GRIFFIS, J., DISSENTING:

¶ 33. The primary issue is the admissibility of evidence from Lennell Moore's sessions with Libby Johnson. The majority finds the waiver of the medical privilege to be irrelevant and intentionally disregards or omits a detailed discussion of these issues. It is on this issue that I disagree and respectfully dissent.

¶ 34. There are three separate grounds to reverse and remand this case for a new trial. First, Shadow's presence at one of the sessions waived the confidentiality of any communications during that session. Second, the majority, just as the trial judge, relies on assumptions and conjecture because the trial judge erred by not allowing a full and complete proffer of the proposed evidence. Third, based on the information available, the exclusion of the evidence from Moore's sessions with Ms. Johnson interfered with Shadow's right to present her claim of self-defense.

¶ 35. The majority simply concludes that it does not matter what evidence Ms. Johnson may have offered. Instead, the majority has concluded that her "notes" were not relevant. There are several problems with this conclusion. The majority cites no authority for this proposition. The majority fails to accurately and completely describe the content of the "notes" or for what purpose they were offered. More importantly, the majority concedes, yet disregards the fact, that the trial judge never reviewed the notes or considered the evidence that could be offered by Ms. Johnson. The majority cannot recite this information because the trial judge erred in the manner in which he considered and ruled upon this evidence. I find this error.

¶ 36. We must examine how this issue was presented to the trial court. On the day before the trial, the State filed a motion in limine asking the court to disallow any evidence from "medical professionals who may have treated or counseled the victim either physically or psychologically." On the morning the trial began, the court heard argument on the motion and considered whether the proposed evidence was protected by the privilege, thereby inadmissible.

¶ 37. The majority and I agree that the record provides no indication that the trial court actually considered the status of Ms. Johnson, the substance of her testimony, a summary of the facts or evidence she would offer, or the documentary evidence in the form of Ms. Johnson's notes. Nevertheless, the court granted the motion in limine.

¶ 38. From the colloquy, it is clear that the defense counsel immediately asked the court to accept a proffer of Ms. Johnson's testimony, through a detailed examination of Ms. Johnson. The court refused. Instead, the court suggested that, and then instructed, defense counsel to proffer only Ms. Johnson's notes, under seal, for review by this Court. The majority characterizes the conclusion of the colloquy as defense counsel's accepting the form of the proffer. Such was not the case. Defense counsel offered two other alternatives, which were rejected by the trial judge, before the tender of the notes was allowed. This may not be characterized as acceptance.

¶ 39. Our review is limited to the motion, the transcript of the hearing and the notes. We must rely on this information to determine whether the trial court's ruling on the motion in limine, excluding any evidence about Moore's sessions with Ms. Johnson, was reversible error. The following facts may be gleaned from the record.

¶ 40. Moore met with Ms. Johnson on several occasions. Robinson was invited to attend and attended at least one of the sessions. This critical fact is reluctantly accepted by the majority, yet disregarded. At the hearing, the court and the attorneys discussed Shadow's presence at one of the sessions as an established fact; there is nothing in the record to indicate that her presence was ever in controversy. Indeed, the assistant district attorney told the court, "[i]t's my understanding that [Robinson] was a necessary party for those treatments," conceding that she was present but arguing that the privilege was not waived by her presence.

¶ 41. The State's brief, mirroring the assistant district attorney's statement, concedes that Robinson was present at one session, but only argues that her presence could only waive the privilege for that session. Robinson's presence at one of the sessions is not in dispute. The record simply does not reflect which session Robinson attended.

¶ 42. Robinson planned to call Ms. Johnson to testify about the session. Unfortunately, this Court does not have an abundance of evidence before us to determine exactly what Ms. Johnson would have testified about or what documentary evidence she may have offered. We only have Ms. Johnson's "notes" to review and consider the relevancy of her testimony.

