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State v. Fay

Supreme Court of Connecticut

September 12, 2017

STATE OF CONNECTICUT
v.
WILLIAM FAY

          Argued October 19, 2016

          Allison M. Near, for the appellant (defendant).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, was Kevin Lawlor, state's attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js. [*]

         Syllabus

         Convicted of the crime of manslaughter in the second degree with a firearm in connection with the shooting death of the victim, the defendant appealed to this court, claiming that the trial court violated his federal constitutional rights to present a defense and to compulsory process when it declined to conduct an in camera review of the victim's records, which were protected by the statutory (§§ 52-146d and 52-146e) psychiatrist-patient privilege, even though the defendant alleged that those records may contain information relevant to his claim of self-defense. At trial, the defendant did not deny shooting the victim, but claimed that he acted in self-defense, and sought to bolster his self-defense claim by presenting evidence of the victim's psychological state at the time of the shooting. The defendant filed motions seeking the victim's psychiatric records and 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. The victim's authorized representative declined to waive the psychiatrist-patient privilege. The trial court held an evidentiary hearing at which the defendant claimed that his right of confrontation under the federal constitution outweighed any privilege that might exist with respect to the victim's records, and that the policies safeguarding the psychiatrist-patient privilege are less compelling when the patient is deceased. The court concluded that the victim's records were privileged, that the records did not fall under any of the statutory (§ 52-146f) exceptions to the privilege, and that the court lacked the authority to create a nonstatutory exception to the general rule of nondisclosure. The court also concluded that, although State v. Esposito (192 Conn. 166) and other cases permit the court to strike a witness' testimony to protect a defendant's right of confrontation if the witness does not allow the court to conduct an in camera review of his privileged psychiatric records, Esposito does not allow a defendant access to privileged records without the patient's consent. On appeal from the judgment of conviction, held:

         1. This court concluded that, when an accused makes a sufficient preliminary showing that his constitutional right to present a defense can be protected only by an in camera inspection of a homicide victim's privileged psychiatric records that are material to the accused's claim of self-defense, the interests of the accused must prevail over the victim's psychiatrist-patient privilege, and the trial court must undertake such a review; furthermore, in order to make the sufficient preliminary showing required to trigger an in camera review, the accused must demonstrate a compelling need for the trial court to undertake that review, and, in assessing that need, trial courts should consider, among any other relevant considerations, the centrality of the privileged material to the accused'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; moreover, when, after an in camera review, the court determines that the privileged information substantially supports the accused's claim of self-defense, it must disclose such material to the accused.

         2. The defendant was not entitled to review of his unpreserved constitutional claims under State v. Golding (213 Conn. 233) because the record was inadequate for such review: although the defendant expressed his disagreement with the trial court's refusal to review or disclose the victim's privileged psychiatric records, he did not bring before that court the due process and right to present a defense claims that formed the basis of this appeal, and those claims, therefore, were not preserved; moreover, the defendant could not make the required preliminary showing, without improperly supplementing the record on appeal, that he was entitled to a review of those records, the defendant having provided insufficient evidence to demonstrate that the victim's psychiatric records were necessary to his claim of self-defense, as he failed to demonstrate that the victim suffered from a psychiatric disorder involving aggressive behavior or that there was a link between the victim's prescribed medications and aggressive behavior, and the defendant did not present any testimony that the victim's use of, or his failure to use, his prescribed medications increased aggressiveness or that such medications were sometimes prescribed to mitigate preexisting aggressive behavior.

         Procedural History

         Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, Markle, J., denied the defendant's motion for an evidentiary hearing; thereafter, the matter was tried to the jury before Markle, J.; verdict and judgment of guilty of the lesser included offense of manslaughter in the second degree with a firearm, from which the defendant appealed to this court. Affirmed.

          OPINION

          PALMER, J.

