Petition for Writ of Certiorari — Neil v. Phillips

FEB 7 1972

PXBCRT SEAVER, CLERK

IN THE HESERES Span

SUPREME COURT OF THE UNITED STATES

NO. v4 1- 10 12

October Term, 1971

WILLIAM S. NEIL, Warden,

Tennessee State Penitentiary,

Nashville, Tennessee,

Petitioner,

CLARENCE PHILLIPS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

_' TO THE UNITED STATES COURT OF APPEALS

3 FOR THE SIXTH CIRCUIT

BART C, DURHAM, III

Assistant Attorney General

211 Supreme Court Building

Nashville, Tennessee 37219 oo

Telephone: (615) 741-2091 «*%

Attorney for Petitioner a

OF COUNSEL ge

&

DAVID M, PACK yy

Attorney General

PRINTERS, P...0.. BOX. 24%- KRORVilie, Lenneasees: Phone: C2548

ae

Opinions Below ......cececccccccccvececcsces

JUTISGICTION ..... ccc ececcccccecvees eo weccces

Question Presented .......ccccccccccccvvcces

Constitution anc Statutory Provisions Involved .

Statement of the Case ......cccccccccccoccces

Reason for Granting the Writ ............ cone

TABLE OF CONTENTS

Page

Sa & WN NY WH

The Sixth Circuit erred in deciding an

important quesiion of constitutional law as

it relates to due process. It was not error

on rebuttal for the prosecutor to read into

the record portions of a file which were

damaging to the defendant when the defend-

ant had had the benefit of putting into evi-

dence everything favorable in the file, and

when the defendant through counsel had

urged the admissibility of the file because

it was "the official record of ‘"e institu-

tion."

Conclusion oeeoeevevev eee eeeeeneeneev ee e@eeaeteonoveaenwe 9

APPENDICES

A Order of Sixth Circuit Denying Petition

for Rehearing (Jan. 7, 1972)....e.eeceee la

B Motion to Rehear (Dec., 1971).......... 2a

C Opizion of Sixth Circuit (Dec. 7, 1971)... 4a

D Order of United States District Court

denying Petition (Sept. 9, 1970) ......... 3la

E Opinion, Tennessee Court of Criminal

Appeals (Feb. 19, 1970) ..........200-- 34a

F Order Denying Certiorari, Tennessee

Supreme Court (April 20, 1970)......... Si

a

TABLE OF AUTHORITIES

TABLE OF CASES CITED

Baltimore and Ohio R.R. v. O'Neill,

211 F.2d 190 (6th Cir, 1954)..... eeeccones 8

Lyies v. United States,

254 F.2d 725 (D.C. Cir. 1957) ..ccccccccce 8

Ranger, Inc. v. Equitable Life Assu. Soc.,

196 F.2d 968 (6th Cir, 1952) ........eeeeee 8

Rivers v. Union Carbide Corp., |

426 F.2d 633 (3rd Cir. 1970).........e0ee. 8

Thomas v. Hogan,

308 F.2d 355 (4th Cir., 1962) ...cccccccces 8

United Stctes v. Littwin,

338 F.2d 141 (6th Cir. 1964),

certiorari denied 380 U.S. 911........200- 9

-

STATUTES

Title 28, United States Code, Section 1254(a) ..

Title 28, United States Code, Section 2241 ....

CONSTITUTION

Fifth Amendment, United States Constitution .. 3

Fourteenth Amendment, United States

CORBETT 6 oko 656 1544.0 wR 0 ees SO Sa SS 2d 3

OTHER AUTHORITY

Note, 48 Col. | ee Rev. 920 (1948) eeeeeveeen ene

——

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

October Term, 1971

WILLIAM S. NEIL, Warden

Tennessee State Penitentiary

Nashville, Tennessee,

Petitioner

CLARENCE PHILLIPS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971

WILLIAM S, NEIL, Warden

Tennessee State Penitentiary

Nashvi'le, Tennessee,

Petitioner

CLARENCE PHILLIPS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner William S. Neil, Warden, Tennessee

State Penitentiary, respectfully prays that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit entered

in this proceeding on December 7, 1971. A Motion to Re-

hear was denied January 7, 1972.

2

OPINIONS 3ELOW

Mr. Phillips’ first degree murder conviction was af-

firmed by an unreported opinion of the Tennessee Court

of Criminal Appeals, Eastern Division (Feb. 1970) (App,

E), certiorari denied by the Tennessee Supreme Court

(April, 1970) (App. F). The United States District Court

for the Eastern District of Tennessee denied a petition for

a writ of habeas corpus in an unreported order of Septem-

ber 9, 1970 (App. D). The Sixth Circuit reversed in an

opinion not yet reported (App. C). A Motion to Rehear

(App. B) was denied (App. A).

JURISDICTION

The judgment of the United States Court of Appeals fer

the Sixth Circuit was entered on December 7, 1971. A

motion to rehear was denied January 7, 1972, This peti-

tion for certiorari is timely filed within ninety days of

that date, This Court's jurisdiction is invoked under

28 U.S.C. § 1254(1).

QUESTION PRESENTED

1, Was the Respondent denied due process when the

trial judge permitted the prosecutor to read certain por-

tions of his medical record in rebuttal to his insanity

defense?

. At page two of its opinion, the Sixth Circuit stated this issue to be:

"(TJhe appellant (Mr. Phillips) argues that due process was denied him

when the trial court did not sustain his objections to the prosecutor's read-

ing of certain portions of his medical record in rebuttal to the insanity de-

fense. These portions consisted of the reports of mental examinations

made approximately one year prior to the alleged offense and contained,

among other statements prejudicial to Phillips’ case, the conclusion that

the appellant had returned to Eastern State [hospital] to avoid certain

criminal charges.”

_ —

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides in pertinent part:

"No person shall. . . be deprived of life, liberty,

or property, without due process of law. . ."

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

"No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws,"

Habeas corpus is codified in Title 28, United States

Code, which provides in pertinent part:

§2241. Power to grant writ

"(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective jurisdic -

HONS 2. ib

"(c) The writ of habeas corpus shall not extend to

a prisoner unless -

'(3) He is in custody in violation of the Con-

stitution or laws or treaties of the United States. . .

Al

a

4

STATEMENT OF THE CASE

The United States District Judge who considered the

case summarized the facts as they refer to the due proc-

ess argument as follows:

"Clarence Phillips is serving a sentence of fifty years

and one day pursuant to a conviction for first degree

murder and a judgment in the Criminal Court of Camp-

bell County, Tennessee. Petitioner has exhausted

available state remedies and seeks a writ of habeas

corpus from this Court.

"A jury found petitioner guilty of murdering Arthur

Queener, an elderly resident of Campbell County who

lived alone, The evidence showed that Queener was

beaten severely, that his home and outbuildings were

set on fire, and that he died after being taken to LaFol-

lette Community Hospital. Other evidence showed

Phillips was in the vicinity when the crime occurred,

that the homicide occurred during a robbery, that

there were bloodstains on petitioner's clothes that

matched the victim's, and that petitioner made various

admissions that linked him with the crime. Phillips,

represented by appointed counsel, attempted to show

that he was insane at the time of the acts,

"On October 29, 1968, when Queener was beaten,

Phillips was apparently on unauthorized leave from

Eastern State Hospital, an institution that had been

treating him periodically for mental disorders since

1965. Dr. Cortinas, a psychiatrist at Eastern State,

treated petitioner upon his voluntary return about

October 30, 1968. During the course of that treat-

ment petitioner made admissions concerning his part

in the homicide. He contends that these admissions

were received in evidence in violation of the rules

—

5

announced in Miranda v. Arizona, 384 U.S. 436 (1966)

and that the communications were also privileged. The

Court holds that any question of privilege relates to

Tennessee law, Tenn. Code Annot. 24-112, Communi-

cations between psychiatrist and patient, and the ad-

verse decision of the Tennessee courts forecloses con-

sideration of the issue. See also Advisory Committee's

Notes to Proposed Rules of Evidence 5-04, Psychothera -

pist-Patient Privilege. 46 F.R.D. 161 (1969). The

Court is of the opinion that no violation of the Miranda

rules occurred.

"Doctor Cortinas had ordered that petitioner's com-

plete file at the Hospital be organized to assist him in

his mental evaluation, He testified that he had studied

all the file while evaluating petitioner, Petitioner con-

tends that the use of these records denied him the right

to confront adverse witnesses, doctors who had made

past reports but were not present to testify at trial.

Petitioner's attorney did not object to the admission of

these records. He even advised the Court that the

records dated back to February, 1965. In rebuttal,

the Attorney General read from portions of these rec-

ords at which time petitioner's counsel objected to the

use of other portions of the record. (There was a

statement that petitioner had been admitted to the hos-

pital for an evaluation after a burglary.) We are of

the opinion that the trial court decided this issue

properly.”

6

REASON FOR GRANTING THE WRIT

The Sixth Circuit erred in deciding an important ques-

tion of constitutional law as it relates to due process. It

was not error on rebuttal for the prosecutor to read into

the record portions of a file which were damaging to the

defendant when the defendant had had the benefit of putting

into evidence everything favorable in the file, and when

the defendant through counsel had urged the admis sibility

of the file because it was "the official record of the in-

stitution ."

The admissibility of the contents of the file on defend-

ant kept by the officials at Eastern State Hospital was

urged upon the court by Mr. Brown, trial counsel for the

defendant, saying: “We submit, Your Honor, that it is

proper; it is part of the official record of the institution.”

The hospital official who introduced the medical file

on defendant was a psychiatrist, Dr. Cortinas. When

the record was tendered the following colloquy occurred:

"Q Do you have the record?

"A Ido, At that time when the Court—

"Q Was this at another Court hearing, you are

talking about?

"Mr. Brown: Yes. He was a witness in the pre-

liminary hearing, and had a record at that time.

"The Witness: This is the original of this and this

is the copy.

"Mr. Brown: Your Honor, there is no objection on

our part to substituting the copy for the original, as

far as this record is concerned.

"The Court: He has both the original and the copy.

I will allow the filing of the copy, and allow you what-

ever time is necessary for you to compare it with the

original.

"Mr. Brown: If he says it is a correct copy, that

is all I want.

"Q Is this a correct copy, the same as that?

"A tItisthe same; it is acopy, yes. Itisa

correct copy.

"Mr. Brown: I will stipulate, Your Honor, that it

is a correct copy.

"The Court: Well, now what does it consist of?

"The Witness: This is the whole record. This is

the complete hospital record of the patient from the

time of his first admission.