¶ 43. Based on my review of Ms. Johnson's notes, I find that the notes do indeed contain information that the jury may find to be relevant, material and exculpatory. The principle issue in the defense's claim of self-defense was whether Robinson had a reasonable apprehension of fear. Wade v. State, 748 So.2d 771, 775 (¶ 13) (Miss. 1999). Argument of counsel, at the hearing, clearly indicates that Moore was seeing Ms. Johnson for court ordered counseling for assistance with his prior behavior. Ms. Johnson's notes indicate that the counseling was for Moore's problems with anger management, control issues, intimidation, and his failure to take any responsibility for his anger. We do not know what was said during the counseling sessions. We do not know whether Moore made any threats to Robinson or how Robinson was involved in Moore's problems with anger management, control issues, intimidation, or for Moore's failure to take responsibility for his anger.

¶ 44. Rule 401 of the Mississippi Rule of Evidence provides:

"Relevant Evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

¶ 45. The issues that Ms. Johnson discussed with Moore ( i.e., anger management, control, and intimidation) may have a "tendency to make the existence of any fact that is of consequence to the determination of the action [whether Robinson had a reasonable apprehension of fear] more probable . . . than it would be without the evidence." M.R.E. 401. As discussed in detail below, neither the trial court nor this Court knows the substance of Ms. Johnson's testimony. However, because of the facts that are presented to us in the record, I am of the opinion that such evidence is, or may be, relevant to Robinson's claim of self-defense. Certainly, if Ms. Johnson's testimony relates to Moore's behavior directed toward Robinson, I am of the opinion that the reference to Moore's problems with anger management, control issues and intimidation is sufficient to establish its relevance and admissibility.

¶ 46. My consideration continues beyond relevancy. Robinson makes three principal arguments. Each argument, in my opinion, is correct and constitutes reversible error. First, and most persuasive, Robinson argues that her presence at one of the sessions waived the confidentiality of any communications that Moore made to Ms. Johnson. Second, Robinson argues that the trial court erred by not allowing a full and complete proffer of the proposed evidence. Finally, Robinson contends that the exclusion of the evidence from Moore's sessions with Ms. Johnson interfered with her right to present her claim of self-defense.

I. Robinson's presence waived the confidentiality of any communications between Moore and Ms. Johnson, during that session.

¶ 47. Mississippi Rule of Evidence 503(b) provides that a communication between a patient and physician or psychotherapist may be privileged if the communication is confidential. Communications made in the presence of a third party are not confidential, and the patient is deemed to have waived the privilege. M.R.E. 503(b).

¶ 48. Here, the majority accepts the fact that Robinson attended one of the sessions. Yet, the majority then fails to address what, if any, legal effect Robinson's presence had on the State's ability to assert the privilege, citing no authority. The reason is simple. Unless Rule 503 of the Mississippi Rules of Evidence permits an exception to the general rule, Robinson's presence waived any privilege that may be asserted. The majority ignores and completely fails to address this critical issue.

¶ 49. The trial court, however, accepted the fact that Robinson attended one of the sessions but concluded that Moore did not intend to waive his medical privilege when he invited Robinson to attend a session. The judge reasoned that the communication was made in the doctor's office, in a professional setting, not in an open situation, and it was not uttered to the world in general. The judge then noted that, although they were not married, Robinson and Moore had a close relationship and concluded that intent can be inferred from the relationship.

¶ 50. The trial court's conclusion is contrary to the express language of the privilege. By inviting Robinson to attend, Moore intended that Robinson hear his communications with Ms. Johnson. Mississippi Rule of Evidence 503(a)(4) provides that "[a] communication is `confidential' if not intended to be disclosed to third persons." As to Robinson, Moore could not claim that the communications during that session were intended to be confidential. The State may not make such claim either. While the communications may remain privileged as to the rest of the world, Moore clearly intended that Robinson hear the communications in Ms. Johnson's office. Thus, if Moore intended for Robinson to hear the communications, there is no legal authority for the privilege to apply.

¶ 51. Although the majority does not address this issue, the State's only argument was that the communications were disclosed for the furtherance of Moore's treatment. See M.R.E. 503(a)(4) and (b). However, the State did not offer any reasons for Robinson's presence. There was no information contained in Ms. Johnson's notes to establish how Robinson's presence could possibly further Moore's interest in diagnosis or treatment.

