
    PEOPLE v DAVIS-CHRISTIAN
    Docket No. 329924.
    Submitted June 14, 2016, at Lansing.
    Decided June 30, 2016, at 9:10 a.m.
    Lewis C. Davis-Christian was charged in the Ingham Circuit Court with three counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a), one count of second-degree criminal sexual conduct, MCL 750.520c(l)(a), and one count of accosting a child for immoral purposes, MCL 750.145a, in connection with his sexual contact with the complainant. Before the alleged sexual contact, the complainant was in counseling to address issues related to an earlier, unrelated sexual assault in 2011 by a different person. During her forensic interview in this case, the complainant stated that defendant’s sexual abuse of her had occurred like the “last time.” Defendant moved to compel discovery of the complainant’s counseling records, arguing that the records were likely to contain material necessary to his defense, including possible impeachment material. The court, Rosemarie E. Aquilina, J., granted defendant’s motion. The prosecution objected, arguing that the records were privileged communications. The court rejected the prosecution’s argument and concluded that it would review the counseling records in camera to determine whether the records contained information necessary for defendant to prepare a defense. The prosecution appealed by delayed leave granted.
    The Court of Appeals held,'.
    
    1. Generally, discovery should be granted when the information sought is necessary to a fair trial and a proper preparation of a defense. However, a defendant in general has no right to discover privileged records without certain special procedures, including an in camera review of the privileged information by the trial court. In a criminal sexual assault prosecution, an in camera review serves the dual purposes of promoting the state’s interests in protecting the privacy interests of the complainant and safeguarding the defendant’s right to a fair trial.
    2. People v Stanaway, 446 Mich 643 (1994), as reflected in MCR 6.201(C)(2), held that a trial court must conduct an in camera inspection of privileged records if a defendant demonstrates a good-faith belief, grounded in specific articulable facts, that there is a reasonable probability that those records protected by a privilege are likely to contain material information necessary to the defendant’s defense. The trial court must direct that the evidence necessary to the defense be made available to defense counsel if the court determines during the in camera inspection that the records reveal evidence necessary to the defense. The privileged information should not be disclosed when the party seeking disclosure is on a fishing expedition to see what information may be revealed.
    3. In this case, the trial court abused its discretion because it failed to apply the correct law when it granted defendant’s discovery motion. The trial court incorrectly stated that it would review the complainant’s counseling records to determine whether they were relevant. Instead, before conducting an in camera review of the records, the trial court should have determined whether defendant demonstrated a good-faith belief, grounded in specific articulable facts, that the records contained material information necessary to his defense. Defendant’s argument that the complainant’s counseling records likely contained material necessary to his defense because the complainant stated that the alleged abuse occurred as it had the “last time” was only a generalized assertion that the record might contain useful evidence. Defendant’s motion did not contain the required specificity. The complainant’s statement referred to the 2011 assault as a reference point for the type of assault alleged in this case; there was no implication that the prior incident would undermine her allegations in this case, and defendant could not use that statement to fish for evidence to enhance his defense. Any information in the complainant’s counseling records would not have been material to the defense because defendant already had access to witness statements indicating that the complainant had allegedly acted in a sexually aggressive manner on three separate occasions and because defendant had access to the police report and forensic interview in the 2011 case. In other words, the privileged records were not material to his defense because defendant could make a sound argument in his defense without access to those records.
    Reversed and remanded.
    
      Bill Schuette, Attorney General, Aaron D. Lind-strom, Solicitor General, Stuart J. Dunnings III, Prosecuting Attorney, Joseph B. Finnerty, Appellate Division Unit Chief, and Kahla D. Crino, Assistant Prosecuting Attorney, for the people.
    
      Abood Law Firm (by Andrew P. Abood) for defendant.
    Before: FORT HOOD, P.J., and RONAYNE KRAUSE and GADOLA, JJ.
   RONAYNE KRAUSE, J.

The prosecution appeals by delayed leave granted the trial court’s interlocutory order granting defendant’s motion for an in camera review of the complainant’s counseling records. For the reasons discussed in this opinion, we reverse.

I. FACTS AND PROCEDURAL HISTORY

Because of several alleged instances of criminal penetration and sexual contact between defendant and complainant, defendant was charged with three counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a), one count of second-degree criminal sexual conduct, MCL 750.520c(l)(a), and one count of accosting a child for immoral purposes, MCL 750.145a. Defendant alleged that during the complainant’s forensic interview regarding these incidents, the complainant stated that defendant’s alleged assault of her had happened like the “last time,” referring to a prior instance of sexual abuse perpetrated on the complainant by a nonparty in 2011. Defendant asserted that complainant had attended counseling after the 2011 incident and moved to compel discovery of complainant’s counseling records, arguing that the records were likely to contain material necessary to his defense, including possible impeachment material. The trial court granted defendant’s motion; the prosecution objected, arguing that the counseling records were privileged communications and that the complainant had not waived the privilege. The prosecution further argued that defendant had failed to establish a reasonable probability grounded in fact that the counseling records were likely to contain information necessary to prepare a defense. The prosecution agreed to the use of a protective order to turn over the police reports and corresponding forensic interviews associated with the prior sexual abuse. With respect to the counseling records, the trial court ruled that it would review them in camera because defendant’s freedom was at stake. The prosecution filed an application for interlocutory appeal, which this Court granted; the trial court stayed implementation of the order pending the outcome of this appeal.