(Vol. 2, p. 70)

“Mr. Brown: It goes all the way back to February,

1965.

"The Witness: It is a long record.

“The Court: Allright. This is filed as EXHIBIT

3. It is all together—I believe this is your subpoena,

Doctor. You may want to keep that.

"(Exhibit 3, Eastern State Psychiatrist Hospital

record, Re: Clarence Phillips, ESPH #37-589, iden-

tified and filed. )"

Defense counsel made no objection. He questioned

Dr. Cortinas from the record, including a part of the

record that was formally designated "HISTORY". Coun-

sel for the defendant asked the doctor to read from the

record about events which occurred beginning in 1965,

to wit:

"He was admitted 2-17-65, escaped 3-1-65; returned

3-4-65, escaped 8-21-65; returned 9-2-65, eloped

1-6-66; discharged 3-26-66; readmitted 10-23-67,

discharged 11-2-67; readmitted 5-21-68, eloped

7-7-68; returned 7-9-68, furlough 9-30-68; returned

from furlough 10-29-68, discharged 11-22-68."

a

8

The appellant below relied on Lyles v. United States,

254 F.2d 725 (D.C. Cir. 1957). Defense counsel in that

case as a matter of trial strategy offered in evidence an

order of the court in an earlier proceeding adjudicating

the defendant to be incompetent. On rebuttal, the Gov-

ernment offered a later order adjudicating the defendant

to be competent, The Court of Appeals found "that the

appellant could have insisted on the exclusion of the later

order but having introduced evidence on the same subject

in his own behalf in form of the earlier finding that he was

not competent to stand trial and having acquiesced in the

admission of the finding proscribed by the statute, he has

deliberately waived his right to insist on the exclusion of

the finding." JId., at 732. One of the judges in his dis-

senting opinion pointed out that this decision put the Dis-

trict of Columbia “at odds with ‘the vast majority of

courts (which) readily admit not only routine observations

by medical personnel in a hospital record but also diag-

noses of a patient's physical and mental condition.’ ”’ Id.,

at 736, quoting from 48 Col, L. Rev. 920, 929 (1948).

The records were properly admitted on two counts.

First, because of the business entry exception to the hear-

say rule as well as the public documents exception, and,

second, because once a portion of the records was intro-

duced to establish facts favorable to the defendant, the

State had the right to bring out other facts to the contrary

contained in those records as a matter of rebuttal. The

. The Sixth Circuit has held against the unlimited use of hospital records

in Baltimore and Ohio R.R. v. O'Neill, 211 F.2d 190 (1954), and Ranger,

Inc. v. Equitable Life Assu. Soc., 196 F.2d 968 (1952). The weight of

authority seem to be otherwise, particularly in the more recent cases. See

e.g., Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962) (collecting cases

on both sides); and Rivers v. Union Carbide Corporation, 426 F.2d 633

(3rd Cir. 1970) (a recent survey of the use of hospital records under the

Federal Business Records Act).

9

Sixth Circuit held in United States v. Littwin, 338 F.2d_

141, certiorari denied 380 U.S, 911 (1964) that where one

party has put in part of a document the opposing party may

put in the balance of the document to explain adverse in-

ferences which might result from the incomplete character

of the evidence,

CONCLUSION

The United States Court of Appeals for the Sixth Circuit

erred when it held that Mr, Phillips was denied due process

because of the introduction into evidence of hospital rec -

ords which were used for impeachment purposes on re-

buttal— records which he himself had sought to be admitted.

A writ of certiorari should issue to review the judgment

and opinion of the Sixth Circuit.

Respectfully submitted,

BART C, DURHAM, III,

Assistant Attorney General

211 Supreme Court Building

Nashville, Tennessee 37219

Telephone: (615) 741-2091

Member of the Supreme Court Bar

OF COUNSEL

DAVID M, PACK

Attorney General

—————

INDEX TO APPENDIX

APPENDICES

Order of Sixth Circuit Denying Petition

for Rehearing (Jan. 7, 1972) .........20-

Motion to Rehear (Dec., 1971) ..........

Opinion of Sixth Circuit (Dec. 7, 1971) ..

Order of United States District Court

Denying Petition (Sept. 9, 1970) .........

Opinion, Tennessee Court of Criminal

Appeals (Feb. 19, 1970) ........ rere

Order Denying Certiorari, Tennessee

Supreme Court (April 20, 1970) .........

la

2a

4a

3la

34a

50a

la

APPENDIX A

[fol. 1] NO. 20,970

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Jan 7 1972

JAMES A, HIGGINS, Clerk

CLARENCE PHILLIPS,

Petitioner-Appellant,

¥ , ORDER

WILLIAM S. NEIL, Warden

Tennessee State Penitentiary,

Respondent-Appellee. 7

Before: EDWARDS, PECK and MILLER, Circuit Judges.

We have carefully considered the Petition for Rehearing

in this action filed on behalf of the res pondent -appellee,

and upon full consideration we find it to be without merit.

It is therefore ORDERED that the Petition for Rehearing

be and the same is hereby denied.

ENTERED BY ORDER OF THE COURT.

/s/ James A. Higgins

Clerk

2a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 20970

FILED

Dec. , 1971

[fol. 1] JAMES A, HIGGINS, Clerk

CLARENCE PHILLIPS,

Petitioner-Appellant,

" | MOTION TO REHEAR

WILLIAM S, NEIL, Warden,

Tennessee State Penitentiary,

Respondent-Appellee . 7

The Appellee, William S. Neil, Warden, Tennessee

State Prison, pursuant to Rule 40A of the Federal Rules

of Appellate Procedure, prays that the Court grant a peti-

tion for rehearing in this cause, Subsequent to this Hon-

orable Court's opinion in this case on December 7, 1971,

Judge Weick, writing for a panel composed also of Chief

Judge Phillips and Senior Circuit Judge Cecil, decided

Childs v. Cardwell, Warden. ‘This Court in

[fol. 2] that case held that procedural due process was

afforded petitioner Childs even though the testi-

mony of Detective Jansen was introduced against him as

hearsay and even though it deprived Childs of his right of

confrontation in violation of the Sixth Amendment,

The Warden would respectfully urge to the Court that

the instant case is in conflict with Childs v. Cardwell and

3a

Appendix B - Motion to Rehear

we urge that this Court make a final disposition of the

cause by affirming the judgment below,

Respectfully submitted,

BART DURHAM

Assistant Attorney General

State of Tennessee

211 Supreme Court Building

Nashville, Tennessee 37219

Telephone: (615) 741-2091

(fol. 3] CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion to

Rehear has been forwarded to David E. Smith, Esq.,

Attorney for Petitioner-Appellant, Clarence Phillips, 911

Hamilton Bank Building, Knoxville, Tennessee, on this

the 20th day of December, 1971, | certify also that a

copy of this Honorable Court's opinion in Childs v. Card-

well has been mailed this date to adversary counsel,

BART DURHAM

Assistant Attorney General

State of Tennessee

Counsel for Respondent -Appellee

4a

APPENDIX C

[fol. 1] NO. 20970

UNITED STATES COURT OF APPEALS

For the Sixth Circuit

CLARENCE PHILLIPS,

Petitioner-Appellant, APPEAL from the

United States District

Court for the Eastern

District of Tennessee,

WILLIAM a. NEIL, Warden Northern Division

Tennessee State Penitentiary,

- Respondent-Appellee. }

Vv. .

Decided and Filed December 7, 1971,

Before: Edwards, Peck, and Miller, Circuit Judges.

Miller, Circuit Judge. This is an appeal from the

denial by the district court of appellant's petition for the

writ of habeas corpus challenging his state court criminal

conviction.

On February 18, 1969, Clarence Phillips was indicted

by the Grand Jury of Campbell County, Tennessee, for the

offense of first degree murder, He was charged with

responsibility for the brutal slaying of Arthur Queener,

which occurred on October 28, 1968, The jury returned

a verdict of guilty and appellant was given a fifty year

-—

5a

Appendix C - Opinion

sentence. Having a history of periodic hospitalization in

Eastern State Mental Hospital dating from 1965 through

the date of the alleged offense, he raised, among others,

the insanity defense, At the close of the evidence, he

moved for a directed verdict, The motion was denied.

A motion for a new trial was filed and also denied. Appel -

lant, thereafter, exhausted his state appellate remedies,

[fol, 2] The district court considered the points

raised in the petition and ordered that the relief

sought be denied. From this denial Phillips appeals.

The appeal is based on two contentions, First, the

appellant argues that due process was denied him when

the trial court did not sustain his objections to the prose -

cutor's reading of certain portions of his medical record

in rebuttal to the insanity defense, These portions con-

sisted of the reports of mental examinations made approxi -

mately one year prior to the alleged offense and contained,

among other statements prejudicial to Phillips' case, the

conclusion that the appellant had returned to Eastern State

to avoid certain criminal charges, Second, he argues

that that due process was denied him by the introduction

of a confession made to the local sheriff absent a deter -

mination of voluntariness, He makes this contention even

though a timely objection was not made and his subsequent

motion to strike was granted and the jury instructed to dis-

regard the testimony,

The district court held that appellant's second conten-

tion was without merit because of the absence of a timely

objection and the granting of the motion to strike. The

court further observed, in light of other substantial evi -

dence, that the appellant committed the offense charged

and that in any event the admission of the confession was

harmless error, We agree with this conclusion. Thus

RENAN RAEI OHM TIT MED ON TNE IB TENE

REE SPE ee

LRTI pg EINY OR A

“i

the question before us on appea’ pertains to the appellant's

defense of insanity.

6a

Appendix C - Opinion

The first witness to testify regarding the mental con-

dition of the appellant was Dr. Manuel Cortinas, psychia-

trist at Eastern State Hospital at the time of the events in

question, Dr. Cortinas testified first as to the circum-

stances under which he first interviewed Phillips (he had

heard rumors that a young patient was talking of having

beaten an old man to death) and as to statements made by

Phillips at this interview which amounted to a confession

to the offense. During direct examination of Dr, Cortinas

by the prosecution, a copy of appellant's medical record

at Eastern State was filed in evidence as Exhibit

[fol. 3] 3. The transcript of the trial reveals that the

defense counsel acquiesced in the filing of a copy

of the medical record rather than the original. No ques-

tion at this point was raised regarding the admissibility

of the record or any part of it under either Tennessee

rules of evidence or federal constitutional standards.

The colloquy which took place at this stage of the proceed-

ings is set forth below.’

1 The following colloquy took place at the time of the filing of the copy

of the medical record:

> Do you have the record?

