Opinion
No. 62263-3-I.
September 21, 2009.
Appeal from the Superior Court, King County, No. 07-1-11157-0, Laura C. Inveen, J., entered August 4, 2008.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Grosse and Cox, JJ.
Hanif Jaffer, convicted of two counts of violation of a restraining order prohibiting him from contacting his ex-sister-in-law, contends the trial court violated his right to due process by denying his motion for in camera review of the victim's medical and mental health records. Because Jaffer did not show a likelihood that the records would contain material relevant to his defense when he brought his motion before the trial court, we affirm.
FACTS
Jaffer was charged with two counts of violation of a no-contact order and one count of harassment, each offense alleged to have been committed against his former sister-in-law, Hamida. Hamida had married Jaffer's brother Riyaz in 2005, but had divorced Riyaz and obtained no-contact orders against Jaffer and Riyaz in 2006. The offenses were alleged to have occurred in 2006 and 2007.
Because the victim and most of the witnesses share the same last name, first names are used for the sake of clarity.
Before trial, defense counsel orally moved for the issuance of a subpoena duces tecum for Hamida's medical and mental health records. Counsel argued that he understood Hamida had received cognitive therapy for her diagnosed condition of "cognitive dissidence," which he understood from talking to a hospital social worker was a condition involving perceiving events differently than a normal person would. Without clearly explaining whether he was discussing charged or uncharged incidents, counsel also argued that Hamida had made inconsistent statements in interviews and said she had made bizarre allegations that abuse she had suffered when she was living with Jaffer, Riyaz, and other members of their family included severe beatings and ritual exorcism. He asked the court to review the records in camera to determine whether there was evidence that Hamida suffered mental delusions and whether there were any medical witnesses to substantiate her claims of prior physical abuse.
The trial court denied Jaffer's motion. The court found Jaffer's counsel had failed to provide a sufficiently concrete justification for the intrusion, and further noted that there were alternative methods for determining whether there were any witnesses to claims Hamida had made about physical abuse.
Jaffer was convicted of the two counts of violation of a no-contact order and acquitted of the count of harassment. He filed an appeal to the King County Superior Court challenging, among other things, the trial court's denial of his request for in camera review of Hamida's medical and mental health records. The superior court affirmed the conviction. Jaffer thereafter moved for discretionary review of that decision in this court, raising only the issue of in camera review of Hamida's mental health records. A commissioner of this court granted review.
ANALYSIS
To obtain in camera review of a witness's privileged counseling records "the defendant must make a particularized showing that such records are likely to contain material relevant to the defense." State v. Kalakosky, 121 Wn.2d 525, 550, 852 P.2d 1064 (1993). More than speculation is required. Merely making a "claim that privileged files might lead to other evidence or may contain information critical to the defense is not sufficient to compel a court to make an in camera inspection." State v. Diemel, 81 Wn. App. 464, 469, 914 P.2d 779 (1996). The decision whether to conduct an in camera review of privileged records is reviewed for abuse of discretion. Kalakosky, 121 Wn.2d at 550. A trial court abuses its discretion when its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
The City contends that this case is similar to Kalakosky and Diemel, where it was held that the trial courts had not abused their discretion in declining to conduct in camera reviews of witness's privileged counseling records. We agree.
The defendant in Kalakosky was charged with multiple rapes. Defense counsel sought an in camera inspection of the notes of a rape crisis center counselor who counseled one of the victims shortly after the rape. The motion for in camera review stated only that the "`notes may contain details which may exculpate the accused or otherwise be helpful to the defense.'" Kalakosky, 121 Wn.2d at 544. The trial court denied the motion. Our Supreme Court affirmed, concluding that if "such a statement was sufficient to constitute a threshold showing, then such records would always be susceptible to in camera review." Kalakosky, 121 Wn.2d at 548.
Kalakosky was followed in Diemel, 81 Wn. App. 464, 467. In Diemel, the victim alleged that the defendant forced her to have sex with him during a boat trip. After the boat docked, she called 911 from a telephone booth. Police found her upset and cowering in the telephone booth. The woman later began several months' counseling. Before trial, the defendant filed a written motion, affidavit, and brief requesting that the court conduct an in camera review of the records pertaining to this counseling. He made three arguments in support of the motion:
First, because K maintained she was never intoxicated throughout the evening yet had a .08 blood alcohol level several hours after the alleged rape, she may have told her therapist something different about her drinking and intoxication than she admitted before. This information was to be used to impeach K's credibility. Second, defense counsel argued that K had confided to others that she was once in an abusive relationship and thus there might be a reason other than a sexual assault to explain the way she acted in the telephone booth. In support of this argument defense counsel stated he contacted a therapist who said that post-traumatic stress disorder resulting from some types of physical abuse, in conjunction with alcohol abuse, could have been the reason K cowered in the phone booth. Nonetheless, there was no affidavit from the unnamed expert. Third, defense counsel argued that K might have told her therapist about consenting to the sexual intercourse or foreplay with Diemel.
Diemel, 81 Wn. App. at 466.
