Vaughn v. State

• Decision Date: 08 October 2020
• Docket Number: No. CR-19-591,CR-19-591
• Citation: 2020 Ark. 313,608 S.W.3d 569
• Parties: Tracy Will VAUGHN, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

2020 Ark. 313

608 S.W.3d 569

Tracy Will VAUGHN, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-591

Supreme Court of Arkansas.

Opinion Delivered: October 8, 2020

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.

SHAWN A. WOMACK, Associate Justice

Tracy Will Vaughn was convicted of second-degree sexual assault and sentenced to sixty months' imprisonment. This appeal centers on his victim's therapy records. We hold that the records are protected from disclosure by the absolute psychotherapist-patient privilege in Arkansas Rule of Evidence 503. The conviction is affirmed.

I.

In February 2018, Vaughn was charged with sexually assaulting nine-year-old K.H. He was also charged with three counts of sexual indecency with a child, which involved K.H. and her friend, B.W. The White County Sheriff's Office initiated an investigation in June 2016 following a report from B.W.'s father. The girls were interviewed at the Child Safety Center in Searcy.¹ During the interview, B.W. stated that Vaughn made the girls touch each other inappropriately while they were nude in his pool. At that time, K.H. denied any sexual contact by Vaughn. When Vaughn was interviewed by police, he admitted that he touched K.H.'s genitals three times and that she had touched his penis once through clothing. Vaughn stated that K.H. had crawled on top of him in bed and "hunched" him. He also admitted to becoming aroused when K.H. danced "provocatively" near him.

The investigator's affidavit, attached to the criminal information, recounted the admissions from the June 2016 investigation. The affidavit noted that K.H. "recently disclosed during her therapy session that [Vaughn] exposed his penis and made her touch it [and] that she touched his penis multiple times while she was swimming in his pool." Citing the reference to K.H.'s therapy sessions, Vaughn moved for disclosure of her medical and counseling records on April 18, 2018. He asserted a right to the records under the state and federal constitutions. He also argued that the psychotherapist-patient privilege did not apply and had been waived or estopped by the prosecution. Citing Pennsylvania v. Ritchie , 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Vaughn sought to compel the State to disclose the records or, alternatively, requested the court to conduct an in camera review for exculpatory or impeachment material.

At a pretrial hearing on May 16, the circuit court stated the records would be submitted for an in camera review under Ritchie . The record is unclear on when or how this decision arose and whether the court ordered the prosecution to obtain the records. In any event, the State arrived at the hearing with K.H.'s therapy records spanning from 2011 through 2018. The first set of records were timestamped on May 15—the day before the hearing. The second set of records included a subpoena dated May 10. At Vaughn's request, the State was instructed to determine whether B.W. had any therapy records. Her records, dating before and after the alleged incident with Vaughn, were obtained a week later following a subpoena from the prosecutor.

At the next hearing, Vaughn argued the records were not privileged because the therapy was conducted at the insistence or sponsorship of the State. In response, the prosecutor informed the court that the girls had previously been treated by the same providers and returned to their therapists after the alleged incidents on their own accord. The prosecutor also stated that "up until the Court asked the State to get the records, we did not have access, we did not seek to admit those records[.] ... And we would argue [K.H. and B.W.] have not waived that privilege that allows them to get assistance that they need, other than if there is something exculpatory to the Defendant."

The court rejected the claim that the victims were sent to therapy for investigative purposes because many of the records were created years before the allegations against Vaughn arose. Ruling from the bench, the court held that the therapy records were absolutely privileged under Arkansas Rule of Evidence 501 and Arkansas Code Annotated § 17-27-311 (Repl. 2018).² It made no determination regarding the existence of any exculpatory material, but noted it read the records and tabbed significant pages for appellate review. The therapy records were entered into the record as sealed court exhibits. The jury subsequently convicted Vaughn of sexually assaulting K.H. in the second degree and sentenced him to sixty months' imprisonment. He was acquitted of two counts of sexual indecency; the third was dismissed on directed verdict.³

