State v. Martin

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED

June 9, 1997

FOR PUBLICATION

Cecil Crowson, Jr.

Appellate C ourt Clerk

Filed: June 9, 1997

STATE OF TENNESSEE, )

)

Appellee, ) KNOX CRIMINAL

)

)

Vs. ) HON. RICHARD BAUMGARTNER,

) JUDGE

)

DAVID PAUL MARTIN, )

)

Appellant. ) No. 03-S-01-9604-CR-00040

For Appellant: For Appellee:

Herbert S. Moncier John Knox Walkup

Ann C. Short Attorney General & Reporter

Knoxville, Tennessee

Michael E. Moore

Solicitor General

Kathy Morante

Deputy Attorney General

Eugene J. Honea

Assistant Attorney General

Nashville, Tennessee

At Trial:

Randall E. Nichols

District Attorney General

Knoxville, Tennessee

Robert Jolley

Assistant District Attorney

Knoxville, Tennessee

OPINION

AFFIRMED ANDERSON, J.

We granted review in this case to determine whether a court-ordered

mental evaluation violated the defendant’s right against self-incrimination and the

right to counsel under the United States and Tennessee Constitutions.

The Court of Criminal Appeals concluded that the defendant waived his

right against self-incrimination by asserting an insanity defense and that the

mental evaluation, which was ordered by the trial court and conducted pursuant

to Tenn. R. Crim. P. 12.2(c), did not violate the right to counsel because it did not

constitute a critical stage of the proceedings. The Court then affirmed the

defendant’s conviction for voluntary manslaughter.

We hold that where a defendant asserts a defense based on his or her

mental state, a court-ordered mental evaluation does not violate the right against

self-incrimination provided any statements made during the evaluation, and any

“fruits” derived from such statements, are used by the prosecution only for

impeachment or rebuttal of the defense. We also hold that the defendant does

not have the right to counsel during the mental evaluation itself.

Accordingly, while we employ different reasoning, we affirm the judgment

of the Court of Criminal Appeals for the reasons articulated below.

BACKGROUND

David Paul Martin, the defendant, and the victim, his second wife, had a

tumultuous marriage marked by domestic disputes, physical violence, and

numerous separations and reconciliations.

In May of 1991, the victim entered Martin’s house, cursed his daughter,

argued with him, and then said she wanted “to see him locked up again.”

According to one witness, Martin responded, “Well, here I go.” Martin’s

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daughter, however, denied that Martin made such a statement. In any event,

Martin knocked the victim from her chair and strangled her to death. He then

showered, gave his children some keys and money, and waited for the police to

arrive.

Martin was indicted for first-degree murder, and he filed notice of his intent

to rely on a mental responsibility defense. The State moved, and the trial court

ordered, that the defendant undergo a mental examination. Martin moved for an

order to protect his right to counsel, his right against self-incrimination, his right

to confrontation, his right to a fair trial, and also to assure that the examination

was fairly administered. He specifically asked that his counsel or a defense

expert be permitted to attend the mental examination.

At a hearing on Martin’s motion for a protective order, Dr. Clifton

Tennison, a psychiatrist with the Helen Ross McNabb Center, testified that:

My opinion is that, to have anyone else present during psychiatric

evaluations hinder and hampers the accuracy of the evaluation.

The person will color and change their responses, based on who is

in the room.

Following the hearing, the trial court entered an order compelling Martin to

undergo a mental evaluation to determine his competency and his mental state

at the time of the offense. The order provided that Tennison could determine

who could be present during the evaluation and whether it would be recorded by

video or audio tape.

Dr. Tennison decided that neither defense counsel nor experts employed

by Martin would be present at the evaluation; however, he allowed the

examination to be videotaped. When Tennison completed his examination, he

sought permission for Dr. James Burrell, a clinical psychologist, to conduct an

additional interview. The trial court authorized Burrell’s involvement over

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defense objection. Dr. Burrell did not allow defense counsel or defense experts

to be present, nor did he allow the examination to be recorded.

After Martin renewed his notice to rely on a mental responsibility defense,

the trial court entered an order which stressed the following:

[N]o statements made by [the defendant] during the court ordered

examination, or any fruits of those statements, shall be introduced

at the trial of this cause unless and until the issue of mental

responsibility is raised by [the defendant], or for impeachment

purposes as provided by Rule 12.2(c), Tenn. R. Crim. P. Any party

who intends to use such statements, or the fruits thereof, shall first

make application to the bench outside the hearing of the jury prior

to eliciting testimony or introducing evidence contemplated by this

Order.

