S.P., by and through her natural guardian R.P. v. Anthony Vecchio and the State of Florida , 2014 Fla. App. LEXIS 15249 ( 2014 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    July Term 2014
    S.P., by and through her natural guardian R.P.,
    Petitioner,
    v.
    ANTHONY VECCHIO and the STATE OF FLORIDA,
    Respondents.
    No. 4D14-14
    [October 1, 2014]
    Petition for writ of certiorari to the Circuit Court for the Fifteenth
    Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case
    No. 502011CF006513AMB.
    Roberto Martinez and Latoya C. Brown of Colson Hicks Eidson, Coral
    Gables, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
    Assistant Attorney General, West Palm Beach, for respondent State of
    Florida.
    CIKLIN, J.
    S.P., a non-party child victim in a criminal case against Anthony
    Vecchio, by and through her natural guardian, seeks certiorari review of a
    non-final order granting Vecchio’s motion to unseal S.P.’s medical records.
    We granted the petition on May 28, 2014, and now follow with this opinion.
    Because compulsory disclosure of the records would violate both S.P.’s
    constitutional right to privacy and her psychotherapist-patient privilege,
    we grant S.P.’s petition and quash the trial court’s order requiring the child
    victim to unseal her medical records.
    Background
    Vecchio was charged with lewd or lascivious battery, lewd or lascivious
    molestation, and battery on a child. A security guard working the night
    shift at a Boca Raton condominium encountered S.P., fourteen years of
    age at the time, who claimed she had escaped from someone named Tony.
    The guard would later state in a deposition that he saw video footage of
    Vecchio kissing S.P. in one of the condominium’s elevators. S.P. was
    transported to a child protection team (CPT)1 for a sexual battery exam
    and a doctor with the CPT recovered semen from S.P.’s vaginal area which
    was found to have come from Vecchio. The genital examination also
    produced evidence of scant bleeding and blunt force trauma which was
    consistent with S.P.’s version of events. During the time of the exam and
    into the next morning, a Boca Raton Police Department detective
    conducted an interview with Vecchio during which he admitted to
    performing sexual acts with S.P. When pressed about S.P.’s age, Vecchio
    denied having knowledge of her age although he guessed it to be between
    eighteen and twenty years. Vecchio admitted to penetrating the victim
    with his finger.
    While the criminal case against Vecchio was pending, the state filed the
    declaration of Dr. Richard Jackson for the purpose of establishing S.P.’s
    unavailability for Vecchio’s then upcoming criminal trial.        For the
    preceding ten months, Dr. Jackson had been treating S.P. at a Utah
    residential treatment center for girls. S.P. had been making progress, but
    upon learning that the prosecution of Vecchio was still ongoing, suffered
    a severe relapse which encompassed active suicidal ideation. In his
    declaration Dr. Jackson stated:
    As a result, I decided along with my colleagues at [the
    treatment center] that S.P. immediately had to be admitted in-
    patient at a neuropsychiatric hospital in the State of Utah for
    more intensive treatment.
    Dr. Jackson also noted that S.P. was suffering from depressive disorder
    1   CPTs were created by the Legislature in 1984. Ch. 84-226, Laws of Fla.
    The Children’s Medical Services Program in the Department of Health shall
    develop, maintain, and coordinate the services of one or more
    multidisciplinary child protection teams in each of the service districts of
    the Department of Children and Families. Such teams may be composed
    of appropriate representatives of school districts and appropriate health,
    mental health, social service, legal service, and law enforcement agencies.
    The Department of Health and the Department of Children and Families
    shall maintain an interagency agreement that establishes protocols for
    oversight and operations of child protection teams and sexual abuse
    treatment programs.
    § 39.303, Fla. Stat. (2014).
    2
    NOS, anxiety disorder NOS, eating disorder NOS, as well as nightmares.
    As a result of Dr. Jackson’s declaration, the state removed S.P. from its
    witness list as to its prosecution of Vecchio, with an intent to rely on DNA
    evidence and Vecchio’s statement to police.