Vaughn's appeal was initially considered by the Arkansas Court of Appeals. See Vaughn v. State , 2020 Ark. App. 185, 598 S.W.3d 549. It determined that Arkansas privilege law did not absolutely shield the records in this case and that the circuit court should have conducted an in camera review for favorable evidence under Brady . The court of appeals nevertheless affirmed the conviction after reviewing the records and finding they did not satisfy Brady 's materiality requirement. This was not an in camera review. Instead, the court of appeals gave the parties full access to the sealed records prior to briefing. We cannot condone the court of appeals' troubling approach to the victims' records.⁴ As the Ritchie Court explained:

To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the [State's] compelling interest in protecting its child abuse information. If the [ ] records were made available to defendants, even through counsel , it could have a seriously adverse effect on [Arkansas's] efforts to uncover and treat abuse .... The [State's] purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result.

Ritchie , 480 U.S. at 60–61, 107 S.Ct. 989 (emphasis added).

We granted Vaughn's petition for review and now consider this appeal as though it was originally filed in this court. See Martin v. Smith , 2019 Ark. 232, at 2, 576 S.W.3d 32. A circuit court's ruling on the admissibility of evidence will be reviewed for abuse of discretion. See Vidos v. State , 367 Ark. 296, 304, 239 S.W.3d 467, 474 (2006). Questions involving the interpretation of law will be reviewed de novo. See Holt v. McCastlain , 357 Ark. 455, 460–61, 182 S.W.3d 112, 116 (2004).

II.

Vaughn alleges two overarching errors in the circuit court's determination that K.H.'s therapy records were protected from disclosure by the psychotherapist-patient privilege. He first contends the privilege was waived. Vaughn next argues that his constitutional rights of confrontation, compulsory process, and due process warrant provision of all confidential records for an in camera examination under Ritchie . The State objects to the waiver argument and insists that K.H. did not waive the privilege. We agree with the circuit court that the psychotherapist-patient privilege bars Vaughn's access to the records and reject the assertion that an in camera evaluation is required.

A.

All fifty states, the District of Columbia, and the United States Supreme Court have recognized some form of a psychotherapist-patient privilege. See Jaffee v. Redmond , 518 U.S. 1, 12, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). The policy behind the privilege is to encourage patients to communicate openly with their therapists and to prevent disclosure of the patient's infirmities. See State v. Sypult , 304 Ark. 5, 8, 800 S.W.2d 402, 403 (1990). Indeed, "[e]ffective psychotherapy ... depends upon an atmosphere of confidence and trust." Jaffee , 518 U.S. at 10, 116 S.Ct. 1923. The privilege serves the greater public interest by facilitating effective mental health care, which is "a public good of transcendent importance." Id. at 11, 116 S.Ct. 1923. In Arkansas, the privilege is provided in Arkansas Rule of Evidence 503(b) :

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

This privilege governs in both criminal and civil state court proceedings. See Holland v. State , 2015 Ark. 341, at 14, 471 S.W.3d 179, 188 ; Ark. R. Evid. 101. In addition to the evidentiary privilege, Arkansas statutes also provide that "confidential relations and communications" between a therapist and client "are placed upon the same basis as those between an attorney and a client." Ark. Code Ann. § 17-27-311(a) (counselors); Ark. Code Ann. § 17-97-105(a) (Repl. 2018) (psychologists).

The parties do not dispute that K.H.'s therapy records fall within the scope of Rule 503. Vaughn instead challenges whether the privilege was waived. The patient may of course waive the privilege by voluntarily disclosing or consenting to disclosure of any significant part of the privileged matter. See Ark. R. Evid. 510. But as the prosecution emphasized at the second pretrial hearing, K.H. did not waive the privilege. Vaughn nevertheless argues the privilege was waived by the affidavit's reference to details K.H. disclosed during therapy and by the child's testimony during cross-examination. In our view, the privilege was not waived by these acts.

Rule 503 gives the patient the privilege. See McKenzie v. Pierce , 2012 Ark. 190, at 7, 403 S.W.3d 565, 570 ; Ark. R. Evid. 503(b). In other words, the...