At trial, Martin presented the testimony of Dr. John Kandilakas, a clinical

psychologist who treated him after the offense. Dr. Kandilakas testified that at

the time of the offense, Martin was suffering from a major depressive disorder

and had suffered a disassociative reaction. He concluded that Martin met the

test for insanity pursuant to Tenn. Code Ann. § 39-11-501(a)(1991).1 In rebuttal,

Drs. Tennison and Burrell both agreed that Martin suffered major depression at

the time of the offense. They concluded, however, that he did not meet the legal

standard for insanity at the time he committed the offense.

After deliberation, the jury convicted Martin of the lesser offense of

voluntary manslaughter. The Court of Criminal Appeals upheld the conviction on

appeal, as well as the defendant’s five-year sentence. We granted this appeal to

1

At the time of the offense, insanity was a defense to prosecution if “at the time of such

condu ct, as a res ult of a m ental disea se or de fect, the pe rson lac ked su bstantial ca pacity either to

appreciate the wrongfulness of the person’s conduct or to conform that conduct to the

requirements of law.” Tenn. Code Ann. § 39-11-501(a)(1991). If the evidence raised a

reason able dou bt as to the person ’s sanity, the bu rden of p roof fell to the state to es tablish san ity

beyond a reason able dou bt. State v. Jackson, 890 S.W.2d 436 (Tenn. 1994). Effective July 1,

1995, the law was amended to provide that the defendant must prove, by “clear and convincing

evidenc e,” that “as a result of a severe men tal disease or defec t, [he or she ] was un able to

appreciate the nature or wrongfulness of [his or her] acts.” Tenn. Code Ann. § 39-11-

501(a)(Supp. 1995).

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determine whether the court-ordered mental evaluation violated the defendant’s

right to counsel or right against self-incrimination.

MENTAL EXAMINATIONS

We begin our analysis by examining the procedural rule which governs

court-ordered mental examinations of criminal defendants in Tennessee. The

rule provides that if the defendant intends to rely on the defense of insanity at the

time of the offense, he or she must notify the prosecution in writing prior to trial.

Likewise, if the defendant intends to “introduce expert testimony relating to a

mental disease or defect or any other mental condition of the defendant bearing

on the issue of his or her guilt,” he or she shall notify the prosecution in writing

prior to trial. Tenn. R. Crim. P. 12.2(a) & (b).

Under the rule, the prosecution may request that the trial court order the

defendant to undergo a “mental examination by a psychiatrist or the other expert

designated for this purpose in the order of the court.” The rule, however, limits

the use of statements made by the defendant:

No statement made by the defendant in the course of any

examination provided for by this rule, whether the examination be

with or without the consent of the defendant, no testimony by the

expert based upon such statement, and no other fruits of the

statement shall be admitted in evidence against the defendant in

any criminal proceeding except for impeachment purposes or on an

issue respecting mental condition on which the defendant has

introduced testimony.

Tenn. R. Crim. P. 12.2(c).

The defendant has challenged the entire process under this rule on

constitutional and other procedural grounds, which the lower courts rejected.2

2

For e xam ple, th e Co urt of Crim inal A ppe als de term ined t hat R ule 12 .2(c) did no t limit

the State to a single examination or a single expert, that the defendant was not prejudiced by the

inclusion o f a com petenc y evaluation, th at the orde r did not sh ift the burde n to prove insanity to

the defendant, and that the order did not result in the application of the wrong standard for

insa nity.

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Although we granted review in this case to address the right to counsel and right

against self-incrimination issues, the defendant insists that the courts must

exercise more supervision and control to ensure the fairness of the mental

examination process and the reliability of its results. The State responds, in

short, that Rule 12.2 sufficiently protects the interests of both the defendant and

the prosecution.

Preliminarily, we recognize that there are obvious concerns generated

when a defendant is compelled to undergo a mental examination at which he or

she will, in all likelihood, discuss not only details of his or her life but also

information about the charged offense. While numerous federal and state

jurisdictions have confronted these issues, there has been little discussion in

Tennessee and essentially no detailed analysis of the procedures set forth in

Rule 12.2.

