State v. Paul Dennis Reid and Christopher Davis

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FILED FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: November 23, 1998

November 23, 1998 )

Appellee, ) Supreme Court

Cecil W. Crowson ) No. 01S01-9809-CC-00175

Vs. Appellate Court Clerk )

) Hon. John H. Gasaway, III,

) Judge

PAUL DENNIS REID, ) Montgomery County

) No. 38887

Appellant, )

) Hon. Cheryl Blackburn,

) Judge

) Davidson County

) No. 97-C-1834

AND )

)

)

STATE OF TENNESSEE, ) Hon. J. Randall Wyatt,

) Judge

Appellee, ) Davidson County

) No. 96-B-866

Vs. )

)

CHRISTOPHER DAVIS, )

)

Appellant. )

FOR APPELLANT REID: FOR STATE OF TENNESSEE:

J. Michael Engle John Knox Walkup

Assistant Metro Public Defender Attorney General & Reporter

Nashville, Tennessee

Michael E. Moore

Michael R. Jones Solicitor General

Public Defender

19th Judicial District Kathy Morante

Clarksville, Tennessee Assistant District Attorney General

Nashville, Tennessee

FOR APPELLANT DAVIS:

Hershell Koger Victor S. Johnson, III

Pulaski, Tennessee District Attorney General

20th Judicial District

Niles Nimmo

Nashville, Tennessee John Wesley Carney, Jr.

District Attorney General

19th Judicial District

FOR AMICUS CURIAE:

Tennessee Association Criminal Defense Lawyers

Jefferson T. Dorsey

Nashville, Tennessee

OPINION

COURT OF CRIMINAL APPEALS DROWOTA, J.

AFFIRMED AS MODIFIED.

We granted and consolidated the applications for permission to appeal filed

on behalf of Paul Dennis Reid and Christopher Davis to consider the following

three important questions of criminal procedure.

1. Whether a defendant must give pre-trial notice of the intent to

introduce expert testimony of his or her mental condition as

mitigation at the sentencing phase of a capital trial?

2. If so, whether, at the request of the State, the trial court may order

a mental examination of the defendant by a mental health expert

selected by the State?

3. If so, what procedures should be followed in connection with this

notice and examination?

For the reasons herein explained, we hold that a capital defendant must file

pretrial notice of intent to present expert testimony regarding mental condition as

mitigation evidence at the sentencing phase of the trial. Once such a notice is

filed, the trial court, upon request of the State, may order the defendant to

undergo a psychiatric evaluation by a mental health expert selected by the State.

The defense will be afforded access to any expert reports prior to trial. The State

will be afforded access to the reports only after a jury returns a verdict of guilty

and the capital defendant confirms his or her intent to offer expert mental

condition evidence in mitigation at the sentencing hearing. Accordingly, the

decisions of the Court of Criminal Appeals are affirmed as modified.

BACKGROUND

Because this appeal involves questions of law, the relevant facts are

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undisputed. The defendant, Paul Dennis Reid is charged in Davidson County with

two counts of premeditated first degree murder and two alternate counts of first

degree felony murder. Reid is also charged in Montgomery County with two

counts of first degree premeditated murder and two alternate counts of first

degree felony murder for two separate killings. The defendant Christopher Davis

is charged in Davidson County with two counts of premeditated first degree

murder and two alternate counts of felony first degree murder. These three cases

have been assigned to three different trial judges.

In each of these cases, the State has given notice of its intention to seek

the death penalty, and in each of these cases, the trial judge has ruled that the

defense must provide pretrial notice to the State of intent to introduce evidence

relating to mental condition as mitigation proof during the sentencing phase of the

capital trial. In addition, all three trial courts ruled that Reid and Davis must

undergo a psychiatric evaluation by a mental health expert selected by the State

once the notice is filed. Each trial judge entered an order delineating the

procedure to govern the evaluation once the notice is filed. The orders differed in

one primary respect: the procedure to be followed after completion of the mental

evaluation.

The orders entered in the Davidson County cases provide for the report of

the mental health expert to be delivered to the court once the evaluation is

complete. The trial judge will then provide the report to defense counsel to allow

each of the defendants to decide, with the assistance of counsel, whether or not

to proceed with the introduction of evidence of mental condition at the sentencing

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phase. If the defense elects to proceed with the introduction of mental condition

evidence, the expert’s report is given to the prosecution prior to trial. If, however,

the defense elects to forego introduction of mental condition evidence, the State is

not permitted to review the expert’s report at all.

