State v. Sypult

• Decision Date: 03 December 1990
• Docket Number: No. CR,CR
• Citation: State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (Ark. 1990)
• Parties: STATE of Arkansas, Appellant, v. Robert Dean SYPULT, Appellee. 90-127.
• Court: Arkansas Supreme Court

Page 402

800 S.W.2d 402

304 Ark. 5

STATE of Arkansas, Appellant, v.Robert Dean SYPULT, Appellee.

No. CR 90-127.

Supreme Court of Arkansas.

Dec. 3, 1990.

Ray Bunch, Rogers, for appellee.

Sandra Bailey Moll, Asst. Atty. Gen., Little Rock, for appellant.

HOLT, Chief Justice.

The appellee, Robert Dean Sypult, was charged with first degree sexual abuse of an eight-year-old girl.During the discovery process, the state notified Sypult of its intent to use statements he made to doctors and a counselor at the Veterans Administration Hospital in Fayetteville.Sypult moved to suppress the statements on the basis that such communications are protected by the physician and psychotherapist-patient privilege.

The trial court held a hearing on the motion and ruled that the state could admit evidence only that Sypult sought treatment, the type of treatment sought, and that the VA Hospital made a report in accordance with Arkansas law concerning the reporting of suspected child abuse to the proper authorities.The trial court further ruled, however, that any confidential statements between Sypult and his doctors and counselor were inadmissible.

The state appeals this interlocutory order, contending that the "confidential" statements are admissible pursuant to Ark.Code Ann. § 12-12-511(a)(1987and Supp.1989).We disagree and affirm the trial court's decision.

Section 12-12-511(a) states:

Any provision of the Arkansas Uniform Rules of Evidence notwithstanding, and except as provided in subsection (b) of this section, any privilege between husband and wife or between any professional person, except the privilege between a lawyer and client, and the privilege between a minister, including a Christian Science Practitioner, and any person confessing to or being counseled by the minister, including, but not limited to, physicians, counselors, hospitals, clinics, day-care centers, and schools and their clients shall not constitute grounds for excluding evidence at any proceeding regarding child abuse, sexual abuse, or neglect of a child or the cause thereof.(Emphasis added.)

In its memorandum opinion, the trial court noted sound reasons behind the enactment of section 12-12-511, yet recognized that a literal application of the statute would, on the other hand, completely erode the well-established policies embodied in the physician and psychotherapist-patient privilege.To avoid this conflict, the trial court designed its ruling to enforce provisions of our child abuse and sexual abuse statutes while preserving the sanctity of private communications between patients and their doctors and therapists under the Arkansas Uniform Rules of Evidence.Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488(1986), was cited for the proposition that this court"is the authority which controls the Rules of Evidence that apply in circuit court"; thus, the legislature's enactment of an exception to our rules of evidence was invalid.

In Curtis v. State, 301 Ark. 208, 783 S.W.2d 47(1990), andSt. Clair v. State, 301 Ark. 223, 783 S.W.2d 835(1990)we reaffirmed our inherent rule-making power as identified in Ricarte, supra; however, we went on to say that we share this power with the General Assembly and that we will defer to its authority where legislation involving matters of public policy conflicts with court rules.See alsoLyons v. Forrest City Mach. Works, Inc., 301 Ark. 559, 785 S.W.2d 220(1990).

Section 12-12-511(a) is clearly grounded in strong public policy--the protection of child abuse victims.So, once again, we are faced with sharing our rule making powers with the legislature--this time involving the physician and psychotherapist-patient privilege.In doing so, we retreat from the positions we have taken in Curtis and St. Clair, supra, and redefine the parameters of our "shared" rule making power with the legislature.

It is obvious that, in the interests of promoting important public policies and interests of the state, legislation enacted in this spirit will, on occasion, bring about conflict with rules of the court.It is equally obvious, however, that literal application of our decisions in Curtis and St. Clair to cases such as the one before us, could well open the door to total abrogation of the rules of evidence and procedure we deem vital to the interests and policies inherent in the judicial process.To protect what we hold inviolate we now declare that we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule's primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.

The policy behind the physician and psychotherapist-patient privilege is to encourage patients to communicate openly with their physicians and therapists and to prevent disclosure of the patient's infirmities.Arkansas State Medical Bd. v. Leonard, 267 Ark. 61, 590 S.W.2d 849(1979).Giving complete deference to the legislature would, in this instance, completely abolish the purpose and policy behind the rule.We cannot permit this.