         In State v. Esposito, 192 Conn. 166, 179- 80, 471 A.2d 949 (1984), this court held that, in certain circumstances, the privileged psychiatric records of a witness testifying for the state are subject to in camera review by the trial court so that the court can determine whether the accused's constitutional right of confrontation entitles him to access to those records; if the witness refuses to authorize such review, the witness' testimony generally must be stricken. In the present case, the defendant, William Fay, was charged with murder and, following a jury trial, was convicted of the lesser included offense of manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a. He claims that the trial court improperly declined to extend our holding in Esposito and thereby violated his constitutional right to present a defense when it refused to conduct an in camera review of certain records of the victim protected by the psychiatrist-patient privilege; see General Statutes §§ 52-146d[1]and 52-146e;[2] even though the defendant alleged that-those records may contain information pertinent to the defendant's claim of self-defense.[3] Although we agree with the defendant that the psychiatrist-patient privilege may be surmounted when an accused makes a sufficient showing that the privileged information is material to a claim of self-defense, we conclude that the record in the present case is inadequate for our review of the defendant's unpreserved claim of constitutional error under State v. Golding, 213 Conn. 233, 239- 40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). We therefore affirm the judgment of the trial court.

         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 diagnosesor 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.

         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 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 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, 289 Conn. 411, 428, 957 A.2d 852 (2008) (‘‘in the absence of express consent by the patient, courts have no authority to create nonstatutory exceptions to the general rule of nondisclosure'' [internal quotation marks omitted]). Finally, the court observed that, although State v. Esposito, supra, 192 Conn. 179-89, and several subsequent cases, permit the court to strike a witness' testimony to protect a defendant's right of confrontation, they do not allow the defendant to access privileged information without the patient's consent. Because the defendant had been unable to procure consent from the victim's authorized representative; see footnote 6 of this opinion; the court denied the motion. The defendant subsequently was convicted and sentenced to ten years incarceration, suspended after eight years, followed by a five year term of probation.

         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 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 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 Falco v. Institute of Living, 254 Conn. 321, 328, 757 A.2d 571 (2000). Indeed, we have sometimes used language suggesting that, when no statutory exception applies, the privilege is absolute. See State v. Jenkins, 271 Conn. 165, 183, 856 A.2d 383 (2004) (‘‘in the absence of express consent by the patient, courts have no authority to create non-statutory exceptions to the general rule of nondisclosure''); Falco v. Institute of Living, supra, 330 (‘‘[T]he legislature has narrowly drafted the exceptions to the general rule against disclosure after carefully balancing the important countervailing considerations . . . . The inference that we draw is that the legislature did not intend to save other cases from the general rule.'' [Citations omitted; footnote omitted.]). ‘‘The broad sweep of the statute covers not only disclosure to a defendant or his counsel, but also disclosure to a court even for the limited purpose of an in camera examination.'' State v. Esposito, supra, 192 Conn. 178.

         In Esposito, the defendant, Andrew Esposito, who was accused of sexual assault and kidnapping; id., 167; moved to have the complainant's privileged mental health records reviewed by the court in camera to determine whether they contained information concerning the ability of the complainant to observe, recollect or recount her experience. Id., 176. We concluded that an accused is entitled to an in camera review of privileged mental health records if he shows that ‘‘there is reasonable ground to believe that the failure to produce the information is likely to impair [his] right of confrontation such that the witness' direct testimony should be stricken.'' Id., 179. When a witness refuses to consent to an in camera review following such a showing, ‘‘then the court may be obliged to strike the testimony of the witness.'' Id., 179-80. In that case, however, the court concluded that Esposito had failed to make ‘‘a threshold showing that at any pertinent time [the complainant] had a mental problem which affected her testimonial capacity in any respect, let alone to a sufficient degree to warrant further inquiry.'' Id., 180. In reaching its determination, the court noted that there was nothing in the complainant's testimony to indicate difficulty recalling or narrating the events relating to the assault, and that counsel for Esposito had not inquired about the reason for an earlier psychiatric hospitalization. Id.

