Opinion
CR16285945 CR16285617 CR17286022 CR16284801 CR16284676 CR16286020
08-16-2017
State of Connecticut v. Cedric Avery; Larry Chace; Heriberto Fuentes; Ryan Gordon; Stephany Randle; Gary Wooten
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO COMPEL DISCOVERY
Maureen M. Keegan, J.
The defendants, by and through their attorney, seek to compel the state to disclose certain information, claimed to be in the state's possession, in order to prepare a defense to their individual cases. Collectively, the defendants seek the following information: copy of his/her prior criminal history; reports prepared by the family relations office; communications between the victim's advocate and the victim; reports prepared by the family violence victim advocate; and communications between the State's Attorney's Office investigator and the victim. The defendants' written motion also requested information from the bail commissioner's office, but that claim is deemed abandoned as it was not argued or briefed. State v. Hendrickson, 12 Conn.App. 662, 663 n.1, 533 A.2d 894 (1987). The state has objected to these disclosures. An evidentiary hearing was held on April 6 and June 6, 2017 and the parties submitted briefs. In making its decision, the court also reviewed the defendants' files for the charges pending.
The defendants argue that the Practice Book provisions governing discovery in criminal cases support their claims for disclosure. A review of the different agencies whose reports are sought in these motions, as well as their statutory functions, is warranted.
General Statutes § 46b-38c governs the family violence response and intervention units. The local units are overseen by the Court Support Services Division. In all cases involving an arrest for a domestic violence crime, the family relations counselor will present an oral or written report, at the first court date appearance, that includes an assessment of the potential for further immediate violence against the victim and whether the parties have a case pending in family relations. The family relations officer must disclose to the court if the victim has indicated that the defendant holds a permit to carry a pistol or revolver or possesses one or more firearms. A " family violence crime" is not a separate crime. It is defined by the relationship between the perpetrator and the victim. Any misdemeanor or felony that, in addition to the elements of the crime, involves an act of violence to a family or household member is a family violence crime. See General Statutes § 46b-38a(3).
The Judicial Branch, through the Office of Victim Services (OVS), contracts with the Connecticut Coalition Against Domestic Violence (CCADV) for the services of family violence victim advocates (FVVA). CCADV assigns a FVVA to each Geographical Area court to provide victim advocacy and related services to victims of domestic violence. See General Statutes § 52-146k. OVS is located within the Superior Court Operations Division of the Judicial Branch and it provides services to victims of violent crime. OVS assigns victim services advocates (VSA) to Judicial District courts, several Geographical Area courts, and three Juvenile Matters courts. VSAs provide information and referrals to victims of violent crime and their relatives. Testimony at the hearing established that VSAs accompany victims to court proceedings, notify victims of their rights, and assist victims in writing impact statements. See generally, General Statutes § 54-220.
During the evidentiary hearing, the court heard the testimony of the following individuals: Edgardo Figueroa, the supervisor of the Family Services office in New Britain; Adam Grabowski, the director of advocacy at Prudence Crandall Center; and Valena Carpenter, the deputy director of the Office of Victim Services. All witnesses were well-informed and highly credible. The court will address seriatim each area of information sought.
I. Criminal History
Practice Book chapter 40 governs discovery in criminal cases. This section establishes the discovery rules for both the state and the defense. Section 40-11 addresses discovery by the prosecuting authority. A defendant who makes a timely written request is entitled to a prompt photocopy of his/her prior criminal record within the state's possession or that the prosecutor can determine its existence. Practice Book § 40-11(a)(2). The state has argued that any dissemination of the National Crime Information Center information (" NCIC"), a record of criminal history used by the office, violates the National Crime Prevention and Privacy Compact, 42 U.S.C. § 14616 (the Compact). The flaw in this argument, however, is that the prohibition regulates the exchange of criminal history records for noncriminal purposes. The court cannot find a prohibition on a prosecutor giving a criminal defendant a copy of his criminal history record, such as a NCIC report or printout. Accord In re Watkins, 369 S.W.3d 702, 706 (Tx.App. 2012) (" [t]o the extent the State obtained information containing Brady material, including from NCIC records, the State was obligated to disclose that information"); United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995) (holding that Brady not violated where government provided defense with printout from NCIC computer search and two other reports detailing witness's criminal history).
