Bradford v. State

*24 CAMPBELL, Judge,

dissenting.

Today, a majority of this Court concludes that appellant should be granted relief based upon grounds that I believe to be bereft of merit. Therefore, I cannot agree with the rationale of the majority.

During the punishment phase of the trial, the State introduced the testimony of Dr. John Rennebohm. Rennebohm never examined appellant, but testified in reference to a hypothetical situation that encompassed the facts of this case. From that hypothetical situation, Rennebohm concluded that the person described was a sociopath who had almost no realistic chances for improvement. After Rennebohm concluded his testimony, appellant called Dr. Robert Wettstein as a witness. The State requested and received a hearing outside of the presence of the jury. At that hearing, the trial judge decided that Wettstein could testify about the inaccurate nature of predictions of future dangerousness, but could not testify about anything he had learned about appellant from examining appellant. After numerous objections and arguments, 1 the State and appellant agreed to let Wettstein testify about what he had learned from examining appellant in exchange for appellant submitting to an examination by Dr. James Grigson, with Wettstein in attendance. Appellant made it known that he agreed to this compromise only became the trial court was going to limit Wettstein’s testimony otherwise.

At trial, Wettstein testified during the punishment phase. During cross-examination, the prosecutor elicited responses from Wett-stein concerning what appellant had said to Wettstein during Wettstein’s evaluation of appellant. Wettstein answered questions regarding what appellant had said about the commission of the crime. Appellant lodged no objections to Wettstein’s testimony or to the State’s questions regarding what appellant had said to Wettstein concerning the commission of the offense. The State also placed into evidence, without objection from the appellant, the notes Wettstein had taken during his evaluation of appellant. These notes also contained statements that appellant had made to Wettstein about the commission of the offense. The State offered Grigson’s testimony in rebuttal to that of Wettstein.

At the outset, the majority relies upon Bennett v. State, 742 S.W.2d 664 (Tex.Cr.App.1987). While this Court did state that the “trial court does not ... have the authority to appoint a psychiatrist for the purpose of examining a defendant for evidence relating solely to his future dangerousness,” 742 S.W.2d at 671 , I do not find the Bennett case dispositive.

In Bennett , the appellant had already been examined concerning his sanity. The State requested that another exam be conducted by Grigson because the first psychiatrist was unavailable to testify. That is riot the situation facing the Court in this case. Here, appellant was trying to put on evidence in support of the proposition that he did not constitute a threat of future dangerousness. The State offered Grigson’s testimony in rebuttal to that of Wettstein. Therefore, other than for the proposition above quoted, the holding in Bennett is useless.

The majority, relying upon Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981), then concludes that the trial court erred in allowing Wettstein to testify on the condition that appellant be required to submit to an evaluation by a psychiatrist chosen by the State (Dr. Grig-son). The facts underlying Smith , however, differ materially from those involved in this case.

In Smith , as in Bennett , the defendant had introduced no psychiatric evidence and had given no indication that he intended to do so. Id. 451 U.S. at 466 , 101 S.Ct. at 1874 . Also, the defendant submitted to an examination by the State’s psychiatrist, Dr. Grigson, without being warned of his Fifth Amendment rights. Id. at 467 , 101 S.Ct. at 1875 . In Smith “the State offered information obtained from the court-ordered competency examination as affirmative evidence to per *25 suade the jury to return a sentence of death.” Id. (Emphasis added). In this case, the State was allowed to examine appellant because appellant was going to introduce Wettstein’s testimony that future dangerousness could not be accurately predicted. The trial court’s actions in this regard are in no way violative of the Supreme Court opinion in Smith . There, the Supreme Court expressly wrote that

[wjhen a defendant asserts the insanity defense 2 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. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution’s psychiatrist. See, e.g., United States v. Cohen, 530 F.2d 43, 47-48 (CA5), cert. denied, 429 U.S. 855 , 97 S.Ct. 149 , 50 L.Ed.2d 130 (1976); Karstetter v. Cardwell, 526 F.2d 1144, 1145 (CA9 1975); United States v. Bohle, 445 F.2d 54, 66-67 (CA7 1971); United States v. Weiser, 428 F.2d 932, 936 (CA2 1969), cert. denied, 402 U.S. 949 , 91 S.Ct. 1606 , 29 L.Ed.2d 119 (1971); United States v. Albright, 388 F.2d 719, 724-725 (CA4 1968); Pope v. United States, 372 F.2d 710, 720-721 (CA8 1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651 , 88 S.Ct. 2145 , 20 L.Ed.2d 1317 (1968).

Id. 451 U.S. at 463 , 101 S.Ct. at 1874 . (footnote omitted).

The decision in United States v. Cohen, supra, cited in Smith , was discussed by a panel of the Fifth Circuit Court of Appeals in Battie v. Estelle, 655 F.2d 692, 701 (5th Cir. 1981). The panel in Battie noted how the prosecution in Cohen had introduced the results of a court-ordered psychiatric examination only after the defense had introduced psychiatric testimony to raise a mental-status defense. Battie, 655 F.2d at 701 . By introducing psychiatric testimony, the defendant had waived his Fifth Amendment privilege in the same manner as would the defendant who elected to testify at trial. Id. at 701-702 . The rationale underlying this conclusion of waiver was that “[b]y introducing psychiatric testimony obtained by the defense from a psychiatric examination of the defendant, the defense constructively puts the defendant himself on the stand and therefore the defendant is subject to psychiatric examination by the State in the same manner.” Id. at 702 n. 22. See also Pope v. United States, 372 F.2d 710 (8th Cir.1967).

