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State v. Kellywood

Court of Appeals of Arizona, Second Division

December 12, 2018

The State of Arizona, Appellee,
Michael Joseph Kellywood, Appellant.

          Appeal from the Superior Court in Pima County No. CR20153211001 The Honorable Richard Fields, Judge.

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee.

          Harriette P. Levitt, Tucson Counsel for Appellant.

          Presiding Judge Staring authored the opinion of the Court, in which Judge Brearcliffe concurred and Chief Judge Eckerstrom dissented.



         ¶1 Michael Kellywood appeals from his convictions and sentences for three counts of sexual conduct with a minor under the age of fifteen, and one count each of molestation of a child, continuous sexual abuse of a child, and sexual abuse of a minor under the age of fifteen, all dangerous crimes against children. Kellywood argues the trial court erred by denying his motion to compel production of the victim's medical and counseling records for in camera review because they possibly contained exculpatory evidence. For the reasons that follow, we affirm Kellywood's convictions and sentences.

         Factual and Procedural History

         ¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013). Beginning in 2012, Kellywood and his wife became foster parents to five siblings, whom they eventually adopted, including A.K. From 2012 to 2015, while A.K. was between eleven and fourteen years old, Kellywood sexually molested and assaulted her, for which he was eventually charged with multiple sexual offenses against her.

         ¶3 According to Kellywood's theory of defense, A.K. had recently fabricated her allegations, in part because he and his wife had taken away her cell phone after they discovered she had been using it to watch pornography. To support this theory, Kellywood filed a pretrial motion to compel the state to produce A.K.'s medical, Department of Child Safety (DCS), school, and counseling records, as well as her social media entries, computer searches, and text messages. Although Kellywood cited numerous legal authorities in his motion, he failed to develop any specific argument concerning his entitlement to production, merely asserting that, "All of the above records are necessary to defend Mr. Kellywood." Kellywood later withdrew the motion, and in a subsequent motion to compel production by the state, sought A.K.'s medical and counseling records for the period of time that she lived in his home. In that motion, he asserted: "[D]efense counsel needs possible exculpatory evidence which may be in the records of [A.K.'s] medical professionals and counselors. Oftentimes, these professionals directly ask questions concerning whether or not someone has been sexually inappropriate with them." The court denied the motion.[1]

         ¶4 Following trial, the jury found Kellywood guilty as described above,[2] and the trial court sentenced him to life imprisonment, in addition to a combination of consecutive and concurrent prison terms totaling sixty years. The court also suspended imposition of his sentence for sexual abuse of a minor under fifteen, placing him on lifetime probation. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).

         Motion to Compel

         ¶5 Kellywood argues the trial court erred by denying his motion to compel production of A.K.'s medical and counseling records. He asserts the presence of "sufficient indicia" that those records might contain statements with which he could impeach A.K. Specifically, as noted, he maintains the medical and counseling records might show that when directly asked, A.K. affirmatively denied experiencing inappropriate sexual contact during the relevant period of time. "A trial court has broad discretion over discovery matters, and we will not disturb its rulings on those matters absent an abuse of that discretion." State v. Fields, 196 Ariz. 580, ¶ 4 (App. 1999). An error of law is an abuse of discretion. State v. Burgett, 226 Ariz. 85, ¶ 1 (App. 2010).

         ¶6 The trial court denied Kellywood's motion to compel "for various reasons, including [it]s concern that [the] circumstances of this kind of case [do] not mean that any negative responses to alleged providers [about inappropriate sexual contact] would necessarily be exculpatory." To the extent that this reflects a conclusion by the court that, as a matter of law, prior statements in which A.K. had denied experiencing inappropriate sexual contact could not possibly be exculpatory, we disagree. See Exculpatory Evidence, Black's Law Dictionary (10th ed. 2014) ("exculpatory evidence" is "[e]vidence tending to establish a criminal defendant's innocence"). It is possible that A.K., or any other similarly situated victim, could say something exculpatory to a care provider. However, as discussed herein, the mere possibility A.K. could have said something exculpatory is not, as a matter of law, sufficient by itself to require her to produce the medical and counseling records sought by Kellywood.

         Victims' Rights

         ¶7 Under Arizona's Victims' Bill of Rights, a crime victim possesses a constitutional right "[t]o refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant." Ariz. Const. art. II, § 2.1(A)(5); see also Ariz. R. Crim. P. 39(b)(12) (crime victim entitled "to refuse [a] . . . discovery request by the defendant[ or] the defendant's attorney"). Thus, "[g]enerally, the victim of a crime has the right to refuse to hand over medical records . . . ." State v. Sarullo, 219 Ariz. 431, ¶ 20 (App. 2008); see also State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 237 (App. 1992) (§ 2.1(A)(5) encompasses medical records). In addition, "pursuant to the physician-patient privilege, a defendant may not seek to establish a victim's character trait through the testimony of the victim's doctor, or psychologist, or by using the victim's medical records without the victim's consent." State v. Connor, 215 Ariz. 553, ¶ 18 (App. 2007); A.R.S. § 13-4062(4) (physician-patient privilege); A.R.S. § 32-2085(A) (psychologist-patient privilege).

         ¶8 A victim's right to refuse discovery is not absolute, however. Sarullo, 219 Ariz. 431, ¶ 20. "Due process requires that the defendant receive 'a meaningful opportunity to present a complete defense.'" Connor, 215 Ariz. 553, ¶ 12 (quoting Holmes v. South Carolina, 547 U.S. 319, 324 (2006)). And, "when the defendant's constitutional right to due process conflicts with the Victim's Bill of Rights in a direct manner . . . then due process is the superior right." Roper, 172 Ariz. at 236 (excluding "essential evidence, thereby precluding a defendant from presenting a theory of defense . . . results in a denial of . . . due process that is not harmless"). Thus, a victim may be compelled to produce treatment records for in camera inspection if the defendant shows a "reasonable possibility that the information sought . . . include[s] information to which [he or] she [is] entitled as a matter of due process." Sarullo, 219 Ariz. 431, ¶ 20 (quoting Connor, 215 Ariz. 553, ¶ 10) (alteration in Sarullo).

         ¶9 We therefore turn to the question of whether Kellywood demonstrated a "reasonable possibility" that the medical and counseling records he sought would contain evidence to which he was entitled as a matter of due process. Id. ¶ 20. In light of the competing constitutional interests, as well as the ordinarily privileged nature of patient-provider communications, we conclude the burden of demonstrating a "reasonable possibility" is not insubstantial, and necessarily requires more than conclusory assertions or speculation on the part of the requesting party. See Fields, 196 Ariz. 580, ¶ 7 (discovery request anchored in speculation when motivated only by "conclusions, surmise, and conjecture"); see also State v. Hatton,116 Ariz. 142, 150 (1977) ("[M]ere ...

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