Opinion
DOCKET NO. A-0695-15T1
03-23-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. MARK A. HIGHSMITH, Defendant-Respondent.
Esther Suarez, Hudson County Prosecutor, attorney for appellant (Joseph E. Lanzot, Assistant Prosecutor, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-03-0341. Esther Suarez, Hudson County Prosecutor, attorney for appellant (Joseph E. Lanzot, Assistant Prosecutor, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
Defendant was indicted on assault and weapons charges after he hurled a sharpened six-foot fencepost through a police vehicle window, striking an officer, and engaged in a struggle for a police weapon. The incident ended when defendant suffered multiple gunshot wounds. We granted the State leave to appeal from an order that denied its request for defendant's medical records and now reverse.
The facts relevant to our consideration of this issue can be summarized as follows:
We rely upon the facts as set forth in the briefs of the State and defendant, which appear to be largely undisputed.
At approximately 2:35 a.m. on July 15, 2014, Officers Jason Field and Carlos Castillo of the Jersey City Emergency Services Unit (ESU) were on patrol in a marked ESU truck. They observed defendant walking in the opposite direction on Martin Luther King Drive, carrying a sharpened wooden fencepost approximately six feet long.
As they approached defendant to question him, defendant hurled the fencepost with the "sharpened-tip first" into the truck's open passenger window. The fencepost passed within inches of Castillo's face and struck Field in his right temple area. According to police reports, defendant then rushed the truck, climbed on the running board and grabbed Castillo's rifle through the window. As the two struggled for control of the rifle, Castillo ordered defendant to "get back" and defendant shouted at him, "You're gonna kill me or I'm gonna kill you!" After a few seconds, Castillo was able to wrest the rifle away, but defendant then reached for the door handle. Castillo fired three rounds through the door in the direction of the door handle, striking defendant.
Field heard the rifle discharge but did not know whether it was Castillo or defendant who had fired the shots. He ran to the passenger side and ordered defendant to show his hands. Defendant did not comply and kept "his hands by his waist area while still standing next to [Castillo]'s window." Not knowing whether defendant was armed, Field feared for his and Castillo's safety. He fired two shots at defendant, who "turned and ran a few steps" before "collapsing" as a result of his gunshot wounds. The entire incident "lasted seconds."
A surveillance camera captured the altercation. The parties agree the video shows that defendant threw the fencepost at the police vehicle and ran toward the vehicle, but disagree as to other aspects. According to the State, the video depicts defendant approaching the truck and then running away before collapsing, but is unclear as to whether the officers stopped firing when defendant turned away. Defendant contends the video shows he was shot in the back as he was moving away from the truck.
Highsmith was arrested at the scene and transported to Jersey City Medical Center to be treated for his injuries: gunshot wounds to his "front upper-left thigh," left forearm and upper-right chest and "multiple cuts on the inside of both hands." A toxicology screening was also performed.
On the following day, officers interviewed defendant after advising him of his rights. He was unable to sign the Miranda waiver card because of the injuries to his hand. Defendant stated he had been drinking vodka throughout the evening and shared a cigarette with a friend, which he believed was "spiked with something." He remembered being told to go home by other police officers and that he then started heading towards his house. He did not remember carrying anything besides his phone or picking anything up while he was walking home. He further claimed he did not have any recollection of being shot or the confrontation with Field and Castillo.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Prior to defendant's indictment, the State filed a motion for the release of defendant's medical records relating to the gunshot wounds and hand injuries and the results of the toxicology exam. Defendant opposed the motion, arguing his medical records were protected under the physician-patient privilege, N.J.R.E. 506 and N.J.S.A. 2A:84A-22.2 (the privilege).
The State argued defendant's gunshot wounds were "clearly visible to officers and third parties" and therefore, the records documenting the wounds did not constitute a confidential communication protected by the privilege. Further, the State contended the records regarding defendant's injuries and the toxicology results were necessary to refute a defense of self-defense and relevant in light of the likelihood defendant would pursue an intoxication defense.
The judge asked defense counsel whether she intended to proceed with the defenses identified by the State. Defense counsel answered that she had not filed notices as to any defenses at that time, but the self-defense argument was "[t]he only defense that [she] may rely on."
