State v. Pelley

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steve Carter George E. Horn, Jr.
Attorney General of Indiana Jesse M. Barrett
Barnes & Thornburg
Jodi Kathryn Stein South Bend, Indiana
Indianapolis, Indiana

______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 71S03-0403-CR-134

STATE OF INDIANA,
Appellant (Plaintiff below),

v.

ROBERT JEFFREY PELLEY,
Appellee (Defendant below).
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Interlocutory Appeal from the St. Joseph Superior Court, No. 71D08-0208-MR-00016
The Honorable R.W. Chamblee, Jr., Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0305-CR-163
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June 14, 2005

Rucker, Justice.

Because of a statutorily created privilege, communication to a social worker from the
social worker’s client is protected from disclosure. But the privilege does not extend to
communication taking place before the statute was enacted.
 Facts and Procedural History

In 2002, Robert Jeffrey Pelley (“Pelley”) was charged with the April 29, 1989 slayings of
his father—Reverend Robert Pelley, stepmother—Dawn Pelley, and two minor stepsisters—
Janel Pelley and Jolene Pelley. From May 27, 1986 until April 27, 1989, two days before the
murders, Pelley, his father, and his stepmother received group and individual counseling from
the Family and Children’s Center (“Center”) located in South Bend. During the course of the
counseling sessions, Center compiled and maintained various records. They included: intake
records for Robert Pelley, Reverend Pelley and Dawn Pelley; progress notes from meetings with
Robert Pelley, Reverend Pelley and Dawn Pelley; a psychological evaluation of Robert Pelley;
and billing and payment records. The record is silent as to who compiled the intake, billing and
payment records. However, Mabel Davis, a social worker then employed by Center, authored
the progress notes. The psychological evaluation bears the signature of Jackson Turner, whose
status is not revealed by the record, and Dr. A. Joseph Schwab, a psychologist.

On August 22, 2002, the State served a subpoena duces tecum on Center requesting
“[a]ny and all counseling records from the . . . Pelley family from 1986 – 1989.” Appellant’s
App. at 30(a). Center responded with a motion to quash. At a hearing on the motion Center
argued that the records authored by Mabel Davis were protected by the counselor/client privilege
as codified in Indiana Code § 25-23.6-6-1; the psychological evaluation performed by Dr.
Schwab was protected by the psychologist/patient privilege as codified in Indiana Code § 25-33-
1-17; and none of the records fell within the “homicide exception” codified in both I.C. § 25-
23.6-6-1 and I.C. § 25-33-1-17. Following the hearing, and after conducting an in camera
inspection of the documents, the trial court granted Center’s motion and quashed the subpoena.

The State pursued an interlocutory appeal arguing: (i) the statute creating the
counselor/client privilege did not exist when the records were created and thus the statute does
not extend to communications made to Mabel Davis by members of the Pelley family; (ii) the
statute is not retroactive; and (iii) the requested documents may have come within the “homicide
exception” to both the counselor/client and the psychologist/patient privileges. On this latter
point, the State also complained that the trial court reviewed the documents in camera without

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affording the State the opportunity to review the documents for the purpose of determining
whether the homicide exception was applicable.

Affirming the trial court, a divided panel of the Court of Appeals determined that: (1)
although the statute conveying the counselor/client privilege did not exist at the time of the
counseling sessions, the date of disclosure is the determinative date for discovery requests
regarding privileges; (2) notwithstanding the foregoing determination, the statute applies
retroactively; and (3) the trial court did not abuse its discretion in reviewing the requested
documents in camera. State v. Pelley, 800 N.E.2d 630 (Ind. Ct. App. 2003). Having previously
granted transfer, we now affirm in part and reverse in part the judgment of the trial court.