The state also points to 28 U.S.C. § 534 as a basis for why it is prohibited from disclosing to the defendants copies of the NCIC printouts. This reliance is similarly misplaced. Section 534 of title 28 of the United States Code regulates the exchange of FBI " rap sheets." See United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 751-52, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). There is a provision which provides that " [t]he exchange of records and information authorized by subsection (a)(4) of this section is subject to cancellation if made outside the receiving departments or related agencies." 28 U.S.C. § 534(b). This provision, however, is about the treatment of rap sheets as confidential and restricting their use to governmental purposes, while prohibiting access of rap sheets to the general public. See United States Dept. of Justice v. Reporters Committee for Freedom of the Press, supra, 753 (" [a]lthough much rap-sheet information is a matter of public record, the availability and dissemination of the actual rap sheet to the public is limited" [emphasis added]). This statute applies more to limiting unofficial access, rather than prohibiting the disclosure of criminal history records to criminal defendants on trial.
The state relies on Commissioner of Public Safety v. Freedom of Information Commission, 144 Conn.App. 821, 76 A.3d 185 (2013), that cites to United States Dept. of Justice v. Reporters Committee for Freedom of the Press, to support its argument that disclosure is prohibited. They are factually inapposite from the present situation, and involve circumstances where there was a requested dissemination for a non-criminal purpose. The Connecticut Appellate Court case involved reporters who sought results from inquiries made to the NCIC by the Department of Public Safety. Commissioner of Public Safety v. Freedom of Information Commission, supra, 824. Similarly, the United States Supreme Court case involved reporters who sought copies of FBI rap sheets of four members of an alleged crime family. United States Dept. of Justice v. Reporters Committee for Freedom of the Press, supra, 489 U.S. 757. Neither case involved discovery in a criminal trial and disclosing reports to criminal defendants but, rather, reporters who sought copies of FBI rap sheets or results from inquiries made to the NCIC, which the courts concluded were exempt from disclosure under the Freedom of Information Act. The court finds that these two cases lend support to the view that 28 U.S.C. § 534 and 42 U.S.C. § 14616 concern the protection of the confidentiality of the reports and limiting disclosure outside of the criminal justice system and official governmental purposes, rather than prohibiting criminal defendants from receiving copies of their rap sheets or other criminal history records.
Finally, it is important to note that Chapter 40 of the Practice Book prohibits any further dissemination of the material furnished by the state to the defense by limiting its use to the purposes of conducting counsel's side of the case or the performance of counsel's duties. Practice Book § 40-10.
The court sees no reason to deny the defendants a copy of their own prior criminal history. The Practice Book specifically permits it, there exists no legal impediment to the disclosure to counsel and any argument that the duty puts an onerous burden on the Office of the State's Attorney is meritless. All defendants are entitled to a copy of their prior criminal history and the state must provide a copy to counsel. The motion to compel production is granted.
II. Report of the Family Relations Counselor
General Statutes § 46b-38c(c) states in part that " All information provided to a family relations counselor, family relations counselor trainee or family services supervisor employed by the Judicial Branch Department in a local family violence intervention unit shall be used solely for the purposes of preparation of the report and the protective order forms for each case and recommendation of services and shall otherwise be confidential and retained in the files of such unit and not subject to subpoena or other court process for use in any other proceeding or for any other purpose . . ." (Emphasis added.) Although the statute provides that the information received is confidential, the units may disclose information for specified purposes to another counselor, trainee, or supervisor; its contract providers; the court; prosecutors; employees of the Department of Children and Families; bail commissioners; law enforcement agencies; and probation officers. General Statutes § 46b-38c(c)(A)-(I).