The court denied the State's motion, determining that all of the medical records sought were privileged. The judge found the State's application to be "premature" because defendant planned to file a motion to suppress his statement and it was unknown whether that would be successful. The judge also drew a distinction between visible gunshot wounds and the records requested. She clarified that she was not holding that the wounds were confidential but, rather, "the medical records as it relates to those are confidential information."
Subsequently, the defense filed a notice of self-defense. The State filed a motion for reconsideration based on this development. The State argued the medical records were necessary to rebut defendant's self-defense theory. Defense counsel advised the court at oral argument that she merely filed the notice to comply with Rule 3:12 and had not definitively decided to pursue self-defense. Defense counsel assured the court she would turn over the records to the State before trial if she intended to use it as evidence.
Although the judge acknowledged the notice of self-defense presented a change in circumstances, she found the privilege still applied and denied the State's motion for reconsideration. The judge ordered defendant to obtain and preserve the medical records so they would be readily available in the event that "new allegations or facts" arose that warranted revisiting the issue.
In its appeal, the State argues that the lower court erred in its application of the privilege to deny the release of: (1) defendant's blood alcohol content and toxicology results; (2) medical records relating to the location and cause of his gunshot wounds, which were freely observable; and (3) the medical records relating to defendant's hand injuries. The State further argues that the privilege should yield to New Jersey's strong public interest in the prosecution of firearm-related offenses. Defendant maintains that the trial court correctly applied the privilege to bar the release of these records. Because we agree the trial court erred in its application of the privilege, we need not address the State's policy argument.
The purpose of the privilege, as expressed in the language of both the statute and rule of evidence, is "to permit patients to disclose facts necessary for diagnosis and treatment." State v. Dyal, 97 N.J. 229, 237 (1984) (citation omitted). As codified in N.J.S.A. 2A:84A-22.2, a defendant in a criminal prosecution has a privilege to prevent the disclosure of "a communication" if the court makes the following finding:
(a) the communication was a confidential communication between patient and physician, and
(b) the patient or the physician reasonably believed the communication to be necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and
(c) the witness . . . at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted . . . .
[(Emphasis added); see also N.J.R.E. 506.]
N.J.S.A. 2A:84A-22.1(d) defines "confidential communication between physician and patient" as:
such information transmitted between physician and patient, including information obtained by an examination of the patient, as
is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.
[(Emphasis added).]
In State v. Phillips, 213 N.J. Super. 534 (App. Div. 1986), we considered the application of the privilege to testimony from two physicians and a nurse that they detected an odor of alcohol on the defendant's breath and observed instances of inappropriate behavior when the defendant was brought to the hospital following a one-car accident. Id. at 538-39. A blood alcohol test was necessary, the doctors explained, because "defendant's behavior in initially refusing medical attention was sufficiently inappropriate that they needed to determine his blood alcohol content to differentiate medically between the effect of alcohol and the effect of the trauma. Id. at 541. Because police officers were present and able to make the same observations without any objection from the defendant, testimony regarding such observations fell outside the statutory definition of confidential communications:
Remaining close to defendant out of concern, the officer's presence at defendant's bedside apparently was consensual. Had defendant intended to maintain confidentiality when he spoke to the doctors or when the blood sample was taken by the
nurse, he should have asked the officer to move away, since the officer's presence was not necessary for treatment or transmittal purposes.
If in fact the accompanying officers were present at all times when defendant was conferring with the physicians and nurse, and were also close enough to defendant that any odor of alcohol would be observable by them, then, under the statutory definition, the communication between the defendant and medical personnel would not have been privileged. Certainly, defendant's behavior in jumping from the stretcher as he was brought to the emergency room and his publicly-expressed desire to leave, audible to any third parties present could not be considered as "transmitted in confidence" to the medical personnel. Likewise, if the odor of defendant's breath was freely observable by the officers or others in attendance, testimony concerning this observation also would remain unprivileged.
[Id. at 541-42.]
Defendant does not dispute that the officers were able to observe the gunshot wounds and injuries to his hands. Thus, medical records that documented what was observable by the officers do not fall within the definition of a "confidential communication."