¶ 52. Only one conclusion may be reached from Robinson's presence at one of the sessions; Moore waived the physician and psychotherapist-patient privilege as to the communications held in Robinson's presence. See M.R.E. 503. Accordingly, I find the trial court's refusal to admit this to be reversible error and would remand for a new trial allowing Ms. Johnson to testify about any communications made during the session Robinson attended.

II. The trial court failed to allow a full and complete proffer of the proposed evidence?

¶ 53. Robinson also contends that the trial judge erred when he refused to consider the proposed testimony from Ms. Johnson and refused to review the documentary evidence that she offered. Both the majority and I have discussed the lack of information that the trial judge allowed to be proffered. Here, however, I am of the opinion that the trial court committed reversible error by not allowing a sufficient proffer of evidence for review by this court.

¶ 54. The trial court must consider all "[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence." M.R.E. 104(a). According to the comment to Rule 104(a), the trial court is responsible for determining the facts necessary to determine such preliminary questions. We must review the evidence before the trial court when it granted the State's motion in limine. Unfortunately, however, the record before this Court contains very little information about the existence of a privilege or the substance of the evidence that was to be offered through Ms. Johnson.

¶ 55. The record does not contain sufficient evidence to lay a proper foundation for the trial judge to determine whether the privilege was applicable. Neither the State's motion nor the transcript indicates whether Ms. Johnson was a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor (Miss. Code Ann. § 13-1-21(1) Rev. 2002); was authorized to practice medicine (M.R.E. 503(a)(2)), or was a licensed or certified psychotherapist (M.R.E. 503(a)(3)). In Touchstone v. Touchstone, 682 So.2d 374 (Miss. 1996), the supreme court held that communications with social workers are not privileged under Mississippi Code Annotated § 13-1-21(1) or Mississippi Rules of Evidence 503.

¶ 56. According to the majority's determination of what the record consists of, there is no evidence that Ms. Johnson was a physician or a psychotherapist. She may be a psychotherapist, but the State's motion does not establish that fact. Thus, contrary to the majority's conclusion, the record does not support a finding that Moore's communications with Ms. Johnson, with her status unknown, were within the scope of the psychotherapist-patient privilege. The majority's reliance on this fact is based solely on assumption and conjecture, not on evidence contained in the record.

¶ 57. Next, the record reveals little about whether the trial court even considered the substance of the evidence that was to be offered through Ms. Johnson, or whether there was a waiver by the inclusion of Robinson in one of the sessions. The record only indicates that the trial court allowed defense counsel to submit a copy of Ms. Johnson's notes, under seal, for review by this Court. The record does not indicate whether the trial court reviewed the notes as part of the consideration of this issue.

¶ 58. The majority concludes that the trial judge did not review the notes before making his decision to disallow Johnson's testimony. If the trial judge does not allow a proffer and does not review the notes, which was the only information the trial judge allowed to be proffered, Rule 104 of the Mississippi Rules of Evidence was violated because the court failed to consider the preliminary questions of "the existence of a privilege, or the admissibility of evidence." M.R.E. 104(a).

¶ 59. What the record does reveal, however, is that Robinson's attorneys were not allowed to make a sufficient proffer of evidence. After the court granted the State's motion in limine, Robinson's attorneys specifically asked to call Ms. Johnson and examine her outside of the presence of the jury. The State objected to the timing of the proffer and asserted that "it would be confidential for her to even say she treated the victim." In essence, the State urged the court to not allow any proffer arguing that the proffer itself would violate the privilege. The court resolved this issue in the State's favor and against the request by Robinson's counsel. The court did not allow Robinson's attorneys to proffer the proposed evidence in any of the forms normally used. Instead, the court allowed a proffer that consisted of a one page copy of Ms. Johnson's notes.