In contrast, the order entered by Judge Gasaway in Montgomery County

provides for the report of the State selected expert, and the report of any defense

mental health expert, to be filed under seal with the trial court before

commencement of jury selection. The reports will be released only in the event

the jury returns a verdict of guilty of first degree murder and the defendant

confirms his intent to offer mental condition evidence at sentencing. If the

defendant withdraws his previously filed notice of intent to offer such evidence, the

reports will not be released.

Following entry of the orders, both the Davidson and Montgomery County

trial courts allowed the defendants to seek interlocutory appeals. The Court of

Criminal Appeals accepted review and, in separate decisions, upheld the validity

of the pretrial notice requirement and expert mental evaluation imposed upon Reid

and Davis. The intermediate court adopted the procedural guidelines delineated

by the Montgomery County Circuit Court which limits access to any expert reports

until the jury returns a verdict of guilty and the capital defendant confirms his intent

to introduce expert mitigation proof of mental condition at the sentencing hearing.

From those decisions, Reid and Davis filed separate applications for

permission to appeal to this Court, and on September 30, 1998, we granted the

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applications, consolidated the appeals, and set the cause for hearing on October

15, 1998. For the reasons that follow, we affirm as modified the decisions of the

Court of Criminal Appeals.

ANALYSIS

A. Authority To Impose Requirements

In this Court, the defendants first argue that the trial courts had no legal

authority to require a capital defendant either to provide pretrial notice of intent to

offer mental condition evidence or to submit to an evaluation by a State selected

mental health expert. According to the defendants Tenn. R. Crim. P Rule 12.2 is

limited in application to expert mental condition evidence relevant to the

determination of guilt or innocence. The defendants likewise argue that

Tenn. R. Crim. P. 16 requires disclosure of an expert’s report only if the report will

be introduced by the defendant as evidence in chief at trial or if the report was

prepared by a witness the defendant intends to call at trial and the report relates

to the testimony of the witness.

While conceding that neither Rule 12.2 nor Rule 16 specifically refers to the

sentencing phase of a capital trial, the State emphasizes that appropriate

provisions of those Rules previously have been applied in the context of a capital

sentencing proceeding. Where, as here, no rule precisely addresses the situation,

the State argues that the trial courts have inherent power to adopt a procedure

which is consistent in principle and spirit with existing rules of criminal procedure

and with the statutory scheme governing capital sentencing proceedings.

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Clearly no existing rule of criminal procedure precisely governs the issues

in this appeal. While Rule 12.2 certainly is analogous, it specifically governs the

notice and evaluation required when a defendant intends to introduce expert

testimony of mental condition at the guilt phase of a trial. It does not specifically

require the defendant in a capital case to give notice of his or her intent to

introduce expert mental condition testimony at the sentencing phase. Likewise,

Rule 16 is designed to govern reciprocal discovery prior to trial and does not

address the various interests implicated by the issues in this appeal. 1 The

inapplicability of these rules does not mandate the conclusion that the trial courts

had no legal authority to impose notice, evaluation, and disclosure requirements.

It is well settled that Tennessee courts have inherent power to make and

enforce reasonable rules of procedure. Shettles v. State, 209 Tenn. 157, 161-62,

352 S.W.2d 1, 3 (1961); Brewer v. State, 187 Tenn. 396, 400, 215 S.W.2d 798,

800 (1948); Denton v. Woods, 86 Tenn. 37, 5 S.W. 489 (1887); State v. Johnson,

673 S.W.2d 877, 882 (Tenn. Crim. App. 1984); Haynes v. McKenzie Memorial

1

By so stating, we do not intend to imply that Tenn. R. Crim. P. 16 never applies in a capital

sen tenc ing he aring . As th e Sta te po ints o ut, we have prev ious ly applie d Ru le 16 to issue s aris ing in

the context of a capital sentencing hearing. For example, in State v. Nic hols , 877 S.W.2d 722, 729

(Tenn. 1994), we affirmed a trial judge who ordered a defense psychologist to provide to the

prosec ution any inter view note s which would rela te to his testim ony at the se ntencing hearing. W e

stated, “when a psychologist or psychiatrist does not prepare a summary report, but instead relies

on extensive memoranda to record not only observations and hypotheses but also evaluations,

such records are disco verable under Rule 16(b)(1)(B).” Id. at 730. Likewise, in State v. Buck, 670

