Park v. Montana Sixth Judicial District Court

No

No. 97-516

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 164

THOMAS ALAN PARK,

Petitioner,

v.

MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY;

HON. WM. NELS SWANDAL, Presiding Judge; and STATE OF MONTANA,

Respondents.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Petitioner:

Daniel P. Buckley; Berg, Lilly, Andriolo and Tollefsen;

Bozeman, Montana; and Herman A. Watson III and

Anne H. Watson (argued); Watson Law Offices; Bozeman, Montana

For Respondent

Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt (argued),

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Assistant Attorney General; Helena, Montana

Tara DePuy, Park County Attorney; Livingston, Montana

For Amici Curiae:

John P. Connor, Jr. (argued), Assistant Attorney General, County

Prosecutor Services Bureau Chief; Helena, Montana

(for Montana County Attorneys' Association)

William F. Koeppen; Koeppen Law Office; Bozeman, Montana

(for Montana Association of Criminal Defense Lawyers)

Gary E. Wilcox and L. Sanford Selvey II; Yellowstone County

Public Defender's Office; Billings, Montana

(for Yellowstone County Public Defender's Office)

Heard: April 3, 1998

Submitted: April 14, 1998

Decided: June 25, 1998

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The defendant, Thomas Alan Park, was charged in the District Court for the

Sixth Judicial District in Park County with deliberate homicide and forgery. After he

identified mental health care providers who would testify on his behalf, the District

Court ordered Park to submit to a psychological examination by the State's expert.

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Park objected and applied to this Court for a writ of supervisory control. We assume

supervisory control, affirm in part and reverse in part the order of the District

Court, and remand this case to the District Court for proceedings consistent with this

opinion.

¶2 There are three issues before this Court:

¶3 1. Is supervisory control appropriate in this case?

¶4 2. Is the State entitled to a psychological examination of a defendant by its own

expert for the purpose of rebuttal when the defendant has asserted the affirmative

defense of mitigated deliberate homicide due to extreme mental or emotional stress?

¶5 3. If the answer to the preceding question is in the affirmative, to what extent

must the defendant answer questions regarding acts of which he is accused?

FACTUAL BACKGROUND

¶6 On July 15, 1996, Thomas Alan Park was charged in the District Court for the

Sixth Judicial District in Park County with deliberate homicide and forgery. On

August 27, 1996, the State filed its notice of intent to seek the death penalty in the

event that Park is convicted.

¶7 On July 8, 1997, Park filed his notice of affirmative defenses. He asserted that he

"acted under the influence of extreme mental or emotional stress for which there was

a reasonable explanation or excuse," and that he "acted with justifiable use of

force." Park submitted a list of potential witnesses who would testify in support of

the defenses, including Susan Sachsenmaier, Ph.D., a forensic psychologist, and Dr.

Joseph Rich, a psychiatrist. In response to Park's notice of intent to use expert

psychological testimony, the State requested an examination of Park by William

Stratford, M.D. Park's attorney originally agreed to Dr. Stratford's examination.

¶8 However, on two separate occasions, when Dr. Stratford attempted to evaluate

Park, Park refused to cooperate. He stated that he would only fill out the written

testing material that Dr. Stratford provided. Based in part on Park's refusal to

cooperate, the State moved for sanctions and an order to prohibit Park from

introducing any evidence, including expert testimony, regarding the extreme mental

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or emotional stress defense. After a hearing at which Dr. Stratford testified about his

need to interview Park, the District Court renewed its order and allowed the

examination of Park. In addition, the order was amended to permit Dr. Stratford to

question Park regarding the acts of which he was accused. The District Court then

stayed the order and allowed Park to submit a brief in opposition to the examination.

¶9 In his brief, Park withdrew his attorney's earlier consent to allow Dr. Stratford's

examination. Park contended that the State was not entitled to an examination

because his defense was not based on a mental disease or defect and, therefore, was

not the type for which a state examination is statutorily provided. In addition, Park

challenged that part of the District Court's order which compelled Park to discuss

with Dr. Stratford facts related to the charges against him on the bases that such

inquiry was not authorized by statute and violated his rights provided for by the

Fifth Amendment to the United States Constitution, and Article II, Section 25, of the

Montana Constitution.

¶10 After another hearing, the District Court issued an order which required Park to

submit to the State's examination and answer questions about events related to the

charges against him or suffer the sanction of having his own expert testimony

excluded. The District Court explained that Park, by voluntarily raising the

affirmative defense of mitigated deliberate homicide based on extreme mental or

emotional stress, had waived the right to remain silent about the acts with which he

was charged. It found that in order for Dr. Stratford to be able to discuss at trial

Park's mental state at the time of the alleged offense, he needed to examine Park

regarding the alleged offense. Finally, the order restricted the State's experts from

disclosing to the State any incriminating statements made by Park during their

examination, and stated that the experts could only testify regarding their

conclusions in rebuttal to Park's expert testimony.

¶11 On September 4, 1997, the District Court conducted another hearing at which

the record was supplemented with Sachsenmaier's testimony in anticipation of

Park's application to this Court for a writ of supervisory control. She testified that

her diagnosis of Park was that he was under extreme mental or emotional stress at

the time of the alleged offense, and that it would not be necessary to interview the

defendant in order to evaluate his mental status. The District Court's order was not

modified following that hearing, and Park's petition followed.

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ISSUE 1

¶12 Is supervisory control appropriate in this case?

¶13 We held in Plumb v. Fourth Judicial District Court (1996), 279 Mont. 363, 368-69,

927 P.2d 1011, 1014-15, that we will assume supervisory control over a district court

to control the course of litigation where the district court is proceeding based on a

mistake of law which, if uncorrected, would cause significant injustice, and where the

remedy by appeal is inadequate. Our determination of whether supervisory control is

appropriate is a case-by-case decision, based on the presence of extraordinary

circumstances and a particular need to prevent an injustice from occurring. See State

ex rel. Mazurek v. District Court (1996), 277 Mont. 349, 352-53, 922 P.2d 474, 476-77.

¶14 In this case, the District Court's order implicates Park's constitutional right not

to be a witness against himself. Once violated, the damage cannot be undone on

appeal.

¶15 It is well-recognized that a normal appeal is generally inadequate when a party's

constitutional or statutory privilege is at stake. See State ex rel. Mapes v. District

Court (1991), 250 Mont. 524, 529, 822 P.2d 91, 94; State ex rel. Burlington N. R.R. Co.

v. District Court (1989), 239 Mont. 207, 212, 779 P.2d 885, 889; see also Emergency

Care Dynamics, Ltd. v. Superior Court (Ariz. Ct. App. 1997), 932 P.2d 297; Arizona

Bd. of Med. Examiners v. Superior Court (Ariz. Ct. App. 1996), 922 P.2d 924; City of

Fresno v. Superior Court (Cal. Ct. App. 1988), 253 Cal. Rptr. 296; State ex rel.

Stephan v. O'Keefe (Kan. 1984), 686 P.2d 171; City of Alhambra v. Superior Court

(Cal. Ct. App. 1980), 168 Cal. Rptr. 49; Glade v. Superior Court (Cal. Ct. App. 1978),

143 Cal. Rptr. 119. In Mapes, for example, this Court granted supervisory control to

address a defendant's right of access to confidential communications between the

plaintiff and his psychologist. We held that "[o]nce confidential communications

have been disclosed or publicized, the damage cannot be undone on appeal." Mapes,

250 Mont. at 529, 822 P.2d at 94.

¶16 The same principle applies in this case, where the District Court's order has the

effect of compelling Park to disclose potentially privileged testimony. As soon as Park

has been made to disclose that which his constitutional privilege may allow him to

withhold, the constitutional protection can serve no purpose, certainly not a

retroactive one, and an appeal cannot restore that which has already been violated.

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¶17 Furthermore, the State's right to its own examination of the defendant under the

circumstances presented is a strictly legal issue of statewide importance which is

presented for the first time.

¶ 18Accordingly, we assume supervisory control to consider the issues raised by

Park's petition.

ISSUE 2

¶19 Is the State entitled to a psychological examination of a defendant by its own

expert for the purpose of rebuttal when the defendant has asserted the affirmative

defense of mitigated deliberate homicide due to extreme mental or emotional stress?

¶20 Park contends that the State is not entitled to a psychological examination by its

own expert. He claims that the circumstances in this case are not covered by the

language of §§ 46-14-204 and -205, MCA, because he does not claim a mental disease

or defect, and that State v. Hess (1992), 252 Mont. 205, 828 P.2d 382, is inapplicable

because it was based on the justifiable use of force defense.

¶21 Section 46-14-204, MCA, states that "[w]hen the defense . . . files a notice of the

intention to rely on a defense of mental disease or defect, the prosecution is entitled to

have the defendant examined by a qualified psychiatrist or licensed clinical

psychologist." Section 46-14-205, MCA, states:

If either the defendant or the prosecution wishes the defendant to be examined

by a qualified psychiatrist or licensed clinical psychologist selected by the one

proposing the examination in order to determine the defendant's fitness to

proceed or whether the defendant had, at the time the offense was committed,

a particular state of mind that is an essential element of the offense, the

examiner shall be permitted to have reasonable access to the defendant for the

purpose of the examination.

Hess is the only case in which we have interpreted the State's right to evaluate a defendant

pursuant to these statutes.

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¶22 The defendant in Hess raised the affirmative defense of justifiable use of force

based on battered woman syndrome in response to the charge of deliberate homicide.

She offered notice of her intent to be examined by and to call a psychiatric expert on

battered woman syndrome. In response, the State gave notice of intent to have two of

its own experts on battered woman syndrome rebut the defendant's expert testimony,

and received an order from the District Court that required the defendant to submit

to an examination by the State's experts. After her conviction for mitigated

deliberate homicide, the defendant appealed to this Court and asserted, among other

things, that she had not raised a mental disease or defect defense, and that the statute

does not authorize an examination by the State for a justified use of force defense

based on battered woman syndrome. Accordingly, she contended that the district

court had no authority to order the State's examination.

¶23 We rejected the defendant's position and held that the statute, § 46-14-212, MCA

(1989) (renumbered § 46-14-205, MCA (1991)), "authorizes the State to request a

mental evaluation once the defendant's mental state is at issue." Hess, 252 Mont. at

213, 828 P.2d at 388. Furthermore, we held that the defendant's reliance on the

defense of justifiable use of force based on battered woman syndrome and her

reliance on expert psychological testimony to support her defense put her mental

state at issue. Therefore, we concluded that the district court had authority to order

the examination despite the lack of a specific reference in the statute to the defense of

justifiable use of force based on battered woman syndrome. See Hess, 252 Mont. at

213, 828 P.2d at 388. In other words, we held that the statute permits the State to

evaluate a defendant whenever he or she has raised mental state as an issue and

notified the State of an intention to introduce expert opinion testimony regarding

that issue.

¶24 We conclude that based on the Hess decision, the State is also entitled to its own

examination in this case.

¶25 Section 45-5-103(1), MCA, defines mitigated deliberate homicide as follows:

A person commits the offense of mitigated deliberate homicide when the

person purposely or knowingly causes the death of another human being but

does so under the influence of extreme mental or emotional stress for which

there is reasonable explanation or excuse. The reasonableness of the

explanation or excuse must be determined from the viewpoint of a reasonable

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person in the actor's situation.

¶26 Mitigated deliberate homicide is an affirmative defense which clearly depends on

proof of Park's mental state at the time of the acts alleged, and he has notified the

State that he intends to prove his mental condition through use of expert

psychological or psychiatric testimony. Fairness requires no less than that the State

be allowed the opportunity to meet and test that proof.

¶27 However, we do not here hold that the State is entitled to examine the defendant

in every case in which mitigated deliberate homicide is raised--only in those cases

where a defendant expresses an intention to prove his mental condition with expert

testimony.

¶28 Park has suggested that the State be allowed an examination only if and when

Park actually offers psychological testimony at trial. He contends that his notice of

intent to make the affirmative defense of mitigated deliberate homicide based on

extreme mental or emotional stress and to present expert psychological testimony in

support of the defense does not bind him to the defense, and that if he opts not to

present psychological evidence at trial, he will have been forced to offer privileged

evidence to the State which could be used to incriminate him regardless of the nature

of his defense.

¶29 We note first that the State's right to a psychological examination exists for the

limited purpose of rebuttal, and as the District Court did here, the order for an

examination can be narrowly tailored and place restrictions on the State's use of its

expert's examination. Second, Park's concerns about incriminating himself during

parts of his examination are addressed in the next part of this opinion. Finally, the

statute relates the State's right to an examination to the defendant's notice of his

defense and does not make it contingent upon the actual presentation of expert

psychological testimony at trial. To postpone the State's examination until mid-trial

would delay the District Court proceedings and deprive the State of an adequate

opportunity to prepare its rebuttal. Accordingly, we conclude there is no basis to

postpone the State's evaluation until Park actually presents his defense.

¶30 Accordingly, we affirm that part of the District Court's order which required

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that Park submit to a psychological examination by the State's expert.

ISSUE 3

¶31 If the answer to the preceding question is in the affirmative, to what extent must

the defendant answer questions regarding acts of which he is accused?

¶32 In Hess, we considered the issue discussed in Issue 2 of this opinion. However,

the order reviewed in that case stated in relevant part "[t]hat such evaluation shall

be made subject to defendant's constitutional and statutory rights not to make

statements or produce documents that may incriminate her." Hess, 252 Mont. at 212,

828 P.2d at 387. Therefore, Hess is not authority for that part of the District Court's

order which requires that Park discuss the day in question with the State's expert.

Park has challenged separately that aspect of the District Court's order on state

constitutional and Fifth Amendment grounds.

¶33 Article II, Section 25, of the Montana Constitution, and the Fifth Amendment of

the United States Constitution, prohibit the State from compelling self-incriminating

statements from a defendant. See also State v. Fuller (1996), 276 Mont. 155, 160, 915

P.2d 809, 812. The issue presented is whether a defendant may refuse to discuss with

the State's expert the events surrounding the charges against him on the basis that it

would be self-incriminating and, if so, whether his refusal should limit the proof he

might otherwise offer.

¶34 The State contends that the U.S. Supreme Court's decision in Buchanan v.

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

proposition that a defendant who has raised his mental state as an issue waives his

Fifth Amendment privilege for all purposes. We disagree. Buchanan relied, at least

in part, on the facts that the expert testimony was requested by the defendant's own

attorney and did not describe "any statements by [the defendant] dealing with the

crimes for which he was charged." Buchanan, 483 U.S. at 423, 107 S. Ct. at 2918, 97

L. Ed. 2d at 356. Accordingly, Buchanan is distinguishable from this case, and does

not support the State's contention that a defendant waives entirely his right to

remain silent when he raises his mental state as a defense and offers psychological

testimony.

¶35 First and foremost, we recognize that if a defendant's privilege not to incriminate

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himself is to have any force, it must mean that he can decide with whom and in what

terms he discusses such potentially incriminating matters as the events surrounding

the charges against him. Further, a defendant's right to remain silent applies at all

stages of a criminal proceeding. See Minnesota v. Murphy (1984), 465 U.S. 420, 426,

104 S. Ct. 1136, 1141-42, 79 L. Ed. 2d 409, 418; Fuller, 276 Mont. at 160, 915 P.2d at

812. Therefore, a defendant clearly carries the privilege with him into a psychological

examination with the State's expert. See, e.g., Estelle v. Smith (1981), 451 U.S. 454,

101 S. Ct. 1866, 68 L. Ed. 2d 359.

¶36 The State implies throughout its argument that Park has waived his right to

remain silent with his voluntary introduction of a mental status defense and his use

of expert psychological testimony in support of that defense. It is well-established,

however, that a defendant's waiver of his constitutional rights must be made

specifically, voluntarily, and knowingly, and we will not engage in presumptions of

waiver. See Johnson v. Zerbst (1938), 304 U.S. 453, 464, 58 S. Ct. 1019, 1023, 82 L. Ed.

1461, 1466; State v. Lucero (1968), 151 Mont. 531, 538, 445 P.2d 731, 735; see also

State v. Okland (1997), 283 Mont. 10, 14-15, 941 P.2d 431, 433-34 (discussing the right

to counsel); State v. Dawson (1988), 233 Mont. 345, 351-52, 761 P.2d 352, 356

(discussing the right to prohibit warrantless searches and seizures); Welsh v. City of

Great Falls (1984), 212 Mont. 403, 411, 690 P.2d 406, 411 (discussing the due process

right to a hearing); State v. Carlson (1982), 198 Mont. 113, 120-21, 644 P.2d 498, 502

(discussing the right to prohibit warrantless searches and seizures); State v. Blakney

(1982), 197 Mont. 131, 134, 641 P.2d 1045, 1047-48 (discussing the right to counsel).

The mere fact that a defendant wishes to introduce psychological testimony and

therefore must cooperate during an examination so that the State has the

opportunity to rebut his expert testimony is insufficient to constitute a complete

waiver of his right to remain silent. Accordingly, we conclude that a defendant has a

constitutional right to remain silent when asked by the State's psychological expert

about the events surrounding the alleged offense.

¶37 It does not follow, however, that a defendant's right to remain silent when

questioned by the State's expert about the alleged offense should afford an

opportunity to place unrebuttable testimony before the jury. See also Estelle, 451 U.

S. at 465, 101 S. Ct. at 1874, 68 L. Ed. 2d at 370 (recognizing that despite a

defendant's Fifth Amendment protection, he can be required to submit to an

examination by the State's expert when he introduces psychiatric testimony and his

silence would deprive the State of its only effective means of rebutting that testimony

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which he introduced).

¶38 We agree with the position of the County Attorneys' Association, as expressed in

its amicus brief to this Court, that if Park refuses to discuss the events related to the

charges against him with the State's expert, and then also exercises his right to

remain silent at trial, his own expert should be not allowed to serve as a conduit for

his version of events surrounding and related to the alleged offense by relating to the

jury what Park told him or her. Such a situation would be analogous to a defendant

taking the stand, but refusing to submit to cross-examination. We held in State v.

Wilson (1981), 193 Mont. 318, 325, 631 P.2d 1273, 1277, that a defendant "could not

take the stand to testify in her own behalf and also claim the [Fifth Amendment]

right to be free from cross-examination on matters raised by her own testimony on

direct examination." The same principle applies here. A defendant cannot put before

the jury his version of events through expert psychological testimony and refuse to

answer questions from the State's expert regarding those same events.

¶39 We further hold that if Park declines to discuss with the State's expert the facts

related to the crime with which he is charged, and then waives his right to remain

silent by testifying at trial, the State's expert should be allowed to listen to that part

of his testimony which relates to those events, as well as the defense expert's

testimony about what he or she was told about those events, and respond where he or

she deems it appropriate.

¶40 We affirm that part of the District Court's order that compels Park to submit to

an examination by the State's expert. We reverse that part of the District Court's

order that compels Park to answer questions during the examination regarding the

alleged offense, but hold that if he refuses to answer those inquiries by the State's

expert, and also remains silent at trial, he may not offer that evidence through his

expert. We remand this case to the District Court for further proceedings consistent

with this opinion.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

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/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

Justice W. William Leaphart, specially concurring.

¶41 I concur in the opinion of the Court and write separately to elaborate on one

particular point. The Court holds, and I agree that, "the State's right to a

psychological examination exists for the limited purpose of rebuttal, and as the

District Court did here, the order for an examination can be narrowly tailored and

place restrictions on the State's use of its expert's examination."

¶42 The defendant in this case has raised the "defense" of mitigated deliberate

homicide. That is, he contends that he acted under "extreme mental or emotional

stress for which there is reasonable explanation or excuse." Section 45-5-103(1),

MCA. It is important to distinguish this defense from self-defense or justifiable use of

force that was raised in State v. Hess (1992), 252 Mont. 205, 828 P.2d 382. Justifiable

use of force, if proven, is a complete defense resulting in an acquittal. Extreme

mental or emotional stress, on the other hand, results not in an acquittal, but in a

conviction of the lesser offense of mitigated deliberate homicide. Thus, a defendant

who raises mitigated deliberate homicide as a defense and who submits to an

examination by a State psychologist is, in effect, convicting himself of a crime.

Accordingly, the trial court can, and should, impose restrictions upon the State's use

of such evidence. However, independently of any restrictions imposed by the trial

court, there are constitutional limitations that pertain under the Fifth Amendment to

the United States Constitution and Article II, Section 25 of the Montana

Constitution. As the Court points out, when the defendant proposes to prove the

defense of extreme emotional stress through use of an expert, the State is entitled to

have the defendant examined by its own expert so, in fairness, it will have an

opportunity to rebut the defendant's expert testimony. The fruits of the State's

examination can only be used to rebut the defendant's defense. The State, having

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obtained the defendant's testimony concerning mental stress, cannot, for example,

drop the deliberate homicide charge and file new charges for mitigated deliberate

homicide. Such use of the evidence would obviously be beyond what the defendant

would reasonably be expected to anticipate and would offend the constitutional

prohibitions against self-incrimination.

/S/ W. WILLIAM LEAPHART

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