r
FILED SUPERIOR COURT OF GUAM 1 2U22JUN 3U PH 6=28 2 CLERKUFCOURT 3 BYL /OQ 4 IN THE SUPERIOR COURT OF GUAM 5 PEOPLE OF GUAM, ) CRIMINAL CASE no. CF0566-21 6 GPD Report No.: 21-27613 ) 7 ) vs. ) s ) DECISION AND ORDER AKMAL KHOZHIEV ) GRANTING DEFENDANT'S 9 DOB: 07/20/1994 ) MOTION FOR INDEPENDENT 10 ) PSYCHIATRIST AND CONFIDENTIAL Defendant. ) EVALUATION' ll w 12 1. INTRODUCTION 13 This matter came before the Honorable Judge Maria T. Curzon onApril 1, 2022 for a 14 hearing on Defendant's Motion for Appointment of Independent Psychiatrist and Confidential 15
16 Psychiatric Evaluation (the "Motion"). Akmal Khozhiev (the "Defendant") was represented by
17 his counsel, Alternate Public Defender Ana Maria C. Gayle and Assistant Alternate Public
18 Defender Clyde Lemons. The People were represented by Assistant Attorney General Sean 19 Brown. The proceeding was held remotely via Zoom. Both parties fully briefed the Motion 20
(under seal), and the pleadings closed on March 2, 2022. 21
22 Following the hearing on the Motion, the court took the matter under advisement
23 pursuant to Supreme Courtof GuamAdministrative Rule 06-001. After reviewingthe Parties' 24
| The parties' pleadings are filed Under Seal and the Court shall not disrupt the sealed nature of those filings. 25 However, because all court records are open to the public under 7 GCA §7 l05 unless otherwise provided by law or restricted by special order of this Court, and because all parties are aware of the substance of the Defendant'5 26 Motion and substantive grounds on which it is based, the Court fu1ds no compelling interest which would be served by issuing this Decision and Order Under Seal. 27 Page I of20 28 People vs. Khozhfev, CF0566-21 Decision 8; Order written briefs and the record on file with the Court, the arguments presented at the Motion 1
2 Hearing, and the applicable statutes and case law, the Court now issues this Decision and Order
3 GRANTING Defendants Motion for the reasons set forthherein. 4 11. BACKGROUND 5 The Defendant is charged with the following crimes: Aggravated Murder (as a 1" 6
1 Degree Felony), with the Special Allegation: Deadly Weapon in the Commission of a Felony;
8 and Aggravated Assault (as a 2nd Degree Felony), Special Allegation: Deadly Weapon in the
9 Commission of a Felony. At his arraignment on December 17, 2021, the Defendant placed his 10 . . . mental state at Issue and he was ordered to undergo a forensic evaluation as set forth in 9
G.C.A. § 7.25. Order for Forensic Evaluation (Dec. 17, 2021). 12
13 Defendant was evaluated by Dr. Juan M. Rapadas, Ph.D. ("Dr. Rapadas") on two
14 occasions: January 5, 2022, at the office of Client Services and Family Counseling Division of
15 the coin, and via Zoom from the Department of Corrections on January 13, 2022. Forensic 16 Evaluation at 2 (Jan. 25, 2022). At the conclusion of the examinations, Dr. Rapadas opined as 17 follows: 18
19 1. In my opinion, [Defendant] is currently competent to be proceeded against and competent to be sentenced for reasons spelled out above. 20 2. In my opinion, [Defendant] appears to be suffering from Bipolar II Disorder, Manic z1 type and Cannabis induced Psychosis (see below), but the mental illnesses did not 22 result in a lack of substantial to know or understand what he was doing, to know or understand that his conduct was wrongful, or to control his actions. 23 3. In my opinion, while [Defendant] did not meet the test for legal insanity, it is my 24 belief that as a result of his mental illness, he did have diminished capacity that may 25 have impaired and somewhat compromised his judgment and accountability, and may have caused some impulsive behaviors as well as a "rationality impairment" 26 which is consistent with behaviors seen in people with bipolar disorder and 27 Page2 of20 is People vs. Khozhiev, CF0566-2 l Decision & Order polysubstance abuse disorders. In addition, although the question of any residual I brain damage issues has not been answered and it might be prudent to refer him for a 2 neurology study, there does not appear to be substantial evidence of significant neuropsychological impairment seen in [Defendant]. His severe emotional and 3 behavioral problems seem to be more related and due to his cannabis use and the onset of bipolar ll disorder. His stabilization with his psychiatric treatment in DOC 4 seems to buttress this assertion. 5 Forensic Evil. at 16. 6
Dr. Rapadas also reached the following conclusion about Defendant's DSM 5 7
s Diagnosis: Bipolar II Disorder, manic type, moderate to severe, Cannabis Use Disorder,
g moderate to severe, in partial remission, in a controlled environment, Cannabis-induced 10 psychotic disorder; Rule out Traumatic Brain Injury; Unemployed; Relationship Distress with ll Spouse, Incarceration in Corrections. Id. 12