    Vecchio moved to allow for issuance of subpoenas duces tecum for
    S.P.’s records, including her medical, psychiatric, pharmacy, hospital, and
    school records. In support of his motion, Vecchio argued that he had come
    into possession of information which suggested that, prior to the incident
    alleged, S.P. had been on medication, suffered from depression and an
    eating disorder, and had been hospitalized twice. The state objected on
    the grounds of irrelevancy, although it conceded that S.P. was using
    Prozac the night of the incident, which might, the state agreed, have some
    relevance with respect to sentence mitigation. The trial court granted the
    motion to the extent that it would conduct an in-camera review. During
    the in-camera review, the trial court found one relevant item2 and made it
    available to the defense after which the records were re-sealed. Shortly
    before Vecchio’s trial, the defense filed a motion to have S.P.’s medical
    records unsealed, which the trial court denied without prejudice.
    On December 14, 2012, Vecchio entered an open plea of guilty to lewd
    or lascivious battery, lewd or lascivious molestation and battery on a child.
    Prior to the imposition of sentence, a sentencing memorandum was
    prepared and offered by the state. The memorandum noted the emotional
    distress the victim continued to suffer as a result of the incident. In
    addition to its memorandum, the state introduced testimony from S.P.’s
    sister and father who reported, among other things, that S.P. had
    intentionally run into traffic while at the Utah facility; that she suffered
    from nightmares and eating disorders; and that she would call her father
    at all hours of the day and night telling him that she was contemplating
    self-inflicted injury. The trial court sentenced Vecchio to 96 months in
    prison followed by 84 months of supervision. The sentence represented a
    downward departure from the 185 months that Vecchio scored under the
    sentencing guidelines.
    After sentencing, Vecchio appealed from his judgment and sentence.
    Before filing his initial brief, however, Vecchio moved for an extension of
    time and asked this court to relinquish jurisdiction so he could request
    that the trial court unseal the victim’s medical records for purposes of
    raising a discovery violation issue on appeal. We granted his unopposed
    motion to relinquish jurisdiction to enable Vecchio to file a motion to
    2 None of the pleadings or appendix items submitted by the parties contain or
    otherwise describe the one item found to be relevant by the trial court.
    3
    unseal S.P.’s medical records.
    In accordance with our relinquishment order, Vecchio filed the instant
    motion to unseal S.P.’s medical records. While arguing his motion before
    the trial court, Vecchio asserted that if he had been given access to
    “complete information” before he voluntarily entered his plea, he could
    have made a more informed choice regarding resolution of the criminal
    prosecution against him including a specific plea offer from the state.3
    Vecchio argued to the trial court that if he had known all of S.P.’s mental
    health information cited by the state, “his decision would have been
    different,” although Vecchio offered no specificity in that regard. Vecchio
    also asserted that because he was denied access to S.P.’s complete medical
    record files, he was unable to properly prepare for sentencing. Vecchio
    suggested to the trial court that he sought review of S.P.’s records not
    necessarily to observe what was contained therein but rather to determine
    what was not included in the private records and yet offered by the state
    through the testimony of S.P.’s sister and father. (As Vecchio put in his
    motion to unseal, “to see what has been left out on purpose.”). Should
    such exclusions be apparent, Vecchio argued, then a discovery violation
    would have occurred pursuant to Brady.4
    Through her natural guardian, S.P. filed her “opposition to motion to
    unseal medical records,” arguing that the records are privileged and
    private. She urged the trial court to deny Vecchio’s motion, particularly
    because the court had already conducted a thorough in-camera inspection
    of S.P.’s private and highly sensitive records and concluded all but one
    item was irrelevant.
    In a written order, the trial court granted Vecchio’s motion to unseal
    S.P.’s medical records and the instant petition for writ of certiorari
    followed.
