                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    June 30, 2016
               Plaintiff-Appellant,                                 9:10 a.m.

v                                                                   No. 329924
                                                                    Ingham Circuit Court
LEWIS CLIFTON DAVIS-CHRISTIAN,                                      LC No. 15-000243-FC

               Defendant-Appellee.


Before: FORT HOOD, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

RONAYNE KRAUSE, J.

       Plaintiff appeals by delayed leave granted1 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 below, we reverse.

                          I. FACTS AND PROCEDURAL HISTORY

       Resulting from several alleged instances of sexual contact between defendant and
complainant, defendant is charged with three counts of first-degree criminal sexual conduct,
MCL 750.520b(1)(a), one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a),
and one count of accosting a child for immoral purposes, MCL 750.145a. Defendant alleged that
during her forensic interview regarding these incidents, the complainant stated that defendant’s
alleged assault of her happened like the “last time,” referring to a prior instance of sexual abuse
perpetrated on the complainant by a non-party in 20112. Defendant alleged that the victim
attended counseling after the 2011 incident and moved to compel into discovery the counseling
records, arguing that information within the records was likely to contain material necessary to
his defense, including possible impeachment material. The trial court granted defendant’s
motion; plaintiff objected, arguing that the counseling records were privileged communications


1
  People v Davis-Christian, unpublished order of the Michigan Court of Appeals, entered
January 19, 2016 (Docket No. 329924).
2
 Defendant in the case of the prior abuse entered a guilty plea to second-degree criminal sexual
conduct.


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and the complainant had not waived the privilege. Plaintiff further argued that defendant had not
shown that there existed a reasonable probability grounded in fact that the counseling records
were likely to contain information necessary to prepare a defense. Plaintiff agreed with 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, as defendant’s freedom was at stake. Plaintiff 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 that 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 2d
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, staff comment to 1996
amendment.

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


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               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 alleged sexual assault victims’ counseling records. However, Stanaway rejected allowing for
such 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, “[t]his 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 counseling records at issue are privileged and that the
need for an in camera review is controlled by Stanaway and MCR 6.201(C). Stanaway is a
consolidated appeal involving two defendants, Stanley Caruso and Brian Stanaway.3 The parties
rely on the circumstances and rulings of one of the defendants to the exclusion of the other;
plaintiff turns to defendant Stanaway, while defendant turns to defendant Caruso.


3
 See People v Caruso, 444 Mich 876; 511 NW2d 677 (1993) and People v Stanaway, 444 Mich
876; 511 NW2d 677 (1993) (ordering that the cases be argued and submitted together).


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       The Supreme Court determined 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 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 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.]

Regarding Caruso, the Court held as follows:

               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 was merely associating
the two incidents, not hinting or implying that anything about the prior incident would possibly
undermine the present allegations. Defendant is attempting to use complainant’s statement as a


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way to access privileged information in order to “fish” for evidence that may enhance his
defense strategy.

        Defendant analogizes 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. In regards to Caruso, the Court believed evidence related to the
complainant’s counseling might provide “factual support for some sexually aggressive behavior”
on the part of the complainant. Id. Similarly, defendant in the case now before us asserts that
plaintiff provided statements from three witnesses attesting to various incidents where the
complainant engaged in sexually aggressive behavior. However, defendant has not demonstrated
that such information would be “necessary to the defense.” MCR 6.201(C)(2). Unlike defendant
Caruso, who 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 could make a sound argument without having to access claimant’s privileged
counseling records, any information in the counseling 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, what the complainant testified to at the
preliminary examination was 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. So, the
premise underlying this argument is invalid.

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

                                                              /s/ Amy Ronayne Krause
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Michael F. Gadola




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