Davis Adv. Sh. No. 3
THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Respondent
Gary Reece Thompson,
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Greenville County
C. Victor Pyle, Jr., Judge
Opinion No. 24744
Heard November 4. 1997 - Filed January 12, 1998
REVERSED AND REMANDED
TOAL, A.J.: Petitoner Gary Reece Thompson, Jr. was convicted of
criminal sexual conduct in the first degree and sentenced to thirty years in
prison. On appeal, Thompson challenges the trial court's ruling allowing the
prosecution to use, for impeachment purposes, statements Thompson made
to a psychiatrist in the course of plea negotiations. In an unpublished
opinion, the Court of Appeals affirmed the trial court's ruling. State v.
Thompson, Op. No. 96-UP-132 (S.C. Ct. App. filed April 30, 1996). We
reverse and remand.
Gary Reece Thompson, Jr. was indicted for criminal sexual conduct and
assault with intent to commit criminal sexual conduct with a minor in the
first degree. The indictment alleged that between January 22, 1993 and May
1, 1993, Thompson committed or assaulted with the intent to commit sexual
battery on a six year old female.
Prior to trial, Thompson was represented by Bill Godfrey ("Attorney").
On the advice of Attorney, Thompson retained the services of Dr. Karl
Bodtorf ("Psychiatrist"). Attomey contacted the solicitor and explained that
he wanted to have Psychiatrist evaluate Thompson to determine whether
Thompson would be eligible for Psychiatrist's sex offender treatment program.
Attorney intended to use Psychiatrist's recommendation to negotiate a plea
agreement with the State. The solicitor did not object to the evaluation, but
refused to commit to making any sentencing recommendation to the court.
Thompson understood the purpose of the evaluation was to pursue a plea
agreement with the solicitor. During the course of the psychiatric interview,
Thompson made several admissions, which Psychiatrist recorded in his report.
Attorney subsequently provided a copy of Psychiatrist's report to the solicitor.
At trial, the solicitor subpoenaed Psychiatrist to testify concerning
Thompson's statements. Thompson objected and argued the statements were
protected by the attorney-client privilege. The trial judge ruled that the
prosecution could not use Psychiatrist's testimony in its case-in-chief, but
could use it to impeach Thompson if he testified at trial. Thompson did not
testify before the jury, but did proffer in camera testimony concerning his
statements to Psychiatrist.
Thompson was found guilty of criminal sexual conduct in the first
degree and sentenced to thirty years in prison. He appealed his conviction
and sentence. Before the Court of Appeals, Thompson argued, inter alia, that
the trial judge erred in making a preliminary ruling allowing the prosecution
to use privileged information to impeach him if he testified at trial.
Thompson further argued that the ruling effectively prevented him from
testifying at trial. The Court of Appeals held that Thompson waived his
attorney-client privilege with Psychiatrist. State v. Thompson, Op. No. 96-
UP-132 (S.C. Ct. App. filed. April 30, 1996).
We granted Thompson's petition for a writ of certiorari to consider the
Did the Court of Appeals err in finding Thompson waived his attorney-
A. Attorney-Client Privilege
In State v. Hitopoulus, 279 S.C. 549, 309 S.E.2d 747 (1983), we held
that the attorney-client privilege extends to communications between the
client and a psychiatrist retained to aid in the preparation of a case. ln
Hitopoulus, we adopted the balancing test enunciated in United States ex.
rel. Edney v. Smith, 425 F. Supp. 1038 (E.D.N.Y. 1976). Under this test, a
court, in determining whether the attorney-client privilege extends to
communications between a client and a non-lawyer, must balance two factors:
(1) the need of the attorney for the assistance of the non-lawyer to effectively
represent his client, and (2) the increased potential for inaccuracy in the
search for truth as the trier of fact is deprived of valuable witnesses.
However, before reaching this test, a court must ascertain whether the
communication is confidential in nature. State v. Smith, 286 S.C. 406, 334
S.E.2d 2-17 (1985).
The State argues that the attorney-client privilege does not extend to
Thompson's communications with Psychiatrist because Thompson could not
have expected the information to be confidential as it was made in
contemplation of publication to the State for plea negotiations. We disagree.
