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2014-SC-000403-MR
REGINA D. WHITE APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2014-CA-000824
JEFFERSON CIRCUIT COURT NO. 12-CR-03891
HON. BARRY WILLETT, JUDGE, APPELLEE
JEFFERSON CIRCUIT COURT
AND
DOMINIQUE GRIER REAL PARTIES IN INTEREST
AND COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
REVERSING AND REMANDING
On December 20, 2012, the Jefferson County grand jury indicted
Appellant Regina D. White and Dominique Grier, aka "Pac Man," a real party in
interest, with murder, first-degree burglary, first degree robbery, and tampering
with physical evidence. All charges were premised on a complicity theory. On
September 16, 2013, Appellant pled guilty to robbery, burglary, and tampering
with physical evidence in exchange for a recommended sentence of ten years'
imprisonment. Pursuant to that agreement, Appellant agreed to testify
truthfully and cooperate in the prosecution of Grier. During the plea colloquy,
Appellant testified that she had been treated fdr various mental illnesses and
drug addictions. She identified one provider as Seven Counties Services
("Seven Counties"). No competency examination was ordered. The court
accepted her plea and immediately sentenced her in accord with that
agreement.
On September 17, 2013, co-defendant Grier filed a motion for an in
camera review of Appellant's psychotherapy records from all previous mental
health providers. The prosecutor and Greir's attorneys were present at a
hearing on that motion. No one appeared on behalf of Appellant. Grier argued
that Appellant's mental health records were relevant as to the Appellant's
credibility. The trial court expressed reservation concerning its authority to
issue such a broad order.
Only two specific institutions had ever been identified as possibly having
exculpatory records—Seven Counties and Phoenix Health Services ("Phoenix"). 1
Nevrthls,inaodeOctbr31,20heoudrta:
Counsel for defendant Regina White shall inquire of Ms. White and
provide the Court with the names and addresses of every
physician, psychiatrist, psychologist, counselor and/or mental
health professional that has provided mental health services to Ms.
White since January 1, 2000. (Emphasis added).
Appellant filed a motion to set aside that order. Prior to the hearing on that
motion, the court—in separate orders—directed that Seven Counties and
Phoenix produce for in camera review, any records concerning Appellant's
treatment.
1 The factual basis underlying the order directing disclosure of the Phoenix
records is unclear.
2
Therefore, there were three discovery orders outstanding. One required
Appellant's counsel to inquire of his client the names and addresses of all
mental health providers over the past fourteen years. Counsel was to produce
such information to the court. The other two discovery orders were directed at
Seven Counties and Phoenix.
In an order dated April 16, 2014, the court denied Appellant's motion to
set aside the October 31, 2013, order. Instead, the court amended that order,
thereby requiring Appellant's counsel to immediately disclose, directly to
Grier's counsel, the information set forth in the October 2013 order. The
orders relating to Seven Counties and Phoenix were never challenged.
However, on May 22, 2014, Appellant petitioned the Court of Appeals for
a writ to preclude the circuit court from enforcing the October 31, 2013 and
April 16, 2014, discovery orders. To reiterate, these two orders collectively
directed the Appellant's counsel to disclose to Grier's attorney the "names and
addresses of every physician, psychiatrist, psychologist, counselor and/or
mental health professional that has provided mental health services to Ms.
White since January 1, 2000." The Court of Appeals denied Appellant's
petition and she appealed to this Court. Having reviewed the facts and the law,
we reverse the Court of Appeals.
Analysis
An appellate court has discretion to grant a writ where a trial court is
proceeding within its jurisdiction upon a showing that the court is (1) acting or
is about to act erroneously, (2) there exists no adequate remedy by appeal or
otherwise, and (3) great injustice and irreparable injury will result if the
petition is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We
review the Court of Appeals' determination under an abuse of discretion
standard. Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky. 2007).
"[T]here will rarely be an adequate remedy on appeal if the alleged error
is an order that allows discovery." Grange Mutual Insurance Company v. Trude,
151 S.W.3d 803, 810 (Ky. 2004). Thus, we determine that there is no adequate
appeal or other avenue that would remedy the disclosure of Appellant's
psychotherapy records in this instance. Regarding the necessity of
demonstrating great injustice and irreparable injury, Commonwealth v.
Barroso, is controlling. 122 S.W.3d 554 (Ky. 2003). In Barroso, this Court held
that:
[i]f the psychotherapy records of a crucial prosecution witness
contain evidence probative of the witness's ability to recall,
comprehend, and accurately relate the subject matter of the
testimony, the defendant's right to compulsory process must
prevail over the witness's psychotherapist-patient privilege.