13 While the Defendant does not specifically contendthe findings of Dr. Rapadas (with the
14 exception of arguing that Dr. Rapadas's DSM diagnosis is premature), he seeks the CourTs
15 order, pursuant to 7 G.C.A. §7.25, for "an independent psychiatrist to assist in his defense as a 16 matter of due process and fundamental fairness." DO Mot at 3. The gravamen of Defendant's 17
request is that the "neutral" court~appointed forensic psychologist appointed by the court sits as 18
19 a "fact finder" regarding the important question of whether Defendant is competent to be
20 proceeded against and sentenced, and whether, at the time of the offense, Defendant lacked a 21 substantial capacity to understand what he was doing, to Mow or understand that bis conduct 2z was wrongful or to control his actions. Additionally, Dr. Rapadas found that Defendant had a 23
"diminished capacity that may have impaired and somewhat compromised his judgment and 24
25 accountability, and may have caused some impulsive behaviors as well as a 'rationality
26 impairment." Forensic Evil. at 16. This Final conclusion goes to the heart of a defense Lhat may 27
Page 3 0f20 28 P e o p le vs. Kilozhfev, CF0566-2 l De c is io n & O rde r be available to the Defendant, therefore, Defendant seeks an independent psychiatrist "to assist 1
2 in his defense as a matter of due process and fundamental fairness." Mot. ate.
3 kt addition to seeking the appointment of an independent expert to assist in the 4 preparation of his mental state defense, the Defendant asks the Court to declare that the S provisions of 9 GCA § 7.25 compelling Defendant to share the expert's findings with the 6
prosecution violate his due process rights, and further that such findings made on behalf of the 7
8 Defendant constitute privileged material. Mot. at 5 ("communications to a defense psychiatrist
9 have been held to be privileged unless, of course, the defense's expert is called as a witness at 10 triaL"). Although the Defendant does not cite to the specific privilege upon which he basis his
argument, by reference to United Stzzies v. Alvarez, 519 F.2d, 1036 (3'd Cir. 1975) in his moving 12
13 papers, the Court considers whether the privilege discussed in Alvarez, the attorney-client
14 privilege, applies in the instant case to bar disclosure under 7.25 .2 15 The People oppose the Defendant's Motion, largely on the basis that 9 GCA § 7.25(a) 16 only requires this Court to afford the Defendant "one qualified psychiatrist" and any subsequent 17
appointment is discretionary. The People argue that 9 GCA § 7,25(8)3 specifically mandates is
19 that copies of any report are to be filed with the clerk of court and transmitted to the People, and
20 that "there is nothing that the Court can do to satisfy the Defendant's concern without 21 circumventing controlling Guam law." People's Br. at 1-2. 22
23 2 The privilege against self-incrimination which was addressed in Alvarez was not raised in the context of 24 Defendant's motion. As such, the Court will not address this specific privilege herein. The People cited to 9 GCA § 7.25(f) when arguing any report by a psychiatrist should be furnished to the 25 prosecution People's Br. at 1-2. But section ?.25(f) only requires that "any reports, records, documents or informationfurnished by either party to the psychiatrists"be given to the other party. 9 GCA § T.25(i) (emphasis 26 added) The Court assumes the People intended to cite 9 GCA § T.25(g), which more accurately aligns with their position. 27
Page 4 of 20 28 People vs. Khozhfev, CF0566-2 l Dec i si on & Or der III. DISCUSSION 1
2 A. 9 G.C.A. §7.25 sets forth the procedure by which a Defendant places his mental state at issue in defense of criminal charges against him. 3
4 "A defendant is incompetent to be pro ceeded against in a criminal action if, as a result of
5 mental illness... he is unable (1) to understand the nature of the proceedings, (2) to assist and 6 cooperate with counsel, (3) to follow the evidence, or (4) to participate in his defense." See 9 7 GC.A. § 7.37(a)(1)-(4). An incompetent defendant may not be tried or convicted in a criminal g
9 proceeding, Drove v Mssozzri, 420 U.S. 162, 172 (1975), and this notion is "fundamental to an
10 adversary system ofjustice, [because][c]ompetence to stand trial is rudimentary, for upon Ir
depends the main part of those rights deemed essential to a fair trial, including the right to 12 effecti ve assi stance of counsel , the ri ghts to summon, to confront, and to cross-exami ne 13
14 witnesses, and the right to testify on one's own behalf or to remain silent without penalty for
15 doing so." Rigging v. Nevada, 504 U.S. 127, 139-40 (1992) (Kennedy, J., concurring).