SELF-INCRIMINATION

The Fifth Amendment to the United States Constitution provides in part

that “no person . . . shall be compelled in any criminal case to be a witness

against himself.” Similarly, article I, § 9 of the Tennessee Constitution states that

“in all criminal prosecutions, the accused . . . shall not be compelled to give

evidence against himself.”

These provisions protect the accused from being compelled to provide

evidence of a testimonial or communicative nature. While we are free to extend

greater protection to citizens under our state Constitution than is granted under

the federal Constitution, we have traditionally interpreted article I, § 9 to be no

broader than the Fifth Amendment. Moreover, we have never adopted a literal

interpretation of the term “evidence” used in article I, § 9. See Delk v. State, 590

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S.W.2d 435, 440 (Tenn. 1979); State v. Frazier, 914 S.W.2d 467, 473-74 (Tenn.

1996).

The defendant has vigorously argued that without adequate safeguards,

the court-ordered mental examination process violated his right against self-

incrimination under the United States and Tennessee Constitutions. U.S. Const.

amend. V; Tenn. Const. art. I, §9. He maintains that the courts should balance

the “competing interests at stake” by requiring (1) that the mental examination be

monitored by defense experts and counsel, (2) that the examination be recorded,

and (3) that the prosecution not have access to statements and information from

the examination until such time as it may be used at trial for impeachment or

rebuttal under Rule 12.2(c). On the other hand, the State argues that Rule

12.2(c) protects the defendant’s right against self-incrimination by prohibiting the

use of statements, or any fruits derived from the statements, except for

impeachment or rebuttal of mental responsibility evidence introduced by the

defense.

To support their respective positions, both the State and the defendant

rely on the U.S. Supreme Court decision of Estelle v. Smith, 451 U.S. 454, 101

S.Ct. 1866, 68 L.Ed.2d 359 (1981). In Estelle, the court ordered the defendant

to be examined to determine his competency to stand trial. Later, during the

sentencing phase of the capital trial, the State used the examining psychiatrist’s

testimony to prove an aggravating factor - the defendant’s future dangerousness.

The Estelle court held that the defendant, who had not raised the issues of

competency or sanity, had not introduced evidence regarding sanity, and had not

been given notice that the examination could be used against him in the penalty

phase, was denied his Fifth Amendment right against self-incrimination. 451

U.S. at 466, 101 S.Ct. at 1874.

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Significantly, the court in Estelle distinguished its facts from those which

we now confront:

Nor was the interview analogous to a sanity examination

occasioned by a defendant’s plea of not guilty by reason of insanity

at the time of his offense. When a defendant asserts the insanity

defense and introduces supporting psychiatric testimony, his

silence may deprive the State of the only means it has of

controverting his proof on an issue that he interjected into the case.

Accordingly, several Courts of Appeal have held that, under such

circumstances, a defendant can be required to submit to a sanity

examination conducted by the prosecution’s psychiatrist.

451 U.S. at 465, 101 S.Ct. at 1874 (emphasis added); see also Buchanan v.

Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). Accordingly,

the limited holding of Estelle with respect to the Fifth Amendment is that “a

criminal defendant, who neither initiates a psychiatric evaluation nor attempts to

introduce any psychiatric evidence, may not be compelled to respond to a

psychiatrist if his statements can be used against him at a capital sentencing

proceeding.” 451 U.S. at 468, 101 S.Ct. at 1875; see also State v. Bush, 942

S.W.2d 489 (Tenn. 1997).

By contrast, in the Tennessee case of State v. Thompson, 768 S.W.2d

239 (Tenn. 1989), cert. denied, 497 U.S. 1031 (1990), the criminal defendant

initiated a psychiatric evaluation and introduced psychiatric evidence. The State

used the psychiatric report to rebut the testimony of the defendant’s expert in

the sentencing phase of the capital trial. The defendant argued that use violated

his right against self-incrimination. We held that the evidence was properly

admitted to rebut the defense evidence and to impeach the opinion of the

defense expert. Id. at 248.

Virtually every federal and state court jurisdiction has held that where a

defendant raises an insanity defense, the Fifth Amendment right against self-

incrimination is not violated by a court-ordered psychiatric examination or by the

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prosecution’s use of evidence from the examination to rebut evidence introduced

by the defendant.3 Various rationales have been advanced by these courts: that

the defendant waives the right by asserting an insanity defense; that a mental

examination compels “physical” or “real” evidence, as opposed to “testimony” or

“communications”; and that the right against self-incrimination is not applicable to

statements concerning the issue of sanity. See, e.g., United States v. Byers, 740

F.2d at 1111-1113 (discussing each rationale).

