rs/se v. Hon. thompson/vanders

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CRIME VICTIMS R.S. and S.E., Petitioners,

v.

THE HONORABLE PETER A. THOMPSON, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

TEDDY CARL VANDERS, Real Party in Interest.

No. 1 CA-SA 19-0080
FILED 11-21-2019

Petition for Special Action from the Superior Court in Maricopa County
No. CR2017-132367-001
The Honorable Peter A. Thompson, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Jamie Balson Attorney at Law, Sun City
By Jamie Balson
Counsel for Petitioners

Maricopa County Office of the Legal Advocate, Phoenix
By Elyse Anne Fune, James P. Leonard
Counsel for Real Party in Interest
 RS/SE v. HON. THOMPSON/VANDERS
Opinion of the Court

OPINION

Chief Judge Peter B. Swann delivered the opinion of the court, in which
Presiding Judge James B. Morse Jr. and Judge Kenton D. Jones joined.

S W A N N, Chief Judge:

¶1 In this case, we hold that the physician-patient privilege does
not yield to the request of a criminal defendant for information merely
because that information may be helpful to his defense.

¶2 Teddy Carl Vanders is charged with second-degree murder.
On his request, the superior court ordered a hospital to disclose the
deceased victim’s privileged mental health records for an in camera review.
Siblings of the victim petition for special action relief from that order.

¶3 Vanders’s argument is that his constitutional rights overcome
a statutory privilege. While it is true that the privilege cannot withstand a
direct conflict with a constitutional right, a defendant’s due process right to
a fair trial does not create a right to discovery any greater than those rights
created by Ariz. R. Crim. P. (“Rule”) 15.1 and Brady v. Maryland, 373 U.S. 83
(1963). We hold that to be entitled to an in camera review of privileged
records as a matter of due process, the defendant must establish a
substantial probability that the protected records contain information
critical to an element of the charge or defense or that their unavailability
would result in a fundamentally unfair trial. Because Vanders did not
establish such a probability, the court erred by granting an in camera review
of the victim’s privileged records. We therefore accept jurisdiction and
grant relief.

FACTS AND PROCEDURAL HISTORY

¶4 On July 13, 2017, Vanders called 9-1-1 and told the operator
that he had just shot and killed his long-term girlfriend, M.S., during a
domestic dispute. He described the incident to the operator, saying “[M.S.]
was acting evil and possessive. She was crawling around. It was insane
and not normal.” He also said that M.S. had abused him throughout their
relationship, and that he had “been threatened for many years.” He told
the operator that M.S. had been to a mental hospital and that he thought
she had been diagnosed with a mental illness.

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Opinion of the Court

¶5 Before trial, Vanders requested that the court compel
“Magellan Hospital/Urgent Psychiatric Care Center” to disclose for an in
camera review M.S.’s privileged mental health records from a visit six years
before her death. Vanders claimed that “the nature of the requested records
are essential to his listed [justification] defenses and to his ability to
effectively examine witnesses.” In support of his motion, Vanders cited his
statements to the 9-1-1 operator and two police reports from 2009 and 2011,
both of which listed him as the victim of domestic assault. In the 2009
incident, M.S. was taken into custody after she admitted to hitting Vanders
while both were intoxicated. In the 2011 incident, while the couple were
intoxicated, M.S. broke open the couple’s gun safe to get a gun to kill
herself, and Vanders physically restrained her. According to the report,
M.S. was “hysterical and kept saying she wanted to kill herself,” and, once
in custody, asked for an officer’s gun so she could kill herself. The police
took her to Magellan Hospital “due to [her] current mental state,” where
she voluntarily checked herself in and told staff that “she did need help and
wanted to talk to them about suicide.”

¶6 Relying on State ex rel. Romley v. Superior Court (Roper), 172
Ariz. 232 (App. 1992), the superior court found that Vanders’s due process
rights required disclosure of M.S.’s privileged records for an in camera
review. The court granted Vanders’s motion, and M.S.’s siblings, as victims
under Arizona’s Victims’ Bill of Rights (“VBR”), brought this special action
challenging the ruling. See A.R.S. §§ 13-4401(19), -4437(A).