Mr. Figueroa testified about the standard procedure for gathering information for the first court date appearance report. The family relations counselor reviews the police report and certain criminal information databases and meets with the defendant to see if he/she is a person that is eligible for services. The officer also contacts and speaks with the victim, if possible. The assessment is not complete until the officer has spoken with the victim. The purpose of the report is to make a determination as to the level of protective order that is necessary and to determine whether the defendant is eligible for the family violence program or other services. These reports are given to the State's Attorney's Office. Mr. Figueroa testified that the report contains information as to the nature of the relationship between the parties, whether the defendant has any prior domestic violence arrests and convictions, input from the victim and the officer's conclusion as to recommendations.
The state objects to the disclosure of this report on the ground that General Statutes § 46b-38c(c) provides that " all information provided to a family relations counselor . . . shall be used solely for the purposes of preparation of the report and the protective order forms for each case and recommendation of services and shall otherwise be confidential and retained in the files of such unit and not be subject to subpoena or other court process for use in any other proceeding or for any other purpose, " with certain exceptions not applicable here. The court agrees. The information contained within the reports, and the actual reports, whether written or oral, prepared by the family relations office are intended only for the limited purposes as prescribed in § 46b-38c and are not intended to be used in a criminal trial or disclosed to a criminal defendant. See, e.g., State v. Doe, 46 Conn.Supp. 598, 765 A.2d 518 (2000). Thus, as testified to, the information and/or reports are not confidential to the extent that they are disclosed to the court for protective orders or recommendation of services, but otherwise are confidential. Subjecting the reports to disclosure to a criminal defendant would completely subvert the clear intent of the statute. The information cannot be kept confidential if it is disclosed to a criminal defendant in a report prepared by the office.
The motion to compel by defendants Wooten, Avery and Fuentes is denied.
III Domestic Violence Victim Advocate
General Statute § 52-146k creates a privilege for communications between a victim of domestic violence and a domestic violence counselor or a victim of sexual assault and a sexual assault counselor. As it pertains to the instant motion, Section 52-146k(a)(3) defines confidential communication as " information transmitted between a victim of domestic violence or a victim of sexual assault . . . in the course of that relationship and in confidence by a means which, so far as the victim is aware, does not disclose the information to a third person other than any person who is present to further the interests of the victim in the consultation or any person to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purpose for which such counselor is consulted, and includes all information received by, and any advice, report, or working paper given or made by, such counselor in the course of the relationship with the victim." (Emphasis added.) The three exceptions to the privilege are (1) matters of proof concerning chain of custody); (2) matters of proof concerning the physical appearance of the victim at the time of the injury; and (3) where the counselor has knowledge that the victim have given perjured testimony and the defendant or the state has made an offer of proof that perjury may have been committed by the victim. General Statute § 52-146k(e). The statute also provides that a victim may waive the privilege. General Statute § 52-146k(b).
Mr. Grabowski testified that the advocates assist domestic violence victims at arraignment and during the pendency of the criminal case. There is a separate area within the courthouse for advocates to meet with victims, allowing the parties to meet privately. One of their duties is to assess the victim's safety concerns and develop a safety plan for the victim. The information gathered can include any fears that the victim has, whether the victim agrees or disagrees with the recommended level of protective order and whether the victim is in favor of the prosecution of the case. Mr. Grabowski testified that the domestic violence advocates prepare an intake form that is provided to the family relations officer and they may also prepare a memorandum of any request by a victim that information be shared with the state's attorney's office.
The state objects to disclosing these memos to the defendants because they were only disclosed to the state upon the informed, specific, and authorized consent of the victim. Because these memos are protected by § 52-146k and the victim has not consented to the release of the information and/or memos to the defendants, the state argues they cannot and should not be disclosed. The defendants argue that the reports and/or memos should be disclosed because the state is a third party to whom the communications were disclosed to and, therefore, they are no longer confidential and/or privileged. The defendants essentially argue that because the victim chose to waive the privilege as to the state, the privilege is now entirely waived, and permits disclosure to the defense.