An important point, in our view, is one suggested in Estelle: “When a

defendant asserts the insanity defense and introduces supporting psychiatric

testimony, his silence may deprive the State of the only effective means it has of

controverting his proof on an issue that he interjected into the case.” 451 U.S. at

465, 101 S.Ct. at 1874. The New Jersey Supreme Court expressed it this way:

It would be most anomalous to say that a defendant may advance

the defense of insanity, have himself examined by his own experts

and then invoke the constitutional guarantees against self-

incrimination for the purpose of preventing examination by the

State. [Citation omitted]. It would be a strange doctrine, indeed, to

permit a person charged with [a] crime to put in issue his want of

mental capacity to commit it, and in order to make his plea

invulnerable, prevent all inquiry into his mental state or condition.

State v. Whitlow, 210 A.2d 763, 767 (N.J. 1965). Moreover, the right against

self-incrimination is preserved in that any statements made during the

examination, or fruits derived from the statements, may be used at trial only for

impeachment or rebuttal of the mental responsibility defense. Noggle v.

Marshall, 706 F.2d at 1415-1416.

3

See Presnell v. Zant, 959 F.2 d 1524 , 1534 (1 1th Cir. 19 92); United States v. Byers, 740

F.2d 11 04, 1115 (4th Cir. 19 84); Nog gle v. M arsh all, 706 F.2 d 1408 , 1415 (6 th Cir.), cert. denied,

464 U .S. 1010 (1983); United States v. Cohen, 530 F.2 d 43, 48 (5 th Cir.), cert. denied, 429 U.S.

855 (19 76); State v. Schackart , 858 P.2d 639, 645 (Ariz. 1993 ), cert. denied, 511 U.S. 1046

(1994); State v. Steiger, 590 A.2d 408, 416 (Conn . 1991); White v. United States, 451 A.2d 848,

852 (D.C. App. 1982); Brasw ell v. State, 371 So.2d 992, 997 (Ala. Crim. App. 1979), among

others.

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We conclude that Rule 12.2(c) safeguards the defendant’s right against

self-incrimination under the United States and Tennessee Constitutions. The

defendant must initiate the process by providing notice of his or her intent to rely

on a mental responsibility defense and to introduce expert testimony on the

issue. The prosecution may request, and the trial court may order, that the

defendant undergo a psychiatric examination so as to inquire further into the

defendant’s mental state. The prosecution’s use of the defendant’s statements,

or the “fruits” derived from such statements, is expressly limited to impeachment

or rebuttal of the evidence concerning mental state introduced by the defendant.

In other words, such material may not be used by the prosecution to prove the

guilt of the defendant and may not be used if the defense does not introduce

testimony at trial on mental condition. Moreover, because the defendant likewise

has access to the information generated by the examination, he or she is free to

object in limine to any material on the basis of privilege, relevance, or any other

ground. Tenn. R. Crim. P. 12.2(b).

These limitations, in our view, achieve the balancing of interests stressed

not only in Estelle, supra, but also in virtually every other case decided on the

issue. Accordingly, we reject the defendant’s argument that further safeguards,

such as recording the examinations or allowing third persons to monitor the

examinations, are necessary to preserve the right against self-incrimination. We

also reject the defendant’s assertion that the prosecution should not have access

to any information from the examination until needed at trial “for impeachment or

rebuttal.” Such a restriction defeats the balancing outlined above and also begs

the question of how the prosecution would recognize appropriate impeachment

or rebuttal without access to the material.

We emphasize, however, that the trial court ultimately bears the

responsibility to ensure that the prosecution’s use of the information complies

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with Rule 12.2(c). Here, the trial court’s order, which tracked the restrictions set

forth in the rule and also required a jury out hearing prior to any intended use of

the statements, was appropriately designed to meet this responsibility. A review

of the record, moreover, reveals that no statements or evidence were admitted at

trial in violation of Rule 12.2(c).