JURISDICTION

¶7 Special action jurisdiction is appropriate when there is no
equally plain, speedy, and adequate remedy by appeal, Ariz. R.P. Spec. Act.
1(a), and when the case presents a purely legal issue of statewide
importance and first impression, Gilbert Prosecutor’s Office v. Foster, 245
Ariz. 15, 17, ¶ 5 (App. 2018). We accept jurisdiction because there is no
adequate remedy by appeal when a party challenges an order to produce
privileged documents, see Roman Catholic Diocese of Phx. v. Superior Court
(State), 204 Ariz. 225, 227, ¶ 2 (App. 2003), and this case presents a legal
question of statewide importance that will arise again, cf. Duquette v.
Superior Court (Lamberty), 161 Ariz. 269, 271 (App. 1989).

DISCUSSION

¶8 The petitioners argue that the superior court erred by
granting Vanders’s request for an in camera review of M.S.’s medical
records because the records are protected under the VBR and the physician-

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Opinion of the Court

patient privilege, and because Vanders failed to establish a superseding
constitutional right to the protected records. Generally, we will not disturb
the superior court’s ruling on a discovery matter absent an abuse of
discretion. State v. Fields, 196 Ariz. 580, 582, ¶ 4 (App. 1999). But we review
the legal principles on which the court bases its discovery ruling, including
whether a privilege applies, de novo. State v. Zeitner, 246 Ariz. 161, 164, ¶
8 (2019). Because we can resolve this special action based on the statutory
privilege, we need not reach the court’s ruling regarding the VBR. See
Goodman v. Samaritan Health Sys., 195 Ariz. 502, 505, ¶ 11 (App. 1999) (“It is
sound judicial policy to avoid deciding a case on constitutional grounds if
there are nonconstitutional grounds dispositive of the case.”).

I. VANDERS’S DISCOVERY RIGHT DOES NOT OVERCOME THE
PHYSICIAN-PATIENT PRIVILEGE.

¶9 It is well-established that “[t]here is no general constitutional
right to discovery in a criminal case, and Brady did not create one.”
Weatherford v. Bursey, 429 U.S. 545, 559 (1977); see Brady, 373 U.S. 83; State v.
Connor, 215 Ariz. 553, 561–62, ¶ 21 (App. 2007). In Brady, the Supreme Court
held that the government’s failure to disclose evidence in its possession that
was both favorable to the defendant and material to guilt or punishment
violated the defendant’s due process rights. 373 U.S. at 87; see United States
v. Bagley, 473 U.S. 667, 682 (1985) (“[E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.”). Even considering
the right established in Brady, “[t]he federal constitution gives the defense
no greater right to discovery than exists under state law.” Roper, 172 Ariz.
at 236 (citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987)).

¶10 We first examine whether Vanders’s state right to discovery
entitles him to access M.S.’s privileged records. In Arizona, a criminal
defendant’s right to disclosure is governed by Rule 15.1, which provides,
along with other discovery rights, that when a defendant claims a need for
material or information, the court may order “any person” to produce that
material or information if the court finds “(A) the defendant has a
substantial need for the material or information to prepare the defendant’s
case; and (B) the defendant cannot obtain the substantial equivalent by
other means without undue hardship.” Rule 15.1(g). On the other hand, a
person’s medical records are protected from disclosure in a criminal case
by A.R.S. § 13-4062(4), which prohibits the examination of “[a] physician or
surgeon, without consent of the physician’s or surgeon’s patient, as to any
information acquired in attending the patient which was necessary to

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Opinion of the Court

enable the physician or surgeon to prescribe or act for the patient.”1 This
statute, though framed as a testimonial privilege, also protects against
disclosure of privileged medical records. Zeitner, 246 Ariz. at 166, ¶ 18. The
privilege continues after the patient’s death. Sun Health Corp. v. Myers, 205
Ariz. 315, 319, ¶ 11 (App. 2003).