A. Ido. At that time when the Court—

Q. Was this at another Court hearing, you are talking about?

MR, BROWN: Yes, he was a witness in the preliminary hearing,

and had a record at that time.

THE WITNESS: This is the original of this; and this is the copy.

MR, BROWN: Your Honor, there is no objection on our part to

substituting the copy for the original, as far as this record is con-

cerned.

THE COURT: He has both the original and the copy. I will allow

the filing of the copy, and allow you whatever time is necessary

for you to compare it with the original.

MR, BROWN: If he says it is a correct copy, that is all I want.

Q. Is this a correct copy, the same as that?

(Continued on following page)

-_

7a

Appendix C - Opinion

On cross-examination, counsel for appellant” questioned

Dr. Cortinas extensively as to the appellant's mental state

upon his return to Eastern State both generally

[fol. 4] and at the time of the slaying. He testified that

the appellant, then his patient, suffered from

paranoid schizophrenia. When pressed on the question

of whether the appellant was “mentally responsible" for

his actions, the doctor stated:

Well, to answer from a medical point of view—we are

no judge —the patient, from a medical point of view,

his judgment is impaired as to be responsible for his

actions, I would say, and we consider him—I think

anyone in psychiatry — that a psychotic patient — psy -

chosis means deviation of judgment —and when a patient

has a deviation of judgment, he doesn't know—I mean,

really—I mean, his mind, in some way, we believe,

from a medical point of view, that he is incompetent,

from a medical point of view, and he is not able to make

(Continued from preceding page)

‘ A.

Appellant was represented by court-appointed counsel and no question

is raised as to his competence or as to the quality of his legal services in

appellant's behalf.

It is the same; it is a copy, yes. It is a correct copy.

MR, BROWN: I will stipulate, Your Honor, that it is a correct

copy.

THE COURT: Well, now what does it consist of?

THE WITNESS: This is the whole record. This is the complete

hospital record of the patient from the time of his first admission.

MR. BROWN: It goes all the way back to February, 1965.

THE WITNESS: It is a long record.

THE COURT: Allright. This is filed as EXHIBIT 3. It is all

together—I believe this is your subpoena, Doctor. You may want

to keep that.

(Exhibit 3, Eastern State Psychiatric Hospital record, Re: Clarence

Phillips, ESPH #37-589, identified and filed. )

8a

Appendix C - Opinion

decisions, he doesn't know what he is doing about any

responsibility. ...

From a medical standpoint, he is incompetent; from

a medical point of view, mentally, from a medical

point of view, he is incompetent. Any psychotic pa-

tient is incompetent.

He was asked:

Is it true, Doctor, that this man, this defendant Phillips,

the patient, in your opinion is not considered responsible

for his actions, and that is why you consider him in-

competent?

Dr. Cortinas responded that this was true from a medical

point of view. At no point in his testimony did Dr. Cortinas

suggest in any way that the appellant had the capacity to

distinguish right from wrong.

The second witness called upon to testify as to Mr.

Phillips' mental state was Dr. Leyla Bozgoz, a medical

doctor at Eastern State Hospital and a defense witness.

Dr. Bozgoz was not a psychiatrist. When asked whether

a schizophrenic with a psychotic condition would

[fol. 5] be able to tell right from wrong, Dr. Bozgoz

gave contradictory testimony 3 More important

was the doctor's response to another question:

3 The following took place on direct examination of Dr. Bozgoz by coun-

sel for the appellant:

Q. Now this condition of schizophrenic reaction, with a psychotic con-

dition, is a patient in that condition, in your opinion, responsible

for his actions, mnedically, that is, does he know right from wrong?

What is your opinion about this?

Yes, he should be. He ought to be able to tell right from wrong.

If he is a schizophrenic with a psychotic condition he wouldn't be

mentally responsible?

O>

(Continued on following page)

9a

Appendix C - Opinion

Do you know the difference one way or the other whether

the patient knew the difference between right and wrong

when he escaped on September 30, 19687?

Dr. Bozgoz replied: ‘I have no idea, because he was not

my patient.”

The defense called five lay witnesses* who gave testi-

mony pertaining to the appellant's mental condition: Tom

Phillips, the grandfather of the appellant; Lucy Phillips,

Tom Phillips’ wife (the appellant often lived with the Phil-

lips when he was not hospitalized); Louise Phillips, the

appellant's aunt; Carl Harness, a neighbor who had worked

with the appellant; and Dorothy Green, the appellant's

mother. Each presented testimony which strongly sug-

gested the appellant's mental incompetency, and each of

the first three stated his or her opinion that the appellant

was incapable of distinguishing right from wrong (Carl

Harness and Dorothy Green were not questioned

[fol. 6] specifically regarding the appellant's ability to

tell right from wrong).

At the conclusion of the appellant's proof, the state

offered rebuttal which consisted solely of the reading of

certain portions of the appellant's lengthy medical record

(Continued from preceding page)

A. No, a psychotic would not be mentally responsible.

- If he was a psychotic, would he be calculated to know right from

wrong?

No, sit.

He would not?

No.

POP

4

It is the rule in Tennessee that lay testimony that the defendant is insane

is competent so long as the witness states facts upon which he bases his

opinion. Davis v. State, 161 Tenn, 23, 36 (1930). See also, Wheeler v.

Parr, 3 Higgins 374.

P = = Re NE FEE TR OE SE RR ET EE te TERE

—

10a

Appendix C - Opinion

compiled at Eastern State, a copy of which had been filed

as Exhibit 3 earlier in the trial. The portions of the

record read were reports of mental examinations made

on October 31, November 1, and November 2, 1967, al-

most exactly one year prior to the events in question.

The defense objected strenuously, stating:

It was treated as —not having to have the original, my

position is that that particular part that he wants to

read would just not be competent here, two reasons,

the first place, Your Honor, it's dealing with an alto-

gether different time, second reason is, we have no

opportunity to cross-examine the man who made that

notation,

The court overruled these objections, feeling that since

both parties had agreed to the filing of the entire record

neither should be precluded from making use of any part

of it.°

The following colloquy took place at this point in the proceedings:

ATTORNEY BROWN: We will object to this for two reasons, —

THE COURT: The Court may be mistaken, but I thought Exhibit 3 was

introduced and filed as an Exhibit by agreement by both of you, that is

The State and the Defendant.

ATTY, BROWN: It was treated as— not having to have the original,

my position is that that particular part that he wants to read would just not

be competent here, two reasons, the first place, Your Honor, its dealing

with an altogether different time, second reason is, we have no opportunity

to cross examine the man.who made that notation.

THE COURT: Lets see what—

ATTY. BROWN: That is a statement in there by someone who is a total

stranger to this thing.

ATTY. GENL, CARSON: Three pages there Your Honor. Since the

Defense has gone back into all these matters in "65, seeking to rely upon

this evidence here on behalf of the Defendant, we should be permitted now

in rebuttal to show anything that would be inconsisteat with what has been

shown.

THE COURT: I will permit you to read from Exhibit 3, either one of

(Continued on following page)

—

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Appendix C - Opinion

[fol. 7] Statements made in the challenged reports

were the only evidence before the jury which

suggested that the appellant might be responsible for his

action. Since the guilty verdict represented a rejection

of the insanity defense, it seems apparent that the jury

relied on these reports and therefore that their introduc -

tion was highly prejudicial to the appellant.

It should be pointed out that the reports make clear

neither the identity of the author nor his or her name,

Furthermore, while not barren of factual data, the basis

of the opinions stated in the reports is far from clear.

For example, after setting forth dates of previous hos-

pitalizations, the second report stated:

Despite these possible psycho-neurotic developments

demonstrated throughout the interview, or in psycho-

logical tests data, the patient was felt to be competent,

It was the staff's opinion that the patient must be con-

sidered sane and able to communicate with his Attorney,

However he may be unwilling todo so. This informa -

tion was forwarded to The Court and a diagnosis of no

psychiatric disability was recommended.

Similarly, the first report stated the opinion that the ap-

pellant was capable of consulting with his attorney, and

noted:

(Continued from preceding page)

you, any portion that you may wish. My understanding was it was filed

with the agreement of both parties.

ATTY. BROWN: It would be treated as an exhibit only as to such por-

tions as would be admissible testimony as to a Defendant in a criminal

case.

THE COURT: I will permit any of you to read any portion of it you

wish.

ATTY. BROWN: Note our exceptions.

rm

Appendix C - Opinion

. « « throughout the interview he demonstrated a callous

lack of concern for his illegal actions stating repeatedly

that he hoped being here would knock the charge.

12a

And finally, the third report concluded:

No evidence for psychosis is found in test data in this

examiners opinion. Personality development is faulty;

sexual identification seriously distorted; lower intellect

and probably inadequate thorazine, 100

[fol. 8] mg. TID, appeared to improve somewhat.

Prognosis, guarded. Impairment, mild

to moderate. Diagnosis, schizophrenic reaction,

chronic undifferentiated type.

At the close of this rebuttal, the defense renewed its

motion for a directed verdict and its objections to the

prosecution's reading of the reports. These objections

are set forth below’ The appellant's motion for a

6

Defense counsel stated:

We would like very respectfully to save exception to The Courts rul-

ing that this, particular portions of the transcript from the Eastern State

Hospital could be read to the Jury, particularly for the reason that, rea-

sons that, first place, statements in there that were made by parties who

were not produced here as witnesses. And was not presented by any wit-

ness who could be cross-examined about it, undertake to go into other

crimes that this man was accused in this particular Court of making,

apparently an examination conducted to see whether or not in 1967, he

was of sufficient capacity to be able to inform his Counsel, go to trial

in some other case. And for all those reasons reading this into the

record would be highly prejudicial to the Defendant. Further, when

this record was filed as an Exhibit, never any intention, at least I had

no understanding that by simply filing this thing so it would be available

there for these doctors to refer to in their testimony and other parties

who might have something in it, that it would be filed for the purpose

of just reading any kind of report that might be in there from anybody

was certainly beyond my conception, and I had no intention, frankly,

of having ever asked it be filed for any such purpose as that. Just be-

cause its filed wouldn't mean that everything in it was competent. For

those reasons we do very respectfully except to The Court's ruling in ad-

mitting that to the Jury.

(Continued on following page)

—

13a

Appendix C - Opinion

directed verdict was again denied; the court reiterated

its view that since the medical records filed as Exhibit 3,

had been admitted by agreement of the parties, the parties

could properly make whatever use of them that they saw

fit.