Discussion

I. The Relevant Date: the Date of Communication or the Date of Disclosure.

Indiana Code section 25-23.6-6-1 provides in pertinent part:

Matters communicated to a counselor 1 in the counselor’s official
capacity by a client are privileged information and may not be
disclosed by the counselor to any person, except under the
following circumstances:

(1) In a criminal proceeding involving a homicide if the disclosure
relates directly to the fact or immediate circumstances of the
homicide.

This statute was enacted effective July 1, 1990. Center contends that because I.C. § 25-23.6-6-1
prohibits a counselor from disclosing communications, the critical time for determining the
applicability of the statute is when the communications are sought to be disclosed, not when the
communications are originally made. According to Center, because the communications made

1
Although referred to in the record as a “social worker,” Tr. at 23, Mabel Davis identified herself in the
contested documents as a “counselor.” The discrepancy is of no consequence here for at least two
reasons: (1) “social worker” is included in the definition of “counselor,” see I.C.§ 25-23.6-1-3.8, and (2)
the trial court specifically found that Mabel Davis “was a social worker within the meaning of I.C. 25-
23.6.6-1,” Appellant’s App. at 308-09, a finding that neither party challenges on appeal.

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by Pelley and members of his family were sought to be disclosed well after the statute was
enacted, the trial court correctly quashed the subpoena.

When construing a statute our main objective is to determine, give effect to, and
implement the intent of the legislature. Melrose v. Capitol City Motor Lodge, Inc., 705 N.E.2d
985, 989 (Ind. 1998). This jurisdiction generally recognizes that privileges are statutory in
nature and that it is within the power of the legislature to create them. Terre Haute Reg’l Hosp.,
Inc. v Trueblood, 600 N.E.2d. 1358, 1360 (Ind. 1992). Most privileges were unknown at
common law and, as a result, are to be strictly construed to limit their application. Id.

In Matter of C.P., 563 N.E.2d 1275 (Ind. 1990), this Court interpreted the then current
version of the statutorily created physician/patient privilege. 2 Noting that such a privilege did
not exist at common law and therefore the statute was to be strictly construed, we determined
among other things, “The privilege is intended to inspire full and complete communication by
patients so as to further trustful and successful treatment. [T]his Court has long recognized that
the privilege covers both physicians and those who aid physicians, other persons whose
intervention is strictly necessary to enable the parties to communicate with each other.” Id. at
1278 (emphasis added) (citation omitted); see also Ley v. Blose, 698 N.E.2d 381, 383-84 (Ind.
Ct. App. 1998) (“By safeguarding the confidentiality of communications, the physician-patient
privilege seeks to inspire full and complete disclosure of knowledge pertinent and necessary to a
trustful and proper relationship.”) (emphasis added) (internal quotation omitted). In essence we
have determined that the underlying purpose of the physician/patient privilege is to inspire full
and complete communication. If that purpose is to be served, then the participants in a
confidential conversation must be able to predict with some degree of certainty that the particular
communications will be protected.

By enacting I.C. § 25-23.6-6-1 the Legislature extended to counselors the same privilege
that exists for physicians. The intent and dominant purpose of the statute is to grant a privilege

2
The statute read in relevant part, “Except as otherwise provided by statute, the following persons shall
not be competent witness: . . . (3) [p]hysicians, as to matters communicated to them, as such, by patients,
in the course of their professional business, or advice given in such cases.” I.C. § 34-1-14-5(3)
(recodified as I.C. § 34-46-3-1 without substantial change).

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to protect confidential communication between a counselor and the counselor’s client. It is of
course true the counselor/client privilege speaks in terms of “disclosure” while the
physician/patient privilege does not. Still, the focus of both privileges is the same, namely,
protecting communication. Consequently, because the focus of the statute is on the underlying
communications and not, as Center contends, on the ultimate disclosure of the communications,
the statute only protects communications made after the effective date. To exclude
communications made prior to this date would be, in effect, to apply the statute retroactively.
That brings us to our next point.