¶ 60. In Pennington v. State, 437 So.2d 37, 39 (Miss. 1983), the supreme court held that "[t]he trial judge should always permit attorneys to make a record of objectionable testimony or proffer of same in order that this Court may know whether it is relevant or material." (emphasis added). Likewise, in Edwards v. Booker, 796 So.2d 991, 997 (¶ 27) (Miss. 2001), the court concluded that:

The purpose of a proffer is to produce a more complete record, increasing judicial economy. The parties were already before the circuit court. To allow a proffer of evidence into the record at this stage of the proceedings would not have imposed any additional hardship on the court. Edwards did not demand that his witnesses actually testify, but merely that their testimony be summarized by counsel so that it may be preserved in the record for appeal. The circuit court erred in not allowing Edwards to make a proffer of evidence.

¶ 61. The majority concludes that defense counsel agreed to make only a proffer of the notes under seal. The record contradicts the majority's finding. Robinson's counsel made a clear and definite request to make an extensive proffer of Ms. Johnson's testimony. Based on the State's objection, the trial court made it clear that an extensive proffer would not be allowed. After a lengthy discussion between the trial judge and counsel, it was clear that the trial judge would only allow the notes to be proffered. The majority incorrectly concludes that defense counsel accepted the method previously determined by the trial court. Indeed, Robinson's counsel was given no other alternative. The finding prevented the defendant from making a full and complete record for this Court to review this important and critical evidence.

¶ 62. Reading the colloquy quoted by the majority, I cannot accept the majority's characterization of the trial judge's position. Indeed, the trial judge was "firm" in his decision to not allow Ms. Johnson to testify or submit a detailed proffer. However, it may not be said that the trial judge "did not attempt to limit Shadow's counsel's right to make an appropriate proffer through Johnson." Indeed, he did.

¶ 63. I find that the trial court's failure to allow Robinson's counsel to make an appropriate proffer of evidence was reversible error.

III. The trial court's exclusion of Ms. Johnson's testimony improperly interfered with Robinson's right to present her claim of self defense.

¶ 64. Robinson contends that the exclusion of the evidence from Moore's sessions with Ms. Johnson interfered with her right to present her claim of self-defense.

¶ 65. The trial court allowed Robinson's self defense theory to go to the jury. The paramount issue in a self defense claim is whether there was a reasonable apprehension of fear. Wade v. State, 748 So.2d 771, 775 (¶ 13) (Miss. 1999); Walters v. State, 720 So.2d 856, 862 (¶ 19) (Miss. 1998); Hart v. State, 637 So.2d 1329, 1339 (Miss. 1994). Therefore, the defendant's state of mind at the time of the incident is key to a defense of self-defense. Brown v. State, 464 So.2d 516, 518 (Miss. 1985).

¶ 66. Robinson offered Ms. Johnson's testimony to discuss Moore's issues. As previously discussed, Ms. Johnson's notes reflect that he had problems with anger management, control, and intimidation. Such testimony would relate to Robinson's state of mind, and whether she had a reasonable apprehension of fear of Moore or what he might do to her.

¶ 67. In Brown, the trial court refused to allow Brown to testify that he was seeking legal assistance because of fear of Liddell, the person Brown shot. Id. Brown was not allowed to testify that he called the police after being threatened by Liddell or that he visited the city prosecutor because of his fear of Liddell. The supreme court held:

Since it is the jury's role to pass on the reasonableness of Brown's actions, they are entitled to be made fully aware of all relevant facts which reflect apprehension, fear or anxiety in his state of mind. Because such apprehension, fear or anxiety is a crucial element of self defense, the exclusion of this testimony had the effect of "whittling down" Brown's defense. Eaton v. State, 200 Miss. 729, 28 So.2d 230 (1946).

Brown, 464 So.2d at 518. The court's ruling failed to allow the jury to be "fully aware" of Moore's problems with anger management, control and intimidation.