16 Competency Tums on whether a criminal defendant "has sufficient present ability to consult
17 . . . . w i t h h i s l a w y e r w i t h a r e a s o n a b l e degree o f r a t i o n a l u n d e r s t a n d i n g - a n d w h e t h e r he h a s a 18 rati onal as wel l as facial understanding of the proceedings against him." D usky v. United 19 20 States, 362 U.s., at 402 (1960).
21 In order to uphold this bedrock principle of American jurisprudence, local states
22 governing court procedures on competency must be adequate. Pate v. Robinson, 383 U.S. 375 23 (1966) ("[S]tate procedures must be adequate to protect this right."), See also Hull v. Kylen, 190 24 F. ad 88, 110 (ad Cir. 1999) ("Page ... required states to provide adequate procedures to ensure 25
26 that only competent defendants were tried (and convicted)."). Guam's statute governing a
27 Page 5 of 20 28 People vs.Khozhfev, CF0566-21 Decision & Order defense based upon defendant's mental illness is codified in 9 GCA § 7.25, and sets forth the l
2 applicable procedure as follows (in relevant part):
3 § 7.25. Psychiatric Examination and Procedure. 4 (a)Whenever a plea of not guilty by reason of mental illness, disease or 5 defect is entered or a notice is given under § 7.22, the court shall appoint at least one qualified psychiatrist or other qualified person (hereinaher 6 referred to as psychiatrist) to examine the defendant and to report upon his mental condition. 7
8 (b) W henever, in the opinion of the court, any other expert evidence concerning the defendant's mental condition is, or will be required by the 9 court or either poNy, the court shall appoint one or more such experts to 10 examine the defendant and to report upon his mental condition as the court may direct. ll (c) In addition to the expert witness appointed by the court, either party in 12 a criminal action may retain other psychiatrists or other experts to examine 13 the defendant and to report upon his mental condition. Experts retained pursuant to this Section shall be permitted to have reasonable access to the 14 defendant for the purposes of examination and the giving of testimony.
16 (0 Copies of any reports, records, documents or information furnished by 17 either party to the psychiatdsts appointed pursuant to this Section shall be given to the other party in the action. Any psychiatrist appointed pursuant 18 to this Section, or retained by either party, shall have the right to inspect 19 and make copies of reports and records relating to the defendant in any facility or institution in which they are located. Compliance with this 20 Section may be required by an appropriate order of the court. 21 (g) Each psychiatrist appointed by the court who examines the defendant 22 pursuant to this Section shall file a written report with the clerk of the court who shall deliver copies to each party. 23
9 GCA § 7.25 (a)-(¢u, (f)-(g). 24
25 Defendant does not specifically contend with Dr. Rapadas's findings that the Defendant
26 is competent to be proceeded against, instead he seeks the help of a psychiatric expert 27
Page 6 of 20 28 People vs. Klzozhfev, CF0566-2 l Decision & Order (psychiatrist or psychologist) to assist in and be a part of his defense team, to further evaluate l
2 his condition in preparation for trial and to develop and potentially advance his diminished
3 capacity defense. Within this specific context, the Court considers whether, under Section 7.25 : 4 (1) Defendant is entitled to an independent mental health expert to assist in the preparation of 5 his defense, and (2) should the Court grant Defendant's request, whether the mandate under 6
Section 7.25(g) requiring Defendant ro share, without limitation, its expert's reports with the 7
s prosecution violates Defendants due process rights or his attorney-client privilege.