The trial court's finding in the present case reflects our new position.The admission into evidence of the fact that Sypult sought counseling for sexual abuse and that a report was made to the proper authorities satisfies the General Assembly's purpose of enacting section 12-12-511 without taking from Sypult a privilege that has been firmly entrenched in Arkansas law since 1889.SeeCasenote, 36 Ark.L.Rev. 658(1983).

We find strong support for our position in State v. Andring, 342 N.W.2d 128(1984).There, the Minnesota legislature passed a child abuse reporting act very similar to ours, which provides that no evidence pertaining to a child's injuries is to be excluded in any proceeding arising from the abuse.In addressing the conflict presented by the existence of the physician-patient privilege, the court refused to allow elimination of the privilege and held that evidentiary use of only the information contained in the abuse report would best promote the legislature's policy behind the reporting act.

The central purpose of the child abuse reporting statutes is the protection of children, not the punishment of those who mistreat them.

This policy, which recognizes that the child may return to the same home environment in which the maltreatment occurred, is best effectuated by continued encouragement for child abusers to seek rehabilitative treatment.

* * * * * *

A narrow construction of section 626.556, subd. 8, which would achieve the purpose of the reporting act without destroying the benefits that result when those who maltreat children seek confidential therapy programs, should be, and hereby is, adopted.

In sum, we hold that deference to legislation involving rules of evidence and procedure will be given only to the extent the legislation is compatible with our established rules.When conflicts arise which compromise these rules, our rules remain supreme.Under this pronouncement, Sypult's confidential statements to his doctors and therapist remain privileged; however, there is no privilege with regard to the fact that Sypult sought and received treatment.SeeBaker v. State, 276 Ark. 193, 637 S.W.2d 522(1982).

The trial court further held that the admission of Sypult's statements would violate his fifth amendment right against self-incrimination and his sixth amendment right to counsel.It is not necessary, however, that we address these issues inasmuch as we uphold the trial court and its findings on the basis of the foregoing analysis.

Affirmed.

DUDLEY, NEWBERN, TURNER and PRICE, JJ., concur.

HAYS and GLAZE, JJ., dissent.

NEWBERN, Justice, concurring.

The concurring opinion of Justice Turner expresses my views.I wish only to add that I cannot read our opinion in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488(1986), as holding anything other than that the rules of evidence are rules of practice and procedure and not substantive law.

We were concerned with whether Ricarte could assert a privilege contained in one of the rules of evidence adopted, illegally as it turned out, by the general assembly.He asserted his wife could not testify against him because of the so-called "husband-wife privilege."The state responded that under Uniform Rules of Evidence504(b), she could testify because the rule specified that only "confidential" communications were privileged.Ricarte objected to the state's reliance on the rule because its adoption by the general assembly had occurred in an unconstitutional manner.The trial court overruled the objection and allowed the wife to testify.We reversed.

We agreed with Ricarte that the rules had not been properly adopted by the general assembly.We explained our reasons for exercising our authority to make rules, noting the chaos which might ensue if we were simply to hold the statutory version invalid without replacing it.Although we gave that explanation, we said nothing about the adoption being a stop-gap or temporary.Here is what we said about our authority:

For more than fifty years there has been a steady trend in favor of committing to the courts the regulations of practice and procedure.Dean Wigmore took a strong stand in the matter as early as 1928.Editorial, 23 Ill.L.Rev. 276.Many others agreed.In 1940 the American Bar Association chose as the subject for its annual Ross essay contest: "To What Extent May Courts under the Rule-Making Power Prescribe Rules of Evidence?" the winning essay by Prof. Thomas F. Green, Jr., argued persuasively that all rules of evidence are properly subject to the courts' rule-making power.26 A.B.A.J. 482(1940).Other pertinent articles include another Ross essay submitted by Charles A. Riedly, 26 A.B.A.J. 601(1940); Morgan, "Rules of Evidence--Substantive or Procedural?,"10 VanderbiltL.Rev. 467(1957); and Joiner and Miller, "Rules of Practice and Procedure: A study of Judicial Rule Making,"55 Mich.L.Rev. 623(19...