¶ 68. Recently, in Cox v. State, 849 So.2d 1257 (Miss. 2003), the Mississippi Supreme Court considered a similar case, and the court's reasoning applies here. In Cox, the supreme court noted that this Court has held that a "criminal defendant's right to confront witnesses against him does not override a confidential medical privilege." Id. at 1272 (¶ 50) (citing Windham v. State, 800 So.2d 1257, 1260 (Miss. Ct. App. 2001)). The Cox court ruled that the medical records in question were confidential, i.e. privileged, even though a third party was present. Cox, 849 So.2d at 1271 (¶ 50). However, the court considered the reason for the third party's presence in deciding whether the patient intent was that the communications remain confidential. Id. The court held that the medical records of the examining physician indicated that he relied upon the third party in developing the patient's medical history. The court, therefore, concluded that the records were confidential even though the third person was present. Id.

¶ 69. Cox's wife, Jo Jo, was involved in an adulterous affair with Charles Rowland Id. at 1261 (¶ 2). When Rowland was missing, Jo Jo found Rowland's body after he had been shot in the head. Id. at 1261-62 (¶ 3). Because of the knowledge of the affair, Cox was a suspect. Id. at 1262 (¶ 42). During the trial, the court refused to admit Rowland's medical and pharmacological records to prove that Rowland committed suicide. Id. at 1270-71 (¶ 48). On cross-appeal, the State argued that the trial court erroneously admitted documents of Rowland's medical history and claimed that the physician and psychotherapist-patient privilege applied. Id. at 1270-71 (¶ 48). The State argued that the proper procedure, applicable to this case, would be to determine first "whether the records were privileged," and second, "whether the medical privilege must yield to a defendant's right to put on a defense in a criminal case." Id. at 1271 (¶ 49). Cox argued that Jo Jo's presence at one of Rowland's examinations waived the privilege. Id. at 1271 (¶ 50). The court held:

Whether the presence of a third party at a medical examination waives the privilege is an issue of first impression in Mississippi. A Colorado court held that if the patient intends for the examination to be confidential, the privilege is not waived when a third person is present for the examination. People v. Deadmond, 683 P.2d 763, 771 (Colo. 1984) (Even though a patient was so loud during an examination in an emergency room that others could hear his complaints, he did not intend to waive the privilege and therefore medical records were inadmissible.) Indeed, M.R.E. 503(a)(4) provides that "[a] communication is " confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, . . ." The notes of the physician who examined Rowland indicate that he relied upon Jo Jo in developing Rowland's medical history. Therefore, the records were confidential even though Jo Jo was present.

Cox, 849 So.2d at 1271 (¶ 50).

¶ 70. Although the supreme court determined that the admission of Rowland's medical records was nothing more than harmless error, the court accepted the State's argument and established the procedure for trial courts to follow when considering a claim of privilege. The court held that:

medical evidence pertaining to a victim may be secured and admissible in limited situations where the medical evidence is relevant, material and exculpatory. See People v. Bean, 137 Ill.2d 65, 147 Ill. Dec. 891, 560 N.E.2d 258, 268 (1990) (Medical records not material to defense inadmissible); State v. Stuck, 434 N.W.2d 43, 54 (S.D. 1988) (Denial of access to privileged medical records upheld where defendant was not denied any material information, his defense was not prejudiced in any manner, and the victim's physical or mental health was not at issue).

Because the doctor-patient privilege should be inviolate in most circumstances, we suggest certain actions, in addition to the guidelines of U.R.C.C.C. 2.01, to be taken by trial courts to control a criminal defendant's access to privileged information. An in camera review by the court of the medical records to determine if the evidence is material, relevant and exculpatory would be appropriate. See People v. Bean, 147 Ill. Dec. 891, 560 N.E.2d at 269. If the circuit court finds that the records are admissible, the records should be redacted as much as possible to show only the evidence which is relevant and exculpatory. See id. See also Pennsylvania v. Ritchie, 480 U.S. 39, 58-61, 107 S.Ct. 989, 1002-04, 94 L.Ed.2d 40, 58-60 (1987) (While a defendant has a constitutional right to all material information contained in statutorily privileged records, he had no right to review the full records himself or through his attorney; instead, the trial judge alone should review the records in camera and should then disclose only material information.).

