State v. Thompson
| Decision Date | 04 November 1997 |
| Docket Number | No. 24744,24744 |
| Citation | 329 S.C. 72,495 S.E.2d 437 |
| Court | South Carolina Supreme Court |
| Parties | STATE of South Carolina, Respondent v. Gary Reece THOMPSON, Jr., Petitioner. . Heard |
Robert C. Childs, III, of Mitchell, Bouton, Duggan, Yokel & Childs, Greenville, for petitioner.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor Joseph J. Watson, Greenville, for respondent.
Petitioner Gary Reece Thompson, Jr. was convicted of criminal sexual conduct in the first degree and sentenced to thirty years in prison. On appeal, Thompson challenges the trial court's ruling allowing the prosecution to use, for impeachment purposes, statements Thompson made to a psychiatrist in the course of plea negotiations. In an unpublished opinion, the Court of Appeals affirmed the trial court's ruling. State v. Thompson, Op. No. 96-UP-132 (S.C.Ct.App. filed April 30, 1996). We reverse and remand.
Gary Reece Thompson, Jr. was indicted for criminal sexual conduct and assault with intent to commit criminal sexual conduct with a minor in the first degree. The indictment alleged that between January 22, 1993 and May 1, 1993, Thompson committed or assaulted with the intent to commit sexual battery on a six year old female.
Prior to trial, Thompson was represented by Bill Godfrey ("Attorney"). On the advice of Attorney, Thompson retained the services of Dr. Karl Bodtorf ("Psychiatrist"). Attorney contacted the solicitor and explained that he wanted to have Psychiatrist evaluate Thompson to determine whether Thompson would be eligible for Psychiatrist's sex offender treatment program. Attorney intended to use Psychiatrist's recommendation to negotiate a plea agreement with the State. The solicitor did not object to the evaluation, but refused to commit to making any sentencing recommendation to the court. Thompson understood the purpose of the evaluation was to pursue a plea agreement with the solicitor. During the course of the psychiatric interview, Thompson made several admissions, which Psychiatrist recorded in his report. Attorney subsequently provided a copy of Psychiatrist's report to the solicitor.
At trial, the solicitor subpoenaed Psychiatrist to testify concerning Thompson's statements. Thompson objected and argued the statements were protected by the attorney-client privilege. The trial judge ruled that the prosecution could not use Psychiatrist's testimony in its case-in-chief, but could use it to impeach Thompson if he testified at trial. Thompson did not testify before the jury, but did proffer in camera testimony concerning his statements to Psychiatrist.
Thompson was found guilty of criminal sexual conduct in the first degree and sentenced to thirty years in prison. He appealed his conviction and sentence. Before the Court of Appeals, Thompson argued, inter alia, that the trial judge erred in making a preliminary ruling allowing the prosecution to use privileged information to impeach him if he testified at trial. Thompson further argued that the ruling effectively prevented him from testifying at trial. The Court of Appeals held that Thompson waived his attorney-client privilege with Psychiatrist. State v. Thompson, Op. No. 96-UP-132 (S.C.Ct.App. filed April 30, 1996).
We granted Thompson's petition for a writ of certiorari to consider the following issue:
Did the Court of Appeals err in finding Thompson waived his attorney-client privilege?
In State v. Hitopoulus, 279 S.C. 549, 309 S.E.2d 747 (1983), we held that the attorney-client privilege extends to communications between the client and a psychiatrist retained to aid in the preparation of a case. In Hitopoulus, we adopted the balancing test enunciated in United States ex. rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976). Under this test, a court, in determining whether the attorney-client privilege extends to communications between a client and a non-lawyer, must balance two factors: (1) the need of the attorney for the assistance of the non-lawyer to effectively represent his client, and (2) the increased potential for inaccuracy in the search for truth as the trier of fact is The State argues that the attorney-client privilege does not extend to Thompson's communications with Psychiatrist because Thompson could not have expected the information to be confidential as it was made in contemplation of publication to the State for plea negotiations. We disagree. Psychiatrist interviewed Thompson privately, and elicited remarks in order to diagnose Thompson's mental condition. Psychiatrist's ability to make an accurate recommendation hinged on Thompson's willingness to talk freely. This sort of uninhibited dialogue is predicated on an implied promise of confidentiality. See United States ex. rel. Edney v. Smith, 425 F.Supp. at 1043. Without confidentiality, accurate diagnosis is compromised. See id. ("Confidentiality is a sine qua non for successful psychiatric treatment."). We therefore begin with the presumption that Thompson expected his statements to be confidential. The fact that Thompson knew Attorney intended to use Psychiatrist's recommendation to negotiate a plea agreement with the State does not overcome this presumption. It is more reasonable that Thompson expected Attorney would make a recommendation without revealing his actual statements.
deprived of valuable witnesses. However, before reaching this test, a court must ascertain whether the communication is confidential in nature. State v. Smith, 286 S.C. 406, 334 S.E.2d 277 (1985).
The State next argues that the attorney-client privilege does not extend to Thompson's communications because Psychiatrist was not hired by Thompson in an effort to prepare a legal defense. In support of its argument, the State cites State v. Smith. In Smith, the prosecution called the defendant's psychologist to rebut expert testimony concerning insanity. The defendant argued that the State's actions violated his attorney-client privilege. We disagreed and held that the rule in Hitopoulus was inapplicable because there was no evidence that the defendant's psychologist...
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...between a client and a psychiatrist retained to aid in the preparation of the client's case. As articulated in State v. Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998): [I]n determining whether the attorney-client privilege extends to communications between a client and a non-lawyer, [a court]......
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