Angela Lundy v. State of Indiana

Feb 20 2015, 9:57 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell NON-PARTY INDIANA BOARD OF
Marion County Public Defender PHARMACY
Indianapolis, Indiana Gregory F. Zoeller
Attorney General of Indiana
Dennis E. Mullen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Lundy, February 20, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1405-CR-307
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jose Salinas, Judge
Case No. 49G14-1308-FD-52186
Appellee-Plaintiff.
Vaidik, Chief Judge.
Case Summary
[1] Angela Lundy was charged with Class D felony possession of a controlled
substance. The existence of a valid prescription is a defense to this crime.
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Lundy served a subpoena on non-party Indiana Board of Pharmacy (“the
Board”), requesting a copy of her INSPECT report. As part of the INSPECT
program, the Board compiles controlled-substance information into an online
database.
[2] The Board filed a motion to quash the subpoena, claiming that the information
was confidential pursuant to statute. The trial court granted the Board’s motion
because it found that Lundy had to make a threshold showing that she could
not get her prescription records elsewhere before she was entitled to her
INSPECT report from the Board. The trial court certified its ruling for
interlocutory appeal.
[3] There is a three-part balancing test for discoverable information in a criminal
proceeding, but the only consideration at issue here is particularity, which
requires a showing that the information is not readily available elsewhere. The
Board argues that because Lundy knew where she could “possibly” obtain her
prescription records, they were readily available. “Readily available,” however,
does not equate to knowledge. That is, just because Lundy knew where she
could “possibly” obtain her prescription records does not mean that they were
“readily available” to her. In addition, the particularity requirement is not to be
construed strictly against the defendant but should be administered so as to
maximize pretrial discovery. Given that the Board does not challenge the other
parts of the test, we conclude that the trial court abused its discretion in
granting the Board’s motion to quash Lundy’s subpoena. We therefore reverse
and remand this case to the trial court.
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Facts and Procedural History
[4] According to the probable-cause affidavit, on August 8, 2013, Indianapolis
Metropolitan Police Department officers found a prescription bottle for
alprazolam (Xanax) in Lundy’s possession. The bottle contained one
alprazolam pill but ten hydrocodone pills. Lundy was arrested for possession of
the hydrocodone pills.
[5] The State charged Lundy with Class D felony possession of a controlled
substance for possessing hydrocodone—a Schedule II drug—without a valid
prescription or order of a practitioner acting in the course of the practitioner’s
professional practice. Ind. Code Ann. § 35-48-4-7 (West 2012); Appellant’s
App. p. 12. The existence of a valid prescription for a controlled substance is a
defense to the crime of possession. Williams v. State, 959 N.E.2d 360, 363 (Ind.
Ct. App. 2012). The defendant bears the burden of proving this defense by a
preponderance of the evidence. Id.[6] On December 3, 2013, Lundy served a request for production of documents by
a non-party and a subpoena duces tecum on “INSPECT RX.” Appellant’s
App. p. 35. Specifically, Lundy requested a “certified copy of any and all
prescription records for Angela Lundy” and gave her date of birth and social-
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security number. Id. at 36. At the time of this request, Lundy “knew where she
could possibly obtain records of her prescription.”1 Id. at 60.
[7] INSPECT2 is Indiana’s electronic prescription monitoring program, which is
administered by the Indiana Board of Pharmacy. Williams, 959 N.E.2d at 363.
It was designed to serve as a tool to address the problem of prescription-drug
abuse and diversion in Indiana. Indiana Professional Licensing Agency,
INSPECT Purpose & Goals, IN.gov, http://www.in.gov/pla/inspect/2338.htm
(last visited Feb. 9, 2015). By compiling controlled-substance information into
an online database, INSPECT performs two critical functions: (1) maintains a
warehouse of patient information for health-care professionals and (2) provides
an important investigative tool for law enforcement. Id. Specifically, the
INSPECT program maintains a searchable, online database compiled from
information that is required by law to be transmitted by controlled-substance
dispensers, including the controlled-substance recipient’s name, identification
number, date of birth, and method of payment for the controlled substance
dispensed; the date the controlled substance is dispensed; the quantity and
number of days’ supply of the controlled substance; and the United States Drug
Enforcement Agency registration number for both the prescriber and the
dispenser. Ind. Code §§ 35-48-7-8.1, -10.1. An INSPECT report then
1
This information is taken from Lundy’s petition to certify order for interlocutory appeal, filed in the trial
court in March 2014.
