Michigan Court of Appeals Holds No Privilege For Threats

On January 27th, 2015, the Michigan Court of Appeals held in a criminal case that defendant's communications with an emergency services specialist - communications that included specific, credible threats to other people defendant knew - were not privileged and are admissible as evidence against defendant in the prosecution's case-in-chief at trial.

In People v Carrier, Docket No. 322020, the Michigan Court of Appeals addressed the issue of whether a person's statements may be used against them at trial when the person makes threatening statements to another person who is speaking with them by phone in a mental health crisis service capacity. The Court also addressed whether a subsequent 911 phone conversation between the mental health crisis worker and a 911 operator are admissible as well.

The Court first recited the facts of the case.

At the preliminary examination, Jason Felber testified that on August 13, 2013, he went with defendant to a local bar and had a couple of drinks. Felber indicated that they left the bar well after midnight and then went to Felber’s house and consumed more alcohol. According to Felber, defendant thereafter became upset and started threatening to harm people. Felber testified that defendant threatened to put defendant’s girlfriend in a wood chipper and to kill Deputy Tony Peter of the Bay County Sheriff’s Department, as well as Peter’s family. Felber then asked defendant to leave and called 911 to report his concerns about defendant’s threats.

Christian Ginther, an emergency services specialist at Bay Arenac Behavioral Health, testified at the preliminary examination that his job involved answering the mental health crisis hot-line. As part of his employment, and when not answering the crisis hot-line phones, Ginther also “perform[ed] mental health evaluations on . . . individuals presenting for hospitalization.” Ginther testified that he was qualified to perform these tasks because he had a bachelor’s degree in social work. He also indicated that he was ten months away from completing a master’s degree in social work. More testimony regarding Ginther’s credentials was elicited at the subsequent circuit court hearing on defendant’s motion to exclude the challenged evidence and to quash the information. At that motion hearing, Kristy Moore took the stand and testified that, at the time of the incident, she was employed by Bay Arenac Behavioral Health and managed the clinical services program. Moore stated that she had a master’s degree in social work and was a licensed social worker. Moore supervised Ginther, and she testified that Ginther’s licensing status when he received the call from defendant was as follows, “Limited license, Bachelor of social work.” Moore then discussed differences between limited and full licenses with respect to social work and counseling. She agreed with the prosecutor’s characterization that a “limited license is kind of a temporary measure where you’ve got to obtain the full license.” Moore testified that Ginther was not a licensed physician, a licensed psychologist, a registered professional nurse, a master’s licensed social worker, a licensed professional counselor, nor a marriage or family therapist. We shall examine below additional testimony from Moore on other matters.

Returning to Ginther’s testimony at the preliminary examination, he indicated that defendant called the crisis hot-line around 3:00 a.m. on August 14, 2013, and that he was on the phone with defendant for about 80 minutes. Ginther testified that defendant requested to speak with “Vanessa” from Crossroads who had told him to contact the hot-line if he needed help after hours. Defendant had seen Vanessa within the past day to address certain issues. The record was never developed so as to identify Vanessa’s last name, title, educational background, or her licensing status.

Ginther next testified with respect to the substance of his conversation with defendant during the crisis hot-line call, noting that defendant started off polite and agreeable but became more frustrated and angry toward the end of the conversation. We shall limit our discussion of the statements made by defendant to Ginther to those related to threats of physical violence against identifiable third persons. Ginther testified that defendant was very upset about an ex- girlfriend and stated that he could see her down the scope of his gun. When Ginther told defendant, “you said you’re at home, I know you don’t see her through your gun,” defendant proceeded to list the types of guns that he had in his possession and expressed that he had ammunition. According to Ginther, defendant told him to call the police. Defendant threatened that he was “locked and loaded,” waiting for the “first badge” to arrive. Ginther testified that toward the end of the conversation, defendant was making comments about people being outside of his house and was becoming increasingly agitated. Ginther indicated that after he heard a loud bang, defendant stopped talking for a moment and it seemed as if defendant had gone outside to check something, but defendant did eventually return to the phone. Other testimony detailed below established that the police had arrived at defendant’s home in response to Felber’s 911 call. Ginther claimed that he never told defendant that he was going to call the police or 911. Ginther quickly ended the conversation when defendant threatened Ginther, stating, “I’m gonna come up to the hospital, I know where you work, I know where that office is, I’m gonna shoot you, I’m gonna shoot your wife and your kids.”