Cox, 849 So.2d at 1272 (¶¶ 52-53) (emphasis added).

¶ 71. Under Cox, there are circumstances where the medical privilege must yield to a criminal defendant's right to put on a defense. Id. Before such a decision can be made, however, the court held that the trial court must conduct an in camera review of otherwise confidential and privileged information, and a redacted version of such relevant, material, and exculpatory information should be allowed in evidence. Id. Here, no such review was conducted.

¶ 72. Although the facts here are distinguishable from both Windham and Cox, the legal principle is directly on point. In Windham, the medical records were not admitted. Windham, 800 So.2d at 1259 (¶ 4). The difference from the present case is that the medical records, in Windham, did not relate to the victim but were sought to impeach a third party witness. Also, Windham did not consider whether a third party was present during an otherwise confidential, i.e., privileged, session. Id. In Cox, a third party was present at the session. Cox, 849 So.2d at 1271 (¶ 50). However, the third party present was not the defendant. Id. Here, unlike Windham and Cox, the defendant was the third party present during the session in question.

¶ 73. There is other authority that warrant the admission of privileged information. In State v. Baptist Memorial Hospital-Golden Triangle, 726 So.2d 554, 560 (¶ 22) (Miss. 1999), the supreme court ruled that "[w]here the evidence is necessary to the proper administration of justice, it is taken out of the physician-patient privilege." The court reasoned:

"The privilege must be interpreted `in sensible accommodation to the aim of a just result.'" In the Interest of M.P.C., 165 N.J. Super. 131, 397 A.2d 1092, 1095 (App.Div. 1979) (quoting State v. Briley, 53 N.J. 498, 251 A.2d 442, 446 (1969)). "Such a privilege is accepted only because . . . it serves a more important public interest than the need for full disclosure." Id. The purpose of the privilege is to allow a patient to seek treatment without fear of embarrassing disclosure so that he might reveal all of his symptoms to his physician. Id. "[T]he patient-physician privilege must give way where it conflicts with the sensible administration of the law and policy . . ." Id.

Baptist Mem'l Hosp.-Golden Triangle, 726 So.2d at 560 (¶ 23).

¶ 74. In Jones v. State, 858 So.2d 139, 142 (¶ 5) (Miss. 2003), the supreme court concluded that medical records may be removed from the protection of the physician-patient privilege to ensure proper justice. The court held:

A defendant in a criminal case may not rely on this privilege to exclude incriminating evidence. This Court, citing cases from other jurisdictions, made this same point numerous times in Baptist Mem'l, 726 So.2d at 559, 560, stating that " [w]here there is an investigation into a serious and/or dangerous felony, public policy must override the rights of an individual," and that the physician-patient privilege would not be used as a "cloak for a crime."

Jones, 858 So.2d at 142 (¶ 5) (emphasis added).

¶ 75. The decisions of Cox and Baptist Memorial Hospital-Golden Triangle, when considered with Jones, compel the same reasoning when the opposite situation is presented. If a criminal defendant is not allowed to rely on a privilege to exclude incriminating evidence, the State should not be allowed to rely on the privilege to exclude exculpatory evidence.

¶ 76. Other states have also held that confidential communications are admissible not only when they tend to prove a crime, but also when they tend to disprove it. In People v. Benham, 63 N.Y.S. 923, 924 (New York 1900), Benham was charged with murdering his wife through the administration of acid. Benham sought to introduce evidence from a physician, who he had visited, to establish that his wife was addicted to morphine. Id. at 936-37. The evidence would prove that his wife continued to use morphine heavily until the time of her death. The prosecution claimed that the evidence was privileged. Id. The court held "[t]he aid of this section [the physician-patient privilege] cannot, however, be invoked to shield a person charged with the murder of the patient." Id. at 937. The court further ruled:

If, therefore, such declarations and confidential communications from the patient to the physician are admissible under this statute, when they tend to prove the crime of murder, are they any the less admissible when they tend to disprove it? We think not, and it follows that the evidence of Dr. Skinner is admissible.

Id.