In summary, when a defendant indicates his or her intent to rely on a

mental responsibility defense, the trial court, on motion of the district attorney,

may order a mental examination. No statements made by the defendant,

material derived from such statements, or expert testimony based on such

statements, are admissible at trial except for impeachment or rebuttal of the

mental responsibility evidence introduced by the defense. W hen these

restrictions are properly followed, as in this case, the proceedings under Rule

12.2(c) do not violate the defendant’s right against self-incrimination under the

Constitutions of the United States or the State of Tennessee.

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RIGHT TO COUNSEL

Both the United States and Tennessee Constitutions require the presence

of counsel to represent a defendant not only at trial but also at “critical stages” of

the proceedings “where counsel’s absence might derogate from the accused’s

right to a fair trial.” The purpose underlying the right is to “preserve the

defendant’s basic right to a fair trial as affected by his [or her] right meaningfully

to cross examine the witnesses . . . and to have effective assistance of counsel

at the trial itself.” United States v. Wade, 388 U.S. 218, 226-27, 87 S.Ct. 1926,

1931-32, 18 L.Ed.2d 1149 (1967).

The defendant asserts that the court-ordered mental examination was a

“critical stage” of the proceedings requiring the presence of counsel under the

United States and Tennessee Constitutions. U.S. Const. amend. VI; Tenn.

Const. art. I, § 9. The State maintains that the mental examination is not a

“critical stage” of the proceedings and moreover, that counsel’s presence would

impair or limit the effectiveness of the examination.

In Estelle v. Smith, supra, the Supreme Court held that the Sixth

Amendment right to counsel was violated when the defendant “was denied the

assistance of his attorneys in making the significant decision of whether to

submit to the [psychiatric] examination and to what end the psychiatrist’s findings

could be employed.” Although the court said that the psychiatric interview

“proved to be a ‘critical stage’ against” the defendant, its holding was limited to

the question of whether the defendant was entitled to consult with counsel prior

to the examination. The court did not find a Sixth Amendment right to have

counsel at the examination and, in fact, noted with apparent approval the Court

of Appeals’ finding that “an attorney present during the psychiatric interview

could contribute little and might seriously disrupt the examination.” 451 U.S. at

470-71, 101 S.Ct. at 1877, n. 14.

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In later clarifying Estelle, the court stressed that “for a defendant charged

with a capital crime, the decision whether to submit to a psychiatric examination

designed to determine his future dangerousness is ‘literally a life and death

matter’ which the defendant should not be required to face without ‘the guiding

hand of counsel.’” Satterwhite v. Texas, 486 U.S. 249, 254, 108 S.Ct. 1792,

1796, 100 L.Ed.2d 284 (1988). Similarly, the court said that “[w]hile it may be

unfair to the state to permit a defendant to use psychiatric testimony without

allowing the state a means to rebut that testimony, it certainly is not unfair to the

state to provide counsel with notice before examining a defendant concerning

future dangerousness.” Powell v. Texas, 492 U.S. 680, 685, 109 S.Ct. 3146,

3150, 106 L.Ed.2d 551 (1989); see also State v. Bush, 942 S.W.2d 489 (Tenn.

1997).

While the United States Supreme Court has not directly addressed the

issue, a substantial majority of state and federal jurisdictions have held that a

defendant does not have the right to counsel during a psychiatric examination.4

In United States v. Byers, supra, for instance, the court distinguished the need

for counsel before an examination, as opposed to during the examination itself,

by pointing out that before examination

[the defendant] was confronted by the procedural system at the

point at which he had to decide whether to raise the insanity

defense, a determination that would have several legal

consequences, including the likelihood of a court order that he

undergo a psychiatric examination. . . .

....

4

United States v. Byers, 740 F.2 d at 1121 ; United States v. Cohen, 530 F.2d at 48;

United States v. Baird, 414 F.2 d 700, 71 1 (2d C ir. 1969), cert. denied, 396 U.S. 1005 (1970);

People v. Mahaffey, 651 N.E .2d 1055 , 1064 (Ill. 199 5), cert. denied, 116 S.Ct. 547, 133 L.Ed.2d

450 (19 95); State v. Schackart , 858 P.2d at 646; State v. Steiger, 590 A.2d 408, 420 (Conn.

1991); Grand ison v. State , 506 A.2d 580, 593 (Md. 19 86); State v. Hardy, 325 S.E.2d 320, 322

(S.C. 19 85); State v. Brown, 681 P.2d 1071, 10 73 (Kan . 1984); Stricklan d v. State , 275 S.E.2d 29,

32 (Ga . 1981); see also Annota tion, Right of Accused in Criminal Prosecution to Presence of

Counsel at Court-Appointed or Approved Psychiatric Examination, 3 A.L.R.4th 930 (1981 & Supp.