9 B. Defendant is entitled to an independent mental health expert to assist in the 10 preparation of his defense.
As the People correctly note, Section 7.25(a) provides that when a defendant enters a 12 plea of not guilty by reason of mental illness, disease or defect (referred to herein as "NGRI"), 13 "the court shall appoint at least one qualified psychiatrist or other qualified person (hereinafter 14
15 referred to as psychiatrist) to examine the defendant and to report upon his mental condition." 9
is GCA § 7.25(a). Here, the Defendant has been evaluated by "at least one" psychiatrist and his 17 . . report shared wlth the People and Defendant. Thus, the People argue, the reqmrements under 18 Section 7.25(a) have been strictly satisfied and the Court neednot grant Defendant's Motion. 19
20 Section 7.25(b), however, provides the Court with discretionary authority to "appoint
21 one or more such experts to examine the defendant and to report upon his mental condition as
22 the court may direct" when, in the Court's opinion, "such other expert evidence concerning the 23 defendant's mental condition is, or will be required by the court or either party." 9 G.C.A. 24 §7.25(b)(emphasis added). The question the Court confronts here is whether, in its opinion, 25
26 such additional expert is required by the Defendant in order to adequately prepare for his
27 PageT of 20 zs People vs.Khozhiev, CF0566-2 l Decision & Order defense. The short answer to this query is, yes, however, because of the jurisdictional split and 1
z the lack of Guam Supreme Court precedent specifically on Lhe issue, the Court's analysis
3 requires some discussion here. 4 krdigent defendants have faced a sometimes insurmountable burden of overcoming the 5 use of experts in the criminal lustlce system. Tels is because the use of experts is expensive, 6 and prosecutors are typically equipped with the full resources of the state while the indigent 7
s defendants are routinely denied adequate access to experts.5
9 The United States Supreme Court in Aka v. Oklahoma, 105 S. Ct. 1087, 1097 (1985), 10 recognized that, in the interest of fundamental fairness, "when a defendant has made a
preliminary showing that his sanity at the time of the offense is likely to be a significant factor 12
13 at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this
14 issue if the defendant cannot otherwise afford one." Id. at 1091-1092. Specifically, the state
15 must provide an indigent defendant with access "to a competent psychiatrist who will conduct 16
18 4 See Jack B. Weinstein, Science and the CNolienges of Expert Testimony in the Courtroom, Tl' Or. L. Rev. 1005. 1008 (1998) ("Courts, as gatekeepers, must be aware of how difficult it can be for some parties - particularly 19 indigent criminal defendants-to obtain an expert to testify. The fact that one side may lack adequate resources with which to fully develop its case is a constant problem."). See also Paul C. Giannelli, Ave v. Oklahoma: The Right' to 20 Expert Assistance In a Post- Doubert, Post-DNA World, Cornell L. Rev. 1305, 1307 (2004) ("While the extensive use of experts raises a number of concerns, one of the most pressing is the accessibility of expert assistance for 21 indigent defendants."), pp. 1307-1312 (noting multiple instances when prosecutors retained expensive and remote expert witnesses while an investigation revealed that "[j]udges routinely deny [defense] lawyers' requests for 22 experblinvestigative t`ees.") (quoting Marcia Coble et al., Fatal Defense: Trial and Error in the Notion s Death Belt Not? Ll, June l 1, 1990, at 30). See also Roger A. Hanson et al., indigent Defenders: Get the Job Done and Done 23 We!! 100 (1992) (stating that in indigent defense systems, the "greatest disparities occur in the areas of investigators and expert witnesses, with prosecutors possessing more resources [than public defenders]."). 24 s Giannelli, supra, at 1307-1312 (noting multiple instances when prosecutors retained expensive and remote expert witnesses while an investigation revealed that "[j]udges routinely deny [def ense] lawyers' requests f or 25 experthnvestigative fees.") (quoting Marcia Coble et al., Faro! Dey'ense: Trial and Error in the Nation 's Death Belt, No r? L.J'., June l l, 1990, at 30), See also Roger A. Hanson et al., indigent Defenders: Get the Job Done and Done 26 Wei! 100 (1992) (stating that in indigent defense systems, the "greatest disparities occur in the areas of investigators and expert witnesses, with prosecutors possessing more resources [than public defenders]."). 27 Page 8 of 20 28 People vs. Khozhfev, CF0566-2 l Decision 8: Order l
an appropriate examination and assist in evaluation, preparation, and presentation of the 1
z defense."Ake v. Oklahoma, 105 S. Ct. 1087, 1096 (1985).
3 This ruling appears, at first glance, to right the ship of inequity in this context, Yet, 4 while the holding in Aka appears to compel the Courts to appoint a defense expert in addition to 5 the "one competent psychiatrist" to which a defendant is entitled if a preliminary showing is 6
made, implementing this rule is not as simple, as the Supreme Court has left the process "to the 7
8 States the decision on how to implement this right." Id. at 1094, 1096. To add to the uncertainty,
9 the Aka Court discussed its previous ruling in United Suites el rel. Smith v. Ealdi, 344 U.S. 561 10 (1953), where a defendant, despite being examined by two psychiatrists, argued he was entitled