2
INSPECT stands for the “Indiana scheduled prescription electronic collection and tracking program.” Ind.
Code § 35-48-7-5.2.
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summarizes the controlled substances a patient has been prescribed, the
practitioner who prescribed them, and the dispensing pharmacy where the
patient obtained them. Indiana Professional Licensing Agency, About
INSPECT, IN.gov, http://www.in.gov/pla/inspect/2338.htm (last visited Feb.
9, 2015). The information received is confidential and may be disclosed to only
certain individuals. Ind. Code § 35-48-7-11.1(d). Notably, the patient is not
listed as a person who is authorized to receive information from the INSPECT
database. See Williams, 959 N.E.2d at 367 (“Conspicuously absent from the list
of persons specifically authorized to receive information from the INSPECT
database is the person for whom a controlled substance is prescribed and
dispensed—in other words, the patient.”).
[8] The Board, represented by an attorney from the Office of the Indiana Attorney
General, filed a motion to quash Lundy’s subpoena duces tecum on the
grounds that the requested records were confidential pursuant to statute.
Appellant’s App. p. 27-32. The trial court held two hearings on the Board’s
motion to quash. At the first hearing in January 2014, the parties discussed this
Court’s recent decision in Williams. The trial court ruled that Williams required
Lundy to make a threshold showing that she could not get her prescription
records elsewhere before she was entitled to her INSPECT report from the
Board. Therefore, the court continued the hearing until March 2014 to give
Lundy an opportunity to make this showing. Defense counsel said that she did
not want Lundy to testify. Tr. p. 16, 19. In the meantime, the trial court urged
the parties to resolve the matter on their own. Id. at 28.
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[9] At the beginning of the hearing in March 2014, the Board attorney informed the
trial court that he and defense counsel “were not able to come to an informal
resolution” so “the Board would ask the Court [to] make a ruling on its Motion
to Quash.” Id. at 34. Defense counsel did not present any evidence. The trial
court granted the Board’s motion to quash and certified its ruling for
interlocutory appeal. In June 2014 we accepted jurisdiction of this appeal.
Discussion and Decision
[10] Lundy contends that the trial court erred in ruling that she was required to
make a threshold showing that she could not get her prescription records
elsewhere before she was entitled to her INSPECT report from the Board.
[11] A trial court has broad discretion with regard to rulings on discovery matters
given its duties to promote discovery of the truth and to guide and control the
proceedings. Williams, 959 N.E.2d at 364-65. Consequently, such rulings will
be reversed only for an abuse of discretion, which occurs when the trial court’s
decision is against the logic and effect of the facts and circumstances before the
court. Id. at 365.
[12] We addressed this issue in Williams and held that certain defendants who are
facing charges of possession of a controlled substance are entitled to their
INSPECT report from the Board. Williams was charged with two counts of
Class D felony possession of a controlled substance for possessing methadone
and alprazolam. Williams served a request for production of documents by a
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non-party and a subpoena duces tecum on INSPECT. The Board filed a
motion to quash the subpoena, asserting that the requested information was
confidential pursuant to statute. At the hearing, Williams testified that he
remembered the doctors who prescribed him the controlled substances, but he
could not remember the pharmacies where he got the prescriptions filled. The
trial court granted the Board’s motion to quash and certified its ruling for
interlocutory appeal.
[13] On appeal, in determining whether Williams was entitled to his INSPECT
report from the Board, we applied the Indiana Supreme Court’s three-part test
for the discoverability of records by a criminal defendant: (1) there must be
sufficient designation of the items sought to be discovered (particularity); (2) the
requested items must be material to the defense (relevance or materiality); and
(3) if the first two requirements are met, the trial court must grant the request
unless there is a showing of a “paramount interest” in nondisclosure. Id. (citing
In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011)). Ultimately, the
three-part test for discoverable information in a criminal proceeding involves
balancing the relevance of the material, its availability from other sources, the
burden of compliance measured in terms of difficulty, and the nature and
importance of the interests invaded. Id. at 367 (citing In re WTHR, 693 N.E.2d
1, 7 (Ind. 1998)).