    Analysis
    Certiorari review is available to non-parties under certain
    circumstances. Borck v. Borck, 
    906 So. 2d 1209
    , 1211 (Fla. 4th DCA 2005)
    (quashing order compelling production of financial information of non-
    parties). Additionally, certiorari is a proper vehicle to review orders
    compelling the production of records that are protected by the
    psychotherapist-patient privilege. Smith v. Smith, 
    64 So. 3d 169
    , 170 (Fla.
    3 The terms of any proposed plea agreement offered by the state are not included
    in the record provided to us.
    4 Brady v. Maryland, 
    373 U.S. 83
    (1963).
    4
    4th DCA 2011) (citations omitted).
    S.P. argues that her medical records are protected from disclosure by
    both constitutional and statutory rights to privacy, as well as the
    psychotherapist-patient privilege, and as such, the trial court departed
    from the essential requirements of the law by ordering their disclosure
    without compelling reason. She contends that the disclosure will result in
    irreparable harm to her, not remediable by appeal. Vecchio argues that
    disclosure of the medical records is compelled by the potential existence
    of a Brady violation.
    We agree with S.P. Her records are protected, and although confidential
    clinical records may be disclosed where the court determines there is good
    cause, see section 394.4615(2)(c), Florida Statutes (2013), there is no such
    good cause here.
    Florida law is clear that a person’s medical records enjoy a confidential
    status. First, the right to privacy contained in Article I, section 23 of the
    Florida Constitution has been extended to preclude dissemination of one’s
    medical records. See State v. Johnson, 
    814 So. 2d 390
    , 393 (Fla. 2002).
    Second, confidential medical records are protected from disclosure as
    provided in Florida statutory law. See § 456.057(7)(a), Fla. Stat. (2013)
    (providing that, with few exceptions, medical records may not be furnished
    to any person other than the patient or the patient’s legal representative
    or other treating health care providers, except upon written authorization
    of the patient).      Third, section 90.503(2) provides that under the
    psychotherapist-patient privilege, a patient has a privilege to refuse to
    disclose confidential information or records made for the purpose of
    diagnosis or treatment of mental conditions, including any diagnoses
    made by the psychotherapist. There are only three enumerated exceptions
    to the psychotherapist-patient privilege; it does not apply (1) during
    involuntary commitment proceedings, (2) when there is a court-ordered
    mental examination, or (3) when the patient, or a party after the patient’s
    death, raises and relies on the issue of the patient’s mental condition in
    litigation as part of any claim or defense. § 90.503(4), Fla. Stat. (2013).
    None of those exceptions apply in this case.
    This court has consistently and repeatedly held that, absent evidence
    of an applicable statutory exception or waiver, a trial court departs from
    the essential requirements of law when it enters an order compelling
    disclosure of communications or records in violation of the
    psychotherapist-patient privilege. See 
    Smith, 64 So. 3d at 170-71
    (citing
    Urbanek v. Urbanek, 
    46 So. 3d 1235
    (Fla. 4th DCA 2010); Cruz-Govin v.
    Torres, 
    29 So. 3d 393
    , 395 (Fla. 3d DCA 2010)); Palm Beach Cnty. Sch. Bd.
    5
    v. Morrison, 
    621 So. 2d 464
    , 468 (Fla. 4th DCA 1993).
    The fact that S.P.’s ongoing psychological issues were mentioned during
    Vecchio’s sentencing proceedings is not good cause for disclosure of the
    records. Indeed, it is reasonable that the offenses perpetrated upon S.P.
    by Vecchio would result in psychological problems for the victim. See
    Floyd v. State, 
    18 So. 3d 432
    , 447 (Fla. 2009). In Floyd, the defendant had
    been convicted of fatally shooting his mother-in-law. At trial, two of Floyd’s
    step-children testified that they witnessed Floyd shooting the victim. One
    of the issues raised by Floyd on appeal centered around the trial court’s
    denial of his requests to subpoena the counseling records of the children
    witnesses. 