While the facts previously outlined strongly indicate, at the very least, an “implied” Fifth Amendment waiver, there is additionally a strong indication of an express waiver on the part of appellant. Appellant lodged no objections when the State elicited responses from Wettstein concerning what appellant said in regard to the circumstances of the offense. Wettstein’s notes containing appellant’s statements were admitted without objection by appellant. Therefore, the testimonial nature of appellant’s statements to his own witness were before the jury in a way totally unconnected to the testimony of Grig-son.

Moreover, the State elicited this testimony from Wettstein before Grigson even took the witness stand. Appellant’s objection to being subjected to an examination by Grigson is unrelated in any way to appellant’s failure to *26 object to the testimonial aspects of his examination by Wettstein, about which Wettstein testified. Therefore, appellant waived any Fifth Amendment claim of privilege because his failure to object to his own witness’ testimony about the offense constructively placed appellant himself on the witness stand. See Battie v. Estelle, 655 F.2d 692 , 702 n. 22 (5th Cir.1981).

In Buchanan v. Kentucky, 483 U.S. 402 , 107 S.Ct. 2906 , 97 L.Ed.2d 386 (1987), the Supreme Court adopted more of a public policy stance, impliedly, at least, eschewing the waiver notion found in the circuit opinions cited in Smith , ante. In Buchanan, the Supreme Court discussed Smith v. Estelle, supra, and specifically “recognized the ... ‘distinct circumstances’ of [the Smith ] case ...” 3 483 U.S. at 422 , 107 S.Ct. at 2917 . A majority of the Court specifically stated that in Smith they had “acknowledged that, in other situations, the State might have an interest in introducing psychiatric evidence to rebut [a] petitioner’s defense ...” Id. The Court specifically held that

if a defendant requests such an evaluation [i.e. a sanity evaluation] or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.

Id. at 422-423, 107 S.Ct. at 2917-18 .

It is probably not a coincidence that, in Buchanan, the Supreme Court cited to United States v. Byers, 740 F.2d 1104 (D.C.Cir.1984) in reaching its decision. In Byers , and to a lesser degree in Pope, supra, the issue was framed in terms of “the process of determining where the right to remain silent ends and the society’s need to require testimony begins.” Byers, 740 F.2d at 1114 . As was so eloquently stated in Broum v. United States, 356 U.S. 148, 155-156 , 78 S.Ct. 622, 626-627 , 2 L.Ed.2d 589 (1958), which was quoted in Byers ,

a defendant cannot reasonably claim that the Fifth Amendment gives him not only this choice [whether to testify or not] but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.... The interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.

Byers, 740 F.2d at 1114 .

The question remaining is whether the Buchanan decision should be extended to a psychiatric evaluation performed for the purpose of rebutting a defendant’s claim regarding future dangerousness. As I explained in footnote two, I see no distinction between compelling a defendant to submit to a mental-status examination as opposed to an examination pertaining to future dangerousness, and the arguments advanced in Byers, Buchanan, and Brown well support this notion. And I believe that this strikes at the heart of the majority’s thesis — that since no mental-status examination was involved, Buchanan does not apply. This premise misses the entire rationale explicated in Buchanan, Byers, and Brown. It is not the nature or name of the psychiatric test involved that is-important. The only inquiry is whether the Fifth Amendment privilege is applicable. Under the facts of this case, it is obvious 1) *27 that appellant expressly waived his privilege and 2) that the public policy dictates of Buchanan apply to the proffer of evidence pertaining to future dangerousness.

Based upon my belief that the trial court’s actions constituted no error, I would overrule appellant’s points of error eleven through fourteen. The majority fails to so conclude, and, therefore, I dissent.

McCORMICK, P.J., and WHITE and MEYERS, JJ., join.

. The State argued against permitting Wettstein to testify about anything he had learned from examining appellant because the State had not been allowed to examine appellant. Appellant objected and prolonged discussions followed.

. The majority seems to see some kind of difference between whether a defendant advances a mental-status defense to the entire prosecution (i.e. insanity or incompetency) or adduces some kind of defensive evidence for a more limited purpose (i.e. to prove only that the defendant does not constitute a future danger). In my view, this is an arbitrary distinction. As I understand the role of psychiatric testing, there is not some specialized exam for sanity or competency as opposed to another specialized exam for future dangerousness. There is certainly no evidence in the record to indicate that different types of tests are administered for determining sanity or competency as opposed to determining likelihood of future dangerousness. See Diagnostic and Statistical Manual of Mental Disorders (Third Ed. — Revised, 1987) pp. 15-16 wherein it is explained that

[e]ach person is evaluated on each of these axes:

Axis I Clinical Syndromes and V Codes Axis II Developmental Disorders and Personality Disorders

Axis III Physical Disorders and Conditions Axis IV Severity of Psychosocial Stressors Axis V Global Assessment of Functioning.

. In Buchanan, the Supreme Court distinguished its prior holding in Smith . The Supreme Court explained that the State's conduct in Smith had violated the petitioner’s Fifth Amendment rights because Grigson’s prognosis of future dangerousness "was not based simply on his observations of the defendant, but on detailed descriptions of Smith's [the defendant] statements about the underlying crime.” Buchanan, 483 U.S. at 421 , 107 S.Ct. at 2916 . (Emphasis in original). This fact rendered Smith’s comments to Grigson “testimonial in nature” and made Grigson’s conduct in testifying about those comments "essentially like that of an agent for the State recounting unwarned statements in a postarrest custodial setting.” Id. at 422 , 107 S.Ct. at 2917 . Since Smith had not been warned of his Miranda rights prior to being examined, Grigson’s testimony constituted a violation of Smith's Fifth Amendment rights. Id.

As an aside, we also note that in Smith , the Supreme Court found a Sixth Amendment violation. No such violation, however, is alleged in this case.