Ginther testified that after he hung up the phone, he immediately called 911 for the following reason:

[A]nytime a person is expressing suicidal or homicidal allegations we go over in their HIPAA rights with them that those are things that we’re not privileged to keep secret, that we have a mandated duty to report. . . . I had a duty to call 9-1-1 if only to do a safety check on him to make sure that he was doing all right. I wasn’t calling 9-1-1 to get him trouble, I was calling 9-1-1 to make sure that he was all right because he had been drinking and he had been claiming that he had guns in his possession and he was expressing thoughts of wanting to hurt other people . . .

Defendant was arrested and charged with one count of threat of terrorism, MCL 750.543m, and one count of felony-firearm, MCL 750.227b. As reflected earlier in this opinion, the circuit court subsequently granted defendant’s motion to exclude the challenged evidence on the basis of privilege, finding that Ginther was a “paraprofessional” who collected information for the purpose of assisting the “treater” in making a mental-health diagnosis and providing treatment. The court ruled that although Ginther was not a licensed psychologist or counselor, he had been acting in a role meant to gather information that was then made part of defendant’s file and utilized by licensed professionals in formulating a treatment plan for defendant’s care. On this basis, the circuit court determined that defendant’s statements to Ginther were protected by the psychiatrist-patient privilege. The court ruled that defendant had effectively asserted the privilege and, accordingly, Ginther would not be allowed to testify at trial regarding his crisis hot-line conversation with defendant.
The circuit court rejected the prosecution’s argument that, under MCL 330.1946, defendant lost or waived the protection of any assumed privilege when he made violent threats.

The court agreed that the statute gave rise to a duty to warn under the circumstances. This duty, according to the circuit court, carved out an exception to the privilege, but nothing in the statute indicated that the privilege would be lost for other purposes after Ginther fulfilled his duty to warn by calling 911 and reporting the threats. The circuit court found, therefore, that the 911 recording and Ginther’s testimony about the conversation with defendant were inadmissible. The court further ruled that, contrary to the prosecution’s assertion, defendant did not waive the privilege when he conducted the phone conversation with Ginther in a manner that allowed Sergeant Shore to overhear the conversation. The circuit court explained, “I don’t think that, at this hour of the evening standing on your porch, you would expect necessarily to have a police officer that close. So, I don’t think that he didn’t take precautions that were necessary.” The court, however, did determine that the police could testify as to what they overheard, considering that Felber had earlier called 911 to indicate his concerns and that such was the reason the police were present at defendant’s home, which presence was entirely proper. The circuit court denied defendant’s motion to quash the information in light of the untainted evidence that supported the charges, including Felber’s testimony.

The prosecutor appealed the circuit court’s decision to exclude the evidence on the basis of privilege . . .

The Court's analysis of whether defendant's statements were privileged under Michigan law followed.

We shall take a two-step approach in our analysis. With respect to step one, we examine whether, in general, defendant’s communications constituted privileged communications, concluding that his conversation with Ginther was generally privileged. In regard to step two, we examine whether the privilege was effectively waived or lost in light of the nature or substance of some of his communications. On this issue, we hold that the privilege was effectively waived or lost to the extent that defendant voiced threats of physical violence against reasonably identifiable third persons as to whom he had the apparent intent and ability to carry out the threats in the foreseeable future . . .

We hold that although defendant’s communications were generally privileged, the privilege was effectively waived or lost to the extent that defendant voiced threats of physical violence against reasonably identifiable third persons as to whom he had the apparent intent and ability to carry out the threats in the foreseeable future, MCL 330.1946(1). Testimony at trial concerning threats falling within the parameters of MCL 330.1946(1) is not excludable on the basis of privilege. For purposes of clarity on remand, testimony regarding portions of defendant’s communications that provide context to any threats are also not barred by privilege. And of course, should defendant himself wish to introduce into evidence any part of his communications in his defense, privilege will not preclude the evidence, as defendant has full control over waiving the privilege.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.