People v. Kailey

2014 CO 50, 333 P.3d 89, 2014 WL 2814916
CourtSupreme Court of Colorado
DecidedJune 23, 2014
DocketSupreme Court Case No. 13SA183
StatusPublished
Cited by13 cases

This text of 2014 CO 50 (People v. Kailey) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kailey, 2014 CO 50, 333 P.3d 89, 2014 WL 2814916 (Colo. 2014).

Opinions

CHIEF JUSTICE RICE

delivered the Opinion of the Court.

11 This suppression case presents an issue of first impression for this Court. In this original C.A.R. 21 proceeding, we examine the scope of the "psychologist-patient privilege"1 provided in section 13-90-107(1)(g), C.R.S. (2013), vis-&-vis the "duty to warn" provided in section 18-21-117(2), C.R.S. (2014)2 We hold that if a mental health treatment provider believes, using his or her professional judgment, that statements made by a patient during a therapy session threaten imminent physical violence against a specific person or persons-and accordingly trigger the provider's "duty to warn"-the patient's threatening statements are not protected by the psychologist-patient privilege.

[ 2 Accordingly, we also hold that the trial court erred when it excluded threatening statements made by a patient to a mental health treatment provider on the grounds that they were barred by the psychologist, patient privilege. We thus make the rule absolute and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

T3 In 1985, Randy Steven Kailey was charged with two counts of aggravated incest. After a jury trial, he was found guilty and ultimately sentenced to thirty-two years in the Sterling Correctional Facility ("Sterling") in Sterling, Colorado.

T4 In November 2012, Kailey met with Brian Willson, a psychologist candidate employed by the Colorado Department of Corrections ("DOC"), for a private therapy session at Sterling. At the outset of this therapy session, Willson reviewed an official DOC form with Kailey. This form provided that any statements Kailey made during the therapy session indicating that Kailey [92]*92intended to harm himself or others would not be considered confidential and would be disclosed to the DOC. During his session, Kailey allegedly made several statements about witnesses who had testified against him during his trial Willson considered these statements to constitute serious threats of violence.

T5 Section 18-21-117(2) provides that "where the patient has communicated to [a] mental health [treatment] provider a serious threat of imminent physical violence against a specific person or persons," a "duty to warn" arises. This duty is discharged when the provider makes reasonable and timely efforts to notify any person or persons specifically threatened, as well as notifies an appropriate law enforcement ageney or takes other appropriate action, including but not limited to hospitalizing the patient. § 13-21-117(2)(b). Pursuant to his duty to warn, Willson submitted an "Incident Report" to the DOC describing Kailey's therapy session and quoting several of Kailey's alleged statements. In explaining why he submitted this report, Willson testified as follows: "According to what ... I understand as a duty to warn, and also what [the] DOC requires us to do, and the disclosure form, ... anything that's perceived as a threat to the facility or to the public is not considered confidential and needs to be reported."

6 The People subsequently charged Kai-ley with retaliation against a witness, a class-three felony, pursuant to section 18-8-706, CRS. (2013)3 According to the People, Willson's Incident Report and his testimony formed the basis, in large part, for this charge.4 Kailey moved to exclude Willson's testimony, contending that Kailey's statements to Willson were barred by the psychologist-patient privilege. That privilege provides that certain types of mental health treatment providers "shall not be examined without the consent" of the patient as to any communication made by the patient or advice given by the provider "in the course of professional employment." § 13-90-107(1)(g).

T7 After a hearing, the trial court issued an oral order granting Kailey's motion to exclude Willson's testimony. It found that the duty to warn statute serves different purposes than the psychologist-patient privilege, reasoning that the duty to warn is designed to enhance public safety, whereas the psychologist-patient privilege encourages patients to be candid with their therapists. Accordingly, the trial court found that even if a mental health treatment provider warns threatened individuals and notifies law enforcement regarding threatening statements made in the course of a therapy session, the testimonial privilege remains intact.

1 8 The People petitioned this Court under C.AR. 21 for review of the trial court's order, contending that the trial court erred when it found that Willson's testimony was inadmissible under the psychologist-patient privilege. We issued a rule to show cause why the trial court's order should not be vacated.

II. Original Jurisdiction

19 Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited both in purpose and availability. People v. Darlington, 105 P.3d 230, 232 (Colo.2005). Nevertheless, this Court exercises its original jurisdiction when the trial ruling in question may have a significant impact on a party's ability to litigate the merits of a controversy or when the normal appellate process would prove inadequate. People v. Casias, 59 P.3d 853, 856 (Colo.2002).

110 We have previously held that the exercise of original jurisdiction is warranted when the wrongful suppression of evidence would significantly hinder the prosecution's case. People v. Smith, 254 P.3d 1158, 1161 (Colo.2011); see also Casias, 59 P.3d at 856 (concluding that original jurisdiction was [93]*93warranted because the trial court's suppression of particular statements would "significantly impede the prosecution's egsge"). Here, the wrongful suppression of evidence pursuant to the psychologist-patient privilege could significantly impede the People's ability to prosecute Kailey, as Willson's testimony constitutes a critical part of the prosecutor's case.

T11 Appellate review would be also be inadequate here because this case raises double jeopardy considerations; specifically, if the People proceed to trial without the benefit of Willson's testimony and Kailey is acquitted, jeopardy will attgch and bar his retrial. See People v. Braunthal, 31 P.3d 167, 172 (Colo.2001) (concluding that appellate review of a suppression order would be inadequate because "although the People could appeal the trial court's order suppressing the evidence subsequent to the trial, [the defendant] could not be rétried due to double jeopardy considerations"). Accordingly, the exercise of original jurisdiction is appropriate.

III. Standard of Review

$12 Ordinarily, we review the trial court's exclusion of testimony for an abuse of discretion. See People v. Welsh, 80 P.3d 296, 304 (Colo.2003). However, because this case involves the interpretation of the psychologist-patient privilege and its interaction with the duty to warn, both statytory provisions, it presents questions of law that we review de novo. See L.A.N. v. L.M.B., 2013 CO 6, ¶ 13, 292 P.3d 942 (reviewing the interaction between the psychotherapist-patient privilege and the dependency and neglect statutes de novo); see also People v. Turner, 109 P.3d 639

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Cite This Page — Counsel Stack

Bluebook (online)
2014 CO 50, 333 P.3d 89, 2014 WL 2814916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kailey-colo-2014.