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State v. Judd

Court of Appeals of Oregon

December 26, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ANGELA CHRISTINE JUDD, Defendant-Appellant.

          Argued and Submitted October 5, 2018

          Deschutes County Circuit Court 16CR07389; Alta Jean Brady, Judge.

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant smothered her grandmother, who was in hospice care, with a pillow. During a counseling session, defendant later confessed to the homicide to Jones, a licensed clinical social worker and mandatory reporter under ORS 124.050(9)(g) and ORS 124.060. That confession led to defendant's conviction, pursuant to a conditional guilty plea, for second-degree manslaughter. On appeal, defendant assigns error to the trial court's denial of her motion to exclude statements that she made to Jones. Defendant argues that the trial court erred in ruling that the mandatory elder abuse reporting statutes abrogate the psychotherapist-patient privilege, OEC 504, so as to allow for testimony in judicial proceedings. Defendant also assigns error to the court's determination, in response to her motion to exclude statements under Oregon's corpus delicti rule, that her statements were confessions that were sufficiently corroborated. See ORS 136.425(2).

         Held:

         The trial court erred in denying defendant's motion to exclude on the basis of privilege, because the elder abuse reporting statutes only abrogate privileged communications insofar as to permit the submission of the [301 Or.App. 550] statutorily required report of elder abuse. The trial court did not err in denying defendant's corpus delicti motion, because that rule does not provide a basis for excluding evidence.

         Reversed and remanded.

         [301 Or.App. 551] LAGESEN, P. J.

         After her grandmother began receiving hospice care, defendant smothered her with a pillow. Defendant reported the death as a natural one but later sought counseling with a social worker, to whom she disclosed the homicide. The social worker, a mandatory reporter of elder abuse under ORS 124.050(9)(g) and ORS 124.060, reported defendant's conduct to law enforcement as required by ORS 124.065. This ultimately led to defendant's conviction, pursuant to a conditional guilty plea, for second-degree manslaughter. The primary issue before us is the extent to which the elder abuse reporting statutes abrogate the psychotherapist-patient privilege contained in OEC 504, as that privilege applies to communications between a licensed clinical social worker and her patient. Based on the text, context, and legislative history of the elder abuse reporting statutes, we conclude that they abrogate the OEC 504 privilege only insofar as to permit a report of suspected elder abuse but do not abrogate it further. In particular, the statutes do not abrogate the privilege so as to allow for testimony in judicial proceedings. Because the trial court erroneously concluded otherwise, we reverse and remand.

         I. BACKGROUND

         Because defendant's conviction is the product of a guilty plea, the facts about defendant's crime were not fully developed below. As defendant has done in her opening brief, we draw them from the evidence presented at the preliminary hearing on defendant's pretrial motions.

         Defendant's grandmother, N, died at age 92 shortly after entering hospice care. In the four years leading up to N's death, defendant had been her primary caregiver. During that time, defendant had been paying N's rent, which was $1, 980 per month and did not include medical care. Defendant was concerned about the cost of N's care and housing. After N began requiring hospice care, defendant began telling others that N was going to die soon.

         Although N was in declining health, on the morning of the day of her death she was conversational, alert, and seemed to be in little pain. She recognized her [301 Or.App. 552] great-granddaughters when they visited and was eating and drinking. Despite this, defendant told her daughter that she did not think N "would pull through the night." Roughly 12 hours before N died, defendant canceled all of N's services, including her meal services. Defendant did this even though N had no food in her apartment except for some doughnuts. That night, while alone with defendant, N died. Defendant reported N's death to hospice as a natural one.

         Several weeks later, defendant sought counseling from Jones through her employer's employee-assistance program. Jones is a licensed clinical social worker who is authorized to provide mental-health counseling. At the counseling session, Jones told defendant that she is a mandatory reporter. Defendant responded that she was a nurse, so she was a mandatory reporter as well, and she understood what that meant. Defendant told Jones that 10 days before N died, N's health began to rapidly decline. Defendant was concerned that N's lungs would fill with fluid, N would develop a "death rattle," and N would suffer for days until she drowned. Defendant told Jones that she emotionally struggled with what to do about N's condition before deciding to kill her; defendant stroked N's face, told her she loved her, put a pillow on N's face, and laid on top of her. N physically struggled while defendant smothered her. Defendant told Jones that she felt "angry, guilty, and ashamed" about it.

