Bay Circuit Court. LC No. 13-010577-FH.
For PEOPLE OF MI, PROSECUTOR, PLAINTIFF-APPELLANT: SYLVIA L LINTON, BAY CITY, MI.
For BRANDON WILLIAM CARRIER, RETAINED, DEFENDANT-APPELLEE: MARCUS R GARSKE, BAY CITY, MI.
Before: MURPHY, P.J., and METER and SERVITTO, JJ.
[309 Mich.App. 94] William B. Murphy, P.J.
Defendant was charged with one count of making a terrorist threat, MCL 750.543m, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. In support of the threat-of-terrorism charge, the prosecution relied, in part, on phone communications between defendant and an emergency services specialist while the specialist was manning a mental health crisis hotline. After the 80-minute call was concluded, the emergency services specialist contacted [309 Mich.App. 95] 911 and reported specific threats that defendant had made during the crisis hotline call. Defendant argued that his conversation with the emergency services specialist and the related 911 recording concerned privileged communications and were thus inadmissible in the criminal case brought against him. The district court bound defendant over on the two charges following the preliminary examination, declining to address the privilege issue, because it found that other unchallenged evidence existed that adequately established the probable cause threshold. Subsequently, the circuit court ruled that defendant's statements and threats that were conveyed to the emergency services specialist during the crisis hotline call constituted privileged communications, absent any waiver of the privilege. Accordingly, the circuit court granted defendant's motion to exclude the testimony of the specialist and the associated 911 recording, but the court denied defendant's accompanying motion to quash the information. The prosecutor then filed an application for leave to appeal, challenging the circuit court's evidentiary ruling and arguing that the doctrine of privilege did not require exclusion of the evidence. The application was granted by this Court. People v Carrier, unpublished order of the Court of Appeals, entered July 29, 2014 (Docket No. 322020), We now hold that although defendant's communications were generally privileged, the privilege was effectively waived or lost to the extent that defendant voiced threats of physical violence against reasonably identifiable third persons with regard to whom he had the apparent intent and ability to carry out the threats in the foreseeable future, MCL 330.1946(1). We therefore reverse and remand.
[309 Mich.App. 96] At the preliminary examination, Jason Felber testified that on August 13, 2013, he went with defendant to a local bar and had a couple of drinks. Felber indicated that they left the bar well after midnight and then went to Felber's house and consumed more alcohol. According to Felber, defendant thereafter became upset and started threatening to harm people. Felber testified that defendant threatened to put defendant's girlfriend in a wood chipper and to kill Deputy Tony Peter of the Bay County Sheriff's Department, as well as Peter's family. Felber then asked defendant
to leave and called 911 to report his concerns about defendant's threats.
Christian Ginther, an emergency services specialist at Bay Arenac Behavioral Health, testified at the preliminary examination that his job involved answering the mental health crisis hotline. As part of his employment, and when not answering the crisis hotline phones, Ginther also " perform[ed] mental health evaluations on . . . individuals presenting for hospitalization." Ginther testified that he was qualified to perform these tasks because he had a bachelor's degree in social work. He also indicated that he was 10 months away from completing a master's degree in social work. More testimony regarding Ginther's credentials was elicited at the subsequent circuit court hearing on defendant's motion to exclude the challenged evidence and to quash the information. At that motion hearing, Kristy Moore took the stand and testified that, at the time of the incident, she was employed by Bay Arenac Behavioral Health and managed the clinical services program. Moore stated that she had a master's degree in social work and was a licensed social worker. Moore supervised Ginther, and she testified that Ginther's licensing status when he received the call from defendant was as [309 Mich.App. 97] follows, " Limited license, Bachelor of social work." Moore then discussed differences between limited and full licenses with respect to social work and counseling. She agreed with the prosecutor's characterization that a " limited license is kind of a temporary measure where you've got to obtain the full license." Moore testified that Ginther was not a licensed physician, a licensed psychologist, a registered professional nurse, a master's licensed social worker, a licensed professional counselor, nor a marriage or family therapist. We shall examine hereinafter additional testimony from Moore on other matters.