¶11 The physician-patient privilege is not absolute, but its
exceptions generally are limited to those circumstances in which the
legislature determined that society’s interests in disclosure outweigh a
patient’s interest in privacy. See, e.g., A.R.S. § 46-453(A) (exempting the
privilege in cases involving “a vulnerable adult’s exploitation, abuse or
neglect”); A.R.S. § 13-3806 (requiring physicians to report wounds that may
have resulted from illegal activity); but see Benton v. Superior Court (State),
182 Ariz. 466, 469 (App. 1994) (suggesting that the judiciary also has limited
the privilege, but focusing on cases holding that there was no valid
privilege—not creating exceptions to a validly held privilege). The
privilege-holder may enforce the privilege, but may also waive it. See Bain
v. Superior Court (Mills), 148 Ariz. 331, 334 (1986). Notably, there is no
exception for court-ordered disclosure stemming from a defendant’s
pretrial discovery requests or his constitutional right to present evidence.
Cf. N.C. Gen. Stat. § 8-53 (North Carolina statute allowing disclosure of
physician-patient privileged records if a court determines it is “necessary
to a proper administration of justice”).

¶12 When the defendant’s rule-based right to demand documents
conflicts with a person’s statutory physician-patient privilege, the privilege
must prevail. See State v. Hansen, 215 Ariz. 287, 289, ¶¶ 7–8 (2007) (holding
that if the court is unable to harmonize an apparently conflicting statute
and rule, it must determine whether the matter regulated is procedural or
substantive, and if substantive, then the statute prevails). Such is the case
here: both Rule 15.1(g) and A.R.S. § 13-4062(4) provide substantive rights,
and § 13-4062(4) prevails when the two conflict.

1 The petitioners argue that the records are protected by A.R.S. § 13-
4062(4) (physician-patient privilege) and § 32-2085(A) (psychologist-patient
privilege). The record in this case does not indicate whether the requested
records were the product of a physician-patient relationship, a
psychologist-patient relationship, or both. Because § 13-4062(4) and § 32-
2085(A) apply the same protections, the ambiguity in the record does not
affect our analysis. See Cabanas v. Pineda, 246 Ariz. 12, 17, ¶ 18 (App. 2018).

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Opinion of the Court

II. WE DO NOT EMBRACE ROPER’S BROAD EXTENSION OF A
DEFENDANT’S RIGHT TO PRESENT A COMPLETE DEFENSE.

¶13 Citing Roper, Vanders suggests that the due process right to
present a complete defense transforms discovery into a constitutional right,
which would overcome the statutory privilege.

¶14 Due process requires that a defendant receive a
fundamentally fair trial, including “a meaningful opportunity to present a
complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); see also
Oshrin v. Coulter, 142 Ariz. 109, 111 (1984). In Roper, this court extended that
right to entitle the defendant to an in camera review, and potentially full
disclosure, of the victim’s physician-patient privileged records, even when
those records were not in the possession of the state. Roper, 172 Ariz. at 239.

¶15 The facts in Roper were unique and, importantly, the court did
not know when it ruled whether the privileged records were in the state’s
possession. The defendant in that case had stabbed her husband, who
allegedly suffered from a multiple-personality disorder and was
manifesting one of his violent personalities at the time of the offense. Id. at
237. The defendant alleged that she acted in self-defense, and asserted that
she knew her husband suffered from multiple personalities and that she
had joined him in at least some counseling sessions for treatment of the
disorder. Id. at 235, 237. Before trial, the defendant requested disclosure of
her husband’s medical records. Id. at 234. The superior court granted the
request and ordered an in camera review of the records based on its finding
that the defendant showed that the records were “important” and that the
privilege had been partially waived. Id. at 234–35.

¶16 On appeal, this court held that when a defendant’s due
process right to a fair trial directly conflicts with the physician-patient
privilege or the VBR, then due process is the superior right. Id. at 239.
Although the court acknowledged that a defendant has no constitutional
right to discovery, it nevertheless held that certain due process rights—like
the right to a complete defense and effective cross-examination—could
extend to pretrial proceedings and require disclosure of information in
preparation for trial. Id. at 236, 240–41. Based on the facts of the case, the
court concluded that the defendant’s due process rights did require pretrial
discovery, and because the physician-patient privilege limits discovery, the
court found that the privilege directly conflicted with the defendant’s due
process right. Id. at 237–38, 240–41. The court further suggested that the
Sixth Amendment rights to confrontation and compulsory process may also

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entitle the defendant to access the privileged records in order to effectively
confront the witnesses against her. Id. at 240.