Id. at 563 (citing KRE 507).
We further determined that:
in camera review of a witness's psychotherapy records is
authorized only upon receipt of evidence sufficient to establish a
reasonable belief that the records contain exculpatory evidence.
Id. at 564.
In contrast to the procedure outlined in Barroso, the trial court in the present
case failed to articulate evidence sufficient to establish a reasonable belief that
Appellant's psychotherapy records contained exculpatory evidence. The court
4
made no findings whatsoever in the October 31, 2013 and April 16, 2014
orders.
Having reviewed the record, it is clear that the evidence revealing that
Appellant suffered mental infirmities came from Appellant herself, in response
to the trial court's inquiry into her mental faculties during the guilty plea
colloquy. See Boykin v. Alabama, 395 U.S. 238 (1969). During that
proceeding, Appellant further discussed her psychological history as a result of
additional questioning by her trial counsel. That evidence was sufficient to
establish a reasonable belief that Seven Counties possessed exculpatory
records because Appellant admitted to receiving treatment there. A record of
this evaluation and treatment could bring into question her credibility, and
thus be exculpatory for the defendant. That order is not before this Court.
However, the breadth of the trial court's October 2013 and April 2014
orders exceeded the bounds permitted by Barroso. A defendant's right to
compulsory process does not automatically extinguish the protections afforded
under KRE 507. As such, the proponent of the disclosure order bears the
initial burden of identifying specific records, or at least specific institutions or
medical professionals in possession of such records. The proponent must then
establish a reasonable belief that such records contain exculpatory
information. To the contrary, the blanket orders from October 2013 and April
2014 epitomize the type of court sanctioned fishing expedition that Barroso
cautioned against. Those records are nothing more than a shotgun blast of
5
discovery authorizing an overly broad invasion into Appellant's privacy. A
closer observation of the underlying issue in Barroso is instructive.
The issue in Barroso arose when the prosecutor provided defense counsel
with copies of records from Kosair Children's Hospital where the victim had
been treated shortly after she reported to the police that the defendant raped
and robbed her. Those records provided details concerning the victim's
previous treatment for depression, and "also contained a report reflecting that
[the victim] had been admitted to Baptist East Hospital for depression . . . ."
Barroso, 122 S.W.3d at 557. Defense counsel then requested that the trial
court review the Baptist East records for exculpatory information. This is
strikingly different than the present case, where the court compelled Appellant
to provide the names and addresses of all psychiatric professionals who have
treated her over the past fourteen years. Cases applying Barroso have observed
this distinction.
For example, in Commonwealth, Cabinet for Health and Family Services v.
Bartlett, we held that the trial court properly ordered discovery of KASPER
records, notwithstanding a statutory bar on their disclosure. 311 S.W.3d 224
(Ky. 2010). - In so holding, we affirmed the Court of Appeals' denial of the
petitioner's writ. Id. Unlike the present case, the proponent of the disclosure
order in Bartlett sought detailed and specific records that were known to be in
the possession of the Cabinet. We further stated that "a criminal defendant
has a right to raw data, too, should it be exculpatory." However, this does not
include the swath of information contested in the present case. Id. at 228.
6
There is another problem with the court's orders at issue here; they
directed the Appellant's lawyer to do something which the lawyer could only do
by obtaining the information from that lawyer's client. This is an inappropriate
intrusion into the attorney client privilege and writ worthy in and of itself. SCR
3.130 (1.6) and (1.9).
In sum, the trial court's authority to order the disclosure of
psychotherapy records under Barroso is directed at medical personnel and
institutions in possession of those records, not the testifying witness who's
treatment and psychiatric history may be the subject of those records, nor the
witness' current or former counsel.
Conclusion
For the foregoing reasons, the judgment of the Court of Appeals is hereby
reversed and this case is remanded to the trial court. The Appellant's petition
for writ before the Court of Appeals is granted and the trial court's October 31,
2013 and April 16, 2014 orders are vacated. The trial court's orders regarding
records from Seven Counties Services and Phoenix Health Services remain in
effect. Any further proceedings on this issue shall comport with the foregoing
analysis and Barroso.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel T. Goyette
James David Niehaus
Office of the Louisville Metro Public Defender
APPELLEE:
Hon. Barry Willett
Judge, Jefferson Circuit Court
COUNSEL FOR DOMINIQUE GRIER, REAL PARTY IN INTEREST:
Wayne McKinley Adams, Jr.
COUNSEL FOR COMMONWEALTH OF KENTUCKY, REAL PARTY IN
INTEREST:
Leland Taylor Hulbert, Jr.
Dorislee J. Gilbert