S.W .2d 6 00 (T enn . 198 4), the State had f ailed t o pro vide c ertain ma terials and t he na me s of c ertain

witnesses to the defendant. On ap peal, the defendant argued that the trial court should not have

allowed the witnesses to testify because of the nondisclosure of the State. Although we based our

decision on the co ntent of the witnesse s’ testim ony, we fur ther obs erved tha t “the trial judge was ...

also in error in implicitly sustaining the prosecution in its claim that Rule 16 and discovery rules

were not applicable in the sentencing hearing.” Id. at 606. Accordingly, when an existing rule of

criminal procedure prec isely addr ess es an issue , we a pply th e rule even thou gh th e issu e aris es in

the con text of a ca pital senten cing proc eeding. See Tenn. R. Crim. P. 1 (listing several

proceedings to which the Rules apply and stating in subsection (i) that the Rules apply “[i]n any

other situation where the context clearly indicates applicability). However, no existing rule of

crim inal pr oce dure prec isely ad dres ses the is sue s in th is app eal.

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Hosp., 667 S.W.2d 497, 498 (Tenn. App. 1984); Hull v. State, 543 S.W.2d 611,

612 (Tenn. Crim. App. 1976). Indeed, the General Assembly has explicitly

recognized this inherent power. For example, Tenn. Code Ann.§ 16-3-407 (1994

Repl.), provides that “[e]ach of the other courts of this state may adopt additional

or supplementary rules of practice and procedure not inconsistent with or in

conflict with the rules prescribed by the supreme court.” Moreover, Tenn. R. Crim.

P. 57 recognizes that issues will arise during criminal trials for which “no

procedure is specifically prescribed by rule” and provides that trial courts have the

inherent power to “proceed in any lawful manner not inconsistent with these rules

or with any applicable statute.”

Accordingly, we hold that when issues arise for which no procedure is

otherwise specifically prescribed, trial courts in Tennessee have inherent power to

adopt appropriate rules of procedure to address the issues. Rules adopted

pursuant to this inherent power must be consistent with constitutional principles,

statutory laws, and generally applicable rules of procedure. Indeed, when

circumstances mandate the adoption of supplemental rules, trial courts should

pattern such rules upon analogous generally applicable rules of procedure. Trial

courts must also bear in mind that all procedural rules should be designed to

provide for the just determination of every criminal proceeding, and to secure

simplicity in procedure, fairness in administration and the elimination of

unjustifiable expense and delay. See Tenn. R. Crim. P. 2. Applying these

guiding principles, we affirm and adopt the notice and evaluation requirements

fashioned by the trial courts in these capital cases.

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B. Notice and Evaluation Requirements

A capital defendant has a federal constitutional right to present mitigation

evidence. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57

L.Ed.2d 973 (1978); State v. Cazes, 875 S.W.2d 253, 266 (Tenn. 1994). In

accordance with that constitutional mandate, the Tennessee statute which

governs capital sentencing proceedings provides that evidence may be offered

during the sentencing phase which tends to “establish or rebut any mitigating

factors.” Tenn. Code Ann. § 39-13-204(c) (1997 Repl.). Among those mitigating

factors specifically enumerated in the statute are three which directly relate to a

defendant’s mental condition: (1) “[t]he murder was committed while the defendant

was under the influence of extreme mental or emotional disturbance;” (2) “[t]he

defendant acted under extreme duress or under the substantial domination of

another person;” (3) “[t]he capacity of the defendant to appreciate the

wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to

the requirements of the law was substantially impaired as a result of mental

disease or defect or intoxication which was insufficient to establish a defense to

the crime but which substantially affected the defendant’s judgment.” Tenn. Code

Ann. § 39-13-204(j)(2), (6) & (8) (1997 Repl.). In addition, the statute directs the

jury to consider “[a]ny other mitigating factor which is raised by the evidence

produced by either the prosecution or defense at either the guilt or sentencing

hearing.” Tenn. Code Ann. § 39-13-204(j)(9) (1997 Repl.). Clearly, a capital

defendant has a constitutional and statutory right to present mitigation proof

relating to his or her mental condition.