In Davis v. State, 161 Tenn, 23, 33, 34 (1930), the

Tennessee Supreme Court’ reviewed the test for the in-

sanity defense in Tennessee:

"The capacity to know right from wrong, and to know

that the particular act being committed is

[fol. 9] wrong, is the rule recognized in this State

for testing criminal accountability." Johnson

v. State, supra.

This is a definite holding that an insane delusion does

not excuse from crime in Tennessee unless accompanied

likewise by perceptional insanity. Irresistible impulse

influenced by an insane delusion is therefore a defense

not known to our law as long as the faculty remains to

distinguish between right and wrong,

The general rule is that if a defendant has capacity and

reason to enable him to distinguish the difference be-

tween right and wrong as to the particular act he is

then doing, he is criminally responsible for such act,

Some of our later cases are McElroy v. State, 146

Tenn., 442; Watson v. State, 133 Tenn., 198, and

Bond v. State, 129 Tenn., 75.

* * mK

(Continued from preceding page)

We would also like at this point to renew the Motion which we made

at the conclusion of the State's testimony for a directed verdict, based

upon the same reasons, as stated in the original motion, based upon in-

sufficient evidence upon which a conviction could be based.

>... a Pie RNa ET RIN TS ee NR aly eo ROMMEL

—

l4a

Appendix C - Opinion

The right and wrong test above mentioned was authori-

tatively laid down in McNaughten's case, 1C. & K.,

130, 8 Eng. Reprint, 718,

See also, Temples v. State, 183 Tenn. 531 (1946) and

Gibbs v. State, 192 Tenn. 529 (1951).

Applying this rule, Tennessee courts have held that

once the defense has made out a prima facie case of in-

sanity in the terms of the M'Naughton Rule the State must

in order to overcome the defense offer evidence in rebuttal

which demonstrates beyond a reasonable doubt the sanity

of the defendant. Dove v. State, 50 Tenn. 348, 3 Heisk

348 (1872); Stuart v. State, 60 Tenn. 178, 1 Baxt. 178

(1873); and King v. State, 20S.W. 169, 91 Tenn. 617

(1892). See also, Jordan v. State, 135 S.W. 327, 124

Tenn, 81 (1910) and U.S. v. Homme, 304 F. Supp. 727

(1969),

In Garner v. Louisiana, 368 U.S. 157 (1961) the Supreme

Court reversed criminal convictions for disturbing the peace

when it found that

. - . the convictions in these cases are so totally devoid

of evidentiary support as to render them un-

[fol. 10] constitutional under the Due Process Clause

of the Fourteenth Amendment. 368 U.S, at

163.

See also, Thompson v. City of Louisville, 362 U.S. 199,

(1960). It is our view after a careful review of the record

that no evidence was introduced tending to cast substantial

doubt on the prima facie case that the appellant was insane

at the time of the slaying. More certainly, there was no

evidence introduced demonstrating the defendant's sanity

beyond a reasonable doubt. We choose not to rely on this

ground, however, since we hold that the admission of the

_

15a

Appendix C - Opinion

three challenged reports constituted a violation of appel -

lant's Sixth Amendment right to confrontation and cross -

examination,

In Pointer v. Texas, 380 U.S. 400 (1964), the Supreme

Court held that "the Sixth Amendment right of an accused

to confront the witnesses against him is . . . a fundamental

right and is made obligatory on the State by the Fourteenth

Amendment,"" Emphasizing the importance of cross-

examination in the fair adjudication of criminal matters

the Court stated:

It cannot seriously be doubted at this late date that the

right of cross-examination is included in the right of

an accused in a criminal case to confront the witness

against him. And probably no one, certainly no one

experienced in the trial of lawsuits, would deny the

value of cross-examination in exposing falsehood and

bringing out the truth in the trial of a criminal case,

380 U.S. at 404,

The Court has made clear the importance of this right in

our scheme of criminal justice on a number of occasions,

For example, in Green v. McElroy, 360 U.S. 474 (1964),

the Supreme Court said of rights of confrontation and cross-

examination:

They have ancient roots, They find expression in the

Sixth Amendment which provides that in all criminal

cases the accused shall enjoy the right ‘to be confronted

with the witnesses against him.’ This Court has been

zealous to protect thesé rights from‘erosion. 360

U.S. at 496-497,

(fol. 11] And Again in Pointer, it was said:

: me .

Appendix C - Opinion

There are few subjects, perhaps, upon which this Court

and other courts have been more nearly unanimous than

in their expressions of belief that the right of confronta -

tion and cross-examination is an essential and funda-

mental requirement for the kind of fair trial which is

this country's constitutional goal. Indeed, we have

expressly declared that to deprive an accused of the

right to cross-examine the witnesses against him is a

denial of the Fourteenth Amendment's guarantee of due

process of law. 3800U.S. at 405.

Especially pertinent is Smith v. Illinois, 340 U.S. 129

(1967), where the accused's Sixth Amendment rights were

held to have been abridged when the trial court sustained

the prosecutor's objections to disclosure on cross-exami-

nation of the correct name and address of the key witness

for the prosecution, The Court stated:

In the present case there was not, to be sure, a com-

plete denial of all right of cross-examination. But the

petitioner was denied the right to ask the principal

prosecution witness either his name or where he lived,

although the witness admitted that the name he had first

given was false, Yet when the credibility of a witness

is in issue, the very starting point in "exposing false-

hood and bringing out the truth" through cross-exami-

nation must necessarily be to ask the witness who he

is and where he lives. The witness' name and address

open countless avenues of in-court examination and out-

of-court investigation. To forbid this most rudimentary

inquiry at the threshold is effectively to emasculate the

right of cross-examination itself, 390 U.S, at 131

(footnote omitted),

The appellee asserts that the challenged evidence was

properly admitted under the statutory exception to the

_ ——

17a

Appendix C - Opinion

hearsay rule embodied in section 24-714 of the Tennessee

Code:

[fol. 12] Records as evidence. —A record of an act,

condition, or event, shall, insofar as rele-

vant, be competent evidence if the custodian or other

qualified witness, testifies to its identity and the mode

of its preparation, and if it was made in the regular

course of business, at or near the time of the act,

condition or event, and if, in the opinion of the court,

the sources of information, method and time of prepa -

ration were such as to justify its admission, [Acts

1957, ch. 154, § 2, ]

The admissibility of the challenged records under the stat -

ute was not adjudicated as the state courts focused upon

the agreement of defense counsel to the filing of a copy of

the entire hospital record in evidence and not upon the

substantive requirements of the statute, It is likely that

Tennessee courts would find that hospital records fall

within the general application of the statute, The great

weight of judicial and scholarly authority supports such a

holding.’ Nevertheless, that proffered evidence is a

business or hospital record does not alone dispose of the

question of admissibility in a specific case,

In Neas v. Snapp, 221 Tenn. 325 (1968) the Tennessee

Supreme Court held that evidence was improperly admitted

under the above provision where a proper foundation was

not laid for the introduction of an autopsy report into evi-

dence. In so holding the Tennessee Court stated:

. The admission of hospital records is discussed in some detail in McCor-

mick, Charles T., Law of Evidence § 290, pp. 609-613. Also instructive

is a comprehensive annotation found in 9 A,L.R, Fed. 457,

—

18a

Appendix C - Opinion

Obviously, Mrs. Snapp was not the custodian of the

report; nor could she qualify as an "other qualified

witness" under the terms and provisions of the statute,

Moreover, there is no evidence from which the trial

judge could determine whether, "the sources of informa-

tion, method and time of preparation" justified the ad-

mission of the report.

Accordingly, a proper foundation for the introduction

of the autopsy report does not appear in the record.

[fol. 13] Every report or other writing is not ad-

missible simply because it was made or

rendered in the conduct of some business or profession,

A compliance with all the qualifications of the statute

is a prerequisite to admissibility, 221 Tenn, at 330,

It is in the requirements for laying of a foundation that the

principles underpinning the exception will find expression.

. The principles underlying what Professor Wigmore would term legitimate

exceptions to the hearsay rule are discussed extensively in 5 Wigmore on

Evidence, Sections 1421, 2, and 3, pp. 202-4. Professor Wigmore stated,

discussing the two principles which he found to underpin legitimate excep-

tions to the hearsay rule— circumstantial probability of trustworthiness and

a necessity:

Principle of the Exceptions to the Hearsay Rule. The purpose and

reason of the Hearsay rule is the key to the Exceptions to it.

The theory of the Hearsay rule (ante § 1362) is that the many possible

sources of inaccuracy and untrustworthiness which may lie underneath

the bare untested assertion of a witness can best be brought to light and

exposed, if they exist, by the test of cross-examination. But this test

or security may in a given instance be superfluous; it may be sufficiently

clear, in that instance, that the statement offered is free enough from

the risk of inaccuracy and untrustworthiness, so that the test of cross-

examination would be a work of supererogation. Moreover, the test

may be impossible of employment— for example, by reason of the

death of the declarant—so that, if his testimony is to be used at all,

there is a necessity for taking it in the untested shape.

* * *

(Continued on following page)

19a

Appendix C - Opinion

Thus, in the instant criminal case, where the appellant

was sentenced to fifty years, the hearsay evidence which

may have been outcome-determinative was admitted with

no judicial scrutiny of necessity or special reliability

(under either state evidentiary or federal constitutional

standards),

The relationship between the Sixth Amendment right to

confrontation and cross-examination and the hearsay rule

and its exceptions has not been fully explored. Some

time ago Professor Wigmore asserted an identity

[fol, 14] between the two, stating, seemingly without

qualification:

The rule sanctioned by the constitution is the Hearsay

rule as to cross-examination, with all the exceptions

that may be legitimately found, developed, or created

therein. 5 Wigmore on Evidence, section 1397, p.

131,

In two recent cases, Dutton v. Evans, 400 U.S. 74 (1970)

and California v. Green, 399 U.S. 149 (1969), the Supreme

Court, while refusing to set forth a theory "that would de-

termine the validity of all such hearsay ‘exceptions’ "

(399 U.S, at 162), provided guidance regarding proper ap-

plication of the Confrontation Clause. In both cases the

Court expressly rejected the notion of congruency. In

Dutton v. Evans, supra, Mr. Justice Stewart stated:

(Continued from preceding page)

A perception of these two principles and their combined value has

been responsible for most of the Hearsay exceptions. Each exception,

to be sure, has come into existence and been maintained independently

and amid considerations peculiar to itself alone. There has been no

comprehensive carrying-out of a system of principles. Yet the results

may be coordinated under those two heads. There has rarely been any

judicial summing-up of the principles; yet their existence has been fully

perceived and often judicially stated.