[14] Although this three-part test does not apply to privileged information, we
concluded that Williams had waived any privilege:
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To the extent that the confidential information in the [INSPECT]
database might also be considered privileged, by virtue of either the
physician-patient privilege or the pharmacist-patient privilege, that
privilege inures to the patient, not the Board (or the physician or the
pharmacist, for that matter). Here, Williams’s request for information
from the database regarding his prescriptions amounts to a waiver of
any privilege, and therefore we conclude that the aforementioned
three-part test for discoverability applies in this case.
Id. (footnote omitted).
[15] Regarding the first part, particularity, “the request must enable the subpoenaed
party to identify what is sought and allow the trial court to determine whether
there has been sufficient compliance with the request.” Id. at 367-68 (quotation
omitted). Particularity also requires a showing that the information is not
readily available elsewhere. Id. at 368 (citing In re WTHR, 693 N.E.2d at 7).3
What constitutes reasonable particularity will depend on the facts of each case,
the crime charged, the nature of the items sought to be discovered, the degree of
discovery of other items of information, and the nature of the defense. Id.
3
In In re WTHR, the Indiana Supreme Court looked to Dillard v. State, 257 Ind. 282, 274 N.E.2d 387, 391
(1971), for guidance as to criminal discovery. In Dillard, the defendant demanded “a copy of any and all
inter-office memo, notes, reports . . . of and concerning the robberies, the investigation of defendant herein
and any and all persons suspected, interrogated and detained in connection therewith.” The Supreme Court
rejected this as an impermissible “fishing expedition or an attempted rummaging about in the police files
hoping to turn up something to use at the trial.” Id. at 392-93. In In re WTHR, the Court wrote:
Although described as the particularity requirement, in reality this test also smuggled in
the commonsensical elements of a showing that the information is not readily available
elsewhere (the “degree of discovery of other items of information” in Dillard) and that the
party seeking it is not engaged in a fishing expedition with no focused idea of the size,
species, or edibility of the fish.
693 N.E.2d at 7; see also Crawford v. State, 948 N.E.2d 1165, 1168 (Ind. 2011) (“In general, the particularity
requirement demands something more precise than give me everything related to the case.” (quotation
omitted)). Here, Lundy was not on a fishing expedition. Rather, she wanted her INSPECT report so that
she could review her prescription history for hydrocodone.
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“[T]he particularity requirement is not to be construed strictly against the
defendant but should be administered so as to maximize pre-trial discovery and
the benefits to the judicial system which flow therefrom.” Id. (quotation
omitted).
[16] The Board argued that Williams’s request for “any and all” of his prescription
records was overly broad. However, we found that because the INSPECT
database was computerized, “one would reasonably expect that producing ‘any
and all’ of Williams’s prescription records would not be especially
burdensome.” Id. The Board also argued that Williams could obtain
information about his prescriptions from his treating physicians. However, we
noted that Williams “could not remember the specific pharmacies that allegedly
dispensed his prescriptions, and thus obtaining his records from the INSPECT
database would verify whether those prescriptions were actually dispensed to
him.” Id. Furthermore, we noted that there was “no indication that such
information would be available from his treating physicians.” Id.[17] Regarding the second part, relevance or materiality, “[a]n item is ‘material’ if it
appears that it might benefit the preparation of the defendant’s case. The
relevance of some information or items may be self-evident.” Id. (quotation
omitted). We found that “the relevance of Williams’s prescription records
[was] indeed self-evident [because] they would establish (or at least help to
establish) a complete defense to the two possession charges.” Id.Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015 Page 9 of 13
Because we concluded that Williams had made a sufficient showing of both
particularity and relevance/materiality, we addressed whether the Board had
shown a paramount interest in the nondisclosure of Williams’s prescription
records. We acknowledged that a legitimate interest in keeping the information
or items confidential may suffice to deny discovery. Id. And the Board
emphasized the confidentiality provisions of Indiana Code section 35-48-7-11.1,
which provides that the information may be disclosed to only those persons or
agencies delineated in the statute, not including the patient. Nevertheless, we
responded:
It seems obvious that the confidentiality provisions of Indiana Code
Section 35-48-7-11.1 were enacted to uphold the protections of the
physician-patient privilege and the pharmacist-patient privilege.