         Immediately after the counseling session, Jones reported defendant to law enforcement. Jones was told not to disclose to defendant that she had made the report. Defendant and Jones met for a second counseling session. At that session, defendant disclosed further that she had made the decision to kill N early in the morning while sober, and that she drank two glasses of wine that day to "get the courage."

         Defendant was charged by information with one count of murder, ORS 163.115. She then moved to exclude evidence of the statements that she had made to Jones. She did so on two grounds: (1) that the statements were uncorroborated confessions that, in defendant's view, Oregon's corpus delicti rule required the court to exclude from evidence; and [301 Or.App. 553] (2) that the statements were privileged under either OEC 504 (psychotherapist-patient privilege) or OEC 504-4 (regulated social worker-client privilege). The trial court denied the motion. Rejecting defendant's motion under the corpus delicti rule, the court determined that, although defendant's statements to Jones were confessions, those confessions were sufficiently corroborated. As to defendant's motion based on privilege, the court first ruled that defendant's statements to Jones were protected by the psychotherapist-patient privilege, OEC 504, and possibly the regulated social worker-client privilege, OEC 504-4. The court next ruled that the elder abuse reporting statutes abrogated that privilege so as to permit Jones both to report her belief that defendant had abused N and to testify in subsequent judicial proceedings about defendant's statements to her about her treatment of N, ultimately concluding as a matter of law that "[statements made by Defendant to Jones related to elder abuse are not privileged."

         Following the trial court's ruling, defendant conditionally pleaded guilty to one count of second-degree manslaughter. She reserved the court's ruling denying her motion to exclude her statements made to Jones on the bases of the corpus delicti rule and privilege. On appeal, defendant assigns error both to the court's denial of her motion to exclude her statements to Jones on the grounds of privilege and also to the court's determination, in the context of its denial of defendant's motion to exclude evidence of her statements to Jones under Oregon's corpus delicti rule, that those statements were sufficiently corroborated.

         II. ANALYSIS

         A. Privilege

         On appeal, the state does not dispute the trial court's conclusion that, but for the elder abuse reporting statutes, defendant's statements to Jones are privileged under OEC 504. Instead, at issue is the extent to which the elder abuse reporting statutes abrogate that privilege. Defendant contends first that Jones, although a social worker, qualifies as a "psychologist" or "psychiatrist" for purposes of ORS 124.060, such that the privilege was not abrogated at all. [301 Or.App. 554] Alternatively, defendant contends that, even if ORS 124.060 abrogated the OEC 504 privilege applicable to her statements to Jones, it did so only insofar as to allow for Jones to make a report of elder abuse but did not abrogate the privilege so as to allow the admission of defendant's statements in a judicial proceeding. The state responds that a social worker is not a "psychologist" or a "psychiatrist," and, further, that the elder abuse reporting statutes abrogate the privilege for purposes of judicial proceedings triggered by a report of elder abuse.

         The issue of the extent to which the elder abuse reporting statutes abrogate the OEC 504 privilege presents a question of statutory construction, so we review for legal error. Burley v. Clackamas County, 298 Or.App. 462, 464, 446 P.3d 564, rev den, 365 Or. 721 (2019). To answer that question, we consider the text of ORS 124.060 in context, taking into account any relevant legislative history, State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009), and conclude that (1) a social worker is not a "psychiatrist" or a "psychologist" for purposes of ORS 124.060, but (2) ORS 124.060 abrogates the OEC 504 privilege only insofar as to allow for a report of elder abuse.

         ORS 124.060 provides:

"(1) Any public or private official having reasonable cause to believe that any person 65 years of age or older with whom the official comes in contact has suffered abuse, or that any person with whom the official comes in contact has abused a person 65 years of age or older, shall report or ...

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