State v. Expose, Jr.,, Minn.Ct.App., 7/14/2014. If you can’t win your case with your own argument, then steal your opponent’s argument and try that out. During court-ordered anger management counseling, Mr. Expose, Jr. sounded off to his counselor about his child protection worker, something about breaking her back. Believing that she was a “mandated reporter” the anger management counselor reported this to her supervisor and the police.
The state charged Mr. Expose, Jr. with terroristic threats and wanted to have the anger management counselor tell the jury what Mr. Expose, Jr. said. Before trial, Mr. Expose, Jr. objected for two reasons. First, the anger management counselor was not a “mandated reporter” because she was not a licensed mental health professional who is such a mandated reporter. In response, the state said that the anger management counselor should be treated as a licensed psychologist because she was working under the supervision of someone who was licensed. The trial court sided with the prosecutor and said the statements could come in. Second, after the jury was sworn, but before testimony commenced, Mr. Expose, Jr. raised another objection. This time he said that since the state had convinced the court that the anger management counselor was the functional equivalent of a psychologist then the psychologist-patient privilege precluded the testimony. The trial court said, no, that Mr. Expose Jr.’s alleged threats were an exception to the privilege.
On appeal, the state made a number of arguments all of which began to unravel. So, the state reversed course. Despite having told the trial court that the anger management counselor was like a psychologist now they told the court of appeals that she wasn’t because she didn’t fit the language of the statute. The court of appeals continued to treat the anger management counselor like a psychologist and went on to conclude that there was a valid psychologist-client privilege that precluded her from testifying absent Mr. Expose, Jr.’s consent. This extended to the alleged threats, because the anger management counselor only heard the threats when she asked Mr. Expose, Jr. why he was so upset. The court points out that, after all, “Anger-management therapy necessarily involves talking about and working through angry thoughts and emotions.” Mr. Expose, Jr.’s conversation with his anger management counselor was thus a necessary part of effective diagnosis and treatment.
Now in desperation, the state’s final argument was, well, okay, she’s like a psychologist, but the threats are an exception to the privilege. The court of appeals pointed out, however, that neither the statute that creates the privilege nor other relevant laws contains such a “threats exception. So, permitting the testimony was an abuse of discretion that earned Mr. Expose, Jr. a remand.
It’s also worth pointing out that the state made the truly jaw dropping argument that because Mr. Expose, Jr. had not objected to the proposed testimony of the anger management counselor by motion under Rule 10.01, subdivision 2 he had waived it:
Defenses, objections, issues or requests that can be determined without trial on the merits must be made before trial by a motion . . . to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . . The court can grant relief from the waiver for good cause.
This rule pertains to constitutional challenges to the admission of evidence; other evidentiary objections are governed by the rules of evidence, which provide that any “timely objection” preserves a claimed error in admitting evidence. Rule 103(a). Mr. Expose, Jr.’s motion in limine satisfied that “timely objection” requirement. He objected again just before testimony began, which was also timely. And if you want to talk about waiver, never did the state claim at trial that Mr. Expose, Jr. had waived this evidentiary objection, so who’s waiving now?
Evelyn Mulwray: She's my daughter.
[Gittes slaps Evelyn]
Jake Gittes: I said I want the truth!
Evelyn Mulwray: She's my sister...
[slap]
Evelyn Mulwray: She's my daughter...
[slap]
Evelyn Mulwray: My sister, my daughter.
[More slaps]
Jake Gittes: I said I want the truth!
Evelyn Mulwray: She's my sister AND my daughter!
Chinatown, 1974.
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