to "the assistance of a psychiatrist [which] was necessary to afford him adequate counsel." Id. at 12
13 568. The Supreme Court ruled therein, rather curtly:
14 We cannot say that the State has that duty by constitutional mandate. As we have shown, the issue of petitioner's sanity was heard by the trial court. Psychiatrists 15 testified. That suffices. 16 Id. (citing McGarty v. OBrien, 188 F.2d 151 ( It Cir. 195I)), Yet, despite discussing the 17
shortcomings of Baldy, the Aka Court didnot expresslyoverrule it. 18 . . , 7 . . . 19 Thus, some confusion has arisen around Are s the mandate, and the circuits are spot as
20 to the issue. The Eleventh circuit holds that Aka is satisfied when a psychiatrist examines the 21 Defendant and testifies. See ragweed v. Smii/1, 791 F. ad 1438, 1443 (1 ltd Cir. 1986) (finding 22 that examination by multiple psychiatrists and their testimony in court was "sufficient 23
Z5 if See David A. Harris, Aka Revisited Expert Psychiatric Hitnesses Remain Beyond Reach for the Indigent, 68 N.C. L. Rev. 763, 768, n. 44(l990)("The Court gave mixed signals concerning the pa)/chiatrist's role with regard to a 26 criminal defendant . . . . " ) , Major Donald H. Dubia, The D=cnse Right to Psycfaiarric Assistance in Light office v. Oklahoma, 1987 Army Lawyer 15, 19 (Are "did hot[sic] define clearly the role of the state-supplied psychiatrist."). 27
Page9 of 20 28 People vs. Kkozhtbv, CF0566-2 l Decision & Order psychiatric assistance to satisfy the requirements of Aka."), Clisby v. Jones, 907 F. 2d 1047, l
2 1050 (l 1th Cir. 1990) ("The state provided a duly qualified psychiatrist not beholden to the
3 prosecution and, therefore, met its obligation under Aka."). The Fifth circuit agrees. See 4 Granviel v. Lynaug/1, 881 F. ad 185, 191 (5th Cir. 1989) (finding Aka was satisfied "with the 5 [examination] of a court-appointed psychiatrist, whose opinion and testimony was available to 6
both sides ...."). In contrast, the Eighth circuit holds that Aka requires that an expert has to be 7
8 appointed to the Defendant for purposes of aiding him in trial. See Starr v, Lock/zarf, 23 F. ad
9 1280, 1291 (Sth Cir. 1994) (finding that just a psychiatrist's examination and testimony was 10 insufficient because "experts appointed under Aka are to aid the defendant and function as a ll 'basic tool' in his or her defense.") (quoting Aka, 105 S. Ct. at 1093). The Ninth Circuit has 12
13 reached a similar conclusion. See Harris v Vasquez, 949 F. ad 1497 (9th Cir. 1990) (finding
14 that Aka was satisfied because the "psychiatrists were available ro assist in the preparation of
15 [defendant's] defense strategy.").E 16 Perhaps fortunately, the Supreme Court has recently clarified its ruling in Aka by its 17
recent decision in McWilliams v. Dunn, 137 S. Cr. 1790, 1798-1800 (2017), which holds that 18
19 when the threshold questions triggering Aka are present (Le. (1) an indigent defendant, (2)
20 whose mental condition is relevant to the punishment he might suffer, and (3) his sanity at the 21 time of the offense is seriously in question), a State is required to provide a defendant with 22
8 The People cite to the Ninth Circuit case of U.S. v. Vaitierro, 467 F.2d 125 (Sm Cir. 1972), in support of its position 24 that the Court should deny Defendant's request for a defense psychiatric expert. Opp. Brie fat 2. However, the court in Voitieno disposed of the issue merely by ruling that the defendant failed to show the services were necessary 25 without providing an analysis of its decision. Vairierra at 126. The dissenting opinion, on the other hand, found that, based upon the defendant's "long history of severe mental illness" which would have controverted the opinion of the 26 court-appointed expert, another expert should have been appointed "if for no other reason than to enable adequate cross-examination of the court-appointed psychiatrist." Id. at p. 126 - 127. Thus, Vakierra is inapplicable here. 27 Page ll] of20 28 People vs. Khozhfev, CF0566-2 l Decision & Order "access to a competent psychiatrist who will conduct an appropriate [1] examination and assist I
z in [2] evaluation, [3] preparation, and [4] presentation of the defense."9
3 Similarly, Defendant in this case asks the Court to find, pursuant to its authority under 4 Section 7.25(b), that he requires the assistance of an independent psychiatric expert "to conduct 5 a professional examination on issues relevant to the defense, to help determine whether the 6
insanity defense is viable, to present testimony and to assist in preparing the cross-examination 7
8 of a State's psychiatric witness ...." Deft.'s Br. at 4-5. Dr. Rapadas's involvement, as the
9 neutral, coin-appointed psychiatric expert, whose opinions were to be reported to the court 10 (and to the parties) pursuant to the magistrate judge's Order for Forensic Evaluation simply do ll not satisfy the requirements under Aka. See Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 12
13 l990)("The right to psychiatric assistance does not mean the right to place the report of a
14 "neutral" psychiatrist before the court, rather it means the right to use the services of a
15 psychiatrist in whatever capacity defense counsel deems appropriate~-including to decide, with 16 the psychiatrist's assistance, not to present to the court particular claims of mental 17
impairment.").m Importantly, under the Order, the trial court, not the defendant, dictates the 18
19 manner in which the court appointed expert, Dr. Rapadas, conducted the evaluation.