II. The Retroactivity of Indiana Code section 25-23.6-6-1

The general rule of statutory construction is that unless there are strong and compelling
reasons, statutes will not be applied retroactively. Martin v. State, 774 N.E.2d 43, 44 (Ind.
2002). Statutes are to be given prospective effect only, unless the legislature unequivocally and
unambiguously intended retrospective effect as well. Bd. of Dental Examiners v. Judd, 554
N.E.2d 829, 832 (Ind. Ct. App. 1990). There is an exception to this general rule for remedial
statutes, that is, statutes intended to cure a defect or mischief that existed in a prior statute.
Bourbon Mini-Mart, Inc. v. Gast Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind. 2003) (citing
Martin, 774 N.E.2d at 44). Relying on our statement in Bourbon and Martin that “remedial
statutes will be applied retroactively to carry out their legislative purpose unless to do so
violates a vested or constitutional guaranty,” (emphasis added), Center argues that I.C.§ 25-
23.6-6-1 was enacted to cure a defect in the physician/patient privilege statute and thus it is
remedial and applies retroactively to bar disclosure of communications between Center’s
counselor and the Pelley family.

We first observe that it is not at all clear to us that the counselor/client privilege statute is
remedial. It is true the statute was enacted following the Court of Appeals’ decision in Matter
of C.P., 543 N.E.2d 410 (Ind. Ct. App. 1989), aff’d in part, 563 N.E.2d 1275 (Ind. 1990), which
held that the physician/patient privilege did not protect communications between a counselor
and a client. However, it is equally true, as the State points out, that the statute was enacted as
part of a much broader scheme to regulate social workers as professionals. Public Law 186-

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1990 created Article 23.6, “Marriage and Family Therapists.” This article created a
credentialing board for social workers and marriage family therapists, and addressed
certification, examinations, unlawful practices, privileged communications, and mandatory
disclosures. See I.C. § 25-23.6. It is reasonably plausible that by creating Article 23.6 under
Title 25, the Legislature intended to recognize social workers as mental health professionals
who were afforded state recognition and subject to state regulation, much the same as
psychologists under Title 25, Article 33. We have no legislative history to inform us either
way.

In any event, even assuming the counselor/client privilege statute is remedial, Center’s
retroactivity argument still fails. Despite language in Bourbon and Martin suggesting otherwise,
not all remedial statutes are automatically applied retroactively. It has long been the law in this
jurisdiction that although statutes and rules concerning procedural and remedial matters may be
made to operate retroactively, it is not the case that they must apply retroactively. State ex rel.
Uzelac v. Lake Crim. Ct., 247 Ind. 87, 212 N.E.2d 21, 24 (1965). As we held in Gosnell v.
Indiana Soft Water Service, Inc.:

Unless there are strong and compelling reasons, statutes will
normally be given prospective application. While statutes
addressing merely procedural and remedial matters may be applied
retroactively, such application is not required.

* * *

Even under [the] argument that the statute is merely procedural or
remedial, retroactive application is the exception, and such laws
are normally to be applied prospectively absent strong and
compelling reasons.

503 N.E.2d 879, 880 (Ind. 1987) (emphasis added) (citations omitted).

Like the physician/patient privilege, the statutorily created counselor/client privilege is
also in derogation of common law. So it too must be strictly construed. Trueblood, 600 N.E.2d
at 1360. For this reason, and because laws creating privileges “prohibit the ascertainment of

6
truth in many controversies,” courts do not extend the scope of the privilege by implication.
Matter of C.P., 563 N.E.2d at 1277 (discussing the physician/patient privilege). This approach is
consistent with the U.S. Supreme Court’s rule that privileges “are not lightly created nor
expansively construed, for they are in derogation of the search for truth.” Id. (citing United
States v. Nixon, 418 U.S. 683, 710 (1974)). In this case, even assuming I.C. § 25-23.6-6-1 is
remedial or procedural, the Legislature did not expressly make the statute retroactive. And we
decline to construe the privilege contained in the statute as applying retroactively. Rather, absent
clear legislative intent to the contrary we apply here the general rule favoring prospective
application. In sum, the counselor/client privilege is not applicable in the case before us.
Accordingly the trial court erred in quashing the State’s subpoena requesting documents
revealing communications between Center’s counselor and the Pelley family. On this issue we
reverse the judgment of the trial court.