Where, as here, a patient seeks to waive those privileges for the
purpose of exercising his or her constitutional right to present a
complete defense to charges in a criminal case, both the rationale for
and the Board’s interest in keeping the patient’s prescription records
confidential evaporate. See Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, or in the Compulsory Process or Confrontation clauses
of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.”)
(citations and quotation marks omitted). Therefore, we conclude that
the trial court abused its discretion in granting the Board’s motion to
quash Williams’s subpoena and reverse and remand for further
proceedings consistent with this opinion.
Id. at 368-69.
[18] Here, the Board does not dispute the INSPECT report’s relevance/materiality,
which is the second part of the test. Appellee’s Br. p. 6. However, the Board
argues that this case “substantially differs” from Williams because Williams
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“could not recall where his prescriptions were filled, and therefore, his
prescription records were not available through other sources.” Id. at 7. But
here, “Lundy has failed to show she is unable to access her prescription records
through her doctor’s office, pharmacies, or hospitals[.]” Id. The Board points
out that it was willing to disclose Lundy’s INSPECT report if she was able to
make a showing that she could not get her records elsewhere, Tr. p. 13, 23;
however, Lundy “knew where she could possibly obtain records of her
prescription.” Appellant’s App. p. 60.
[19] The three-part test involves balancing. See Williams, 959 N.E.2d at 367. As
such, no one factor is controlling. As for particularity, it requires a showing
that the information is not readily available elsewhere. Contrary to the Board’s
argument, “readily available” does not equate to knowledge. That is, just
because Lundy knew where she could “possibly” obtain her prescription
records does not mean that they were “readily available” to her. “Readily
available” would include, for instance, a situation where the defendant had a
prescription bottle at home and the prescription was valid,4 and therefore there
was no need for the defendant to request the record for it. But as defense
counsel argued at the hearing on the Board’s motion to quash, getting Lundy’s
records would have required “getting the correct medical release, filing the
medical release, waiting 30 days, [and] paying[.]” Tr. p. 20; see also Appellant’s
4
A prescription obtained by fraud, deception, or misrepresentation is not a valid prescription. See Schuller v.
State, 625 N.E.2d 1243, 1246 (Ind. Ct. App. 1993).
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App. p. 60 (“Defense Counsel argued that the time needed to obtain this
information via a prescriptions[-]record request from either the hospital or the
pharmacy would far exceed the mere minutes it would take to obtain this
information from the online INSPECT database.”). In addition, the
particularity requirement is not to be construed strictly against the defendant
but should be administered so as to maximize pretrial discovery. Given that the
three-part test for discoverable information in a criminal proceeding involves
balancing, the Board does not challenge the second part of the test—
relevance/materiality, Lundy only knew where she could “possibly” obtain her
prescription records, the particularity requirement should be administered to
maximize pretrial discovery, and Lundy seeks to waive any privilege for the
purpose of exercising her right to present a complete defense to the charge of
Class D felony possession of a controlled substance, we hold that Lundy is
entitled to her INSPECT report from the Board.
[20] As for the Board’s concern that such a holding “would significantly alter the
function and purpose of the INSPECT program” by transforming it into a
“clearing house for any criminal defendant charged with a possession crime to
obtain his or her prescription records,” Appellee’s Br. p. 7-8, we note that the
Board’s attorney stated at the hearing that the Board already requires a low
threshold before it will turn over an INSPECT report: “And just as I’ve said
before, a really low bar of ‘I simply don’t recall’ I think satisfies and my client
would comply [by turning over the INSPECT report].” Tr. p. 23. Accordingly,
the trial court abused its discretion in granting the Board’s motion to quash
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Lundy’s subpoena. We therefore reverse and remand this case to the trial
court.5
[21] Reversed and remanded.
Baker, J., and Riley, J., concur.
5
Because of this holding, we do not address Lundy’s other arguments, such as the prosecutor should have
provided Lundy with a copy of her INSPECT report upon request and the Board is not a non-party.
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