Juxtaposed against a capital defendant’s right to introduce a broad range of

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proof in mitigation is the State’s right to offer evidence to rebut the mitigating

factors. Critical to any effective rebuttal of expert mitigation proof regarding

mental condition is the State’s ability to conduct an independent psychiatric

evaluation of the defendant. As was aptly explained by a United States District

Court:

Psychiatry is far from an exact science because it does not rely

primarily on the analysis of raw data. Instead, the basic tool of

psychiatric study remains the personal interview, which requires

rapport between the interviewer and the subject. The Government’s

expert cannot meaningfully address the defense expert’s

conclusions unless the Government’s expert is given similar access

to the basic tool of his or her area of expertise: an independent

review with and examination of the defendant.

United States v. Haworth, 942 F.Supp. 1406, 1407-08 (D.N.M. 1996) (internal

citations and quotations omitted); see also United States v. Beckford, 962 F.Supp.

748, 758 (E.D. Va. 1997). “If a defendant elects to present evidence of his mental

condition as a reason why he should not be sentenced to death, the Government

must be able to follow where he has led and introduce its own countervailing

evidence.” Haworth, 942 F.Supp. at 1408. Unless the State is allowed to conduct

its own mental health examination, it may be deprived “of the only effective means

it has of controverting [defense] proof on an issue that [the defendant] has

interjected into the case”. Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866,

1874, 68 L.Ed.2d 359 (1981); see also State v. Huskey, 964 S.W.2d 892, 897

(Tenn. 1998) (quoting Estelle and holding that a defendant who intends to offer

expert proof of insanity may be ordered to undergo an evaluation by a State

selected psychiatric expert). Clearly, the State’s ability to rebut a defendant’s

expert mitigation evidence relating to mental condition would be effectively

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precluded if the State is not afforded the opportunity to have the defendant

evaluated by an independent mental health expert.2 We agree with a statement

made by the Florida Supreme Court when it addressed this issue: “[n]o truly

objective tribunal can compel one side in a legal bout to abide by the Marquis of

Queensberry’s rules, while the other fights ungloved.” Dillbeck v. State, 643 So.2d

1027, 1030 (Fla. 1994); see also Fla. R. Crim. P. 3.202 (delineating notice,

examination, and procedure governing expert testimony of mental mitigation

during the sentencing phase of a capital trial). Accordingly, we conclude that an

independent psychiatric examination is essential to afford the State its right to

rebut expert defense proof of mental condition.

In light of our conclusion, the necessity of requiring a capital defendant to

provide pretrial notice of intent to offer expert mitigation proof of mental condition

becomes apparent. Our death penalty statute provides that the sentencing

hearing “shall be conducted as soon as practicable before the same jury that

determined guilt.” Tenn. Code Ann. § 39-13-204(a) (1997 Repl.) (emphasis

added). Serious difficulties for the defendant, the prosecution, and the judicial

system would result if notice of a capital defendant’s intent to present expert

mitigation proof is deferred until the conclusion of the guilt phase of the trial. No

doubt there would be a lengthy delay before commencement of the sentencing

phase while the State’s expert examined the defendant. During this time the jury

would likely remain idly sequestered. Particularly troublesome is the very real

possibility that evidence presented at the guilt phase, which usually is also relied

2

We em phasize that our holding in this appeal relates only to expert proof of mental

condition. The notice, evaluation, and disclosure requirements do not apply to lay person

testim ony.

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upon at sentencing, would fade from the minds of the jurors. See Beckford, 962

F.Supp. at 762-63 (discussing the difficulties arising if a defendant is not required

to provide pretrial notice of intent to introduce expert mitigation evidence of mental

condition). Requiring a capital defendant to provide pretrial notice of intent to

introduce expert mitigation proof relating to mental condition protects the State’s

right of rebuttal and eliminates unjustifiable delay.

In addition, there are no constitutional principles which preclude the notice

and evaluation conditions imposed by the trial courts in these cases. W ith respect

to the constitutionality of pretrial notice requirements, Williams v. Florida, 399 U.S.

78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), is instructive. In that case, the

Supreme Court rejected the contention that requiring a criminal defendant to give

pretrial notice of intent to rely upon an alibi defense violated the Fifth Amendment.

In so holding, the Supreme Court in Williams stated:

Nothing in the Fifth Amendment privilege entitles a defendant as a

matter of constitutional right to await the end of the State’s case

before announcing the nature of his defense, any more than it

entitles him to await the jury’s verdict on the State’s case-in-chief

before deciding whether or not to take the stand himself.