Psychiatrist interviewed Thompson privately, and elicited remarks in order
to diagnose Thompson's mental condition. Psychiatrist's ability to make an
accurate recommendation hinged on Thompson's willingness to talk freely.
This sort of uninhibited dialogue is predicated on an implied promise of
confidentiality. See United States ex. rel. Edney v. Smith, 425 F. Supp. at
1043. Without confidentiality, accurate diagnosis is compromised. See id.
("Confidentiality is a sine qua non for successful psychiatric treatment."). We
therefore begin with the presumption that Thompson expected his statements
to be confidential. The fact that Thompson knew Attorney intended to use
Psychiatrist's recommendation to negotiate a plea agreement with the State
does not overcome this presumption. It is more reasonable that Thompson
expected Attorney would make a recommendation without revealing his
The State next argues that the attorney-client privilege does not extend
to Thompson's communications because Psychiatrist was not hired by
Thompson in an effort to prepare a legal defense. In support of its argument,
the State cites State v. Smith. In Smith, the prosecution called the
defendant's psychologist to rebut expert testimony concerning insanity. The
defendant argued that the State's actions violated his attorney-client
privilege. We disagreed and held that the rule in Hitopoulus was
inapplicable because there was no evidence that the defendant's psychologist
was hired to help establish the defendant's insanity defense; instead, the
psychologist was employed solely to assist in jury selection.
The State interprets Smith and Hitopoulus as standing for the
proposition that a communication can be privileged only if the expert is
employed to aid in the preparation of a legal defense. We do not find the
privilege to be this narrow. "[I]n criminal causes, communications made by
a defendant to an expert in order to equip that expert with the necessary
information to provide the defendant's attorney with the tools to aid him in
giving his client proper legal advice are within the scope of the attorney-
client privilege." State v. Pratt, 398 A.2d 421, 423-24 (Md. 1979). Without
Psychiatrist's recommendation, Attorney could not have effectively pursued
the treatment program during plea negotiations. Thus, balancing the two
factors in Hitopoulus, we find the attorney-client privilege extends to
Thompson's communications with Psychiatrist.
C. Waiver of Attorney-Client Privilege
Thompson argues that the Court of Appeals erred in holding that he
waived his attorney-client privilege with Psychiatrist. We agree.
The attorney-client privilege belongs solely to the client and can only
be waived by the client. State v. Love, 275 S.C. 55, 271 S.E.2d 110 (1980).
"Although a client may waive his attorney-client privilege, the waiver must
be distinct and unequivocal." State v. Hitopoulus, 279 S.C. at 551, 309
S.E.2d at 749.
The Court of Appeals held that Thompson impliedly waived his
attorney-client privilege because he should have known that it was necessary
for Attorney to disclose the statements in order to effectively negotiate a plea
agreement. We disagree. "[W]here an implied waiver is claimed, caution
must be exercised, for waiver will not be implied from doubtful acts." 28 Am.
Jur. 2d Estoppel and Waiver § 160 (1966). As stated above, it is more
reasonable that Thompson expected Attorney would make a recommendation
based on Psychiatrist's report, without revealing his actual statements.
There is no evidence to suggest that Thompson made a distinct and
We find that the trial court's ruling prevented Thompson from testifying
at trial and therefore, violated the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution. See Rock v. Arkansas, 483 U.S. 44, 107
S. Ct. 2704, 97 L. Ed.2d 37 (1987).
For the foregoing reasons, the decision of the Court of Appeals is
REVERSED and the case REMANDED for a new trial consistent with this
FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.
scenario would now be governed by Rule 410(4), SCRE. Rule 410(4) provides,
"any statement made in the course of plea discussions with an attorney for
the prosecuting authority which do not result in a plea of guilty or which
result in a plea of guilty later withdrawn" is not admissible against the
defendant. Rule 410 is not controlling here because it became effective on
September 3, 1995; Thompson was convicted in 1994. We note, however, that
the result which would be reached under Rule 410(4) is consistent with the
holding in this case.