ERE ION ASML TE Maa gtr

20a

Appendix C - Opinion

It seems apparent that the Sixth Amendment's Confronta -

tion Clause and the evidentiary hearsay rule stem from

the same roots. But this Court has never equated the

two, and we decline to do so now, 400 U.S. at 86,

And in California v. Green, supra, Mr. Justice White

stated:

While it may readily be conceded that hearsay rules

and the Confrontation Clause are generally designed to

protect similar values, it is quite a different thing to

Suggest that the overlap is complete and that the Con-

frontation Clause is nothing more or less than a codifi-

cation of the rules of hearsay and their exceptions as

they existed historically at common law. Our decisions

have never established such a congcuence; indeed, we

have more than once found a violation of confrontation

values even though the statements in issue were ad-

mitted under an arguably recognized hearsay exception,

See Barber v. Page, 390 U.S. 719 (1968); Pointer v.

Texas, 380 U.S. 400 (1965). The converse is equally

true: merely because evidence is admitted in violation

of a long-established hearsay rule does not lead to the

automatic conclusion that confrontation rights have been

denied. 399 U.S. 155, 6.

{fol. 15] Thus, it is abundantly clear that proper ad-

mission of evidence under an exception to the

hearsay rule does not relieve a federal court considering

a state criminal conviction from the responsibility for re-

viewing all the facts of the case in light of governing federal

constitutional principles. Furthermore, fundamental con-

stitutional rights may find protection both in procedural

safeguards and in substantive rules. Standards of due

process are not necessarily embodied in state evidentiary

rules, For example, as we shall see below, while the

21a

Appendix C - Opinion

colloquy which took place when the medical records were

filed as Exhibit 3 might arguably have constituted a waiver

of a hearsay objection under Tennessee law, it in no way

constitutes a valid waiver of a “fundamental right” guar-

anteed in both state and federal criminal prosecutions.

Thus, that the reports may have been validly admitted

under Tennessee rules of evidence does not dispose of the

question whether their admission constituted a violation

of the appellant's Sixth Amendment rights.

It is well to review briefly the rulings in Dutton v.

Evans, supra, and California v. Green, supra, as they

make plain the view of a majority of the Court concerning

the proper role and application of the right to confrontation

and cross-examination, In the Evans case, the Court re-

versed the Fifth Circuit's holding that a Georgia statutory

co-conspiracy exception to the hearsay rule violated the

Sixth Amendment, The challenged evidence involved the

testimony of a witness Shaw who stated that an alleged co-

conspirator Williams had said to him upon Williams’ re-

turn to the penitentiary:

If it hadn't been for that dirty son-of-a-bitch Alex Evans,

we wouldn't be in this now. 400 U.S, at 77.

Holding that no abridgment of the Sixth Amendment guar -

antee had occurred, the Court pointed to what it termed

“indicia of reliability,” stating:

The confrontation issue arises because the jury was

being invited to infer that Williams had im-

[fol. 16] plicitly identified Evans as the perpetrator

of the murder when he blamed Evans for his

predicament, But we conclude that there was no denial

of the right of confrontation as to this question of iden-

tity. First, the statement contained no express asser-

22a

Appendix C - Opinion

tion about past fact, and consequently it carried on its

face a warning to the jury against giving the statement

undue weight. Second, Williams’ personal knowledge

of the identity and role of the other participants in the

triple murder is abundantly established by Truett's

testimony and by Williams’ prior conviction, It is in-

conceivable that cross-examination could have shown

that Williams was not in a position to know whether or

not Evans was involved in the murder. Third, the

possibility that Williams’ statement was founded on

faulty recollection is remote in the extreme. Fourth,

the circumstances under which Williams made the

statement were such as to give reason to suppose that

Williams did not misrepresent Evaus' involvement in

the crime. These circumstances go beyond a showing

that Williams had no apparent reason to lie to Shaw.

His statement was spontaneous, and it was against his

penal interest to make it. These are indicia of relia-

bility which have been widely viewed as determinative

of whether a statement may be placed before the jury

though there is no confrontation of the declarant.

The decisions of this Court make it clear that the

mission of the Confrontation Clause is to advance a

practical concern for the accuracy of the truth-

determining process in criminal trials by assuring

that “the trier of fact [has] a satisfactory basis for

evaluating the truth of the prior statement." California

v. Green, 399 U.S., at 161. Evans exercised, and

exercised effectively, his right to confrontation on the

factual question whether Shaw had actually heard Wil-

liams make the statement Shaw related. And the pos-

sibility that cross-examination of Williams could con-

ceivably have shown the jury that the statement, though

—

23a

Appendix C - Opinion

made, might have been unreliable was wholly unreal.

400 U.S, at 88, 89 (emphasis added).

[fol. 17] In California v. Green, supra, the Supreme

Court reversed the California Supreme Court's

holding that “prior statements of a witness that were not

subject to cross-examination when originally made, could

not be introduced . . . to prove the charges against a de-

fendant without violating the defendant's right of confronta -

tion guaranteed by the Sixth Amendment." The Court relied

primarily on the availability of the declarant for cross-

examination at the trial itself. Disclaiming any intention

of elaborating a theory of the Confrontation Clause, Mr.

Justice White stated:

We have no occasion in the present case to map out

a theory of the Confrontation Clause that would deter-

mine the validity of all such hearsay "exceptions" per -

mitting the introduction of an absent declarant's state-

ments, For where the declarant is not absent, but is

present to testify and to submit to cross-examination,

our cases, if anything, support the conclusion that the

admission of his out-of-court statements does not create

a confrontation problem, 399 U.S. at 162,

Significantly, the Court characterized, by way of contrast

with the facts before it, the type of case in which the right

to confrontation is most likely to be found to have been

abridged:

Finally, we note that none of our decisions interpret-

ing the Confrontation Clause requires excluding the out -

of-court statements of a witness who is available and

testifying at trial. The concern of most of our cases

has been focused on precisely the opposite situation —

situations where statements have been admitted in the

24a

Appendix C - Opinion

absence of the declarant and without any chance to

cross-examine him at trial. These situations have

arisen through application of a number of traditional

"exceptions" to the hearsay rule, which permit the

introduction of evidence despite the absence of the de-

clarant usually on the theory that the evidence possesses

other indicia of "reliability'’ and is incapable of being

admitted, despite good-faith efforts of the State, in any

way that will secure confrontation with the

[fol. 18] declarant. Such exceptions, dispensing

altogether with the literal right to “confron-

tation'’ and cross-examination, have been subjected

on several occasions to careful scrutiny by this Court.

399 U.S. 161, 2.

Similarly, it is well to recall the statement of the Supreme

Court made nearly three-quarters of a century before when

the Court articulated the nature of its concern in such

matters. The Court stated:

The primary object of the constitutional provision

in question was to prevent depositions or ex parte affi-

davits, such as were sometimes admitted in civil cases,

being used against the prisoner in lieu of a personal

examination and cross-examination of the witness in

which the accused has an opportunity, not only of test-

ing the recollection and sifting the conscience of the

witness, but of compelling him to stand face to face

with the jury in order that they may look at him, and

judge by his demeanor upon the stand and the manner

in which he gives his testimony whether he is worthy

of belief. Mattox v. United States, 156 U.S. 237,

242-243 (1895).

In the instant case, as pointed out, the challenged re-

ports appear to have been outcome-determinative. At

25a

Appendix C - Opinion

no point did the appellant have the opportunity to confront

their author, We consider this to be precisely the sort

of case which deserved the "careful scrutiny"’ spoken of

in Green. It is plain that we have before us a classic

illustration of the efficacy of the Sixth Amendment guaran -

tee of the right to confrontation and cross -examination,

It should be pointed out that the record contains no sug-

gestion as to why the state chose to rely on hearsay evi-

dence as rebuttal, instead of calling the authors of the

reports to testify. The Supreme Court has made plain

that death or other unavailability of important witnesses

may justify exception to the right to cross-examination in

certain circumstances, And, indeed, there may be other

reasons why it might be desirable to deny a de-

[fol. 19] fendant the right to cross-examination. Absent

a suggestion to the contrary, we may surmise

that the chief value of the introduction of the reports_in

this case lay squarely in the fact that cross -examination

was made impossible,

Neither the identity nor the qualifications of the authors

of the reports was available to the jury. The importance

of such factors is illustrated by the holding in Smith v.

Illinois, supra, where denial of cross -examination as to

the real name and address of the key prosecution witness

constituted a Sixth Amendment violation.

Further, the most damaging portions of the reports

consist of opinions and conclusions which are stated with-

out a detailed explication of either the facts or reasoning

processes on which they are based. The danger which

inheres in the introduction of records containing psychiatric

diagnoses has been pointed out in at least two rulings which

dealt not with the right to confrontation, but with the ad-

missibility of such evidence under business records acts

a

Appendix C - Opinion

somewhat like the Tennessee statute. In New York Life

Ins. Co. v. Taylor, 147 F,2d 297, 304, 305 (D.C. Cir.,

1945) the court stated:

It is no reflection upon the profession of psychiatry

to say that it necessarily deals in a field of conjecture.

Even in the diagnosis of actual insanity, cases are rare

in which trained psychiatric witnesses do not come to

opposite conclusions. The opinions here relate to

neurosis, a condition short of insanity, on which there

are countless theories and infinite diagnostic possibili-

ties. It is difficult to conceive of records in which the

right of cross-examination is more important than the

conjectures of a psychiatrist on a psychoneurotic con-

dition.

The drastic impairment of the right of cross -exami-

nation resulting from the admission of this type of un-

sworn observation and opinion evidence will be recog-

nized by anyone familiar with the psychology of a jury

trial, The unsworn psychiatric diagnosis would be

introduced, with appropriate fanfare as to the distin-

guished character of the alienist who made it, but who

is not called as a witness. The opposing

[fot.-20] party might have plenty of data to shake this

testimony on cross-examination, yet he

would have to remain silent while a strong prima facie

case is made against him. The risk of perjury would

be neatly avoided because the real witness is not sworn,

It is true that after the party who introduced such

opinions has closed his case the opposing party would

have a chance to rebut them. But the disadvantageous

position in which the denial of his right of cross-exami-

nation would place him is obvious to any trial lawyer.

A period of time has gone by; an impression on the

_

27a

Appendix C - Opinion

jury has been made, The expensive and sometimes

impossible burden of hunting out and producing the

psychiatrist who gave the opinion is unjustly shifted

to the party against whom the opinion is used. And

after he catches and produces the Psychiatrist he must

offer him as his own witness —a disadvantage only

slightly limited by the fact that the trial court may in

its discretion allow him to impeach his own witness.