9 It is notewoMy to mention, however, that SCOTUS itself was split in its decision in Dunn, with a majority 21 including Justices Brewer, Kennedy, Ginsburg, Sotomayor and Kazan. The dissenting opinion was authored by Associate Justice Auto, joined by Chief Justice Roberts and Associate Justices Thomas and Gorsuch. 22 m As the Tth Circuit observed,under Are, The independent psychiatric expert perfonns three fictions which may be crucial in cases where mental 23 health is a substantial issue. First, the expert can aid a defendant in determining whether a defense based on mental condition is warranted by the defendant's particular circumstances. Second, the expert can 24 coherently present to the jury his or her observations of the defendant, as weft as his or her understanding of the defendant's mental history, and explain to the jury how those observations and that history are 25 relevant to the defendant's mental condition. Finally, the expert can "assist in preparing the cross- examination" of psychiatric experts retained by the government. 26 Id. quoting United States v Fazzini, 871 F.2d 635, 637 ('ith Cir.l989), cert. denied, 493 U.S. 982, 110 S.ct. 517. 107 L.Ed.2d 518 (1989) (citations omitted). 27
Page ll off{] 28 People vs. Khozfafev,CF0566-2 l Decision & Order Considering the processes set forth in Aka and Dunn, the Court also Ends guidance i n l
2 the recent Guam Supreme Court case of People v, Quilugua, 2021 Guam 20. While Quilugua
3 addressed specifically the exparte nature o f a Defendant's request for an expert witness and did
4 not consider Section 7.25 in its Opinion, the rationale applied by the Guam Supreme Court 5 therein applies analogously here. In Quitugua, the Supreme Court granted interlocutory appeal 6
in order to address the question of whether a Defendant may employ the ex parte process in 7
8 seeking the appointment o f a defense expert at the expense o f the government. Although
9 Qzlitugua held that a Defendant may avail of the protections against disclosure of the specific 10 reasons Ir seeks expert assistance in an ex parle proceeding, the Guam Supreme Court, in so
ruling, stated that "[e]ffective assistance of counsel includes the right to access expert 12
13 witnesses." Quffugua 1] 16.
14 Thus, on the principles and mandates set forth in Aka, Dunn and Quitugua, and other
15 persuasive authority, the Court finds that Defendant is entitled to the appointment of an 16 independent psychiatric expert to assist him in the preparation of his defense, pursuant to 17
Section 7.25(b), and in a manner that Defendant sees fit in such preparation] 1 18
19 c. Defendant's independent psychiatric expert reports shall remain confidential unless used at trial or other order of the Court. 20
In addition to the appointment of an independent psychiatric expert, the Defendant 21
22 argues that the requirement to surrender the expert's reports under 7.25(g) violates his due
23 process rights. Specifically, Section 7.25(g) requires that reports of an expert appointed under 24 7.25 must be provided to the other party (i.e., the party for whom the expert is not appointed): 25
26 11 See also, Dunn,137 S. Ct. at 1800 ("[a]s a practical matter,the simplest way for a state to meet [the Aka] standard may be to provide a qualified expert retainedspecvicalllyfor the defense team.") (emphasis added). Z7
Page 12 of2U 28 People vs. Khozh:ev,CF0566-21 Decision & Order (g) Each psychiatrist appointed by the court who examines the defendant pursuant l to this Section shall tile a written report with the clerk of the court who shall 2 deliver copies to each party.
3 9 GCA §7.25 (D-(g)(emphasis added). 4 The Defendant argues that his due process rights are violated by the requirement that he 5 surrender to the clerk of court "who shall deliver copies to [the prosecution]" the reports of his 6
7 independent psychiatric expert appointed to assist him in preparing for his defense. See Deft.'s
8 Br. at 5. As discussed herein, the Court agrees
g 1. The automatic disclosure of an indigent defendant's independent expert 10 reports violates due process.
The People argue that "there is nothing that the Coup can do to satisfy the Defendant's
12 concern [regarding disclosure of defense expert's reports] without circumventing controlling 13 Guam law" and cites to the mandatory language ("shall") of 9 GCA § 7.25(§`). The Court notes 14 first that Section 7.25(f) addresses reports which are fixmished by either party to the 15
is psychiatrists and requires that the party filmishing the reports to the psychiatrist also provide a
17 copy to the opposing party. That is not the contention here. Rather, the relevant section is 18 7.25(g) which essentially requires only indigent defendants whose independent experts 19 appointed by the Court purszrant to Section 725(b) to tile a written report with the clerk of court 20 for dissemination to the parties. If the Defendant had the financial means to secure his own 21
22 independent psychiatric experts without the necessity of a court order, defendant's expert would
23 not be subject to the same filing requirements. This is the crux of the Defendant's complaint as 24 to the automatic disclosure under 7.25(g). 25
27 Page 13 of20 28 People vs. Kflozhfev, CF0566-2 I Decision & Order In addition to the language of 7.25, the People cite to the Ninth Circuit case of Pawlyk v. l
2 W ood, 248 F. ad 815 (9th Cir. 2001) in support of their argument mandating disclosure.
3 However, the trial courts are compelled to follow the opinions of the Guam Supreme Court, 4 . . . . . which are controlling. This Court finds that the Guam Supreme Court's ruling in People v. 5 Quitugu/1, supra, require this Coup to find that the disclosure of defendant's expert reports as 6
7 required under 7.25(g) violate due process.