¶17 This court instructed the superior court to examine the
records in camera and order disclosure of those records that were “essential
to presentation of the defense of self-defense” or “essential to the
determination of the ability of the victim to perceive, recall, and/or
accurately relate the events of the day in question.” Id. at 235. The court
did not discuss what standard the superior court should have applied to
determine whether the defendant was entitled to an in camera review in the
first place.

¶18 Roper largely based its holding on cases involving privileged
materials already in the state’s possession (and therefore subject to Brady), or
on cases concerning a defendant’s Sixth Amendment trial-based
confrontation rights. For example, the court cited United States v. Agurs, 427
U.S. 97 (1976), and McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988)—both
involving information known to the government—for the proposition that
“a defendant’s due process rights were generally recognized to be violated
if the victim possessed exculpatory information that was not disclosed to
the defendant.” Roper, 172 Ariz. at 238. And the court cited Michigan v.
Lucas, 500 U.S. 145 (1991), and Davis v. Alaska, 415 U.S. 308 (1974)—both
analyzing, under a Sixth Amendment framework, a trial court’s erroneous
exclusion of protected records relevant to impeachment—for the broad
proposition that “state laws providing for nondisclosure of information to
defendants must, in some situations, yield to the constitutional
confrontation rights of the accused.” Roper, 172 Ariz. at 240. These
Confrontation-Clause-based cases did not concern court-ordered
disclosure of privileged records by third parties, but instead addressed
whether the defendant could use protected information, to which the
defendant already had access, for impeachment. Lucas, 500 U.S. at 147–48,
152–53; Davis, 415 U.S. at 318–20; see also Ritchie, 480 U.S. at 52 (explaining
that the effect of interpreting the Confrontation Clause to require pretrial
access to information “would be to transform the Confrontation Clause into
a constitutionally compelled rule of pretrial discovery”).

¶19 No decision binding on this court has held that a defendant’s
due process right to a fair trial evolves into a general constitutional right to
discovery, which could then work to overcome an individual’s physician-
patient privilege. And those cases that have allowed invasion of the
privilege are distinguishable. One line of cases, which generally relies on
Davis, requires juvenile records to be disclosed to the defendant so the
defendant can impeach adverse witnesses. See, e.g., State v. Morales, 129

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Ariz. 283, 285–86 (1981) (holding that, based on the defendant’s showing of
the content within a protected record, the statute protecting confidentiality
of juvenile records maintained by the department of corrections was
defeated by the defendant’s constitutional right to effective cross-
examination); State v. Rodriguez, 126 Ariz. 28, 30–31 (1980) (finding an
exception to the confidentiality of juvenile case dispositions under Ariz. R.
Evid. 609(d)); State v. Myers, 117 Ariz. 79, 88 (1977) (weighing the state’s
policy of protecting juvenile offenders against a defendant’s right to
confront witnesses). But these cases focus on a witness’s juvenile records
held by the department of corrections, not a person’s physician-patient
privileged records held by a private entity. The interests involved in
protecting juvenile records and physician-patient records are distinct.

¶20 Another line of cases has required disclosure of physician-
patient privileged records where there is an exception to the privilege. See
Ritchie, 480 U.S. at 43–44, 57–58 (noting a Pennsylvania statutory exception
allowing disclosure of privileged documents to a “court of competent
jurisdiction pursuant to court order”); Zeitner, 246 Ariz. at 163, ¶ 1 (finding
a valid statutory exception to A.R.S. § 13-4062(4) for investigations into
AHCCCS fraud); but see Benton, 182 Ariz. 466 (granting prosecution the
right to secure a victim’s records after the victim refused to cooperate with
the prosecution), cited favorably by Zeitner, 246 Ariz. at 166–67, ¶¶ 21, 24.
Because we are unable to find a legal basis for Roper’s broad proposition
that a defendant’s right to a fair trial creates a constitutional right to pretrial
discovery, we cannot embrace that decision as a basis for overriding the
physician-patient privilege in the circumstances of this case.

¶21 We agree with Roper that when a defendant’s established due
process right directly conflicts with a non-federal constitutional right, the
due process right must prevail. See 172 Ariz. at 236; see also Chambers v.
Mississippi, 410 U.S. 284, 302 (1973) (holding a defendant’s right to present
“trustworthy” and “critical” evidence outweighed state’s interest in
adhering to hearsay rules). The physician-patient privilege often will
directly conflict with the defendant’s ability to perfect his trial presentation,
but only in the exceptional case will it directly conflict with a defendant’s
fundamental right to a fair trial such that the privilege must yield to due
process. Indeed, the privilege is designed to withstand even a party’s
demonstrated need for the information it protects—if mere relevance were
enough to defeat the privilege, it would provide no meaningful protection
at all. See Jaffee v. Redmond, 518 U.S. 1, 18 (1996) (“An uncertain privilege,
or one which purports to be certain but results in widely varying
applications by the courts, is little better than no privilege at all.” (citation
omitted)); see also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he

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Opinion of the Court

Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.”).

¶22 Accordingly, we reiterate that a defendant does not have a
general constitutional right to discovery from a third party, and we depart
from Roper to the extent it implies that such a right exists. We also
recognize, however, that the physician-patient privilege is not entirely
impenetrable because in the exceptional case, the privilege could be applied
to violate a defendant’s due process right to present a defense. See Swidler
& Berlin v. United States, 524 U.S. 399, 408 n.3 (1998); see also Trombetta, 467
U.S. at 485; Edward J. Imwinkelried, The New Wigmore: A Treatise on
Evidence: Evidentiary Privileges §§ 11.1, 11.3 (3d ed. 2019) (noting that even
purportedly absolute privileges must occasionally yield to a defendant’s
showing of truly compelling need).

III. A DEFENDANT MUST MAKE A SHOWING OF PREJUDICE
BEFORE HE IS ENTITLED TO AN IN CAMERA REVIEW OF
PRIVILEGED RECORDS.

¶23 In State v. Connor, this court deduced that Roper authorized
infringement of the physician-patient privilege for in camera review “in the
context of a reasonable possibility that the information sought by the
defendant included information to which she was entitled as a matter of
due process.” 215 Ariz. at 558, ¶ 10 (emphasis added). Despite the
relatively permissive language of this standard for in camera review,
defendants have not been successful in challenging the privilege. See, e.g.,
State v. Kellywood, 246 Ariz. 45, 48–49, ¶¶ 9–15 (App. 2018) (holding that the
defendant did not make a specific enough showing that the victim’s
communications with her counselor, during the time frame that the crime
was committed, contained exculpatory information); State v. Sarullo, 219
Ariz. 431, 436–37, ¶¶ 19–21 (App. 2008) (affirming the superior court’s
denial of the defendant’s request for the victim’s privileged records because
“nothing in the record” supported the defendant’s assertion that the
victim’s mental health issues caused her to fabricate the assault); Connor,
215 Ariz. at 558–59, ¶¶ 11, 13 (affirming superior court’s denial of
defendant’s request for an in camera review, finding that defendant’s
broadly worded request for the victim’s mental health records “presented
no sufficiently specific basis” for infringing on privilege, and that certain
requested information would be inadmissible under Rules of Evidence). In
practice, courts arguably have applied a stricter standard than that of a
“reasonable possibility.” See Kellywood, 246 Ariz. at 52, ¶¶ 30–33
(Eckerstrom, J., dissenting) (citing applications of the standard and arguing

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Opinion of the Court

that the majority applied the standard more stringently than its language
requires). Yet Connor’s extraction of the “reasonable possibility” standard
from Roper was a result of Roper’s overbroad view of a defendant’s
constitutional right to discover privileged records, and therefore stands on
shaky ground.

¶24 An in camera review is inherently less intrusive than outright
disclosure, but it is nevertheless an intrusion and an encroachment on the
rights guaranteed by A.R.S. § 13-4062(4). We hold that the “reasonable
possibility” standard for in camera review is inadequate. Instead, a
defendant is entitled to an in camera review of physician-patient privileged
records not subject to Brady when the defendant demonstrates (1) a
substantial probability that the protected records contain information that
is trustworthy and critical to an element of the charge or defense, or (2) that
their unavailability would result in a fundamentally unfair trial. See
Chambers, 410 U.S. at 302 (holding that due process required allowing the
defendant to present hearsay testimony that “bore persuasive assurances of
trustworthiness” and “was critical to [his] defense”); Samiuddin v. Nothwehr, 243 Ariz. 204, 211, ¶ 20 (2017) (“[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.” (citing
Mathews v. Eldridge, 424 U.S. 319, 334 (1976)); Connor, 215 Ariz. at 561, ¶ 22
(requiring the defendant to demonstrate that his need for the privileged
information “amount[s] to one of constitutional dimension”).

¶25 While we cannot expect a defendant to know the exact
contents of the privileged records he has not yet seen, this standard does
require that the defendant demonstrate a document-specific basis for
invading the privilege. See Connor, 215 Ariz. at 558, ¶ 11. Because a
defendant does not have an established constitutional right to discovery,
the court must start with a strong presumption that the privilege prevents
access to the information it protects.

IV. VANDERS FAILED TO ESTABLISH A SUBSTANTIAL
PROBABILITY THAT HE IS ENTITLED TO THE PRIVILEGED
DOCUMENTS AS A MATTER OF DUE PROCESS.

¶26 Vanders argues that A.R.S. § 13-4062(4) is unconstitutionally
applied to block access to information to which he is entitled as a matter of
due process. There is no indication that M.S.’s privilege has been waived
or that any express or implied legislative exception applies. To demonstrate
a constitutional entitlement to information and therefore qualify for an in
camera review, Vanders must demonstrate a substantial probability that
the information sought is fundamental to an element of the state’s charge

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against him or his justification defense. He must further demonstrate that
there is no alternative evidence, and that he would therefore be prejudiced
by the unavailability of the requested records.

¶27 Vanders argued to the superior court that M.S.’s mental
health records “are essential to his listed defenses and to his ability to
effectively examine witnesses.” Vanders showed that M.S. had been the
aggressor in at least two domestic disputes. On one of those occasions, in
2011, M.S. checked into a mental health facility to address suicidal
tendencies after telling police and Vanders that she wanted to kill herself,
and attempting to do so. Vanders also showed that he was the one to call
9-1-1 after he shot M.S., and that he made several statements to the 9-1-1
operator consistent with his story that he acted in self-defense. For
example, he said that M.S. had abused him throughout their long-term
relationship and that she had been acting “insane” that night. These are
important facts, but Vanders already has possession of the evidence he
needs to present them.

¶28 Vanders has made no showing to suggest that M.S.’s hospital
records from six years before her death would likely contain non-
cumulative information to bolster his defense, and he does not articulate
how diagnosis of a mental health condition from six years earlier would
make his case or break the state’s case. And because Vanders was not aware
of any specific diagnosis at the time he shot M.S., he did not—and cannot—
establish how such a diagnosis may have impacted his actions that day.
Vanders already has access to similar reliable evidence via a recording of
the 9-1-1 call and the police reports from the two earlier domestic violence
incidents. The police narrative in the 2011 incident report, for instance,
vividly describes M.S.’s aberrant behavior. While the hospital records may
be helpful corroborating evidence, there is little in this record to show that
excluding the deceased victim’s medical records would deprive Vanders of
the ability to refute an element of the state’s charge or to establish an
element of his justification defense.

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CONCLUSION

¶29 For the foregoing reasons, we accept jurisdiction and grant
relief. M.S.’s mental health records are privileged, and Vanders has not
established that upholding the privilege and denying his request for an in
camera review of the records would violate his due process right to a
fundamentally fair trial.

AMY M. WOOD • Clerk of the Court
FILED: AA

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