State v. Fay
State v. Fay
Opinion
**744
In
State
v.
Esposito
,
The following facts that the jury could have found, as well as the following procedural history, are relevant to our resolution of this appeal. On July 8, 2010, while at their shared apartment, the defendant shot the victim twice with the victim's own handgun, causing injuries to which he later succumbed. At trial, the defendant did not deny shooting the victim but claimed that he acted in self-defense. 4 The defendant sought to bolster his self-defense claim by presenting evidence of the victim's underlying psychological state at the time of the shooting. He testified that the victim had a history of drinking and depression, both of which had worsened in recent months following the death of the victim's dog. According to the defendant, these bouts of drinking and depression had led to other violent encounters between them. The defendant also testified that the victim had been receiving treatment from a psychiatrist. In reliance on this evidence, the defendant filed several motions seeking records, as well as the testimony of the victim's treating psychiatrist, concerning any diagnoses or prescriptions that the victim had received relating to aggressive behavior, as well as the possible effects of any prescription medications on the victim's temperament at the time of the shooting. 5 These motions are the subject of the current appeal.
**748 On February 1, 2013, the trial court held a hearing to address the defendant's motions. At the hearing, the court expressed concern that it did not have sufficient medical expertise to review the victim's records in camera to determine whether the information contained therein was exculpatory. Nonetheless, the court granted the motions and directed the defendant to subpoena the victim's psychiatric records to the clerk of the court, promising to review the records prior to trial in anticipation of a subsequent motion to allow an expert to present testimony pertaining thereto. By the time jury selection commenced on March 21, 2013, the records had been produced to the clerk, but the court indicated that it was awaiting a motion by the defendant for the admission of the privileged records before reviewing them. 6
Shortly before the commencement of the evidentiary portion of the trial, the defendant filed a motion for an evidentiary hearing to present the testimony of the victim's psychiatrist, and, the next day, the court conducted a hearing on the defendant's request. At the hearing, the defendant argued that his right of confrontation under the sixth amendment to the United States constitution outweighed any privilege that *903 might exist with respect to the victim's psychiatric records, pointing out that the policies safeguarding the psychiatrist-patient privilege are less compelling when the patient is deceased. The state maintained that the right of confrontation was not implicated when, as in the present case, the patient was deceased and, therefore, would not be testifying. The state further argued that, without a waiver of the privilege by the victim's authorized representative, the psychiatrist-patient privilege barred **749 even the court from reviewing the documents in camera. Although several bottles of medication prescribed for the victim were found at the victim's home, the state argued that information about the victim's prescription medication usage, without testimony from his psychiatrist or corroboration from his psychiatric records, would be either irrelevant or inadmissible as propensity evidence. 7
Reconsidering its prior ruling, the trial court agreed with the state in concluding that "evidence relating to communications and records concerning the diagnosis or treatment of a patient's mental condition" was privileged by statute and did not fall under any applicable statutory exception. The trial court further concluded that it lacked the authority to create an extrastatutory exception to the statutory psychiatrist-patient privilege, relying, inter alia, on
State
v.
Kemah
,
For the first time on appeal, the defendant claims that the trial court violated his sixth amendment right to present a defense and to compulsory process by refusing to examine the victim's psychiatric records or to consider testimony by the victim's psychiatrist in camera. 8 The defendant contends that, contrary to the determination of the trial court, the psychiatrist-patient privilege is not so unyielding that psychiatric records cannot be disclosed in the interest of justice-initially, to the court only, for in camera inspection-when, as here, the psychiatric records of a homicide victim are alleged to be *904 relevant to the accused's claim of self-defense.
The state argues that the defendant's constitutional claims are unpreserved and that the record is inadequate for review under Golding . We agree with the state that the defendant's claims are unpreserved because he relies on different constitutional provisions in this court than he did in the trial court. Nevertheless, as we discuss more fully herein, because his claim is of constitutional magnitude, he nevertheless is entitled to review under Golding if the record is adequate for such review. We agree with the state that it is not. Because, however, the issue of reviewability turns on our assessment of the relationship between the victim's privilege and the defendant's constitutional right to present a defense, we first address the question of whether, and, if so, when, a defendant in a homicide case is entitled **751 to an in camera review of the victim's psychiatric records. 9 For the reasons set forth herein, we conclude that a trial court, in certain circumstances, may be constitutionally required to review in camera the privileged psychiatric records of a homicide victim to determine whether information contained therein supports a claim of self-defense. Mindful of the important policies underlying this state's statutory psychiatrist-patient privilege, however, we further conclude that, before a court may undertake such an in camera review, the accused first must demonstrate a compelling need for the privileged records, a showing predicated on the relevance of the records to the claim of self-defense, the potential significance of the records in establishing that defense, and the unavailability of alternative sources of similar information.