III. The Homicide Exception

Both the counselor/client privilege and the psychologist/patient privilege contain
exceptions to the non-disclosure of confidential communication. At issue here are what are
commonly referred to as the “homicide exceptions.” For the counselor/client privilege the
exception applies, “[i]n a criminal proceeding involving a homicide if the disclosure relates
directly to the fact or immediate circumstances of the homicide.” I.C. § 25-23.6-6-1(1). Worded
only slightly differently the exception for the psychologist/patient privilege applies in “[t]rials for
homicide when the disclosure relates directly to the fact or immediate circumstances of said
homicide.” I.C. § 25-33-1-17(1). After conducting an in camera inspection of the contested
documents, the trial court determined that the homicide exceptions did not apply. The State
contends that the trial court abused its discretion in making this determination. Although not
necessarily raising the issue as error, the State makes a related claim that it “has not been able to
review the documents, even for the limited purpose of arguing whether the documents fall within
an exception to the privilege.” Appellant’s Pet. to Trans. at 11.

We first observe that we have already determined that the counselor/client privilege is not
applicable in this case. Thus, our focus here is on the psychologist/patient privilege, which pre-

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dated the time the Pelley family received counseling. Unless the homicide exception applies,
any communication between Center’s psychologist and the Pelley family is privileged and not
discoverable. As for the State’s claim that it has not been afforded the opportunity to review the
privileged documents to determine if they contain non-privileged information, we conclude the
State is not entitled to review the documents. And this is so because the very nature of the
psychologist/patient privilege precludes the State from gaining access to confidential
communications absent an exception. Rather, a determination must be made in the first instance
as to whether the State has a right of access to the documents. Allowing the State itself to review
the documents in order to make that determination would eviscerate the reason the privilege
exists in the first place, namely: to protect confidential communications between psychologists
and patients.

In essence we entrust trial courts rather than sparring litigants with the authority to
preserve the inviolability of privileged information. And although the trial court may have
allowed the State to review the requested documents in this case under a confidential protective
order, it was not compelled to do so. See Van Meter v. Zimmer, 697 N.E.2d 1281, 1284-85 (Ind.
Ct. App. 1998) (observing that the trial court could either conduct an in camera inspection of a
joint tax return or allow discovery by the opposing party under a confidential protective order).
Further, the notion of a trial court conducting an in camera inspection of documents to determine
whether information contained in them is or is not discoverable is not particularly remarkable.
For example in Owen v. Owen, 563 N.E.2d 605 (Ind. 1990), we addressed the physician/patient
privilege declaring:

[I]n those rare cases where the physician-patient privilege is
properly invoked, it is incumbent on the party seeking to assert the
privilege to identify to the court specifically which documents are
believed to remain within the privilege, after which the court will
review the contested documents in camera to ascertain their
entitlement to the protection of the privilege.

Id. at 608 (emphasis added); see also Hulett v. State, 552 N.E.2d 47, 49 (Ind. Ct. App. 1990),
trans. denied, (ruling the trial court erred in failing to conduct an in camera inspection of a
counselor’s file, because “[w]ithout such inspection, it was not possible for the trial court to

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exercise its discretion in ruling upon the presence of discoverable evidence as opposed to
irrelevant or immaterial matter.”); Sturgill v. State, 497 N.E.2d 1070, 1073 (Ind. Ct. App. 1986)
(ruling the trial court erred in denying defendant’s pre-trial discovery request. “At the very least,
the trial court should have conducted an in camera inspection of [the victim’s] statements given
to the welfare department . . . to determine whether any of the statements benefited [Defendant’s]
defense.”). In sum, the State has not shown any entitlement to review the contested documents,
and the trial court did not abuse its discretion by conducting the in camera inspection.