The trial court denied the defendant's motion. Comparing his presentation to the materials submitted in Kalakosky, this court affirmed:
Although the affidavit presented here is "better" than the Kalakosky affidavit, the trial court did not abuse its discretion when it determined that Diemel failed to make the requisite showing that the records of K's therapist would contain information useful to the defense under either a "plausible showing" or a "likely" standard. A review of the affidavit reveals considerable speculation and little factual basis or foundation. Further, the evidence of alcohol consumption was otherwise available. The only evidence to support the post-traumatic stress theory of K's overreaction was a statement by her to Diemel that she once had been involved in an abusive relationship. The fact that she might have discussed the circumstance of her "consent" with the therapist is not sufficient in and of itself to justify the intrusion of inspection. Otherwise, any time consent is at issue, post-event counseling records would be open to inspection. A claim that privileged files might lead to other evidence or may contain information critical to the defense is not sufficient to compel a court to make an in camera inspection.
Diemel, 81 Wn. App. at 469.
Here, Jaffer primarily relies on a letter that Hamida apparently sent to the City prosecutor at some point during the proceedings. But nothing in the record of the proceedings before the municipal court indicates that that letter was actually placed in the municipal court file. Even if it were, it is clear from the transcript of proceedings that counsel did not draw it to the trial court's attention at the time of the motion at issue here. Similarly, while Jaffer also cites to testimony during trial, trial counsel's rambling presentation of the oral motion for in camera review cannot be said to have accurately summarized the actual trial testimony.
The letter, which Jaffer attached to his opening brief on appeal, does not appear in the record of the trial court proceedings, which was transmitted to the Superior Court for the RALJ appeal. It appears that the letter was placed before the RALJ court by simply attaching it as an exhibit to the appellant's RALJ brief.
Tellingly, only the respondent's brief sets forth the actual argument trial defense counsel presented at the time he made the motion for in camera review, which is the subject of this appeal. While the respondent argues that there would be no showing of an abuse of discretion even if the letter were considered, because the record does not show that the trial court considered the letter, we do not further discuss it as it is legally irrelevant to the issue before us.
Confining our review to the record before the trial court when the motion in issue was considered, we find no abuse of discretion. Jaffer's counsel's oral motion was apparently unsupported by affidavit, transcript, report or any other written material. Counsel asked the trial court to conclude there was a realistic possibility of exculpatory evidence in Hamida's mental health records based on a supposed diagnosis of "cognitive dissidence" or perhaps "cognitive dissonance." But Jaffer does not dispute before this court that neither term actually reflects a diagnosis of any recognized mental health disorder.
We note that, consistent with the result we reach, the superior court's RALJ ruling affirming the trial court concluded that the trial court did not abuse its discretion in denying the motion for in camera review of the counseling records "based on the evidence he had to consider."
At the November 14, 2008, oral argument on the motion for discretionary review, Jaffer's appellate counsel represented that she understood that Jaffer's trial defense counsel had filed a written motion for in camera review and stated she would provide it in supplemental materials. The supplemental materials counsel then provided to this court on November 19, however, contained no written motion. Nor does the record of proceedings transmitted from the trial court to the superior court, contained in the clerk's papers numbered 1 through 346 in this court, contain a written motion for in camera review by Jaffer's trial counsel.
Moreover, this case is particularly similar to Diemel, in which counsel failed to provide an affidavit from the therapist on which he relied for his theory of how the victim's post-traumatic stress disorder could have affected her behavior. Here, while counsel referred to information he had received from a social worker about the effect of Hamida's condition on her perception of reality, he provided no affidavit from that social worker. Given the absence of any concrete evidence or documentary support for counsel's contentions, and the dubious nature of counsel's claim about Hamida's diagnosis, the trial court was clearly entitled to find counsel's submission too speculative to warrant in camera review of Hamida's privileged treatment records.
Jaffer nonetheless relies on State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006). Charged with rape, Gregory claimed he paid for consensual sex with the victim. Gregory, 158 Wn.2d at 781. The victim had a prior conviction for prostitution, and Gregory sought in camera review of her counseling records and the dependency files for her children to look for evidence of recent prostitution activity. The trial court denied Gregory's request for in camera review. Applying Kalakosky, our Supreme Court held that Gregory had not made a particularized showing sufficient to overcome the privilege protecting the counseling records. However, based on the victim's relatively recent prior conviction for prostitution, the court ruled that Gregory was entitled to in camera review of her children's dependency files to "determine if they contained information that could lead to admissible evidence that [the victim] engaged in similar prostitution activity near to the time of this incident." Gregory, 158 Wn.2d at 795. The court reasoned that, unlike the speculation presented in Diemel, Gregory made "a more concrete connection between his theory of the case and what he expected to find in the dependency files, i.e., it was reasonable to believe that if R.S. was still engaging in prostitution in 1998, evidence of that would be reflected in the dependency files and, if so, the reports contained therein could reveal potential witnesses." Gregory, 158 Wn.2d at 795 n. 15.
This case is unlike Gregory. There was no showing to the trial court when it considered Jaffer's motion of anything that approached the Gregory victim's documented prostitution history, which was essential to the Supreme Court's holding.
The trial court did not abuse its discretion.
Affirmed.