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                              2014-SC-000403-MR


REGINA D. WHITE                                                             APPELLANT


                    ON APPEAL FROM COURT OF APPEALS
                         CASE NO. 2014-CA-000824
                JEFFERSON CIRCUIT COURT NO. 12-CR-03891


HON. BARRY WILLETT, JUDGE,                                                  APPELLEE
JEFFERSON CIRCUIT COURT


AND


DOMINIQUE GRIER                                     REAL PARTIES IN INTEREST
AND COMMONWEALTH OF KENTUCKY


            OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                        REVERSING AND REMANDING

      On December 20, 2012, the Jefferson County grand jury indicted

Appellant Regina D. White and Dominique Grier, aka "Pac Man," a real party in

interest, with murder, first-degree burglary, first degree robbery, and tampering

with physical evidence. All charges were premised on a complicity theory. On

September 16, 2013, Appellant pled guilty to robbery, burglary, and tampering

with physical evidence in exchange for a recommended sentence of ten years'

imprisonment. Pursuant to that agreement, Appellant agreed to testify

truthfully and cooperate in the prosecution of Grier. During the plea colloquy,

Appellant testified that she had been treated fdr various mental illnesses and
drug addictions. She identified one provider as Seven Counties Services

("Seven Counties"). No competency examination was ordered. The court

accepted her plea and immediately sentenced her in accord with that

agreement.

       On September 17, 2013, co-defendant Grier filed a motion for an in

camera review of Appellant's psychotherapy records from all previous mental

health providers. The prosecutor and Greir's attorneys were present at a

hearing on that motion. No one appeared on behalf of Appellant. Grier argued

that Appellant's mental health records were relevant as to the Appellant's

credibility. The trial court expressed reservation concerning its authority to

issue such a broad order.

       Only two specific institutions had ever been identified as possibly having

exculpatory records—Seven Counties and Phoenix Health Services ("Phoenix"). 1

                                                                                           Nevrthls,inaodeOctbr31,20heoudrta:

       Counsel for defendant Regina White shall inquire of Ms. White and
       provide the Court with the names and addresses of every
       physician, psychiatrist, psychologist, counselor and/or mental
       health professional that has provided mental health services to Ms.
       White since January 1, 2000. (Emphasis added).

Appellant filed a motion to set aside that order. Prior to the hearing on that

motion, the court—in separate orders—directed that Seven Counties and

Phoenix produce for in camera review, any records concerning Appellant's

treatment.

       1      The factual basis underlying the order directing disclosure of the Phoenix
records is unclear.



                                            2
       Therefore, there were three discovery orders outstanding. One required

Appellant's counsel to inquire of his client the names and addresses of all

mental health providers over the past fourteen years. Counsel was to produce

such information to the court. The other two discovery orders were directed at

Seven Counties and Phoenix.

      In an order dated April 16, 2014, the court denied Appellant's motion to

set aside the October 31, 2013, order. Instead, the court amended that order,

thereby requiring Appellant's counsel to immediately disclose, directly to

Grier's counsel, the information set forth in the October 2013 order. The

orders relating to Seven Counties and Phoenix were never challenged.

      However, on May 22, 2014, Appellant petitioned the Court of Appeals for

a writ to preclude the circuit court from enforcing the October 31, 2013 and

April 16, 2014, discovery orders. To reiterate, these two orders collectively

directed the Appellant's counsel to disclose to Grier's attorney the "names and

addresses of every physician, psychiatrist, psychologist, counselor and/or

mental health professional that has provided mental health services to Ms.

White since January 1, 2000." The Court of Appeals denied Appellant's

petition and she appealed to this Court. Having reviewed the facts and the law,

we reverse the Court of Appeals.

                                    Analysis

      An appellate court has discretion to grant a writ where a trial court is

proceeding within its jurisdiction upon a showing that the court is (1) acting or

is about to act erroneously, (2) there exists no adequate remedy by appeal or
otherwise, and (3) great injustice and irreparable injury will result if the

petition is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We

review the Court of Appeals' determination under an abuse of discretion

standard. Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky. 2007).

        "[T]here will rarely be an adequate remedy on appeal if the alleged error

is an order that allows discovery."    Grange Mutual Insurance Company v. Trude,

151 S.W.3d 803, 810 (Ky. 2004). Thus, we determine that there is no adequate

appeal or other avenue that would remedy the disclosure of Appellant's

psychotherapy records in this instance. Regarding the necessity of

demonstrating great injustice and irreparable injury, Commonwealth v.

Barroso, is controlling. 122 S.W.3d 554 (Ky. 2003). In Barroso, this Court held

that:

        [i]f the psychotherapy records of a crucial prosecution witness
        contain evidence probative of the witness's ability to recall,
        comprehend, and accurately relate the subject matter of the
        testimony, the defendant's right to compulsory process must
        prevail over the witness's psychotherapist-patient privilege.