The court holds that the records prepared by the domestic violence victim advocates are privileged and that an agreement by the victim to share information with the state's attorney's office, the agency tasked with prosecuting the matter, does not permit the court to find that there is an implied waiver of the statutory privilege. The court is guided in its decision by the holding in State v. Kemah, 289 Conn. 411, 957 A.2d 852 (2008), where the Supreme Court rejected the argument that full disclosure of a complainant's mental health records, based solely on the complainant's disclosure of the records to the police and the prosecuting authority, allows a court to depart from the ruling of State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984), and its progeny. The reasoning applies equally here. First, " [t]he legislative history reveals that the privilege was intended to be akin to the psychiatrist-patient privilege." In re Robert H., 199 Conn. 693, 706, 509 A.2d 475 (1986). Second, our Appellate Court has stated that it " can divine no practical difference between psychiatric records, and records of communications between a victim and a battered woman's or sexual assault counselor, both of which are protected by statute." State v. Norman P., 169 Conn.App. 616, 640, 151 A.3d 877 (2016), cert. granted, 324 Conn. 910, 153 A.3d 654 (2017). Finally, the procedure set forth in Esposito for determining whether to permit disclosure of an individual's confidential records to a criminal defendant has been applied in cases dealing with privileged communications and records pursuant to § 52-146k. See e.g., State v. Norman P., supra, 640-44 (remanding case for new trial because defendant had made sufficient preliminary showing required to compel in camera inspection); In re Robert H., supra, 709-11 (remanding case to trial court to hold in camera inspection of sexual assault counselor's records for victim with victim's consent).
As to defendants Wooten, Avery and Fuentes, the motion is denied.
IV. Victim Advocate
Ms. Carpenter testified about the procedures used by the victim advocates in cases of crimes where the victim has suffered personal injury. The mission of the office is to inform victims of their constitutional rights and to assist them or their family members in exercising their rights. This office gathers information from victims regarding their injuries, any request for restitution and/or compensation, as well as the victim's view on the resolution of the case. This information is conveyed to the state's attorney's office or the court orally or in writing.
General Statutes § 54-220 provides in relevant part: (a) Victim advocates shall have the following responsibilities and duties: (1) To provide initial screening of each personal injury case; (2) to assist victims in the preparation of victim impact statements to be placed in court files; (3) to notify the victims of their rights and request that each victim so notified attest to the fact of such notification of rights on a form developed by the Office of the Chief Court Administrator, which form shall be signed by the victim advocate and the victim and be placed in the court files and a copy of which form shall be provided to the victim; (4) to provide information and advice to victims in order to assist such victims in exercising their rights throughout the criminal justice process; (5) to direct victims to public and private agencies for service; (6) to coordinate victim applications to the Office of Victim Services; and (7) to assist victims in the processing of claims for restitution.
Unlike the statute relating to the Family Violence Victim's Advocate, there is no provision providing for confidentiality of the information provided to a victim advocate or creating a privilege. The question of whether the written report is discoverable hinges on whether it falls within a provision of the Practice Book, particularly Practice Book § § 40-11(b) and 40-12. That determination falls upon the state, under its continuing duty to disclose. This court was not provided with any report to review and cannot determine whether there is any discoverable information in the custody and control of the state's attorney's office.
The motion to compel by defendants Wooten, Chace and Randle is denied.
V. State's Attorney's Office Investigators
The defendants Chace and Randle have requested copies of reports made by the investigator for the state's attorney's office. No evidence was presented regarding the existence of any written reports of investigators employed by the New Britain state's attorney's office, nor the practice and procedure of the investigator's interaction with victims of crime. The motion to compel is denied.