¶ 77. More recently, in People v. Davis, 637 N.Y.S.2d 297, 300-01 (1995), the court considered the following question:

whether a victim or his legal guardian may interpose the physician-patient privilege to preclude a Defendant from obtaining medical information which directly bears on whether or not Defendant was justified in undertaking the conduct from which these pending criminal charges flow. Otherwise stated, can a victim use his privilege to prevent a Defendant from obtaining exculpatory evidence within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

(footnote added). The court reasoned that "the ostensible purpose underlying the claiming of this privilege has become little more than a stratagem to create an `impediment to the search for truth' and, `is often used as a sword rather than a shield [which] impairs the ability of the court to administer justice.'" Davis, 637 N.Y.S.2d at 301 (citation omitted). The court concluded that "interests underlining a statutory privilege must yield where the Defendant's constitutional rights of confrontation and due process outweigh the need for confidentiality." Davis, 637 N.Y.S.2d at 301 (citing Davis v. Alaska, 415 U.S. 308 (1974); People v. Reidout, 140 Misc.2d 632, 530 N.Y.S.2d 938; People v. Lowe, 96 Misc.2d 33, 408 N.Y.S.2d 873; See People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924; Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

¶ 78. The Ninth Circuit Court of Appeals has also ruled in a strikingly similar case. In DePetris v. Kuykendall, 239 F.3d 1057 (9th Cir. 2001), Kelly DePetris was convicted of the shooting death of her sleeping husband To support her claim of self defense, DePetris attempted to testify about her fear that resulted from reading her husband's journal. Both her testimony and the journal were excluded from evidence. Id. at 1060-61.

¶ 79. The Ninth Circuit held that because the trial court precluded her from testifying fully about her state of mind and because this evidence was critical to her ability to defend against the charge, the exclusion of the evidence violated her right to present a valid defense. Id. at 1063. The court concluded that the exclusion of such evidence "unconstitutionally interfered with her ability to defend against the charges against her. The preclusion of this highly probative evidence went to the crux of the case, and the harm caused by its exclusion was not cured by the receipt of other evidence that was significantly less compelling." Id. at 1065.

¶ 80. As discussed in Cox, this case presented the trial court with just such circumstance where "medical evidence pertaining to a victim may be secured and admissible in limited situations where the medical evidence is relevant, material and exculpatory." Cox, 849 So.2d at 1272 (¶ 52). As discussed in detail above, I find no indication that the trial judge undertook the required in camera review of the evidence or attempted to redact such evidence to reveal only the evidence that could be relevant, material and exculpatory.

¶ 81. The majority concludes that it "cannot conceive under any scenario how information about Moore's counseling sessions with Johnson would have been relevant or helpful to her defense." With this I have a fundamental disagreement. It is not up to this Court to "conceive" any scenario. It is not for this Court to deny Robinson an opportunity to present her defense. Nevertheless, the majority asks the question what were the circumstances that indicated Robinson may have had a reasonable apprehension of fear. The evidence that the altercation occurred because Moore came into Robinson's home and started a fight with Robinson and Cobbins is sufficient for me to conclude that Robinson presented sufficient facts for the jury to determine whether she was in fear of death or of serious bodily injury at the hands of Moore. Ms. Johnson's notes indicating that Moore had past problems with "anger management, control and intimidation" would be relevant evidence for the jury's consideration. I cannot leap to the conclusion reached by the majority. I find that this evidence is, or may be, relevant and material. More importantly, however, the decision of whether this evidence is exculpatory is to be left for the jury, not this Court.

¶ 82. Accordingly, I am of the opinion that there was sufficient information contained in the record to require the trial court to consider the admissibility of the evidence to be offered through Ms. Johnson. The trial court's failure to conduct the required in camera review was reversible error. Because such evidence was prejudicial and could possibly have a substantial impact upon a jury's decision, I would reverse and remand this action for a new trial.

McMILLIN, C.J., SOUTHWICK, P.J., AND CHANDLER, J., JOIN THIS SEPARATE WRITTEN OPINION.