s In Quitugua, the telTitory's High Court addressed the inequity resulting from requiring
9 an indigent defendant to disclose in other than an ex parte hearing the substantive reasons for 10 . . . seeking expert assistance. The Supreme Court ruled that "[e]xpane hearings protect xndxgent ll defendants' privilege against self-incrimination, prevent the premature disclosure of a defense 12
13 strategy, and preserve the right to effective assistance of counsel." Id. at'[[ 13 (citations omitted).
14 Moreover, "seekingexpert assistance may require the defendant to reveal a high degree of detail
15 about their rationale, such as the strengths and weaknesses of their case, trial strategy, potential 16 defenses, witnesses, and evidence that may be used against the defendant at trial." Id at 1 14 17
(citations omitted). The Supreme Court further held: 18
19 Ex parte hearings aid the prevention of unequal treatment of indigent and non-indigent defendants. See Ex parte Lexington City., 442 SE.2d 589, 594 (S.C. 1994), see also 20 McGregor v. State, 733 P.2d 416, 416-17 (Olga. Crum. App. 1987) ("[T]o allow participation, or even presence, by the State would thwart the Supreme Court's attempt 21 to place indigent defendants, as nearly as possible, on a level of equality with 22 nonindigent defendants."). A public hearing on an indigent De/enduntlv requestfor expert funding may cause an inherently discriminatory practice, as a non-indigent 23 defendant need not present their request to hire an expert to the public or opposing counsel. See Ex parte Moody, 684 So. 2d at 120 ("An indigent defendant should not 24 have to disclose to the state information that a financially secure defendant would not 25 have to disclose."), People v. Layer, 425 N.W.2d 714, 722 (Mich. ct. App. 1988), Ev parte Lexington City., 442 S.E.2d at 594, Barnett, 909 S.W.2d at 428-29, see also 26 United States v Meriwether, 486 F.2d498, 506 (5th Cir. 1973). 27
Page 14 of20 Zs People vs. Khozhfev, CF0566-21 Decision & Order I
l People v. Quitugua, 2021 Guam 20, 1] 17 (emphasis added). 2 Applying the Guam Supreme Court's rationale in Quitugua, by analogy here, an 3
indigent defendant who has had to seek the trial court's authority under 7.25 to retain the 4
5 services of an independent psychiatric expert because he cannot afford to pay for one should not
6 be treated inherently different from a non-indigent defendant "who need not present their 7 [report] to the public or opposing counsel."12 s 2. Absent any due process violation under 7.25(g), the attorney-client privilege g also protects the defendant's independent expert's report from automatic 10 disclosure.
11 Secondarily, the Defendant claims the report is protected by privilege but fails to
12 mention the exact privilege that would afford him such protection See Deft.'s Br. at 5. By its 13 own conjecture, the Court can fathom up to two apparent privileges upon which such a 14
protection might exist: the attorney-client privilege and the Fifth Amendment privilege against 15
16 self-incrimination. The Defendant has not asserted any violation of his right against self-
17 incrimination in his moving papers, so the Court assesses only whether the attorney-client 18 privilege protects the defendant's mental health expert's report(s). 19 The attorney-client privilege is recognized in Rule 504(c) of Guam's Rules of Evidence 20
(GRE). The GRE extends the scope of privileges as they are regularly recognized in common 21
22 law. See 504 GRE Comment ("The FRE do not establish particular privileges, leaving it to the
23 determination of the courts. The Committee has seen fix to set forth the particular principles 24
la The SCOTUS has suggested that such arbitrary variances run afoul of the Constitution. See Smith v. Bennett, 81 S. 25 CL 895, 898 (1961) ("Respecting the State's grant of a right to test their detention, the Fourteenth Amendment weighs the interests of rich and poor criminals in equal scale, and its hands extends as far to each."); Gnjfin v. 26 Illinois, 76 S.ct. 585, 591 (1956) ("There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."). 27
Page 15 off{] 28 People vs. Kilozhiev, CF0566-2 l Decision & Order recognized under Guam Law without limiting the ability of the courts to recognize other 1
2 privileges based upon the principles of common law."). As a widely~recognized principle of
3 common law, Guam's attorney-client privilege extends to "persons assisting the lawyer in the 4 rendition of legal services." 16 See also In re Grand Jury Subpoenas Dated Mar. 24, 2003 5 Directed to (A) Grand Jury Mtness Firm & (8) Grand Jury Witness, 265 F. Supp. ad 321, 325 6
(S.D. N.Y. 2003) (citing Joseph M. McLaughlin, Weinstein's Evidenced 503.01 (2d ed. 2003) 7
s (privilege extends to appropriate communications between and among the client, the lawyer,
9 and a "representative of the lawyer," which is defined as "one employed to assist the lawyer in 10 the rendition of professional legal services."), See also People v Jesus, 2009 Guam 2 n. 8.