Concerning the State’s claim that the trial court abused its discretion in determining that
the contested documents did not fall within the homicide exception, the case of Jorgensen v.
State, 574 N.E.2d 915 (Ind. 1991) is instructive. In Jorgensen, after a trial by jury the defendant
was convicted of murder and conspiracy to commit murder. The conviction was affirmed on
appeal and the defendant sought transfer raising a number of issues. We remanded the cause to
the trial court for further proceedings after finding one issue dispositive: whether the trial court
erred in denying the defendant an opportunity to depose two people.

The essential facts were these. While married to the murder victim, the defendant was
involved in a relationship with Gary Cochran. There was testimony at trial that Cochran told a
friend that he wanted to kill the victim. Cochran had also supplied written confessions admitting
to having committed the murder. Defendant claimed that William Ball, a social worker, and Dr.
Robert Greenburg, a psychologist, counseled Cochran. Claiming these two people had
information that might tend to show that Cochran rather than the defendant committed the
murder, the defendant moved to take their depositions. The trial court denied the request
apparently on the grounds that the information possessed by both Ball and Dr. Greenburg was
privileged or that the defendant had not shown that the information requested was material to her
defense. Addressing the homicide exception to the psychologist/patient privilege, we noted the
privilege did not protect the communications made to the social worker, 3 and that to the extent
the defendant was seeking information relating to the facts or immediate circumstances of the
homicide, the psychologist/patient privilege may not exist. Id. at 917.

3
At the time of the defendant’s trial the counselor/client privilege did not exist.

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 We went on to explain that with respect to non-privileged information, there are two
principal questions a trial court must consider when ruling on discovery matters in a criminal
trial: (1) is there a sufficient designation of the items to be discovered; and (2) are the items
sought material to the defense? Id. Noting that the answer to the first question was affirmative,
we then said:

However, we cannot determine whether the information sought is
material to her defense because we do not know what information
Ball or Dr. Greenburg have relative to the homicide. The “catch-
22” is that there is no method of determining what information
they may hold unless some discovery is conducted.

* * *

Although the trial court has wide discretion in discovery matters,
we conclude that the court should have allowed some discovery in
order to make possible the determination of whether Ball and Dr.
Greenburg possessed information which would have been material
to Jorgensen’s defense. It was error for the trial court to have
concluded that whatever information they possessed was
privileged without a factual basis for arriving at such a conclusion.
Similarly, it was error to have denied discovery because of no
showing of materiality where the only method for Jorgensen to
have met the materiality requirement was to have the information
made available to her.

Id. (emphasis added).

Among other things Jorgensen stands for the proposition that “some discovery” is
permissible in order to make the determination whether a witness may have information not
subject to a privilege. Here, the State makes no claim that it has sought discovery in this case
and that its efforts to do so have been thwarted. Indeed the State readily admits that it has
interviewed several witnesses, which has given the State reason to believe that the documents it
requests “should include information concerning the facts and immediate circumstances of the
murders.” Appellant’s Pet. to Trans. at 12. But the State does not elaborate further to explain
what information the State obtained from these witnesses that formed the basis for its belief. In
fact, had the State presented such evidence to the trial court then there may have been evidence
of record before this Court to evaluate the State’s contention that the trial court abused its

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discretion in determining that the homicide exception did not apply. However, on this record
there is simply nothing before us to support the State’s claim. A trial court is accorded broad
discretion in ruling on issues of discovery. Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind.
1999). On review, we presume that the trial court’s decision is correct, and the party challenging
the decision has the burden of persuading us that the trial court abused its discretion. Sears
Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 457 (Ind. 2001). In this case the State has failed
to carry its burden.

Conclusion

The judgment of the trial court is affirmed in part and reversed in part. This cause is
remanded.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

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