Returning to Ginther's testimony at the preliminary examination, he indicated that defendant called the crisis hotline around 3:00 a.m. on August 14, 2013, and that he was on the phone with defendant for about 80 minutes. Ginther testified that defendant requested to speak with " Vanessa" from Crossroads who had told him to contact the hotline if he needed help after hours. Defendant had seen Vanessa within the past day to address certain issues. The record was never developed in order to identify Vanessa's last name, title, educational background, or licensing status.
Ginther next testified with respect to the substance of his conversation with defendant during the crisis hotline call, noting that defendant started off polite and agreeable but became more frustrated and angry toward [309 Mich.App. 98] the end of the conversation. We shall limit our discussion of the statements made by defendant to Ginther to those related to threats of physical violence against identifiable third persons. Ginther testified that defendant was very upset about an ex-girlfriend and stated that he could see her down the scope of his gun. When Ginther told defendant, " you said you're at home, I know you don't see her through your gun," defendant proceeded to list the types of guns that he had in his possession and expressed that he had ammunition. According to Ginther, defendant told him to call the police. Defendant
threatened that he was " locked and loaded," waiting for the " first badge" to arrive. Ginther testified that toward the end of the conversation, defendant was making comments about people being outside of his house and was becoming increasingly agitated. Ginther indicated that after he heard a loud bang, defendant stopped talking for a moment and it seemed as if defendant had gone outside to check something, but defendant did eventually return to the phone. Other testimony detailed later in this opinion established that the police had arrived at defendant's home in response to Felber's 911 call. Ginther claimed that he never told defendant that he was going to call the police or 911. Ginther quickly ended the conversation when defendant threatened Ginther, stating: " I'm gonna come up to the hospital, I know where you work, I know where that office is, I'm gonna shoot you, I'm gonna shoot your wife and your kids."
Ginther testified that after he hung up the phone, he immediately called 911 for the following reason:
[A]nytime a person is expressing suicidal or homicidal allegations we go over in their HIPAA rights with them [309 Mich.App. 99] that those are things that we're not privileged to keep secret, that we have a mandated duty to report. . . . I had a duty to call 9-1-1 if only to do a safety check on him to make sure that he was doing all right. I wasn't calling 9-1-1 to get him trouble, I was calling 9-1-1 to make sure that he was all right because he had been drinking and he had been claiming that he had guns in his possession and he was expressing thoughts of wanting to hurt other people.
Sergeant Michael Shore, a shift commander at the Bay County Sheriff's Office, testified that at 3:41 a.m. on August 14, 2013, he received a call from the 911 dispatcher. Shore explained that the dispatcher " had informed me they . . . received a phone call from [Felber] and he stated a friend had just left his house agitated and had made threats towards the police." Shore indicated that he was provided information that defendant had consumed alcohol, was agitated, had made direct threats against Deputy Peter, and possibly had weapons in his residence. Shore testified that he notified other deputies on duty and that they all proceeded to defendant's home. Shore explained that he and the other deputies parked several blocks away from defendant's residence and approached the house undetected. Shore asserted that he overheard defendant talking on his phone through a kitchen window that was open. According to Shore, at one point he heard a door on the side of the garage open and someone walk out of the residence. Shore could not see whether it was defendant. Shore testified that afterward, defendant's phone conversation resumed. He overheard defendant saying, " I'm locked and loaded, I'm waiting for the first [309 Mich.App. 100] badge I see." Shore further testified that he also heard defendant ranting that " he was in the Michigan Militia and we don't know who we're fuckin' with." Shore stated that, upon hearing this remark, he and the deputies decided to pull back. Shore then contacted the Michigan State Police's Emergency Services Team (EST) to come in and handle the matter.
Shore testified that when he returned to the scene after obtaining a search warrant for defendant's home, the EST had already arrived. The EST detonated two flash grenades and directed defendant to come out of the house. Shore indicated that defendant eventually surrendered and was taken into custody. Upon entry into defendant's residence, police located a .270 semiautomatic rifle and a .22 semiautomatic rifle.
