Trusky v. State
| Decision Date | 26 May 2000 |
| Docket Number | No. 98-298.,98-298. |
| Citation | 7 P.3d 5 |
| Parties | Wendy TRUSKY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Monique McBride, Assistant Appellate Counsel.
Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Barbara L. Boyer, Senior Assistant Attorney General.
Before LEHMAN, C.J.; THOMAS, MACY, and HILL, JJ.; and JOHN D. TROUGHTON2, D.J.
The primary issue presented in this case is whether the trial court erred when it ordered the defense to produce a licensed clinical social worker's notes for the prosecution. Appellant Wendy Trusky (Wendy) hired the social worker to perform a psycho-social evaluation for use in her defense. The social worker was expected to testify as an expert, if necessary, during Wendy's homicide trial. Wendy claims the notes were encompassed within the attorney-client privilege. The introduction of evidence of Wendy's consensual sexual conduct with a male friend after the death of her husband and improper information before the trial court at the time of sentencing are additional issues we must resolve.
We affirm.
Wendy presents the following issues for our review:
Wendy married Martin Trusky on October 16, 1976. The couple had four children, and, in 1993, the family moved from Pennsylvania to Wyoming where they purchased sixty-eight acres of land north of Glenrock. Wendy was a licensed practical nurse and began working at a nursing home in Casper. Because Martin was unable to read, he helped out with odd jobs, doing mostly mechanical work, but Wendy provided the family's main source of income.
Prior to their marriage and continuing throughout it, the couple had a history of domestic violence. Wendy testified that, on several occasions, she ended up in the hospital as a result of that violence. When she would return home late from work and shopping, Martin would throw the sacks of groceries or purchases on the ground to demonstrate his anger. He would stay in a rage for hours, break household items, and punch anyone he thought had crossed him, which included Wendy and their children. He also mentally abused Wendy and their children by killing the family pets, going so far as cooking their pet goat for dinner and informing them, after they had finished eating, that they had just eaten the goat. On one occasion, one of the children called the sheriff to stop Martin from beating Wendy. This did not stop the cycle of abuse. At times, to temper these fits of rage, Wendy put over-the-counter sleeping aids into her husband's dinner so that he would leave her and the children alone.
After leaving work on the afternoon of December 13, 1996, Wendy stopped at the grocery store and was late returning home. Martin threw the bags of groceries on the ground, and the couple "scuffled." Martin punched Wendy in the lip and grabbed her throat. On December 15, 1996, Wendy took one of the children to work with her, and, after she finished working, they stopped at Wal-Mart on the way out of town, arriving home in Glenrock about five o'clock in the afternoon. Wendy and Martin had another scuffle, and Martin struck Wendy. Wendy proceeded to make dinner, putting a sleeping aid in Martin's food. While Martin was in the bathroom, Wendy asked one of the children to bring her one bullet. She loaded the rifle and placed it beside the couch. After dinner, the family watched movies. The children went to bed when the movies were over, and Martin and Wendy discussed their failed marriage and his plans to return to Pennsylvania.
Wendy shot Martin sometime during the morning of December 16, 1996, after the children had gone to school. Wendy and the prosecution presented differing versions of how the shooting took place. According to Wendy, she shot Martin during an altercation. The prosecution maintained that she shot him while he was sleeping. Regardless of this discrepancy, the parties do not dispute that Wendy shot a bullet straight into the back of Martin's head. Thereafter, Wendy wrapped the body in a quilt, dragged it outside, and buried it under a pile of tires and car parts.
Wendy began to manufacture different stories regarding Martin's whereabouts. She told the children he had returned to Pennsylvania but told Martin's niece he had run off with another woman. Wendy told a law enforcement officer who was investigating a missing person's report for Martin that she did not know where he was but she suspected he had broken into her apartment. She even filed a police report regarding the alleged break-in. There were other versions regarding his absence that circulated, which included that she had taken Martin to the bus station so he could return to Pennsylvania and that he was working on a ranch.
After receiving no contact from or information about Martin, his family hired a private investigator. Law enforcement officers entered the Glenrock property with a search warrant to search the premises for any sign of Martin. They ultimately found his body wrapped in a quilt and buried under a pile of tires behind the house.
On October 1, 1997, the county attorney filed an information charging Wendy with first-degree murder of Martin. Wendy was arrested on October 4, 1997. She pleaded not guilty, using battered woman syndrome as an element of her self-defense claim.3 The jury returned a guilty verdict on the lesser-included offense of second-degree murder. The trial court sentenced Wendy to a prison term of not less than twenty-five years nor more than forty years. Wendy received credit for the 321 days she served in jail prior to sentencing. The notice of appeal was timely filed.
Wendy claims that the trial court improperly invaded the attorney-client privilege and violated her constitutional right to counsel when it required her to produce notes for the prosecution that had been taken by a licensed clinical social worker during a psycho-social evaluation of her. She also maintains that the trial court improperly expanded the discovery rules set out in W.R.Cr.P. 16(b)(1)(B) and W.R.Cr.P. 26.2(a) when it required her to give the notes to the prosecution. We are not persuaded by Wendy's arguments.
The defense hired the social worker to perform a psycho-social evaluation of Wendy. The prosecution filed a motion to compel discovery in March of 1998. Included in the motion was a request for "test questionnaires, notes of interviews, notes and reports of statements made, and other materials made or generated by [the social worker] or Psychotherapy Services" during Wendy's examination or evaluation for battered woman syndrome. Pursuant to W.R.Cr.P. 26.2, the prosecutor also requested "all notes and records to be referred to by any psychological, psychiatric, or other such person[s] who participated in the examination process of Wendy Trusky."
Wendy claims that the social worker was acting as an agent for the defense and the social worker's communications with her were, therefore, protected by the attorney-client privilege. She also maintains that the Wyoming Rules of Evidence and Rules of Professional Conduct for Attorneys at Law mandate that individuals retained by counsel must keep information, which the client discloses to them, confidential. Wendy claims that, by requiring the social worker to disclose the notes of their discussions, the trial court intruded so substantially into the province of the attorney-client privilege that it violated both the Sixth Amendment to the United States Constitution and Article 1, Sections 6 and 10 of the Wyoming Constitution.
United States v. Irwin, 612 F.2d 1182, 1186-87 (9th Cir.1980).
We have not previously addressed whether the attorney-client privilege protects conversations between a defendant and a mental health professional hired by the defense when a defendant places her mental capacity at issue. We, therefore, turn to other jurisdictions for guidance on this issue. The Washington Supreme Court summarized the holdings of courts from several jurisdictions in State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338, 342 (1990) (en banc). Some courts hold that, when a defendant asserts an insanity defense, the privilege applies. 800 P.2d at 342. Others hold that the privilege is waived or does not apply. Id. We believe the cases which allow production of the information for the prosecution are better reasoned.
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