Only a lawyer without trial experience would suggest

that the limited right to impeach one's own witness is

the equivalent of that right to immediate cross-exami-

nation which has always been regarded as the greatest

safeguard of American trial procedure, 147 F.2d at

304 and 305. See also, Lyles v. United States, 254

F.2d 725 (D.C, Cir. 1957),

That the reports were made approximately one year

prior to the alleged offense further underscores the po-

tential prejudice which inhered in their evidentiary use

without cross-examination. While historical information

is not irrelevant to a determination as to the mental state

of an accused at the time of an alleged offense, there is

the danger that not seen in the proper perspective, a jury

will distort its worth. In the instant case, for example,

the jury obviously relied on the conclusions of the chal-

lenged reports rather than those of Dr. Cortinas in reach-

ing its verdict. These were conclusions which the authors

of the report might well have rejected or modi-

[fol. 21] fied in light of the facts which Dr. Cortinas

ascertained immediately after the crime.

Thus, in the instant case, where no showing was made

of special need to dispense with the appellant's right of

confrontation, we find not the "indicia of reliability" dis-

covered in Evans, but rather factors which indicate a

te

28a

Appendix C - Opinion

distortion of the "truth-determining process." In Evans

v. Dutton, supra, the Supreme Court made clear that the

mission of the Confrontation Clause is the protection of

the integrity of this process. We hold, therefore, that

the introduction into evidence of the reports in question

constituted a denial of the appellant Phillips’ right to con-

frontation and cross-examination guaranteed by the Sixth

Amendment,

We turn now to the question of waiver. While not

speaking specifically in terms of waiver of constitutional

rights, the appellee, the court below, and the state courts

make the agreement of trial counsel to the filing of the

medical records as Exhibit 3 the focus of their analysis

of this case, We find that trial counsel's acquiescence

did not constitute a valid waiver of the appellant's funda -

mental constitutional right to confrontation with regard

to the crucial evidence here in question.

In Brookhart v. Janis, 384 U.S. 1 (1965), a case which

also involved the Sixth Amendment right to confrontation,

the Supreme Court made clear the nature of the standard

and the process of review appropriate in examination of

asserted waiver of such constitutional rights. The Court

stated:

The question of a waiver of a federally guaranteed

constitutional right is, of course, a federal question

controlled by federal law. There is a presumption

against the waiver of constitutional rights, see, e.g.,

Glasser v. United States, 315 U.S. 60, 70-71, and for

a waiver to be effective it must be clearly established

that there was "an intentional relinquishment or aban-

donment of a known right or privilege."" Johnson v.

Zerbst, 304 U.S. 458, 464.

29a

Appendix C - Opinion

In deciding the federal question of waiver

[fol, 22] raised here we must, of course, look to the

facts which allegedly support the waiver,

384 U.S, at 4,

Emphasizing the importance of the question involved, the

Court said:

In this Court respondent admits that:

"[I]}f there was here a denial of cross -examination

without waiver, it would be constitutional error of

the first magnitude and no amount of showing of

want of prejudice would cure it."

This concession is properly made. 384 U.S, at 3,

Johnson v. Zerbst, 304 U.S. 458 (1938) and subsequent

cases relying on it [see e.g. Glasser v. United States,

315 U.S. 60, 70-71 (1941); Brookhart v. Janis, supra,

and Boykin v. Alabama, 395 U.S. 238 (1969)]; have made

plain the duty of a trial court to ascertain beyond doubt

that waiver of a fundamental constitutional right is "in-

tentional"’ and "intelligent." For waiver to be valid, it

must be plain from the record that the accused under-

stands the nature of the right waived and knowingly assents

to its waiver,

The appellant Phillips did not so waive his Sixth Amend-

ment right to confrontation, The challenged evidence was

filed in evidence as part of an extensive medical record,

The colloquy which took place at that point in the proceed-

ings reveals no hint that appellant's counsel, much less

the appellant himself, had any intention of waiving the

tight to cross-examination as to any evidence containing

opinions and conclusions regarding the pivotal question of

utah mt —

30a

Appendix C - Opinion

his mental condition.” Furthermore, the strenuous and

repeated objections of trial counsel upon his realization

of what portions of the medical record the prosecution in-

tended to read indicate that he had not "intelli-

(fol. 23] gently" intended to waive the right of cross-

examination or other legitimate objections to

such evidence,!°

Even assuming that the medical record was allowed

merely to be filed by defense counsel through some trial

strategem which went awry, we could hardly hold that

such constituted a valid waiver of appellant's Sixth Amend-

ment right of confrontation,

Accordingly, the decision of the district court is re-

versed and remanded with direction for entry of judgment

granting the writ discharging the appellant from custody

unless he is retried within a reasonable time.

See footnote 1.

10 See footnotes 5 and 6.

3la

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

(fol. 1] The original hereof was filed or

entered and docketed SEP, 9, 1970.

CLARENCE PHILLIPS

v. , Civil Action No. 7024

WILLIAM §S, NEIL,

Warden J

Clarence Phillips is serving a sentence of fifty years

and one day pursuant to a conviction for first degree mur-

der and a judgment in the Criminal Court of Campbell

County, Tennessee, Petitioner has exhausted available

state remedies and seeks a writ of habeas corpus from

this Court,

A jury found petitioner guilty of murdering Arthur

Queener, an elderly resident of Campbell County who

lived alone, The evidence showed that Queener was

beaten severely, that his home and outbuildings were set

on fire, and that he died after being taken to LaFollette

Community Hospital. Other evidence showed Phillips

was in the vicinity when the crime occurred,

[fol. 2] that the homicide occurred during a robbery,

that there were bloodstains on petitioner's

clothes that matched the victim's, and that petitioner

made various admissions that linked him with the crime.

Phillips, represented by appointed counsel, attempted to

show that he was insane at the time of the acts,

a

32a

Appendix D - Order

On October 29, 1968, when Queener was beaten, Phillips

was apparently on unauthorized leave from Eastern State

Hospital, an institution that had been treating him periodi-

cally for mental disorders since 1965, Dr. Cortinas, a

psychiatrist at Eastern State, treated petitioner upon his

voluntary return about October 30, 1968. During the

course of that treatment petitioner made admissions con-

cerning his part in the homicide. He contends that these

admissions were received in evidence in violation of the

rules announced in Miranda v. Arizona, 384 U.S. 436

(1966) and that the communications were also privileged.

The Court holds that any question of privilege relates to

Tennessee law, Tenn. Code Annot. 24-112, Communica-

tions between psychiatrist and patient, and the adverse

decision of the Tennessee courts forecloses consideration

of the issue. See also Advisory Committee's Notes to

Proposed Rules of Evidence 5-04, Psychotherapist -Patient

Privilege. 46 F.R.D. 161 (1969). The Court is of the

opinion that no violation of the Miranda rules occurred.

Doctor Cortinas had ordered that petitioner's complete

file at the Hospital be organized to assist him in his mental

evaluation. He testified that he had studied all

[fol. 3] the file while evaluating petitioner. Petitioner

contends that the use of these records denied

him the right to confront adverse witnesses, doctors who

had made past reports but were not present to testify at

trial, Petitioner's attorney did not object to the admis-

sion of these records. He even advised the Court that

the records dated back to February, 1965. in rebuttal,

the Attorney General read from portions of these records

at which time petitioner's counsel objected to the use of

other portions of the record. (There was a statement

that petitioner had been admitted to the hospital for an

evaluation after a burglary.) We are of the opinion that

the trial court decided this issue properly.

33a

Appendix D - Order

Hospital officials delivered petitioner into the custody

of the Campbell County Sheriff in Knoxville. The Sheriff

testified that Phillips made certain admissions during the

trip from the Hospital to the jail. This testimony was

initially received without objection, Upon counsel's sub-

sequent motion to strike, the jury was excused, and the

Court heard testimony on the admissibility of the evidence,

The trial court ruled the statements inadmissible, struck

the testimony, and instructed the jury to disregard the

statements before the Sheriff resumed his testimony at a

later point in the trial. Failure to make timely objection

resulted in the initial admission of this evidence, Peti-

tioner cannot now complain of any prejudice that may have

resulted from this failure, Also, in view of

[fol. 4] the fact that petitioner's defense rested upon

his sanity, any error is at most harmless,

Petitioner also complains of the introduction into evi-

dence of Exhibit 13, a newspaper article purportedly con-

taining statements by the Sheriff about petitioner's admis-

sions, The trial judge instructed the jury that they were

not to consider the truth of any statement contained in the

article, They could only consider the fact that Phillips

personally possessed the clipping. In view of the insanity

defense, any error, and the Court finds none, was harmless.

It is, therefore, ORDERED that the petition for habeas

corpus be, and same hereby is, denied,

Enter:

ROBT, L. TAYLOR

United States District Judge

34a

APPENDIX E

IN THE

COURT OF CRIMINAL APPEALS OF TENNESSEE

KNOXVILLE

DECEMBER 1969

APPEAL IN ERROR FROM THE CRIMINAL COURT OF

CAMPBELL COUNTY

HONORABLE D, L, HUTSON, JUDGE

FILED

Feb. 19, 1970

, 9:30 o'clock A, M,

CLARENCE PHILLIPS, John A. Parker, Clerk

Plaintiff in Error

°. } NO. 8

STATE OF TENNESSEE,

Defendant in Error ‘

For the Plaintiff in Error: For the Defendant in Error:

Harry B, Brown David M. Pack

Jellico, Tennessee Attorney General

Nashville, Tennessee

Thomas E. Fox

Deputy Attorney General

Nashville, Tennessee

Arzo Carson

District Attorney General

Huntsville, Tennessee

JUDGMENT AFFIRMED

OPINION BY JUDGE ORIS D, HYDER

FILED:

35a

Appendix E - Opinion

[fol, 1] OPINION

This is an appeal in the nature of a writ of error of a

conviction of murder in the first degree with sentence

fixed at fifty years and one day in the penitentiary, The

defendant is indigent and represented by appointed counsel.

Clarence Phillips, the plaintiff in error and the defend-

ant below, was indicted by the Grand Jury of Campbell

County for the murder of Arthur Queener, an elderly man

who lived alone in a rural section of the county, On

October 28, 1968, at approximately six o'clock in the

evening, neighbors discovered that Mr. Queener's home

was on fire, and by the time they could get there it was

destroyed, They found a smoke house also burning, and

Mr. Queener was crawling around on the ground trying

to get into the burning shed. He was severely beaten and

cut around the head and chest and was taken to the hospital

inan ambulance, His attending physician testified con-

cerning his condition and death two days later. He said

that he died from a hemorrhage around the brain, or a

concussive type injury due to the fracture of his skull.