Even when a privilege applies, it does not present an absolute barrier to the disclosure of information. Because privileges have the effect of excluding "relevant, often invaluable, evidence from the search for truth," they are construed "narrowly in an attempt to promote, at once, the goals of the privilege and the truthseeking role of the courts." State v. Schreiber, 122 N.J. 579, 582-83 (1991) (citing Dyal, supra, 97 N.J. at 237).
In State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004), the defendant claimed information he provided to the Division of Pensions and Benefits (the Division) regarding his application for a disability pension was shielded from disclosure by both the privilege and N.J.A.C. 17:1-1.2(c). The issue regarding disclosure arose in his challenge to an order that required the forfeiture of firearms. His former wife testified that defendant told her the disability was a "mental disability." Id. at 530. A witness from the Division confirmed that the nature of the disability was not a work-related accident. Ibid. Observing that "there are circumstances in which a court may override a claim of privilege," we applied the three-prong test articulated by the Supreme Court in In Re Kozlov, 79 N.J. 232 (1979), to determine if the circumstances supported an implied waiver of a recognized privilege. Cordoma, supra, 372 N.J. Super. at 537. To meet that standard, there must be (1) a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) "by a fair preponderance of the evidence," the party must show that the information cannot be secured from any less intrusive source. Kozlov, supra, 79 N.J. at 243-44 (citations omitted). We found the defendant had "placed his continued fitness to possess a firearm directly into question," that all three of the Kozlov factors were applicable, and concluded that the defendant's right to maintain the confidentiality of his medical information was "subordinate to the public's interest in preventing individuals deemed statutorily unfit from possessing firearms." Cordoma, supra, 372 N.J. Super. at 537; see also Arena v. Saphier, 201 N.J. Super. 79, 88-91 (App. Div. 1985).
N.J.A.C. 17:1-1.2(c) states, "medical testimony obtained . . . for disability retirement shall be restricted for the confidential use of the Boards of Trustees" of the Division. --------
We next turn to the question of whether the disclosure of these records was warranted, given the posture of the case, or premature, as the trial judge concluded. State v. Alston, 212 N.J. Super. 644 (App. Div. 1986), guides our analysis.
In Alston, the defendant made a post-Miranda statement that she had murdered her husband because she was tired of his physical and emotional abuse. Id. at 646. She provided supporting details — that he had stabbed her previously and that she had been put in the crisis intervention ward following prior beatings. Ibid. She opposed the State's effort to obtain medical records on the ground they were protected by the privilege, and also argued that the request was premature because she had not settled on a battered women's defense. Ibid. We reversed the trial judge's denial of the State's request for the records. We observed that the privilege does not apply when "the condition of the patient is an element or factor of the claim or defense of the patient." Id. at 647 (quoting N.J.S.A. 2A:84A-22.4). We rejected the notion that the State is entitled to those records "only at trial if defendant chooses to base a defense upon the fact of spousal abuse, or, at best, before trial if defendant makes a pre-trial election to rely on such a defense." Ibid. And, in ordering the release of the records, we stated that the threshold for disclosure did not require certainty, but only a reasonable degree of probability that the defense in question will be relied upon:
When pre-trial investigation generates facts supporting potential defenses which will inevitably get to the jury, or upon which it is highly probable that defendant will rely, it is unfair to require the State to wait until trial before it is allowed access to information concerning those facts possessed by third parties.
[Id. at 648 (emphasis added).]
The facts here meet the level of probability that requires disclosure in the interest of fairness. See id. at 648-49. Defendant's statement to police, the suppression of which has now been denied, makes it likely the jury will hear evidence of defendant's voluntary intoxication at the time of the offense. In addition, defendant's contention that he was shot in the back while fleeing from the police makes it highly probable that a defense based upon an unwarranted police shooting will be presented.
We therefore reverse the trial court's order denying the State's application for the release of defendant's medical records and the results of the blood alcohol and toxicology tests. The blood alcohol and toxicology results shall be released directly to the State. The trial court shall conduct an in camera review of the medical records to determine whether they include "confidential communications" as defined by N.J.S.A. 2A:84A-22.1(d) that are shielded from disclosure by the privilege, to redact such records accordingly and release the redacted records to the State. See Cordoma, supra, 372 N.J. Super. at 536-38.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION