McCloud v. State

2013 UT App 219_________________________________________________________
THE UTAH COURT OF APPEALS
LARRY MCCLOUD,
Petitioner and Appellee,
v.
STATE OF UTAH,
Respondent and Appellant.
Opinion
No. 20110794‐CA
Filed September 6, 2013
Fourth District, Heber Department
The Honorable Donald J. Eyre Jr.
No. 070500212
John E. Swallow, Brett J. DelPorto, and
Brandon Simmons, Attorneys for Appellant
Brent A. Gold and Andrew J. Parnes, Attorneys for
Appellee
JUDGE WILLIAM A. THORNE JR. authored this Opinion, in which
JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
THORNE, Judge:
¶1 This matter originated in the district court in 2007 when
appellee Larry McCloud sought postconviction relief from his 2001
convictions for sexually abusing a child (Victim). Upon McCloud’s
motion, the district court authorized the issuance of subpoenas for
the production and in camera review of certain records from
Victim’s treatment with various medical and psychiatric care
providers. The State brings this interlocutory appeal challenging
the district court’s order authorizing the subpoenas. We reverse the
district court’s order and remand this matter for further
proceedings.
McCloud v. State
BACKGROUND
¶2 In 2000, then sixteen‐year‐old Victim reported that McCloud
had repeatedly sexually abused her throughout her life. McCloud
was charged with multiple sex offenses and tried before a jury in
2001. At McCloud’s trial,1 Victim testified that the abuse began
when she was five years old, describing a 1989 incident in which
McCloud had asked her to touch him while showering. She further
testified that McCloud had committed multiple sexual acts upon
her between 1991 and 1994. McCloud also testified at trial, denying
Victim’s allegations and presenting evidence that the abuse could
not have occurred on some of the dates claimed because McCloud
did not have access to Victim on those dates. In rebuttal testimony,
Victim stood by her allegations of abuse but acknowledged that she
may have been confused about the specific dates that the abuse
occurred.
¶3 The jury convicted McCloud of one count of aggravated
sexual abuse of a child and three counts of sodomy upon a child.
On direct appeal, this court reduced the aggravated sexual abuse
of a child conviction to the lesser included offense of sexual abuse
of a child. However, we otherwise affirmed McCloud’s convictions.
See State v. McCloud, 2005 UT App 466, ¶ 27, 126 P.3d 775.
¶4 In 2007, McCloud filed a petition for relief in the district
court pursuant to Utah’s Post‐Conviction Remedies Act. See Utah
Code Ann. §§ 78B‐9‐101 to ‐405 (LexisNexis 2012 & Supp. 2013).
After a series of summary judgment motions and resulting
amendments to McCloud’s petition, three arguments for relief
remained. One of these arguments was that McCloud had received
ineffective assistance of appellate counsel following his 2001 trial
because appellate counsel had failed to argue that McCloud’s trial
1
The record of the 2001 trial is not before us, and we rely
on the parties’ briefs for background information pertaining to
events that occurred at that trial.
20110794‐CA 2 2013 UT App 219McCloud v. State
counsel provided ineffective assistance by failing to obtain records
from various doctors and therapists to whom Victim had disclosed
the abuse.2
¶5 In 2011, McCloud renewed a previous discovery motion for
the issuance of subpoenas duces tecum directing the production of
Victim’s records from various doctors and therapists for an in
camera review by the district court. McCloud’s discovery motion
asserted that the records “pertain to a substantive claim in the
Petition” and “are necessary for the full presentation of the
prejudice prong of the Sixth Amendment claim in this case.” The
State opposed the motion, as did Victim, who had intervened in the
case.
¶6 After a hearing, the district court granted McCloud’s
motion. The district court’s order stated,
The Court finds that Petitioner has met the
requirements of Utah law concerning the disclosure
of privileged medical records. Specifically, the Court
finds that billing statements for the victim’s
treatment in 1989 . . . , diary entries from [the
victim’s] grandmother in 1989, the victim’s testimony
at the preliminary hearing and at trial, and billing
statements for treatment by numerous providers
during the period from 1996 through 2000
established with reasonable certainty that records
from the victim’s treatment providers contain
evidence of multiple disclosures of abuse by the
victim. Inconsistencies in said disclosures may have
2
McCloud’s other remaining claims—that his prior appel‐
late counsel provided him with ineffective assistance by failing
to raise available Sixth Amendment arguments and failing to
make additional arguments about his trial counsel’s effective‐
ness—are not before us on this interlocutory appeal.
20110794‐CA 3 2013 UT App 219McCloud v. State
provided a defense to the petitioner at the time
of trial. Petitioner has therefore met the require‐
ments for disclosure under rule 506, Utah Rules of
Evidence, as interpreted by the Utah Supreme
Court, of any records of counselors from 1989
about disclosures of abuse, and of any records
of psychologists, psychiatrists, and biofeedback
counselors from 1998 through 2000 about disclosures
of abuse.
The State petitioned this court for interlocutory review of the
district court’s order, and we granted the State’s review petition.
ISSUES AND STANDARDS OF REVIEW
¶7 The State argues that Victim’s records are protected by
Utah’s physician and mental health therapist–patient privilege (the
patient privilege), see generally Utah R. Evid. 506, and that the
district court erred when it concluded that McCloud had met the
standards for obtaining the production and an in camera review of
those records. “‘The existence of a privilege [or an exception
thereto] is a question of law,’ which we review for correctness.”
State v. Worthen, 2008 UT App 23, ¶ 9, 177 P.3d 664 (alteration in
original) (quoting State v. Blake, 2002 UT 113, ¶ 6, 63 P.3d 56), aff’d,
2009 UT 79, 222 P.3d 1144.
ANALYSIS
¶8 The State challenges the district court’s conclusion that
McCloud established his entitlement to the production and in
camera review of Victim’s records. Specifically, the State argues
that the district court erred in concluding that the possibility of
inconsistent statements by Victim to her various doctors, therapists,
and counselors constituted an exception to her patient privilege. See
Utah R. Evid. 506(d)(1)(A) (stating that no privilege exists in
20110794‐CA 4 2013 UT App 219McCloud v. State
proceedings where a patient’s condition is an element of a claim or
defense). The State further argues that McCloud failed to provide
adequate extrinsic evidence to demonstrate the required
“reasonable certainty” that Victim’s records contained exculpatory
evidence. See State v. Worthen, 2009 UT 79, ¶ 38, 222 P.3d 1144(citation and internal quotation marks omitted).
I. Existence of a Physical, Mental, or Emotional Condition
¶9 Rule 506 of the Utah Rules of Evidence provides that “[a]
patient has a privilege, during the patient’s life, to refuse to disclose
and to prevent any other person from disclosing information that
is communicated in confidence to a physician or mental health
therapist for the purpose of diagnosing or treating the patient.”
Utah R. Evid. 506(b). However, rule 506 contains certain exceptions
to the patient privilege, one of which is rule 506(d)(1)(A)’s directive
that “[n]o privilege exists . . . [f]or communications relevant to an
issue of the physical, mental, or emotional condition of the patient
. . . in any proceeding in which that condition is an element of any
claim or defense.” Id. R. 506(d)(1)(A). Rule 506(d)(1)(A) was the
only privilege exception argued to the district court, and the district
court apparently relied on that exception when it concluded that
inconsistencies in Victim’s statements to her various care providers
qualified as an exception to the patient privilege because they may
have provided McCloud with a defense at his 2001 trial.
¶10 In determining the applicability of rule 506(d)(1)(A), a
district court must first “determine whether the patient suffers
from a physical, mental, or emotional condition as opposed to
mental or emotional problems that do not rise to the level of a
condition.” State v. Lenkart, 2011 UT 27, ¶ 48, 262 P.3d 1. A
qualifying condition “is not transitory or ephemeral.” Worthen,
2009 UT 79, ¶ 21. Rather, a condition must be “a state that persists
over time and significantly affects a person’s perceptions, behavior,
or decision making in a way that is relevant to the reliability of the
person’s testimony.” Id.20110794‐CA 5 2013 UT App 219McCloud v. State
¶11 The district court did not expressly identify a specific
“physical, mental, or emotional condition” to support its ruling.
Rather, the district court stated only that “[i]nconsistencies in
[Victim’s] disclosures may have provided a defense to the
petitioner at the time of trial.” We cannot agree with the district
court that the possibility that patient records contain inconsistent
statements made by the patient qualifies as an exception under rule
506(d)(1)(A).
¶12 The possibility that Victim may not have been entirely
consistent in her statements to her care providers over a period of
years does not, in and of itself, constitute “a state that . . .
significantly [affected her] perceptions, behavior, or decision
making.” Worthen, 2009 UT 79, ¶ 21. We see no indication in the
record that McCloud alleged or the district court considered some
underlying condition of Victim’s that caused or could be
demonstrated by any such inconsistencies. Cf. id. ¶ 28 (concluding
that the victim’s “‘frustration with, and hatred toward’ her parents
is an emotional condition contemplated by the rule”); State v.
Cardall, 1999 UT 51, ¶ 29, 982 P.2d 79 (finding a sufficient condition
where victim was a “habitual liar” and was “mentally and
emotionally unstable” and “on at least one previous occasion these
psychological traits led her to lie about an attempted rape”). The
district court’s stated rationale suggests only that inconsistent
statements were possible because Victim had spoken to multiple
caregivers over a lengthy period of time. While that possibility
certainly exists, it does not constitute a physical, mental, or
emotional condition for purposes of rule 506(d)(1)(A).
¶13 In order to grant McCloud’s discovery motion under rule
506(d)(1)(A), the district court was required to make an adequately
supported finding that Victim suffered from a physical, mental, or
emotional condition of relevance to McCloud’s 2001 defense and
current ineffective assistance of counsel claim. Without such a
finding, the district court’s ruling that McCloud is entitled to an in
camera review of Victim’s confidential records is in error. See State
v. Worthen, 2009 UT 79, ¶ 19, 222 P.3d 1144.
20110794‐CA 6 2013 UT App 219McCloud v. State
II. The “Reasonable Certainty” Test
¶14 The State also argues that McCloud failed to provide the
district court with extrinsic evidence demonstrating a reasonable
certainty that Victim’s records contain exculpatory information. A
party seeking to obtain in camera review of records governed by
rule 506 “must show with reasonable certainty that the records
contain exculpatory evidence that will be favorable to [a claim or]
defense.” State v. King, 2012 UT App 203, ¶ 32, 283 P.3d 980(citation and internal quotation marks omitted).
This is a stringent test, necessarily requiring some
type of extrinsic indication that the evidence within
the records exists and will, in fact, be exculpatory.
The difficulty in meeting this test is deliberate and
prudent in light of the sensitivity of these types of
records and the worsening of under‐reporting
problems in the absence of a strong privilege.
State v. Blake, 2002 UT 113, ¶ 19, 63 P.3d 56 (footnote omitted). The
types of extrinsic evidence that may suffice to satisfy the reasonable
certainty test “might include references to records of only certain
counseling sessions, which are alleged to be relevant, independent
allegations made by others that a victim has recanted, or extrinsic
evidence of some disorder that might lead to uncertainty regarding
a victim’s trustworthiness.” Id. ¶ 22.
¶15 Here, McCloud presented the district court with several
different types of extrinsic evidence to show that Victim’s records
would contain statements pertaining to the abuse. He provided
billing records showing the specific times that Victim had met with
various care providers. He also presented a March 13, 1989 diary
entry, allegedly written by Victim’s grandmother, stating that
Victim told her therapist that McCloud had “touched her (while in
the pool) where he shouldn’t.” Finally, he relied on Victim’s own
statements from the preliminary hearing and trial indicating that
she had revealed his abuse to several care providers.
20110794‐CA 7 2013 UT App 219McCloud v. State
¶16 This extrinsic evidence is likely sufficient to demonstrate a
reasonable certainty that Victim did disclose McCloud’s abuse to
one or more care providers. But that alone is not enough to
overcome Victim’s patient privilege. Rather, McCloud was
required to “show with reasonable certainty that the records
contain exculpatory evidence.” King, 2012 UT App 203, ¶ 32
(emphasis added) (citation and internal quotation marks omitted).
¶17 In this case, McCloud alleges that the existence of
inconsistent statements that Victim made to her various caregivers
about McCloud’s abuse constitutes the required exculpatory
evidence. But there is nothing in McCloud’s extrinsic evidence to
suggest that Victim actually made any inconsistent statements
about whether the abuse had in fact occurred. To the contrary, the
extrinsic evidence presented by McCloud demonstrates only that
Victim revealed the abuse to multiple care providers over the
course of several years. We cannot characterize Victim’s repeated
statements that McCloud sexually abused her as exculpatory
evidence, and the mere possibility that the multiple reports
contained material inconsistencies is too speculative to meet the
“reasonable certainty” requirement.
¶18 Our supreme court has mandated a “strong [patient]
privilege” in order to respect “the sensitivity of these types of
records” and avoid “the worsening of under‐reporting problems.”
State v. Worthen, 2009 UT 79, ¶ 38 n.7, 222 P.3d 1144 (citation and
internal quotation marks omitted). In furtherance of this strong
privilege, the supreme court has mandated the “stringent test” of
showing through extrinsic means a “reasonable certainty . . . that
the evidence within the records exists and will, in fact, be
exculpatory.” Id. ¶ 38 (citation and internal quotation marks
omitted). The extrinsic evidence that McCloud provided to the
district court fails to demonstrate a reasonable certainly that
Victim’s confidential records contain exculpatory evidence. This
failure of proof provides us with a second reason to conclude that
the district court erred in ruling that McCloud is entitled to an in
camera review of Victim’s confidential records.
20110794‐CA 8 2013 UT App 219McCloud v. State
CONCLUSION
¶19 We conclude that the district court erred when it ruled that
McCloud had established an exception to Victim’s patient
privilege. The mere possibility of inconsistencies in Victim’s
statements to her various doctors and therapists in no way
establishes—without impermissible speculation—the physical,
mental, or emotional condition required by rule 506(d)(1)(A) of the
Utah Rules of Evidence. Further, McCloud failed to provide
extrinsic evidence demonstrating a reasonable certainty that
Victim’s records contain exculpatory material. For these reasons,
we reverse the district court’s order authorizing the issuance of
subpoenas for Victim’s confidential records and remand this matter
for further proceedings.3
3
McCloud argues that we should affirm the district court’s
order because Victim’s 2001 trial testimony waived her patient
privilege and because preventing his access to the records would
violate his state and federal constitutional rights. McCloud
raised these issues in the district court, but the district court did
not rule on them. We do not consider these arguments to be well
developed in light of the interlocutory posture of this appeal,
and we decline to address them at this time. Cf. Gunn Hill Dairy
Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App
20, ¶¶ 17–24, 269 P.3d 980 (discussing this court’s “discretion to
carefully tailor the scope of interlocutory review”).
20110794‐CA 9 2013 UT App 219