Id. at 85, 90 S.Ct. at 1898; see also Johnson, 673 S.W.2d at 882 (approving a rule

which required the defendant to provide notice of intent to present an alibi

defense). We likewise conclude that requiring capital defendants to provide

pretrial notice of intent to present expert mitigation proof relating to mental

condition does not violate the Fifth Amendment. Beckford, 962 F.Supp. at 761.

In two recent cases, we discussed the constitutionality of the psychiatric

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examination prescribed by Tenn. R. Crim. P. 12.2. See Huskey, 964 S.W.2d at

900; State v. Martin, 950 S.W.2d 20, 24 (Tenn. 1997). With respect to the Fifth

Amendment right against self-incrimination we stated:

the court-ordered examination and the disclosure of examination

material does not violate the defendant’s right against self-

incrimination, provided the admissibility of any statements made by

the defendant during the examination, and any ‘fruits’ derived

therefrom, is only for impeachment or rebuttal of evidence of mental

condition introduced at trial by the defendant. Moreover, disclosure

of the information from the examination is not limited by Rule 16 and

does not depend on whether the defendant intends to use the

information or witness involved in the Rule 12.2(c) examination.

Huskey, 964 at 900. We also held that an independent examination does not

violate a defendant’s Sixth Amendment right to counsel so long as the defendant

is provided the assistance of counsel when the decision of whether or not to raise

an insanity defense is made. Martin, 950 S.W.2d at 26.

Though the evaluation and notice issues in this appeal relate to the

sentencing phase of a capital trial rather than to the guilt-innocence determination,

the controlling constitutional precepts remain the same. Beckford, 962 F.Supp. at

760. The Sixth Amendment is satisfied so long as a capital defendant is provided

the assistance of counsel when he or she decides whether to introduce expert

mitigation proof relating to mental condition at the sentencing phase. Once the

decision is made to proceed with the introduction of such proof, the Fifth

Amendment right against self-incrimination does not preclude a court-ordered

examination by a State selected mental health expert. Id. Disclosure of the

examination material does not violate the defendant’s right against self-

incrimination, provided the admissibility of any statements made by the defendant

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during the examination, and any ‘fruits’ derived therefrom, is admitted only for

impeachment or rebuttal of evidence of mental condition introduced by the

defense at the sentencing phase of the trial. United States v. Hall, 152 F.3d 381,

398 (5th Cir. 1998); see also Brown v. Butler, 876 F.2d 427, 430 (5th Cir. 1989)

(holding that the State could not introduce expert testimony based upon a

previous psychological examination of the defendant where the defendant

announced an intention to offer expert psychological evidence but never actually

introduced the evidence); Beckford, 962 F. Supp. at 761. Accordingly, we

conclude that requiring a capital defendant to submit to a psychiatric examination

by a State selected mental health expert is constitutionally permissible.

C. Procedural Safeguards

As a final issue, we must set forth a procedural framework which both

accommodates the State’s right of rebuttal and safeguards a capital defendant’s

constitutional right against self-incrimination. The procedures adopted by the trial

courts in these three capital cases are similar. The primary difference is the time

at which the defense and State are provided access to the expert reports. Under

the Davidson County orders, the reports are given to the State prior to trial. Under

the Montgomery County order, which the Court of Criminal Appeals adopted,

access to any expert reports is deferred until after the jury returns a verdict of

guilty and the capital defendant confirms his intent to introduce expert mitigation

proof at the sentencing hearing.

The State contends that it should be given access to the results of any

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independent psychiatric examination prior to trial. In our view, there are valid

justifications for providing the State access to the report only after the jury has

returned a verdict of guilty and a capital defendant confirms his or her intent to

offer expert mitigation evidence relating to mental condition at the sentencing

hearing. First, delaying access to the report advances interests of judicial

economy by avoiding litigation as to whether particular pieces of evidence the

State seeks to admit prior to the defense offering psychiatric evidence were

derived from the State’s psychiatric evaluation. Delaying access also forecloses

the risk that the defendant’s right against self-incrimination will be abridged by the

State’s inadvertent or intentional introduction of the examination results or its fruits

for purposes other than impeachment or rebuttal of expert mitigation evidence of

mental condition introduced by the defense. Hall, 152 F.3d at 399.

