Opinion
2013-SC-000733-MR
08-21-2014
DWAYNE WHITMAN APPELLANT v. HONORABLE KAREN A. CONRAD, IN HER OFFICIAL CAPACITY AS HENRY CIRCUIT JUDGE APPELLEE AND COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST
COUNSEL FOR APPELLANT: Robert Chung-Hua Yang Assistant Public Advocate Appellate Division Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 APPELLEE: Honorable Karen Ann Conrad Henry Circuit Court Judge Oldham County Courthouse 100 West Main Street LaGrange, Kentucky 40031-1116 COUNSEL FOR REAL PARTY IN INTEREST: Jack Conway Attorney General Courtney Tigue Baxter Commonwealth's Attorney 12th Judicial Circuit 115 West Main Street LaGrange, Kentucky 40031 Andrew Jacob Gochenaur Assistant Commonwealth's Attorney 12th Judicial Circuit 115 West Main Street LaGrange, Kentucky 40031
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED ON APPEAL FROM COURT OF APPEALS
CASE NO. 2013-CA-001097-OA
HENRY CIRCUIT COURT NO. 12-CR-00046
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In this case, the Appellant, Dwayne Whitman, who is accused of several sexual offenses committed against the child victim, obtained copies of the child's mental health records with the help of the child's legal custodian. The trial court ordered that the mental health records be turned over to the court and sealed, and that any copies in Whitman's possession be destroyed. Did the trial court by its actions exceed its jurisdiction or commit error for which Whitman had no adequate remedy by appeal, as required for the issuance of a writ of prohibition? The answer is no. Thus, the Court of Appeals properly declined to issue the writ and is affirmed.
I. Background
In 2012, Whitman lived with Norletta Kime. Kime's granddaughter, "Sally," who at that time was thirteen years old, also lived with her. The year before, Kime had been awarded custody of Sally, and had also been designated as Sally's personal representative under the Health Insurance Portability and Accountability Act.
Consistent with this Court's present practice, "Sally" is a pseudonym employed in this opinion to protect the minor victim's true identity.
In August 2012, Whitman was charged with second-degree rape, second-degree sodomy, and first-degree sexual abuse, all of Sally. Kime, not believing Sally's allegations, obtained copies of Sally's mental health records, which apparently included information related to mental illness. The records were provided to Whitman's trial counsel, and copies were then provided to the Commonwealth.
The trial court held a hearing under Commonwealth v. Barrosso, 122 S.W.3d 554 (Ky. 2003), and found that the mental health records were privileged. The Court ordered the records to be placed under seal and withheld from Whitman. Whitman then asked for an independent psychological evaluation of Sally, and the Commonwealth moved to require Whitman to return any copies of the mental health records in his custody. The trial court denied the motion for an independent examination and ordered that the mental health records be turned over to the circuit clerk and that any copies were to be destroyed within 14 days.
Whitman moved for a writ of prohibition to compel the trial court to withdraw its order requiring the records to be turned over to the circuit clerk and copies to be destroyed. Whitman argued that the trial court lacked jurisdiction to enter the order and, alternatively, that the order would cause him immediate and irreparable injury. The Court of Appeals denied the petition, finding that the trial court had jurisdiction to act and that Whitman had an adequate remedy by appeal, which barred his writ petition.
This appeal followed as a matter of right. See CR 76.36(7)(a) ("An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals."); Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court ... .").
II. Analysis
On appeal to this Court, Whitman styles his argument as one about the inadequacy of appellate remedies, but the substance of his claim is about the merits of the dispute, i.e., whether the records were obtained legally, whether the records are privileged, and whether Whitman should nonetheless be entitled to the records to make a defense. This argument, however, puts the cart before the horse.
Actions involving the extraordinary writs of mandamus and prohibition differ substantially from direct appeals of acts. In writ actions, the court's first task is to determine whether the remedy of a writ is even available. Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). This is done before looking at the merits of the legal claims. Id.; see also Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008). Whitman's argument, however, focuses on the merits of his claim, not whether he has satisfied the prerequisites for a writ.
Extraordinary writs are disfavored because they interfere with the regular appellate process, amounting to "de facto interlocutory appeals." Cox, 266 S.W.3d at 795. For this reason, "this Court has articulated a strict standard to determine whether the remedy of a writ is available." Id. at 796. In essence, articulation of this standard established two "classes" of writs, those in which a lack of jurisdiction is alleged and those in which substantial error is alleged. Each class has a high burden of proof. The standard states:
A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) ... the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Failure to show these prerequisites usually results in dismissal of the writ action. Bender, 343 S.-W.2d at 801.
The burden to make these showings is on the petitioner, which in this case was Whitman, who claims entitlement to the writ under each class. But he has failed on both counts.
Under the first class, Whitman must show that the trial court is "acting without jurisdiction (which includes 'beyond its jurisdiction')." Grange Mat. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2004) (quoting Bender, 343 S.W.2d at 800). His argument that the trial court erred in ordering the records returned to the court and any copies destroyed, however, is not a claim that the trial court lacked jurisdiction. At best, his claim is that the trial court abused its jurisdiction, not that it lacked it. That is only a claim of legal error, since there is no question that the trial court had subject-matter jurisdiction over the criminal prosecution. See Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012). "In the context of the extraordinary writs, jurisdiction' refers not to mere legal errors but to subject-matter jurisdiction, which goes to the court's core authority to even hear cases." Id. (citation omitted). A court does not lack jurisdiction simply because it "act[s] contrary to law." Id. Such a claim of legal error can justify a writ of prohibition only if the petitioner proves the prerequisites for the second class of writ, that is, "where the lower court is acting within its jurisdiction but in error." Trude, 151 S.W.3d at 810.
