Vaughn v. State
| Decision Date | 18 March 2020 |
| Docket Number | No. CR-19-591,CR-19-591 |
| Citation | 2020 Ark. App. 185,598 S.W.3d 549 |
| Parties | Tracy Will VAUGHN, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Senior Ass't Att'y Gen., for appellee.
This criminal appeal, with a state-law-privilege twist, concerns whether the State failed to provide material evidence to Vaughn's defense attorney in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady ’s essence is that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194.
A White County Circuit Court jury convicted Tracy Vaughn of sexually assaulting nine-year-old K.H. and sentenced him to five years’ imprisonment. The jury acquitted Vaughn on two counts of sexual indecency with a child, charges that involved K.H. and her friend, B.W. This appeal centers on counseling that K.H. received, the content of certain records, and whether Vaughn's counsel should have been allowed access to them.
K.H. received mental-health counseling before and after the events that led to the sexual-assault charges against Vaughn occurred. Vaughn argued in the circuit court that he should have been given access to K.H.’s counseling records because they likely contained evidence favorable to his defense. The court ultimately denied Vaughn access and did not perform a Brady analysis. The court reasoned that the counseling records were absolutely privileged under Arkansas Rule of Evidence 5011 and Ark. Code Ann. § 17-27-311 (Repl. 2018).2 Consequently, the circuit court rejected Vaughn's argument that he was entitled to potentially exculpatory evidence contained in K.H.’s mental-health records under Pennsylvania v. Ritchie , 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Ritchie is a post- Brady case that held a defendant has a due process right to require a state agency to disclose exculpatory or impeachment evidence that it possesses. Ritchie , 480 U.S. at 57, 107 S.Ct. 989. In this case, the circuit court ultimately ruled that
The court's decision was one of federal constitutional magnitude because, in this case, it was the prosecution who procured the counseling records as best we can tell. More specifically, the State appears to have provided the disputed counseling records to the court during a pretrial hearing after procuring them using subpoenas. (More on this later.) It also appears that neither K.H. (acting through a parent or guardian) nor her health providers raised any evidentiary privilege to block the prosecuting attorney from receiving confidential communications that occurred between K.H. and her counselor.
Vaughn argues to this court that the circuit court erred when it denied him access to the counseling records, which violated his federal and state constitutional rights. Vaughn seeks a new trial because, in his view, being kept in the dark about the counseling records’ content prejudiced him at trial.
Vaughn appears to have first learned about the counseling issue from an affidavit that the State attached to its initial criminal information. That affidavit recited that K.H. had "recently disclosed during her therapy session that Tracy [Vaughn] exposed his penis and made her touch it." (Emphasis added.) This revelation prompted Vaughn's counsel to move the court to compel the prosecuting attorney to disclose K.H.’s counseling (or mental-health) records pursuant to due process rights he claimed under the Fourteenth Amendment to the United States Constitution. See Brady , 373 U.S. 83, 83 S.Ct. 1194 ; United States v. Bagley , 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ; Ritchie , 480 U.S. 39, 107 S.Ct. 989 ; article 2, section 8 of the Arkansas Constitution ; Arkansas Rules of Criminal Procedure 17.1(a)(iv) and 17.4(a). In his motion, Vaughn argued that "the State has waived any privilege, or should be estopped from asserting it, inasmuch as the affidavit accompanying the felony information asserts that an accuser ‘recently disclosed in her therapy session that Tracy exposed his penis and made her touch it.’ " According to Vaughn, Arkansas's psychotherapist-patient privilege set forth in Johnson v. State , 342 Ark. 186, 27 S.W.3d 405 (2000), and Holland v. State , 2015 Ark. 341, 471 S.W.3d 179, does not apply because "the counseling would have been part of the investigative and prosecutorial process and not independent of it ... [and] those state law privileges must fall before due process guarantee set forth in Ritchie ." He therefore asked the circuit court to compel the State to disclose these records to him. Alternatively, he asked the court to review the records in camera and assess them for exculpatory or impeachment material.
The circuit court held a pretrial hearing on motions that included Vaughn's discovery motion. The prosecuting attorney arrived at the pretrial hearing with K.H.’s counseling records. The circuit court received them from the prosecutor and placed three exhibits under seal in three separately sealed envelopes. They are labeled court's exhibits Nos. 1, 2, and 3. The first exhibit contains the alleged Brady material that Vaughn says prejudiced his case when the prosecutor refused to disclose it. Court's exhibit No. 1 covers K.H.’s records that were generated by one counselor who treated K.H. from approximately January 2011 through January 2018 (Provider A).
Court's exhibit No. 2 contains the following: K.H.’s records from a second provider (Provider B) that were generated in 2018; a copy of a 10 May 2018 subpoena from the White County Prosecuting Attorney's Office to the "Keeper of the Records [of Provider B]"; and a fax transmittal sheet from Provider B to the prosecuting attorney.
Court's exhibit No. 3 consists of: B.W.’s July 2016 records from Provider C, which is an outpatient service provider, and a White County prosecutor subpoena demanding those records.
During the pretrial hearing, the prosecuting attorney argued that sealed exhibits 1, 2, and 3 should not be disclosed to defense counsel:
[Vaughn] acts as if these—both of these girls, the first time they ever go to treatment is after this case and they are sent there by the State. Both of them were in treatment with those same providers previously. Now, yes, they did go back after this happened, but they've not been ordered there by the State and we've not—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 that they [the victims] have not waived that privilege that allows them to get assistance that they need, other than if there is something exculpatory to the Defendant. (Emphasis added.)
The record is not clear on which provider's records, if any, the court asked the State to get, in what manner the court communicated its request, or when this occurred. Nor is it clear whether Vaughn's counsel was told that the court asked the State to get some of K.H.’s counseling records, if it in fact did so.
What we do know is that the prosecutor's office sent a subpoena demanding K.H.’s records to Provider B and a subpoena demanding B.W.’s records to Provider C. How the prosecutor procured Provider A's records (the ones at issue here) is unclear because the record does not contain a subpoena from the prosecutor's office as to that provider. We assume a third subpoena was used but cannot state that as a fact. No party below made a good record on how the records were procured from the various providers. And no party made a good record on whether K.H.’s parent(s) or legal guardian(s) were made aware of what was going on. There is no written authorization in the records from a person legally empowered to permit the State to get confidential health information. Nor, as we have said, is there anything in the record showing that the three separate care providers, or K.H. herself through a representative, attempted to resist the subpoenas for the same reasons the State now says that Vaughn was never entitled to receive them. No statutory authority was cited, or otherwise obviously invoked, for the disclosure of the confidential information.
Despite the unknowns, we know that defense counsel argued during the hearing that, among other things, he needed to know "whether they're telling the truth or not and that records of treatment would be the best evidence." He also argued that the recorded statement Vaughn gave to the police in 2016 contained statements by police officers "about whether the girls are going to have to go to therapy" and that "some of these [records] appear to be the records of the therapy that is referred to [in the police interview]." Vaughn asked to examine the records with the prosecutor "sitting right there so I can discuss particular issues more cogently ... and we can do this under seal."
The court ruled from the bench that the State did not send the girls to therapy "for investigative purposes" because the "first 118 pages" of the records "occurred in 2011 through ’14, before these allegations came to light in 2016[.]" Although it is clear enough that the court reviewed the records to some extent, it is not clear to what extent or to what depth, content-wise, the court did so. In the end, the court ruled from the bench that K.H.’s records were absolutely privileged under Arkansas law and therefore could not be disclosed to Vaughn under any circumstance.
In response to Vaughn's request for a more specific ruling, the court said this:
With respect to Ri[t]chie ,...
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