On the other hand, these same concerns do not apply to the defense. In

fact, providing the defense with access to any expert reports prior to trial would

serve interests of judicial economy. For example, the defense will have sufficient

time to review the reports, make an informed decision as to whether to introduce

expert mental condition mitigation proof, and be prepared at the conclusion of the

guilt phase of the trial to either confirm or withdraw the previously filed notice. If

the defense confirms its previously filed notice, the State will then be given the

reports and should have sufficient time to study the reports and prepare its

rebuttal proof.

We therefore modify the decision of the Court of Criminal Appeals insofar

as it foreclosed both the State and the defense from having access to expert

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reports until the jury has returned a verdict of guilty. We hold that the defense is

entitled to have access to any expert reports prior to trial. The State will be

afforded access to the reports only after a jury returns a verdict of guilty and the

capital defendant confirms his or her intent to offer expert mental condition

evidence in mitigation. In our view, this procedure both protects the State’s right

of rebuttal and safeguards the defendant’s right against self-incrimination.

CONCLUSION

In summary, we hold that where, as here, issues arise for which no

procedure is otherwise specifically prescribed, courts in Tennessee have inherent

power to adopt appropriate rules of procedure. We approve the notice and

examination requirements imposed by the trial courts in these cases. As

previously stated, they are consistent with constitutional principles, statutory laws,

and generally applicable rules of criminal procedure. In addition the notice and

examination requirements, which closely parallel the analogous provisions of Rule

12.2, Tenn. R. Crim. P., ensure fairness and eliminate unjustifiable delay. With

respect to the disclosure procedures, we affirm as modified the decisions of the

Court of Criminal Appeals.

Moreover, we adopt the notice, examination, and disclosure requirements

approved in this appeal as the governing procedure in this State in every death

penalty trial in which the capital defendant intends to introduce expert mitigation

evidence relating to mental condition at the sentencing hearing of his or her trial.

The specific procedure is set out below.

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1. If a capital defendant intends to introduce expert mental condition

testimony as mitigation at the sentencing hearing, he or she must file

pretrial written notice of intent no later than an appropriate date set

forth by the trial court. The notice shall include the name and

professional qualifications of any mental condition professional who

will testify and a brief, general summary of the topics to be

addressed that is sufficient to permit the State to determine if an

evaluation is necessary and, if so, the area in which its expert must

be knowledgeable.

2. If a capital defendant files notice that he or she intends to

introduce expert mental condition testimony at the sentencing

hearing, the defendant shall, if requested by the State, be examined

by a psychiatrist or other mental health professional selected by the

State. The examination shall take place within a reasonable time

frame set forth by the trial court. The State and defense will

cooperate to provide the court-ordered professional with all

necessary and relevant information. Said examination may be

videotaped in accordance with the guidelines adopted in State v.

Martin, 950 S.W.2d 20 (Tenn. 1997). The report of that examination

and the report of any psychiatric examination initiated by the

defendant shall be filed under seal with the Court before the

commencement of jury selection. The Court-appointed professional

conducting the examination for the State shall not discuss his/her

examination with anyone unless and until the results of the

examination are released by the Court to counsel for the State

following the guilt phase of the trial.

3. The results of any examination by the State expert and the

defense expert shall be released to the defense prior to trial to

enable the defendant, with the assistance of counsel, to determine

whether or not to introduce expert mental condition testimony as

mitigation at the sentencing hearing. The results of any examination

shall be released to the State only in the event the jury returns a

verdict of guilty of first degree murder and only after the capital

defendant confirms his or her intent to offer expert mental condition

evidence in mitigation at the penalty phase. After the return of a

guilty verdict, the defendant shall file a pleading confirming or

disavowing his or her intent to introduce expert mental condition

testimony at a penalty phase. If the defendant withdraws the

previously-tendered notice, the results of any mental condition

examinations concerning the defendant will not be released to the

State. The reports of any examinations, whether by the State or

defense experts, concerning the defendant shall be released to the

State immediately after the filing of a pleading confirming the earlier

notice. Even if the defendant confirms his or her intent to offer

mental condition evidence, the defendant may withdraw the notice of

intent to introduce expert mental condition proof at any time before

actually presenting such evidence, and, in that event, neither the fact

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of notice, nor the results or reports of any mental examination, nor

any facts disclosed only therein, will be admissible against the

defendant.

_____________________________________

FRANK F. DROWOTA, III,

JUSTICE

Concur:

Anderson, C.J.,

Birch, Holder, Barker, JJ.

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