct.App.1988). We review under the clearly erroneous standard the findings of fact made by the trial court in its materiality determination. See State v. Turner, 136 Wis.2d 333, 343-44, 401 N.W.2d 827, 832 (1987).

Both Shiffra and the state agree that Ritchie is the proper starting point for our analysis. However, the parties differ in their interpretations of that case. The state distinguishes Ritchie on the following four grounds. First, the state argues that this case "does not fall within the ambit of Ritchie " because Pamela's records are not in the possession of the prosecution or any other state agency. Second, there is no "direct nexus" between the records and the charge against Shiffra because many of the records are temporally remote from the incident at issue here. Third, the records in this case are absolutely protected from disclosure by statute, ² whereas the Ritchie case involved a statute that allowed disclosure in certain circumstances. Finally, this case involves a pretrial determination of materiality; Ritchie was an appeal following the defendant's trial and conviction. Therefore, the principles enunciated in Ritchie do not apply to this case.

The state's first three arguments are easily disposed of. We are bound by Wisconsin precedent, which clearly makes Ritchie applicable to cases in which the information sought by the defense is protected by statute and is not in the possession of the state. See K.K.C., 143 Wis.2d at 511, 422 N.W.2d at 144 (information sought was confidential); S.H., 159 Wis.2d at 736, 465 N.W.2d at 240-41 (information sought was protected under sec. 905.04, Stats., and was in the possession of a private counseling center). According to these cases, Shiffra is entitled to an in camera inspection if he meets the burden of making a preliminary showing of materiality.

The state contends that S.H. and K.K.C. are not binding because their relevant language is dicta. We do not agree. Both cases unequivocally adopted Ritchie as the law in Wisconsin even when the records are not in the state's possession. This precedent also suggests that whether the records are temporally remote is not a condition precedent which must be decided prior to in camera inspection--only a preliminary showing of materiality is needed. Finally, a statute allowing for confidentiality is not a barrier to in camera review. We are bound by those determinations.

Furthermore, the fact that some of Pamela's records are temporally remote from the incident for which Shiffra was charged does not meaningfully distinguish this case from Ritchie. The temporal element will come into effect when the trial court conducts its in camera inspection; if the records are too remote in time or are inconsistent with her current condition, they will not be relevant or material and should not be turned over to the defense.

We now address the state's argument that the principles enunciated in Ritchie are inapplicable to a pretrial proceeding. We appreciate the state's argument that materiality is difficult to determine before trial because the record is not fully developed. However, the standard of materiality urged by the state is inappropriate in the case of a pretrial motion to compel discovery.

The state's standard would make evidence material only if the information probably would change the outcome of the defendant's trial. This standard is impossible to meet pretrial. If we were to apply this standard, we would be ignoring the language in K.K.C. and S.H., which entitles defendants to in camera inspection of evidence. This we decline to do because we conclude that the ...