As indicated earlier, Kristy Moore, the clinical services program manager who supervised Ginther, testified at the hearing on defendant's motion to exclude both Ginther's testimony and the 911 recording and to quash the information. Moore testified that her department provided after-hours emergency services and prescreening. According to Moore, five psychiatrists worked in the department and were supervised by a medical director. Regarding the crisis hotline, Moore explained:
If someone is in crisis, we try to help determine what level they're at, first of all, [so] we can calm them down. And we try to help them problem-solve. We talk about coping skills. If we think that they're in extreme crisis and they need to be hospitalized, we will encourage them to come in to be screened. Sometimes, people call in and really sound like they could need extra help, and we will . . . encourage them to enter services. And, if they give us permission, we can refer them on to our Access Department. So, it's kind of a point of entry as well.
[309 Mich.App. 101] Moore indicated that her crisis hotline workers did not diagnose mental health disorders over the phone, given that it was a complicated process and generally done face-to-face. When asked if crisis hotline workers provided any treatment, Moore responded, " we are helping people, we're assisting people. Some people use it as part of their treatment." Moore testified that crisis hotline workers did not provide any psychotherapy or counseling to callers. When Moore was queried whether it would be fair to say that Ginther had collected information on defendant for use by people who diagnose and treat patients, Moore responded, " Yes."
Moore additionally testified that the crisis hotline workers were under the supervision of a clinician--herself--and that after workers talked to callers, she would typically review the workers' notes and related paperwork. Ginther had previously testified that he took notes during his conversation with defendant, but he had not turned those notes over to the police because, in his view, they were privileged. Moore testified that Ginther phoned her at home after he had called 911 because it was the protocol that " any time we have to call 9-1-1 for a duty to warn, . . . we immediately call the supervisor in case we feel any other action is necessary." Moore stated that she reviewed Ginther's documentation concerning the incident and determined that he had properly and professionally handled the situation.
Defendant was arrested and charged with one count of making a terrorist threat, MCL 750.543m, and one count of
felony-firearm, MCL 750.227b. As reflected [309 Mich.App. 102] earlier in this opinion, the circuit court subsequently granted defendant's motion to exclude the challenged evidence on the basis of privilege, finding that Ginther was a " paraprofessional" who collected information for the purpose of assisting the " treater" in making a mental health diagnosis and providing treatment. The court ruled that although Ginther was not a licensed psychologist or counselor, he had been acting in a role meant to gather information that was then made part of defendant's file and utilized by licensed professionals in formulating a treatment plan for defendant's care. On this basis, the circuit court determined that defendant's statements to Ginther were protected by the psychiatrist-patient privilege. The court ruled that defendant had effectively asserted the privilege and, accordingly, Ginther would not be allowed to testify at trial regarding his crisis hotline conversation with defendant.
The circuit court rejected the prosecution's argument that, under MCL 330.1946, defendant lost or waived the protection of any assumed privilege when he made violent threats. The court agreed that the statute gave rise to a duty to warn under the circumstances. This duty, according to the circuit court, carved out an exception to the privilege, but nothing in the statute indicated that the privilege would be lost for other [309 Mich.App. 103] purposes after Ginther fulfilled his duty to warn by calling 911 and reporting the threats. The circuit court found, therefore, that the 911 recording and Ginther's testimony about the conversation with defendant were inadmissible. The court further ruled that, contrary to the prosecution's assertion, defendant did not waive the privilege when he conducted the phone conversation with Ginther in a manner that allowed Sergeant Shore to overhear the conversation. The circuit court explained, " I don't think that, at this hour of the evening standing on your porch, you would expect necessarily to have a police officer that close. So, I don't think that he didn't take precautions that were necessary." The court, however, did determine that the police could testify regarding what they overheard, considering that Felber had earlier called 911 to indicate his concerns and that Felber's call was the reason the police were present at defendant's home, which presence was entirely proper. The circuit court denied defendant's motion to quash the information in light of the untainted evidence that supported the charges, including Felber's testimony.
The prosecutor appealed the circuit court's decision to exclude the evidence on the basis of privilege.
A. STANDARDS OF REVIEW
With respect to a trial court's ruling regarding, in general, the admissibility of evidence, our Supreme Court in People v Lukity, 460 Mich. 484, 488; 596 N.W.2d 607 (1999), observed:
The decision whether to admit evidence is within the trial court's discretion; this Court only reverses such decisions where there is an abuse of discretion. However, decisions [309 Mich.App. 104] regarding the admission of evidence frequently involve preliminary questions of law, e.g., whether a rule of evidence or statute precludes admissibility of the evidence. This Court reviews ...