         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, 257 Conn. 842, 853-59, 779 A.2d 723 (2001) (sexual assault victim's privileged school records); State v. Pratt, 235 Conn. 595, 597, 606-608, 669 A.2d 562 (1995) (witness' juvenile court psychological and psychiatric records); State v. Kulmac, 230 Conn. 43, 56-59, 644 A.2d 887 (1994) (sexual assault victim's Department of Children and Youth Services records); State v. Joyner, 225 Conn. 450, 476-79, 625 A.2d 791 (1993) (mental health and substance abuse records of victim); State v. Kelly, 208 Conn. 365, 377-79, 545 A.2d 1048 (1988) (complaining witness' psychiatric and counseling records). This appeal, by contrast, involves the psychiatric records of a homicide victim, and, therefore, the traditional confrontation clause issues concerning the impeachment of a state's witness are not implicated. Consequently, we are presented with an issue of first impression for this court, namely, whether an accused who raises a claim of self-defense is nonetheless entitled to an in camera review of a homicide victim's privileged records.[11]

         The conflicting interests in the present case are substantial. That the victim 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 omitted.) State v. Cerreta, 260 Conn. 251, 260, 796 A.2d 1176 (2002), quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). As the United States Supreme Court has observed, ‘‘[t]he right to the production of all evidence at a criminal trial . . . has constitutional dimensions. The [s]ixth [a]mendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him' and ‘to have compulsory process for obtaining witnesses in his favor.' Moreover, the [f]ifth [a]mendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.'' United States v. Nixon, 418 U.S. 683, 711, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The question posed by this appeal, therefore, is whether the right to present such evidence must be enforced to the detriment of a homicide victim's statutory privilege and, if so, under what circumstances.

         Evidentiary privileges, unlike most other evidentiary rules, [13] were not conceived to advance the accuracy and reliability of the privileged materials but, rather, to safeguard certain desirable societal values. Falco v. Institute of Living, supra, 254 Conn. 332 (‘‘Evidentiary privileges exist for ‘the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.' 1 C. McCormick, Evidence [4th Ed. 1992] § 72, p. 269.''). Thus, in recognizing a federal psychotherapist-patient privilege, the United States Supreme Court explained that ‘‘[e]ffective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.'' Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996); accord Falco v. Institute of Living, supra, 254 Conn. 328. In Jaffee, the plaintiff in a civil action claimed he was entitled to access to the mental health records of the defendant police officer, who had shot and killed a member of the plaintiff's family. Jaffee v. Redmond, supra, 4. In rejecting the plaintiff's claim, the court observed that the policies underlying the psychotherapist-patient privilege were ‘‘sufficiently important'' to outweigh the probative value of the psychiatric evidence in that case, noting, inter alia, that, ‘‘[w]ithout a privilege, much of the desirable evidence to which litigants such as [the plaintiff] seek access-for example, admissions against interest by a party-is unlikely to come into being.'' Id., 9-10, 12.

         Against the important public policy interests recognized by the court in Jaffee stand the liberty interests 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., 949 N.E.2d 789, 802 (Ind. 2011) (defendant had no constitutional right to in camera review of child molestation victim's crisis center mental health records). Others have been more receptive to the arguments of criminal defendants, especially when in camera review procedures are available to protect witnesses' privacy. See, e.g., People v. Stanaway, 446 Mich. 643, 649-50, 521 N.W.2d 557 (1994) (‘‘where a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records must be conducted''), cert. denied sub nom. Michigan v. Caruso, 513 U.S. 1121, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995); see also E. Imwinkelried & N. Garland, Exculpatory Evidence: The Accused's Constitutional Right to Introduce Favorable Evidence (3d Ed. 2004) § 10-6, p. 389 (‘‘[w]hether the privilege was a common-law creation . . . or of statutory origin . . . given a compelling showing of defense need for the evidence the courts have been willing to surmount the privilege'').

         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 with a self-defense claim.[15] In United States v. Hansen, 955 F.Supp. 1225, 1226 (D. Mont. 1997), the United States District Court concluded that a defendant's rights may prevail over a victim's privilege in such circumstances. As in the present case, the defendant in Hansen sought the psychiatric records of a homicide victim to support a claim of self-defense. Id., 1225-26. The District Court ordered the records produced, emphasizing the potential evidentiary benefit of psychiatric records in cases in which the accused is charged with homicide and the mental state of the victim is a key element of the defense, and distinguishing such cases from Jaffee, a civil case in which the court explicitly found that the likely evidentiary benefit of overriding the privilege would be ‘‘ ‘modest.' '' Id., 1226, quoting Jaffee v. Redmond, supra, 518 U.S. 11.[16] The District Court also noted that a homicide victim's interest in preventing disclosure is greatly diminished by his death. United States v. Hansen, supra, 1226. Thus, even though the court in Hansen recognized that the public interest in preventing disclosure persists after the patient's death- insofar as disclosure might dissuade others from seeking treatment-it found that, in that case, ‘‘the defendant's need for the privileged material outweigh[ed] this interest.'' Id.; see also State v. Connor, 215 Ariz. 553, 558, 561, 161 P.3d 596 (App. 2007) (defendant claiming self-defense failed to make heightened showing of necessity required to overcome homicide victim's psychiatrist-patient privilege); State v. Heemstra, 721 N.W.2d 549, 563 (Iowa 2006) (requiring limited disclosure of homicide victim's mental health information when information ‘‘might reasonably bear on the defendant's possibility of success in supporting his claim of self-defense''); but see State v. Neiderbach, 837 N.W.2d 180, 194-95 (Iowa 2013) (requiring in camera review when defendant shows ‘‘reasonable probability'' that privileged records ‘‘may likely contain exculpatory information that is not available from any other source'').[17]

         We, too, are persuaded that, in certain exceptional circumstances, the interests of an accused must prevail over a homicide victim's psychiatrist-patient privilege. 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, 192 Conn. 166. We believe, furthermore, that the in camera review procedure adopted in Esposito for confrontation purposes also serves the ends of justice in the present circumstances. See id., 179-80.

         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, 470 U.S. 68, 78-79, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (‘‘The private interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling. . . . The [s]tate's interest in prevailing at trial-unlike that of a private litigant-is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases.''). At the same time, the personal interest of the victim in maintaining the absolute secrecy of his or her psychiatric records is diminished by the death of the victim. We find it unlikely, moreover, that authorizing disclosure of those records in such limited circumstances will significantly reduce the number of individuals choosing to confide in counselors and psychotherapists. An in camera review is a relatively modest intrusion into a victim's mental health history, and that narrow exception to the psychiatrist-patient privilege-an exception available only when the court finds it clearly necessary in order to safeguard the accused's fair trial rights-is unlikely to prove any more of a deterrent to persons seeking mental health treatment than that already attributable to existing statutory exceptions.[18] Consequently, we agree with the defendant that, when an accused makes a sufficient preliminary showing that his constitutional right to present a defense can be protected only by an in camera examination of the victim's psychiatric records, a trial court must undertake such a review.[19]

         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 the defendant's right of confrontation such that the witness' direct testimony should be stricken.'' (Emphasis added.) State v.Esposito, supra, 192 Conn. 179.[20] In applying this standard, we have ‘‘urged trial courts to permit the defendant a certain latitude in his attempt to make [the preliminary showing required to obtain an in camera inspection of privileged records].'' (Internal quotation marks omitted.) State v.Bruno, 236 Conn. 514, 531, 637 A.2d 1117 (1996). We agree with the state, however, that a more stringent standard should apply when, as here, the psychiatric records being sought are those of a homicide victim. As we explained previously, our confrontation clause cases have not forced the disclosure, even in camera, of privileged information without consent. Under Esposito, a witness may simply elect not to waive the psychiatrist-patient privilege and not to testify, thereby foreclosing any public disclosure of the witness' psychiatric records, while protecting the accused from testimony that, because of the privilege, would not be subject to ...


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