Whitman suggests that because the trial court considered the "best interests of the child" in deciding whether to allow him to keep the records, the court acted outside its jurisdiction because such a decision "is best suited for family court." But a non-family circuit court has control over discovery and documents in its criminal cases, and it clearly has jurisdiction to hear felony criminal cases, as this one is. Whether the court applies the wrong legal standard in reaching a decision in such a criminal case is merely a question of whether the court has committed legal error, not whether the court had jurisdiction to act. Again, this argument confuses the separate questions of a court's jurisdiction and a court's acting in error but within its jurisdiction.
Whitman, thus, can only proceed under the second class of writs. Under this class, the petitioner is ordinarily required to show both that he lacks an adequate remedy by appeal and that he will suffer great injustice and irreparable injury. The first of these requirements, no adequate remedy by appeal, is an "an absolute prerequisite." Bender, 343 S.W.2d at 801; Gilbert v. McDonald-Burkman, 320 S.W.3d 79, 85 (Ky. 2010) ("the lack of an adequate remedy by appeal is the one requirement that is set in stone and unavoidable"). Again, whether the trial court erred in no way goes to this requirement.
However, Whitman argues near the end of his brief that the trial court, by ordering that the records be sealed and copies destroyed, has foreclosed his ability to address the issue he really wishes to raise at trial, namely, the admissibility of the records. He argues that "[i]t follows that the appellate court could not review the issue on appeal," and thus that he does not have an adequate remedy by appeal.
It does not, however, follow that appellate review will be unavailable. Whitman need only preserve his entire argument, that is, that he is entitled to see and use the records, and that some of the records are admissible to impeach Sally's credibility. He is not foreclosed from pressing the second aspect of this claim simply because the trial court has already ruled on the first aspect. He need only file a motion in limine and receive a ruling by the trial court to preserve the matter for appellate review, see KRE 103, or undertake any other action that would ordinarily preserve a claim for appellate review. Despite Whitman's claim otherwise, this case is not so different from one in which discovery of the material in question is denied in the first instance. In such cases, an appeal is an adequate remedy. See Barroso, 122 S.W.3d at 564 ("If ... discovery is denied, a conviction occurs, and an appeal is taken, the appellate court, upon request, can review the records and determine whether the trial judge's ruling was an abuse of discretion.").
And though he has not raised it, the fact that he might face conviction and be forced to appeal does not mean he has no adequate remedy other than a writ. See Gilbert, 320 S.W.3d at 85. "We have consistently found the right of appeal to be an adequate remedy when the petition of a criminal defendant seeks only to correct procedural or trial errors." Hoskins, 150 S.W.3d at 19. An allegation that the trial court has improperly limited a defendant's access to or use of exculpatory evidence "would be exactly that: a procedural or trial error." Gilbert, 320 S.W.3d at 85.
III. Conclusion
Because Whitman has not shown the prerequisites for the availability of a writ of prohibition, that remedy is not available to him. For that reason, the Court of Appeals did not err in denying his petition and is, therefore, affirmed.
Minton, C.J.; Abramson, Cunningham, Keller and Noble, JJ., concur. Venters, J., dissents by separate opinion in which Scott, J., joins.
VENTERS, J., DISSENTING: I would agree that the trial judge has the authority to limit the admissibility at trial of documents surreptitiously or suspiciously obtained. I agree that the trial judge has the authority to control and direct the disposition, even the destruction, of evidence procured under color of our procedural rules. But despite the understandable concern that any reasonable person would have for the personal privacy rights of witnesses in a criminal case, a trial judge does not have the plenary, "do right" jurisdiction to dictate to a party what it can or must do with documents in its possession that were obtained independent of the judicial discovery processes. It does not matter whether the documents were purloined or obtained legitimately, or whether the documents are legitimate or counterfeit. Nothing in our rules or substantive law gives a trial judge that authority, and there is nothing inherent in the judge's supervisory role over trial proceedings that give her the authority to reach beyond the evidence and beyond the discovery rules and command the destruction of documents simply because the possession of those documents is offensive. I cannot support this unwarranted expansion of judicial authority into matters beyond the judge's responsibility.
Certainly, the trial judge had the authority to determine issues that arise from the use of the pretrial discovery provisions of the Rules of Criminal Procedure, and certainly she would have the discretion to limit the admissibility at trial of documents however acquired. But the case before us involves neither the use of the criminal rules to improperly acquire information nor the admission into evidence of such information.
To be clear, the witness whose personal medical records were obtained, or a next-friend on her behalf, can assert her privacy rights in an appropriate forum seeking emergency injunctive relief, and secure whatever protection she is due. And although there is no doubt about the judge's good intentions here, we have now paved the way to unwarranted meddling by judges into the personal affairs of litigants.
I therefore dissent. Scott, J., joins. COUNSEL FOR APPELLANT: Robert Chung-Hua Yang
Assistant Public Advocate
Appellate Division
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
APPELLEE: Honorable Karen Ann Conrad
Henry Circuit Court Judge
Oldham County Courthouse
100 West Main Street
LaGrange, Kentucky 40031-1116
COUNSEL FOR REAL PARTY IN INTEREST: Jack Conway
Attorney General
Courtney Tigue Baxter
Commonwealth's Attorney
12th Judicial Circuit
115 West Main Street
LaGrange, Kentucky 40031
Andrew Jacob Gochenaur
Assistant Commonwealth's Attorney
12th Judicial Circuit
115 West Main Street
LaGrange, Kentucky 40031