1996). Conversely, a minority of courts have held that counsel should either be presen t or receive

a record ing of the e xam ination. State v. Hutchison, 766 P.2d 447 (W ash. 19 89); Houston v.

State , 602 P.2d 784 (Ala ska 19 79); Shepard v. Bowe, 442 P.2d 238 (Or. 1968).

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But at the psychiatric interview itself, [the defendant] was not

confronted by the procedural system; he had no decisions in the

nature of legal strategy or tactics to make -- not even, as we have

seen, the decision whether to refuse, on Fifth Amendment grounds,

to answer the psychiatrist’s questions. The only conceivable role

for counsel at the examination would have been to observe. . . .

740 F.2d at 1118-1119.

Similarly, numerous courts have considered the “pragmatic” effect that

counsel’s presence, instead of rendering assistance, would impede or inhibit the

examination. Moreover, a number of courts have stressed that the defendant’s

rights to a fair trial and to confrontation are sufficiently preserved by counsel’s

opportunity to interview the witnesses, review the results and information

generated by the examination, conduct cross-examination of the psychiatric

witnesses, and introduce defense witnesses. See, e.g., State v. Schackart, 858

P.2d at 646-47.5

Accordingly, we agree with the courts which have distinguished the

“critical stage” prior to a psychiatric examination from the examination itself. We

are convinced that the examination differs in purpose and procedure from other

stages of the adversarial system, and that counsel’s physical presence in a

strictly passive, observational capacity, is not necessary to protect the

defendant’s related rights to a fair trial and to confront witnesses. In particular,

the defendant has access to the information and results generated by the mental

examination, as well as the right to interview, subpoena, and cross-examine the

experts with regard to their methodology, opinions, and results.

Thus, we conclude that the Sixth Amendment of the U.S. Constitution and

article I, § 9 of the Tennessee Constitution do not require the presence of

5

See also Heflin v. Sta te, 640 S.W .2d 58, 66 (Tex. A pp. 1982 ); People v. Larsen, 385

N.E.2d 679, 683 (Ill. 1979), cert. denied, 444 U.S . 908 (19 79); White v. United States, 451 A.2d at

854; People v. Mahaffey, 651 N.E .2d at 106 4; State v. Hardy, 325 S.E .2d at 322 ; State v. Brown,

681 P.2 d at 1073 ; Tenn . R. Evid. 70 5.

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counsel during a court-ordered mental examination. It follows that the trial

court’s order, which did not specifically permit counsel to attend and monitor the

mental examination, did not violate the defendant’s right to counsel.

Although we hold that recording the mental examination is not

constitutionally required, our holding should not be interpreted as prohibiting the

trial court from enhancing the integrity of the trial. We fully endorse and

encourage recording the psychiatric examination as a simple and effective

means to preserve evidence and to enhance the accuracy and reliability of the

truth-seeking function of the trial. See, e.g., State v. Jackson, 298 S.E.2d 866,

873 (W.Va. 1982). A verbatim recording of the mental examination process

would enhance the integrity of the trial without the potential hindrance of allowing

counsel to be present during the examination itself. Accordingly, upon a showing

that such a safeguard is feasible and not unduly intrusive in a given case, the

trial court has the discretion to require video or audio taping of the psychiatric

examination to assist both sides in preparing for trial.

Similarly, the trial court has the authority to designate in its order not only

the expert who is to perform the examination, but also the objective of the

examination. The New Jersey Supreme Court articulated our purpose best in

State v. Whitlow, supra: “[T]he psychiatric interview is a crucial diagnostic tool,

[and] the judicial aim must be to make it an effective instrument of justice.” 210

A.2d at 772. This aim cannot be fully achieved unless the trial court actively

oversees the process and ensures compliance with Tenn. R. Crim. P. 12.2.

CONCLUSION

For the foregoing reasons, we conclude that the court-ordered mental

examination did not violate the defendant’s right against self-incrimination or right

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to counsel under the United States and Tennessee Constitutions. The costs of

this appeal are taxed to the defendant-appellant, David Paul Martin.

________________________________

RILEY ANDERSON, JUSTICE

Concur:

Birch, C.J.

Drowota, Reid, and Holder, JJ.

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