An autopsy was performed. He stated that Mr. Queener

was unconscious and in shock when he first saw him.

The defendant, who was eighteen years of age at the

time of this homicide, was first committed to Eastern

State Hospital for mental illness in 1965, Between 1965

and 1968 he was in and out of that hospital several times.

On some occasions he would be released and on others

he would "elope" or escape without permission, He left

the hospital on September 30, 1968, without permission,

and he returned to the hospital voluntarily on

{fol. 2] October 29, 1968, During the periods when

he was not in the hospital he usually stayed with

his mother and step-father; or he stayed with his grand-

36a

Appendix E - Opinion

father; but none of them knew where he stayed on the night

of October 28, 1968, and they were not aware that he had

returned to the hospital on the next day. On November

22, 1968, the Sheriff of Campbell County removed the de-

fendant from the hospital to the county jail. About a week

after he was placed in the jail he confessed to a jail mate

that he had killed Arthur Queener. Freddy Hicks testi-

fied that he was a trusty in the jail during the last of

November and the first of December, 1968, and that he

had known the defendant previously. A part of his testi-

mony follows:

"Q.

» o

Alright, what did he tell you about Mr. Queener,

just how did it come about?

Well you know we was just a talking, he told me

that he got $200.00 off that man and hid it, then

he said he was just kidding me, said he just got

about $24 or $25.

Did you say anything back to him then?

No, you know we just kept talking.

Alright then what did he say?

Said that he went out there, didn't go out there

to kill the man, said he just went out there to

rob him, and said the man drawed a knife on him

and then he said he started beating him up with a

wrench, I reckon, and said when he started beat-

ing him that he couldn't quit, said he started to

tie him up with a rope and then he broke the lamp

and set the house on fire."

There was an abundance of testimony and evidence

which corroborated the defendant's confession to the in-

mate in the jail, The medical record of the defendant

Na

—— sr rr——t—“OSSS—

37a

Appendix E - Opinion

indicates that he was a dangerous and violent person, He

has stated to several people that he was going to kill some-

body. On the night of the crime, approximately

[fol. 3] one hour previous to its discovery, he caught

a ride with a magistrate to where the country

road leading down to Mr. Queener's house intersects with

the highway. The place where he asked to get out was

nine tenths of a mile from Mr, Queener's home, When

he was admitted to the hospital on October 29th there was

blood on some of his clothing, and this was shown to be

of the same type as that of Mr. Queener. He knew the

victim, and he had been at his house, and he knew that

he lived alone, Also, the defendant confessed to the

crime to Dr. Cortinas, a psychiatrist at Eastern State

Hospital,

The defendant did not testify in his own behalf,

The first three assignments of error are directed to

the evidence, or facts, and they are discussed together

in the defendant's brief. The third assignment contends

that there is no evidence establishing that cool, deliberate

premeditation which is required to constitute murder in

the first degree. Further, it is contended that there is

no evidence from which premeditation can be implied.

It is asserted, on behalf of the defendant, that his

mental condition, his going through depressions and then

into periods of remission, render him incapable of tha:

premeditated killing which must be proven before there

can be a conviction of murder in the first degree,

We feel that this argument overlooks the legal effect

of the verdict of the jury and the law governing appellate

review. Our Supreme Court, in Carroll v. State, 212

Tenn, 464, 370 S.W.2d 523, said:

38a

Appendix E - Opinion

"The jury and the Trial Judge saw the witnesses face

to face, heard them testify, and observed their demeanor

on the stand, and were in much better position than we

are, to determine the weight to be given their

[fol. 4] testimony. The ‘human atmosphere of the

trial and the totality of the evidence’ before

the court below cannot be reproduced in 4n appellate

court, which sees only the written record,"

A verdict of guilty, approved by the trial judge, accred-

its the testimony of the State's witnesses, resolves all

conflicts in the testimony in favor of the State and estab-

lishes the State's theory of the case, Under such a ver-

dict the presumption of innocence disappears, and upon

appeal, that presumption of innocence is replaced by a

presumption of guilt. This Court is not permitted to re-

verse a convictior upon the facts unless the evidence

clearly preponderates against the verdict and in favor of

the innocence of the accused. We may review the evi-

dence only to determine whether it preponderates against

the verdict, and the defendant on appeal has the burden

of showing that the evidence preponderates against the

verdict and in favor of his innocence. McBee v. State,

213 Tenn, 15, 372 S.W.2d 173; Bacon v. State, 215 Tenn.

268, 385 S.W.2d 107; Gulley v. State, 219 Tenn, 114,

407 S.W.2d 186; Brown v. State, Tenn, Crim. App.,

441 S,W.2d 485,

We have reviewed the evidence carefully in our con-

sideration of the sufficiency and weight of the proof to

sustain the verdict of the jury finding the defendant guilty

of murder in the first degree, The indictment charges

that the defendant did "feloniously, willfully, maliciously,

deliberately, and premeditatedly and with malice afore-

thought, with hands, sticks, stones, and clubs strike,

_

39a

Appendix E - Opinion

beat and kill one Arthur Queener and did then and there

commit murder in the first degree,"

In an 1849 decision in a case of murder in the first de-

gree where the defendant, intending to kill one person,

shot and killed another, the Supreme Court of

[fol. 5] this State discusses the conclusive legal pre-

sumption of malice and guilty intention when

the killing occurs while in the perpetration of one of the

felonies named in the statute, There the Court said:

"In cases of murder by means of poison, or lying in

wait, the most atrocious and detestable of all kinds of

homicide, and the least to be guarded against, either

by resistance or forethought, the crime is made to de-

pend exclusively upon the ‘means’ causing death, So,

likewise, in respect to cases of murder committed in

the perpetration of, or attempt to perpetrate arson,

rape, robbery, burglary or larceny; a class of felonies

most dangerous in their consequences to public safety

and happiness, which may be most frequently and easily

committed, and to which there are the strongest tempta -

tions, In all these cases, the mode or 'means' of

destroying life, supplies a conclusive legal presumption

of malice and guilty intention; the crime, as well as

the legal guilt of the agent, is made to depend alone

upon the fact of taking life in either of the specified

modes, In such cases, the question of malice or in-

tention, as a matter of fact, is wholly irrelevant; it

need not be proved, and cannot be controverted by the

accused, But the remaining species of murder defined

in the statute, namely, murder, "by any other kind of

wilful, deliberate, malicious and premeditated killing, '

falls within the operation of a directly contrary princi -

ple." Bratton v. State, 29 Tenn. 103.

cn mg

40a

Appendix E - Opinion

The fact that the State did not charge the defendant with

the commission of a murder while in the perpetration of

a robbery does not preclude the jury from such a finding

and thus establish that the offense was murder in the first

degree. InSullivan v. State, 173 Tenn, 475, 121 S.W.2d

535, the defendant killed the deceased while attempting to

commit murder in the first degree on another person,

The indictment did not charge that the defendant committed

murder in the first degree in the perpetration of, or at-

tempt to perpetrate murder in the first degree, but simply

charged that he did unlawfully, feloniously, willfully,

maliciously, deliberately, premeditatedly and of his malice

aforethought assault one Hattie Sullivan and did

[fol. 6] so commit murder in the first degree, It was

asserted for the defendant that it was error to

allow the conviction to stand since the indictment did not

allege that the killing was committed while the defendant

was attempting to commit murder in the first degree upon

the body of another person than Hattie Sullivan, In re-

jecting this assertion, our Supreme Court said:

“The great weight of authority is to the contrary. In

30C.J., 98, it is said:

"In Perpetration of Another Offense. Where the

homicide is committed in the perpetration of or at-

tempt to perpetrate a felony, it is ordinarily held that

an indictment in the ordinary form for murder or for

murder in the first degree is sufficient without aver-

ment of the connected felony.’

“Mr. Wharton in his work on Homicide, pp. 875, 876,

states the rule and the basis thereof as follows:

"Necessity of charging collateral felony.— At common

law it was not necessary to charge in an indictment for

4la

Appendix E - Opinion

murder that the murder was committed in the perpetra -

tion of another crime, in order to introduce proof show-

ing that a felony was attempted in committing it; it was

sufficient to charge murder in the common form, and

then, upon proof that it was committed in the perpetra -

tion of a felony, malice, deliberation, and premedita-

tion were implied ic

This appears to us to be the position of the majority of the

states, as well as being the law of our State, We find in

40 C.J.S. Homicide § 177:

“In most jurisdictions an indictment in the ordinary

form for murder in the first degree is sufficient to

admit proof that the crime was committed in the per-

petration or attempt to perpetrate a felony, thus bring-

ing the killing within the statutory definition of murder

in the first degree,"

But we are of the opinion that the evidence and the facts

developed in this case will support that the killing was wil-

ful, deliberate, malicious and premeditated. We do not

believe that the State is required to rely on the

[fol. 7] theory that the killing was in the perpetration

ofa robbery. The admission which the defend -

ant made to the inmate in the jail was that he struck the

deceased with a wrench. There is no question from the

testimony of Dr, Seargeant but that many blows were

struck, And then, in an effort to cover up his crime,

the defendant set fire to the Queener house, as he told

the trusty, by throwing the lamp down with his hands and

setting the house afire, Also, the smoke house, about

twenty five feet away, was burned. Then, he returned

to Eastern State Hospital, in an apparent effort to escape

detection of the killing, There is no question but that the

blows struck were wilful and deliberate. The use of the

Appendix E - Opinion

deadly weapon, the wrench, supplies the malice. We are

of the opinion that the circumstantial evidence supports

the necessary premeditation to give credence to the verdict

of the jury. The design or intention to kill may be con-

ceived, and deliberately formed in an instant, Lewis v.

State, 40 Tenn. 127; Galvin v. State, 46 Tenn, 283.

We are of the opinion that the deliberation and premedi-

tation necessary to support a conviction of murder in the

first degree are supplied in the proof and facts developed

in this case; and, further, that the jury had ample evi-

dence to justify their finding that the killing was in the

perpetration of a robbéry, in which case the elements of

deliberation and premeditation are supplied. We over-

rule the first three assignments of error.

It is contended that the mental condition of the defend-

ant rendered him unable to deliberate and premeditate

and incapable of committing the offense.