II. ANALYSIS

A trial court’s decision to conduct or deny an in camera review of records in a criminal prosecution is reviewed for an abuse of discretion. People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994). “The trial court abuses its discretion when its decision falls outside the range of principled outcomes or when it erroneously interprets or applies the law.” People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014).

“Discovery should be granted where the information sought is necessary to a fair trial and a proper preparation of a defense.” People v Laws, 218 Mich App 447, 452; 554 NW2d 586 (1996). Nevertheless, defendants generally have no right to discover privileged records absent certain special procedures, such as an in camera review of the privileged information conducted by the trial court. MCR 6.201(C)(1) and (2). In a criminal sexual conduct prosecution, an in camera review “promotes the state’s interests in protecting the privacy rights of the alleged rape victim while at the same time safeguards the defendant’s right to a fair trial.” People v Hackett, 421 Mich 338, 350; 365 NW2d 120 (1984).

Stanaway explained the proper procedure a court must use to determine whether to grant an in camera review of privileged material:

[W]here a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records must be conducted to ascertain whether they contain evidence that is reasonably necessary, and therefore essential, to the defense. Only when the trial court finds such evidence, should it be provided to the defendant. [Stanaway, 446 Mich at 649-650.]

However, the Stanaway Court explained that “disclosure should not occur when the record reflects that the party seeking disclosure is on ‘a fishing expedition to see what may turn up.’ ” Id. at 680, quoting Bowman Dairy Co v United States, 341 US 214, 221; 71 S Ct 675; 95 L Ed 879 (1951). A defendant “is fishing” for information when he or she relies on generalized assertions and fails to state any “specific articulable fact” that indicates the privileged records are needed to prepare a defense. Id. at 681. The Michigan Supreme Court amended MCR 6.201(C) in 1996 to reflect the rule announced in Stanaway. MCR 6.201, 451 Mich cx, cxi (staff comment).

MCR 6.201(C)(2) provides in part as follows:

If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records.
(a) If the privilege is absolute, and the privilege holder refuses to waive the privilege to permit an in camera inspection, the trial court shall suppress or strike the privilege holder’s testimony.
(b) If the court is satisfied, following an in camera inspection, that the records reveal evidence necessary to the defense, the court shall direct that such evidence as is necessary to the defense be made available to defense counsel. If the privilege is absolute and the privilege holder refuses to waive the privilege to permit disclosure, the trial court shall suppress or strike the privilege holder’s testimony.

The trial court in this case abused its discretion because it failed to apply the law as articulated in Stanaway and MCR 6.201(C)(2). In fact, the trial court explicitly disregarded Stanaway and articulated its own standard:

[B]ut as to the counseling records, yeah, I’m going to review them... I don’t care what Stanaway says, what you want to point to or don’t point to. I don’t know if this is relevant or not, but, quite frankly, the relevance comes in with the freedom of defendant or his incarceration. That’s where the relevance is, because if there’s something in there that puts him behind bars or frees him, there’s the relevance, so I don’t talk to anybody. I’m not allowed to. I’m going to read it and say yea or nay. It’s very simple. [Emphasis added.]

The trial court’s articulated standard would allow an in camera review of most—if not all—of the counseling records of alleged sexual assault victims. However, Stanaway rejected that type of sweeping discovery, keeping in mind the state’s interest in protecting the victim’s privacy rights. Addressing defendant Stanaway’s assertion that the records were needed in an attempt to discover any prior inconsistent statement or rebuttal evidence, the Court responded: “This is no more than a generalized assertion that the counseling records may contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct.” Stanaway, 446 Mich at 681 (emphasis added).

The parties do not dispute that the complainant’s counseling records are privileged and that the need for an in camera review is controlled by Stanaway and MCR 6.201(C). Stanaway was a consolidated appeal that involved two defendants, Stanley Caruso and Brian Stanaway. In this case, the parties each rely on the factual circumstances and holding related to one of the defendants in Stanaway to the exclusion of the other; the prosecution turns to defendant Stanaway, while defendant turns to defendant Caruso.