The psychiatrist-patient privilege, which is codified at § 52-146e (a), prohibits the disclosure of any communications and records that identify a person who has communicated with a psychiatrist for the purpose of diagnosis or treatment without the express prior consent of the patient or his authorized representative.
10
The privilege applies to "all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist ...." General Statutes § 52-146d (2). In general, we have interpreted the privilege broadly and its exceptions narrowly. See
**752
Falco
v.
Institute of Living
,
In
Esposito
, the defendant, Andrew Esposito, who was accused of sexual assault and kidnapping; id., at 167,
Subsequent to our decision in
Esposito
, we considered similar claims involving the right of access to privileged records for the purpose of determining whether they contained material relevant to the impeachment of testifying witnesses. See, e.g.,
State
v.
Slimskey
,
**754
The conflicting interests in the present case are substantial. That the victim
*906
held a broad statutory privilege is clear; but so, too, is our recognition that an accused must be guaranteed "a meaningful opportunity to present a complete defense."
12
(Internal quotation marks
**755
omitted.)
State
v.
Cerreta
,
Evidentiary privileges, unlike most other evidentiary rules,
13
were not
*907
conceived to advance the accuracy and reliability of the privileged materials but, rather,
**756
to safeguard certain desirable societal values.
Falco
v.
Institute of Living
, supra,
Against the important public policy interests recognized by the court in
Jaffee
stand the liberty interests
**757
of a criminal defendant and the societal interest in a fair adjudication of criminal causes. In weighing these interests, the views of other courts have been decidedly mixed.
14
Some courts have found mental health privileges virtually impenetrable. See, e.g.,
In re Crisis Connection, Inc.
,
Only a very few cases, however, have addressed the precise issue presented by this appeal: whether an accused has a right to have the privileged mental health records of a homicide victim examined in connection
**758
with a self-defense claim.
15
In
United States
v.
Hansen
,
We, too, are persuaded that, in certain exceptional circumstances, the interests of an accused must prevail over a homicide victim's psychiatrist-patient privilege.
**760
More specifically, when the accused's right to present a claim of self-defense is materially impeded by the deceased victim's psychiatrist-patient privilege, it is no less important that we seek to vindicate that right than it is in our confrontation clause cases, such as
State
v.
Esposito , supra,
We reach this conclusion for a number of reasons. First, we agree with the court in
Hansen
that the balance of equities in criminal cases involving the psychiatrist-patient privilege of a homicide victim is significantly different than in civil cases like
Jaffee
. The interests of society and the accused in enabling the accused to present evidence material to his defense, thereby safeguarding the accused's right to a fair adjudication of guilt and innocence, reach their zenith in a murder prosecution. See
Ake
v.
Oklahoma
,
We now turn to the nature of the preliminary showing required to trigger an in camera review. In
Esposito
, we determined that before an in camera review of psychiatric records is conducted, "there must be a showing that there is
reasonable ground to believe that the failure to produce the information is likely to impair
**762
the defendant's right of confrontation
such that the witness' direct testimony should be stricken." (Emphasis added.)
State
v.
Esposito , supra,
In light of the intrusiveness of this procedure relative to the consent-driven approach to disclosure established
**763
by
Esposito
, we believe that a defendant must demonstrate a compelling need for the court to undertake an in camera review of a deceased victim's privileged psychiatric records. In assessing the defendant's need, courts should consider, among any other relevant considerations, the centrality of the privileged materials to the defendant's claim of self-defense, the potential significance of those materials in establishing the defense, and the unavailability of less intrusive sources for the same information. See, e.g.,
State
v.
Saunders
,
We turn now to the state's claim that the defendant's constitutional claims were not adequately preserved at trial and that the defendant is not entitled to review under Golding because the record is inadequate for such review. We agree with the state's contention. 22
**766
*913
Generally, this court is not required to consider a claim "unless it was distinctly raised at the trial or arose subsequent to the trial." Practice Book § 60-5. A claim must be "so stated as to bring to the attention of the court the
precise
matter on which its decision is being asked." (Emphasis in original; internal quotation marks omitted.)
State
v.
Carter
,
**767
When reviewing claims under
Golding
, "we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim." Id., at 240,
We agree with the state that the defendant's claims in the present case are unreviewable for similar reasons. Here, the alleged constitutional violations are based on the trial court's refusal to review the *914 victim's psychiatric records in camera. The defendant contends that such a review may have revealed a psychiatric diagnosis relating to aggressive behavior, and also would have enabled the defendant to present testimony about the potential effects of certain prescription medications on the victim's behavior. We have concluded, however, **768 that, before the trial court is required to undertake an in camera review of a homicide victim's psychiatric records, the defendant must show that a compelling need exists for such review. The defendant in the present case has failed to do so.
Although it is certainly possible that a psychiatric disorder involving aggressive behavior would be relevant to the defendant's claim of self-defense, in this case, the defendant presented insufficient evidence that the victim suffered from such a condition, and, therefore, his evidence was insufficient to demonstrate that the victim's psychiatric records were necessary to his defense. Although the defendant testified that the victim suffered from depression and attended psychiatric counseling, the mere existence of a mental condition, without any showing of relevance, will not suffice to justify intrusion into the victim's privileged medical records.
23
Cf.
State
v.
Joyner
,
Because the defendant provided no other evidence demonstrating that the victim's psychiatric records were necessary to his defense, he cannot make the required preliminary showing, without improperly supplementing **772 the record on appeal, that he was entitled to an in camera review of those records. Accordingly, the defendant is not entitled to review of his unpreserved claim that the trial court's failure to conduct an in camera review of the records deprived him of his right to present a defense.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 52-146d provides in relevant part: "As used in sections 52-146d to 52-146i, inclusive:
"(1) 'Authorized representative' means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-146i, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the patient, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient's nearest relative;
"(2) 'Communications and records' means all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist, or between a member of the patient's family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;
"(3) 'Consent' means consent given in writing by the patient or his authorized representative;
* * *
"(6) 'Patient' means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;
"(7) 'Psychiatrist' means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified."
General Statutes § 52-146e provides: "(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
"(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
"(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal."
The records sought were not covered by any exception to the psychiatrist-patient privilege. Those exceptions are set forth in General Statutes § 52-146f, which provides in relevant part: "Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited:
"(1) Communications or records may be disclosed to other persons engaged in the diagnosis or treatment of the patient or may be transmitted to another mental health facility to which the patient is admitted for diagnosis or treatment if the psychiatrist in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment. ...
"(2) Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification ....
"(3) ... the name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. ...
"(4) Communications made to or records made by a psychiatrist in the course of a psychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the Probate Court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings ....
"(5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient's death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.
"(6) Communications or records may be disclosed to (A) the Commissioner of Public Health in connection with any inspection, investigation or examination of an institution ... or (B) the Commissioner of Mental Health and Addiction Services in connection with any inspection, investigation or examination authorized ....
"(7) Communications or records may be disclosed to a member of the immediate family or legal representative of the victim of a homicide committed by the patient where such patient has, on or after July 1, 1989, been found not guilty of such offense by reason of mental disease or defect ... provided ... such communications shall only be available during the pendency of, and for use in, a civil action relating to such person found not guilty ....
"(8) If a provider of behavioral health services that contracts with the Department of Mental Health and Addiction Services requests payment, the name and address of the person, a general description of the types of services provided, and the amount requested shall be disclosed to the department ...."
The state contested the defendant's claim of self-defense claiming, inter alia, that the evidence demonstrated that the defendant engaged in conduct after the shooting for the sole purpose of creating the impression of a struggle.
Two of the motions sought to compel production of psychiatric records from the Veterans Administration Hospital in West Haven for in camera inspection, and a third motion sought to compel testimony from the victim's treating psychiatrist.
Prior to trial, the defendant sought to have the victim's authorized representative waive the psychiatrist-patient privilege on behalf of the victim as permitted under §§ 52-146d (1) and 52-146e (a). The authorized representative, however, declined to waive the privilege on the victim's behalf.
On April 18, 2013, the state also filed a motion in limine seeking to preclude any expert testimony regarding the effects of medications found at the scene of the crime, arguing that those medications themselves were protected by the psychiatrist-patient privilege and that, in any case, such testimony would be speculative without evidence of ingestion by the victim. The court declined to issue a blanket ruling on the motion, however, preferring to address the issue, if it arose, in the specific context in which the defendant sought to introduce testimony or other evidence concerning the prescriptions.
In his brief, the defendant asserts that the court's ruling also implicates his right of confrontation. At oral argument, however, he conceded that his claim is predicated on the right to present a defense, to due process, and to compulsory process. We agree and, consequently, do not address the defendant's confrontation clause rights.
The defendant's claim that he has a constitutional right to in camera review of the victim's psychiatric records insofar as those records are material to his claim of self-defense gives rise to a pure question of law, over which our review is plenary. See
State
v.
Kemah , supra,
For purposes of this appeal, the parties do not contest the applicability of the statute to the victim's psychiatric records; nor do they claim error in the trial court's ruling that none of the statutory exceptions to the privilege applies.
In
State
v.
Santiago
,
The right to present a defense, though deeply rooted, rests on somewhat indeterminate grounds-at times, its existence has been attributed to the fourteenth amendment and, at times, to various clauses of the sixth amendment. See, e.g.,
Williams
v.
Lord
,
We have observed that "[a] defendant is ... bound by the rules of evidence in presenting a defense. ... Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes." (Internal quotation marks omitted.)
State
v.
Santana
,
See C. Fishman, "Defense Access to a Prosecution Witness's Psychotherapy or Counseling Records,"
This may be, in part, because a number of legislatures have created statutory exceptions to mental health privileges in such circumstances. See, e.g.,
Although some courts have interpreted
Jaffee
as a strict bar to the disclosure of privileged mental health records; see, e.g.,
United States
v.
Shrader
,
Some courts have also explicitly held that the accused's constitutional rights may prevail over the statutory privilege of a testifying witness, without requiring that the court give the witness the option to have her testimony stricken rather than divulge the privileged information. See, e.g.,
Commonwealth
v.
Barroso
,
Similarly, in breaching the executive privilege, the United States Supreme Court has observed that "[t]he interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution."
United States
v.
Nixon
,
In the circumstances of a criminal case, in which the public and the accused have a strong interest in ensuring that the accused receives a fair trial, we do not believe that our limited holding conflicts with the court's rejection in
Jaffe e
of a "balancing component" that would make "the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure ...."
Jaffee
v.
Redmond
,
See also
State
v.
Pierson
,
See also
Bobo
v.
State
,
We disagree with the state, however, insofar as it maintains that the defendant induced the error complained of on appeal by invoking only the right of confrontation at trial. See
State
v.
Cruz
,
The state also claims that the defendant induced any error by changing his request for relief. More specifically, the state maintains that, at trial, the defendant requested that the victim's psychiatrist be permitted to testify regarding the victim's mental health records, and that only on appeal did he request that the court review the privileged materials in camera. We think it is clear, however, that the trial court considered the issue of in camera review of the privileged records together with the issue of expert testimony. In fact, prior to reconsidering its decision at the hearing shortly before the commencement of evidence, the trial court granted the defendant's motion for an in camera review of the privileged records, and the state declared that the documents themselves were "the subject of the [evidentiary] hearing." In any event, both in camera review of privileged records and voir dire of mental health professionals concerning privileged unrecorded statements are rooted in the same concerns and both require the patient's consent. See
State
v.
Pierson
,
The defendant also testified that the victim's depression had become more pronounced in recent months and that he and the victim occasionally fought as a result. We acknowledge the possibility that such testimony might, in the absence of other available evidence about the victim's psychological condition, be sufficient to trigger an in camera review in the exercise of the trial court's discretion. Here, however, the failure to provide testimony regarding the effects of the victim's psychiatric medications, as explained hereinafter, renders the record inadequate to determine whether the defendant had a compelling need for the victim's psychological records or whether that need, if any, would have been met by expert testimony regarding the victim's medications.
The defendant asserts that his own testimony about the victim's increasing aggressiveness, coupled with testimony that the victim was being treated by a psychiatrist, satisfies the preliminary showing required for in camera review. See footnote 23 of this opinion. He does not assert that evidence that the victim was taking medication, by itself, provides a sufficient showing. Indeed, in his brief to this court, he acknowledges that, although the medications prescribed to the victim are known, "[t]he unknowns are numerous, including the reasons why the medication was prescribed, and the impact those medications would have had on [the victim's] behavior, particularly when mixed with alcohol and marijuana."
The transcript reveals the following exchange:
"[Defense Counsel]: Did you have occasion to accompany your brother for some of his visits to see [the psychiatrist]?
"[The Defendant]: Yes, I did.
"[Defense Counsel]: Now, did you ever see with your own eyes, okay, any of the medications that were prescribed by [the psychiatrist] for your brother?
"[The Defendant]: Yes.
"[Defense Counsel]: What were those medications?
"[The Defendant]: At first it was Prozac and Valium and then-that's what [a former psychiatrist] had him on for a long time, the whole time he saw her, and then [the psychiatrist] continued that for-I don't want to say a short period of time, but he changed it from those two to Risperdal and Librium.
"[Defense Counsel]: Okay. And these are medications to treat his depression?
"[The Defendant]: Correct.
"[The Prosecutor]: Objection. I don't know what the foundation is, what he's being treated for and for being hearsay.
"The Court: No. I'll allow that in. He said that he knew the prescription. I'll allow it in at this point."
Defense counsel reiterated and underscored this testimony during his closing argument to the jury.
The trial court reserved judgment on the state's motion in limine to preclude such testimony.
This is precisely the kind of information that the defendant attempts to convey on appeal through the use of materials from various Internet sources describing these medications. Such information, however, generally must be presented at trial, ordinarily via expert testimony. See
State
v.
Santos
,
Reference
- Full Case Name
- STATE of Connecticut v. William FAY
- Cited By
- 11 cases
- Status
- Published