If a defendant has the capacity and the reason

[fol. 8] to enable him to distinguish between right and

wrong as to the particular act he is then doing,

he is liable for his criminal acts, McElroy v. State,

146 Tenn, 442, 242 S.W. 883; Davis v. State, 161 Tenn.

23, 28S.W.2d 993. This issue is for the jury to deter-

mine, Long v. State, 202 Tenn, 373, 304 S.W.2d 492,

It is true that one doctor testified that he did not think

that the defendant knew right from wrong, but another

doctor testified that in his opinion he did know right from

wrong. We believe that there was sufficient proof to

sustain the determination of the jury on this issue. The

theory of the State, apparently accepted by the jury, is

here, as it was on the trial, that despite the history of

mental illness for a period of years, his insanity was of

—_

43a

Appendix E - Opinion

the recurrent type and at this time and on this occasion

he was not insane in the sense and to the extent recognized

by the rule laid down by our Supreme Court and reaffirmed

in Davis v. State, supra. Drye v. State, 181 Tenn. 637,

184 S.W.2d 10,

It is next asserted for the defense that the trial judge

erred in allowing the District Attorney General, over his

objection to read to the jury the defendant's history of

mental difficulty and prior criminal charges as compiled

by the doctors at Eastern State Hospital,

Exhibit number three, admitted into evidence with the

consent of both the State and the defense, is a document

containing a history of the defendant's mental record at

Eastern State Hospital over the period of February, 1965

until November 22, 1968. This exhibit was introduced

by Dr. Cortinas, a psychiatrist on the staff of the Hos-

pital, The District Attorney General questioned this

witness concerning his examination of the de-

[fol. 9] fendant and the contents of the report. On

cross-examination counsel for the defendant

requested that Dr, Cortinas read his diagnostic impres-

sion from the report. Further, he had this doctor read

the psychological report made by another member of the

staff, saying: "We submit, Your Honor, that is proper;

it is a part of the official record of the institution." He

questioned Dr, Cortinas at great length on the entire

hospital record, going back to the date of his first admis-

sion, February 17, 1965. Dr. Leyla Bozgoz, a medical

doctor at Eastern State Hospital was called as a witness

by the defendant, and on direct examination counsel made

numerous references to entries in the hospital record,

exhibit three,

~ mg

44a

Appendix E - Opinion

When the District Attorney General offered to read

from the hospital report, exhibit three, counsel fur the

defendant objected saying: "its dealing with an altogether

different time, second reason is, we have no opportunity

to cross-examine the man who made the notation."' Objec-

tion was also made because the report mentions that the

defendant was previously admitted to the hospital to de-

termine his competency to stand trial for burglary. The

trial judge overruled the objections of the defense, recog-

nizing that the exhibit had been introduced with the agree-

ment or consent of both the State and the defense, and that

both had quoted at length from it, or had had witnesses

read from it, and he said:

"Let your Motion be overruled. And the record will

show in this case that the psychiatrist who testified

here yesterday, without objection on the part of either

the State or the Defendant, I'm speaking of Dr. Cortinas,

I understood him to repeatedly refer to this record con-

cerning his testimony yesterday. And I understood

Dr. Cortinas to say that he had reviewed the entire

record of this Defendant before giving his testimony

here yesterday, I understood him to say that when

he first met this Defendant that his prior

[fol. 10] record was not available at that time, but

that he ordered it in the course of business

there in the hospital, it apparently took some time to

supply these records to the different doctors, but that

as soon as it was available, he did review the Defend-

ant's entire prior record there, hospital record, and

based his testimony here on that, among other things,

that that was a part of what he took into consideration

in reaching the opinion that he had, That he also

interviewed the Defendant, and that he was giving his

opinion as well as basing it in part on a review of this

P

45a

Appendix E - Opinion

record. Ialso understood the witness, Dr. Bozgoz to

say that she had reviewed this record and had taken it

into consideration in giving her opinion, I think it

would only be fair to allow The State or the Defendant

either for that matter, to read any portion of this ex-

hibit which would in any way tend to corroborate or

would tend to disagree with the testimony given by

these witnesses, I know that they referred to Dr,

Websters, Dr. Cortinas said he ordered a psycho-

logical examination of this Defendant, which was made

by Dr. Webster, and he considered it in his evaluation

of this Defendant. And I assume he is the same Doc-

tor Webster who made the psychological report in

October or November, 1967. Solam going to over-

rule your motion, and the same rule on your objection,

that is it is overruled, as to the introduction of this

testimony,"

We think that it was proper for the jury to see the

references made to this document in their proper per-

spective; and it was necessary for the jury to see the

entire document because it recited circumstances from

which the psychiatrists predicated their opinion of the

defendant's mental condition, We think that it is settled

law in this State that while Physicians may state their

opinions of the mental condition of a person, yet they

must give the symptoms or circumstances from which

they draw their conclusions. Puryear v. Reece, 46

Tenn, 21,

Under the circumstances here we do not believe that

the defendant can now complain of the intro-

[fol. 11] duction of this part of the exhibit after having

himself introduced such a large portion of the

hospital report.

—

46a

Appendix E - Opinion

"An objection.to the admission of evidence is waived

where the same or similar evidence has been elicited

or introduced by the objector, or where the evidence

relates to a fact to which he himself testified."" 88

C.J.S. Trial Sec. 116.

In this case the entire document which was introduced

by consent was relative to the defendant's mental condi-

tion and behavior over a period of almost four years.

Expert witnesses, such as physicians, are permitted to

recite the history of the patient's illness in support of

their evaluation of the patient's condition. This was

done here, and we do not find that it prejudiced the de-

fendant. We do not find validity in this assignment of

error,

After the defendant surrendered himself voluntarily to

Eastern State Hospital following this crime, one of the

psychiatrists there, Dr. Cortinas, heard that he had as-

saulted an old man. Upon questioning the patient, the

defendant, Dr. Cortinas testified that he admitted the

crime. Dr. Cortinas said that he asked the defendant

why he committed the crime and he told him that he did

not know; that the deceased was arguing with him. The

testimony of Dr, Cortinas was objected to on the ground

that the defendant was not advised of his rights before

making the admission; and it was contended that Dr.

Cortinas wa* an agent of the State, and that the defend-

ant was in custody. The trial judge allowed the testi-

mony and this is assigned as error,

Dr. Cortinas testified that he talked to the defendant

about the assault upon Mr. Queener only as a necessary

part of his examination to determine his mental

[fol. 12] condition and not with any intent or thought that

his statements might be used against him. In

.

any event his testimony is cumulative insofar as the con-

fession is concerned.

47a

Appendix E - Opinion

Section 24-112 of the Tennessee Code Annotated pro-

vides that communications between a patient and psychia -

trist shall be privileged except in civil and criminal cases

where the mental condition’ of the patient is an issue or

where it is determined by the court that the interests of

justice require that the privilege be withheld.

In the instant case the defendant was not charged with

any offense at the time he confessed to Dr. Cortinas. He

had entered the hospital voluntarily. He was not admitted

for the purpose of determining his mental capacity to stand

trial fora crime, We are of the opinion that the interests

of justice require that the privilege be withheld.

We do not believe that the admission of Dr. Cortinas'

testimony violates the ruling in Miranda v. Arizona, 384

U.S. 436, 86S. Ct. 1602, 16 L. Ed. 2d 882. No preju-

dicial error was committed in this regard.

At the time that the defendant returned voluntarily to

Eastern State Hospital, on October 29, 1968, he changed

clothes and put his clothes in his locker. An orderly at

the hospital took charge of the defendant's clothes as well

as his billfold. In the billfold there was a newspaper

clipping, which was introduced into evidence without any

objection being made to it. The clipping was a news item

entitled: "MAN BEATEN, LEFT IN BURNING HOUSE."

Then, when Sheriff Rose Kitts testified about transport -

ing the defendant from the hospital to the jail he stated

that the defendant admitted that he had assaulted

(fol. 13] Mr. Queener with a monkey wrench and set the

house on fire. Afterwards counsel for the de-

fendant posed an objection to the introduction of the news-

48a

Appendix E - Opinion

paper clipping and an objection to the testimony of Sheriff

Kitts concerning their admission. The trial judge sus-

tained both objections, after hearing proof out of the pres-

ence of the jury, and he instructed the jury that the evi-

dence was stricken from the record and they could not

consider it, We do not believe that the trial judge was

in error, especially since no objection was made when

the evidence was presented. Just as soon as an objection

was made he acted properly, held a hearing in the absence

of the jury, and then sustained the objection.

An assignment of error based on the admission of evi-

dence will not be considered unless timely objection and

exception was made in the trial court, and the trial court

given an opportunity to make correction. Anderson v.

State, 207 Tenn, 486, 341 S.W.2d 385; Nichols v. Siate,

200 Tenn, 65, 289 S.W.2d 849,

Our Supreme Court, in Marable v. State, 203 Tenn.

440, 313 S.W.2d 451, said:

“This Court long ago in a case cited both by the plain-

tiff Mm error and the State, of Stokes v. State, 64 Tenn,

619, held that we, the Supreme Court, would not re-

verse because of admission of incompetent evidence

which was afterwards withdrawn, unless we are satis-

fied that the jury was in fact influenced by this incom-

petent evidence. We are not so impressed under this

record,”

We find that the withdrawal of the evidence from the

jury, when it was first objected to by the defense, removed

the matter from the category of prejudicial error,

[fol. 14] if indeed it was error, The evidence was cumu-

lative. We overrule the assignment of error.

49a

Appendix E - Opinion

In our study and review of this record we find no error

Which would require that the judgment of the trial court

be reversed, We are of the opinion that the judgment

should be sustained,

We express our appreciation to counsel appointed in

this case for effectively representing the defendant.

The judgment is affirmed.

/s/ Oris D. Hyder

Oris D. Hyder, Judge

Concur:

/s/ Robert K. Dwyer

Robert K. Dwyer, Judge

/s/ Mark A, Walker

Mark A. Walker, Presiding Judge

APPENDIX F

SUPREME COURT OF TENNESSEE, AT KNOXVILLE

SEPTEMBER TERM 1969

[fol. 1]

> . Filed Apr. 20, 1970

John A. Parker, Clerk

Clarence Phillips

Vs. 4

Campbell County Criminal

WRIT DENIED

State of Tennessee :

This case coming on to be heard upon a transcript of

the record from the Criminal Court of Campbell

County, opinion and decree of the Court of Appeals,

petition for certiorari, assignments of error and briefs

| of counsel, upon consideration whereof the Court is of

opinion that the petition for writ of certiorari is not well

taken, and said petition is denied.

The petitioner Clarence Phillips will pay the costs

incident to filing petition for certiorari, for which let

execution issue.