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24744 - State v. Gary Reece Thompson, Jr.

Davis Adv. Sh. No. 3
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

State of South Carolina,        Respondent

v.

Gary Reece Thompson,

Jr.,       Petitioner

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Greenville County

C. Victor Pyle, Jr., Judge

Opinion No. 24744

Heard November 4. 1997 - Filed January 12, 1998

REVERSED AND REMANDED

Robert C. Childs, III, of Mitchell, Bouton, Duggan,
Yokel & Childs, of Greenville, for petitioner.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, all of
Columbia; and Solicitor Joseph J. Watson, of
Greenville, for respondent.

p. 49


STATE v. THOMPSON

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 In an unpublished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.

Factual/Procedural Background

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

p. 50


STATE v.THOMPSON

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

following issue:

Did the Court of Appeals err in finding Thompson waived his attorney-

client privilege?

Law/Analysis

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

p. 51


STATE v. THOMPSON

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

actual statements.

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

p. 52


STATE v. THOMPSON

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 ยง 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

unequivocal waiver.

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).

CONCLUSION

For the foregoing reasons, the decision of the Court of Appeals is

REVERSED and the case REMANDED for a new trial consistent with this

opinion.1

FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.


1 The analysis in this case has limited, future application since this

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.

p. 53