        Id. at 563 (citing KRE 507).

We further determined that:

        in camera review of a witness's psychotherapy records is
        authorized only upon receipt of evidence sufficient to establish a
        reasonable belief that the records contain exculpatory evidence.

        Id. at 564.

In contrast to the procedure outlined in Barroso, the trial court in the present

case failed to articulate evidence sufficient to establish a reasonable belief that

Appellant's psychotherapy records contained exculpatory evidence. The court


                                          4
made no findings whatsoever in the October 31, 2013 and April 16, 2014

orders.

      Having reviewed the record, it is clear that the evidence revealing that

Appellant suffered mental infirmities came from Appellant herself, in response

to the trial court's inquiry into her mental faculties during the guilty plea

colloquy. See Boykin v. Alabama, 395 U.S. 238 (1969). During that

proceeding, Appellant further discussed her psychological history as a result of

additional questioning by her trial counsel. That evidence was sufficient to

establish a reasonable belief that Seven Counties possessed exculpatory

records because Appellant admitted to receiving treatment there. A record of

this evaluation and treatment could bring into question her credibility, and

thus be exculpatory for the defendant. That order is not before this Court.

      However, the breadth of the trial court's October 2013 and April 2014

orders exceeded the bounds permitted by Barroso. A defendant's right to

compulsory process does not automatically extinguish the protections afforded

under KRE 507. As such, the proponent of the disclosure order bears the

initial burden of identifying specific records, or at least specific institutions or

medical professionals in possession of such records. The proponent must then

establish a reasonable belief that such records contain exculpatory

information. To the contrary, the blanket orders from October 2013 and April

2014 epitomize the type of court sanctioned fishing expedition that Barroso

cautioned against. Those records are nothing more than a shotgun blast of




                                          5
discovery authorizing an overly broad invasion into Appellant's privacy. A

closer observation of the underlying issue in Barroso is instructive.

      The issue in Barroso arose when the prosecutor provided defense counsel

with copies of records from Kosair Children's Hospital where the victim had

been treated shortly after she reported to the police that the defendant raped

and robbed her. Those records provided details concerning the victim's

previous treatment for depression, and "also contained a report reflecting that

[the victim] had been admitted to Baptist East Hospital for depression . . . ."

Barroso, 122 S.W.3d at 557. Defense counsel then requested that the trial

court review the Baptist East records for exculpatory information. This is

strikingly different than the present case, where the court compelled Appellant

to provide the names and addresses of all psychiatric professionals who have

treated her over the past fourteen years. Cases applying Barroso have observed

this distinction.

      For example, in Commonwealth, Cabinet for Health and Family Services v.

Bartlett, we held that the trial court properly ordered discovery of KASPER

records, notwithstanding a statutory bar on their disclosure. 311 S.W.3d 224

(Ky. 2010). - In so holding, we affirmed the Court of Appeals' denial of the

petitioner's writ. Id. Unlike the present case, the proponent of the disclosure

order in Bartlett sought detailed and specific records that were known to be in

the possession of the Cabinet. We further stated that "a criminal defendant

has a right to raw data, too, should it be exculpatory." However, this does not

include the swath of information contested in the present case.    Id. at 228.

                                         6
      There is another problem with the court's orders at issue here; they

directed the Appellant's lawyer to do something which the lawyer could only do

by obtaining the information from that lawyer's client. This is an inappropriate

intrusion into the attorney client privilege and writ worthy in and of itself. SCR

3.130 (1.6) and (1.9).

      In sum, the trial court's authority to order the disclosure of

psychotherapy records under Barroso is directed at medical personnel and

institutions in possession of those records, not the testifying witness who's

treatment and psychiatric history may be the subject of those records, nor the

witness' current or former counsel.

                                   Conclusion

      For the foregoing reasons, the judgment of the Court of Appeals is hereby

reversed and this case is remanded to the trial court. The Appellant's petition

for writ before the Court of Appeals is granted and the trial court's October 31,

2013 and April 16, 2014 orders are vacated. The trial court's orders regarding

records from Seven Counties Services and Phoenix Health Services remain in

effect. Any further proceedings on this issue shall comport with the foregoing

analysis and Barroso.

      All sitting. All concur.
COUNSEL FOR APPELLANT:

Daniel T. Goyette
James David Niehaus
Office of the Louisville Metro Public Defender


APPELLEE:

Hon. Barry Willett
Judge, Jefferson Circuit Court


COUNSEL FOR DOMINIQUE GRIER, REAL PARTY IN INTEREST:

Wayne McKinley Adams, Jr.


COUNSEL FOR COMMONWEALTH OF KENTUCKY, REAL PARTY IN
INTEREST:

Leland Taylor Hulbert, Jr.
Dorislee J. Gilbert