The Supreme Court concluded that Stanaway’s request for privileged counseling records was properly denied because his request fell “short of the specific justification necessary to overcome the privilege.” Id. at 681-682. Stanaway had asserted that he needed access to privileged records to “unearth any prior inconsistent statements made by the complainant or any other relevant rebuttal evidence.” Id. at 681. The Supreme Court determined that Stanaway was merely “fishing” because he had failed to state any “specific articulable fact” to indicate that the requested information was necessary for him to prepare a defense. Id.

Defendant asserts that this case is analogous to the Supreme Court’s ruling with respect to defendant Caruso. The Court described the relevant facts regarding Caruso as follows:

Defendant Stanley Caruso is charged with second-degree criminal sexual conduct.. . . The allegation surfaced when the child wrote a note to her mother’s live-in boyfriend about the alleged incident.
Before trial, defense counsel moved to obtain the complainant’s counseling records, asserting that there was good reason to believe the complainant had been the victim of sexual abuse by her biological father. It was further suggested that this may not have been the first note written to the live-in boyfriend of a sexual nature. It was believed by the defense that the child had written at least one prior note in which she suggested she wanted to have sex with him in the car. [Id. at 654-655.]

The Court concluded:

Defendant Caruso may have demonstrated a realistic and substantial possibility that the material he requested might contain information necessary to his defense. The defendant argued in his motion for in camera discovery that the circumstances in which the accusation was made were relevant to the truth or falsity of the claim. The defense theory is that the claimant is a troubled, maladjusted child whose past trauma has caused her to make a false accusation against her uncle. The defendant asserted a good-faith belief in his motion that the complainant suffered sexual abuse by her biological father before this allegation of abuse, the nonresolution of which produced a false accusation, and factual support for some sexually aggressive behavior, namely, writing a letter to her mother’s live-in boyfriend inviting him to have sex with her in his car. The in camera review ordered by the trial judge may have been proper under the facts of this case. [Id. at 682-683.]

In this case, and in light of her comment that the alleged abuse occurred as it had the “last time,” defendant argued that the complainant’s counseling records likely contained material necessary to his defense. These allegations are merely generalized assertions that the record might contain useful evidence, i.e., they are of the sort that “might exist in every case involving an accusation of criminal sexual conduct.” Id. at 681. The complainant’s statement referred to the 2011 assault as a reference point for the type of assault alleged in this case; the statement did not hint or imply that the prior incident would undermine the present allegations. Defendant is attempting to use the complainant’s statement as a way to access privileged information to “fish” for evidence that may enhance his defense strategy.

Defendant attempts to analogize Caruso’s theory of defense to his own. Caruso theorized that the complainant was a “troubled, maladjusted child whose past trauma has caused her to make a false accusation . . . .” Id. at 682. With regard to Caruso, the Court concluded that evidence related to the complainant’s counseling records might provide “factual support for some sexually aggressive behavior” on the part of the complainant that was related to the discovery of the allegation against Caruso. Id. Similarly, in this case defendant asserts that the prosecution provided statements from three witnesses attesting to various occasions when the complainant engaged in sexually aggressive behavior. However, defendant has not demonstrated how complainant’s counseling records would be “necessary to the defense.” MCR 6.201(C)(2). Unlike defendant Caruso, who arguably articulated a need to ascertain a specific piece of evidence to prove a fact material to his defense, defendant’s assertion of need merely voices a hope of corroborating evidence, untethered to any articulable facts. Defendant has access to the police report and forensic interview associated with the 2011 case, although the trial court has not yet made any rulings regarding the admissibility of that information. Coupled with the alleged witness statements, those documents give defendant the information necessary to properly prepare a defense. As long as defendant is able to make a sound argument in his defense without having access to complainant’s privileged counseling records, any information in those records would not be material to his defense.

Defendant also asserts that he has “a good faith reason to believe that, in [the complainant’s] prior sexual assault, she attributed her exposure to pornography to the prior defendant,” which he argues is inconsistent with her alleged assertion in the case at hand that defendant exposed her to pornography. However, the complainant testified at the preliminary examination that defendant showed her Internet pornography, not that defendant was the first person to show her pornography or that she had never seen it before. Accordingly, the premise underlying this argument is invalid.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

FORT Hood, P.J., and GADOLA, J., concurred with Ronayne Krause, J. 
      
      
        People v Davis-Christian, unpublished order of the Court of Appeals, entered January 19, 2016 (Docket No. 329924).
     
      
       The defendant in the 2011 abuse case entered a guilty plea to second-degree criminal sexual conduct.
     
      
       See People v Caruso, 444 Mich 876 (1993), and People v Stanaway, 444 Mich 876 (1993) (ordering that the cases be argued and submitted together).
     
      
       The Court only held that the in camera review ordered by the trial judge on the basis of Caruso’s request may have been proper. Stanaway, 446 Mich at 683.
     