    Id. at 446.
    The Court noted that despite the psychotherapist-
    patient privilege, section 394.4615(2)(c) permits court-ordered disclosure
    for good cause. Nonetheless, the Court found good cause not to exist.
    “Rather, it is completely reasonable, if not expected, for children who
    witnessed the murder of their grandmother to have psychological issues
    arising from the event.” 
    Id. at 447.
    Based on our review of the proceedings below, the disclosure of S.P.’s
    medical records, like in Floyd, would only confirm the inevitable trauma
    caused by the underlying event. S.P.’s mental health issues have been
    thoroughly outlined in Dr. Jackson’s declaration.         Therefore, the
    statements made by S.P.’s family members during sentencing merely
    echoed the obvious traumatic effect that Vecchio’s lewd molestation could
    be expected to have on this minor.
    Finally, Vecchio argues that the reason he seeks to invade S.P.’s privacy
    is to prove a Brady violation, which, he asserts, may have impacted his
    decision to go to trial or enter a plea. In order to show there has been such
    a violation however, “the defendant has the burden to show (1) that
    favorable evidence, either exculpatory or impeaching, (2) was willfully or
    inadvertently suppressed by the State, and (3) because the evidence was
    material, the defendant was prejudiced.” Hurst v. State, 
    18 So. 3d 975
    ,
    988 (Fla. 2009) (citing Strickler v. Greene, 
    527 U.S. 263
    , 281-82 (1999)).
    Vecchio fails to meet his burden. And in the event that we are
    understating the merits of Vecchio’s argument, Judge Burton’s thorough
    in-camera inspection of the records in question has acted as a solid safety
    net. His independent in-camera inspection assures us that no exculpatory
    or relevant evidence was impermissibly withheld. Additionally, S.P. is not
    an agent of the state, and assuming for the sake of argument that she or
    her doctors did withhold relevant records, the state—under the facts of
    this case—would not be liable for a willful or inadvertent suppression of
    6
    discovery.5 Finally, Vecchio was not prejudiced. Our own review of the
    record below suggests that nothing contained within the private and
    confidential medical files of the victim would be of any significance to
    Vecchio’s defense, particularly because his conviction was based on
    independent evidence and the requisite factual basis underlying his guilty
    plea.
    The crimes to which Vecchio pled guilty are strict liability crimes and
    the state is not required to prove a lack of victim consent, the victim’s
    motive, or mistake as to the victim’s age. The state was required to prove
    the victim’s age and that Vecchio engaged in sexual acts with her. The
    state’s efforts proved successful with overwhelming evidence of Vecchio’s
    guilt. Based on the record before us, we specifically find that S.P.’s medical
    records would be unavailing to Vecchio—disclosure will achieve nothing.
    While certain specifics of the medical records may remain unknown
    out of respect for the victim’s psychotherapist-patient privilege, it has been
    well documented that the victim/patient, S.P., was and has been suffering
    from certain mental health issues, as Dr. Jackson meticulously detailed.
    If we were to permit the trial court’s order to stand, S.P.’s privacy rights
    would be irreversibly violated.
    We grant the victim’s petition and quash the trial court’s order to unseal
    S.P.’s medical records.
    Petition granted.
    WARNER and KLINGENSMITH, JJ., concur.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    5 “It is well-settled that the state is charged with constructive knowledge and
    possession of evidence withheld by state agents, including law enforcement
    officers.” Tarrant v. State, 
    668 So. 2d 223
    , 225 (Fla. 4th DCA 1996) (citations
    omitted). See also Lewis v. State, 
    22 So. 3d 753
    , 757-58 (Fla. 4th DCA 2009)
    (holding that where the defendant was not aware of a statement a state witness
    made during trial, the court’s Richardson hearing should have included an
    inquiry into whether “the state or the police ever possessed [the witness’]
    statement,” as the state is charged with constructive knowledge of evidence in
    the possession of state agents).
    7