("The Guam Rules of Evidence are essentially identical to its like-numbered counterparts in the 12
13 Federal Rules of Evidence. Therefore interpretations of the Federal Rules of Evidence from
14 other jurisdictions are persuasive authority.").
15 The People ask the Court to apply the Ninth Circuit's ruling in Pawlyk v Wood, 248 16 F.3d 815 (9th Cir. 2001) to find disclosure mandatory. Pawlyk held that the reports from 17
psychiatrists are not protected under the attorney»client privilege because the defendant waived 18
19 them when he put his mental state at issue. Pawlyk, 248 F. ad at 825. The court's reasoning
20 therein was founded partly upon the determination that "a defendant's communication to a 21
16 See Audi ofAmerfco, Inc. v. Bronsberg & Hugues Pontiac, Inc., (MD. Pa. 20l?)(" Courts in Pennsylvania and 23 elsewhere routinely rely upon this rule to uphold privilege claims involving agents of the client."), See also Store v. Blackpoll, 760 A. ad 1151, 1153 {N.J. Super. Ct. Law Div. 2000) ("in New Jersey, the privilege has been extended 24 to any person who is or may be the agent of either the attorney or the client."), In re Fundamental' Long Term Car Inc., 489 B.R. 451, 469 (Banks. M .D. Fla 2013) ("BLot there is no question that the attorney-client privilege extends 25 not only to the lawyer giving advice but to any persons assisting the lawyer in providing legal services."), Baylor v. Mitchel? Rubinstein & Assoc. '5 P.C., 130 F. Supp. 3d 326, 331 (D.C. Cir 2015) ("Both Maryland and the District 26 of Columbia recognize that the attorney-client privilege protects communications not only between a client and an attorney, but also between their agents."). 27 Page 16 of 20 28 People vs. Khozhiev, CF0566-2 l Decision & Order psychiatrist regarding his mental status is often the only meaningful evidence available to either 1
2 the prosecution or the defendant regarding the defendant's mental state." Id. Pawlyk is
3 distinguishable from the case at bar, however. Specifically, the People currently have the reports 4 of Dr. Rapadas as well as the reports from Guam Behavioral Health and Wellness Center. This 5 was not the case in Puwlyk. People's Br. at 2.17 Moreover, should the Defendant's independent 6
psychiatric expert be called to testify at trial, the Defendant would be required to disclose these 7
8 reports to the People, which Defendant acknowledges. See DeaL's Reply. Br. at 4 ("Simply
9 stated, if the Defendant calls an expert to testify about any issue regarding the defendant's 10 competency or lack thereof, the People are entitled to the expert's report"), See also United 11 States v. Alvarez, 519 F. 2d 1036, 1046-47 (ad Cir. 1975) (stating that defendant's psychiatrists 12
13 disclosures to attorney are privileged "at least until he is placed on the witness stand"), Pozmcy
14 v. State, 353 So. 2d 640, 642 (Fla. Dist. Ct. App, 1977) (finding the attorney client privilege for
15 defendant's psychiatrists not waived where defense did not call them as witnesses). Thus, 16 automatic disclosure at this time lends nothing to the prosecution and creates due process 17
problems for the Defendant. is
19 It is notable that few jurisdictions join Pawlyk, and, more importantly, the cases which
20 have joined Pawlyk in declining to extend the attorney-client privilege to a defendant's 21 psychiatrist are unpersuasive because their reasoning is inapplicable to Guam, as their statutory 22 authority differs from Section 7.25.18 In contrast, a greater number ofjurisdictions have found 23
v? While the People were arguing the Defendant has access to these reports, they Leo have access to at least these 25 reports since Dr. Rapadds' report was previously furnished to them pursuant to 9 GCA § 7.25 g and the Defendant attached Dr. Fergurgur's report to their Motion as Exhibit A. 26 18 E.8., in Gray v. District Cow? of Eleventh Judicial Dist., 884 P.2d 286 (Colo. 1994), defendant's psychiatric evaluations were not protected by the attorney-client privilege alter the Colorado legislature amended their attorney- 27 Page 170i 20 2s People vs. Klrozhfev CF0566-2 l Decision & Order that the attorney-client privilege extends to a defendant's communications with a non-testifying 1
2 psychiatric expert. See People v. Knuckles, 650 N.E. 2d 974, 983 (Ill. 1995) (finding that the
3 attorney-client privilege protects the reports from the defendant's psychiatric expert from 4 disclosure and "that the privilege is not waived merely by the assertion of defenses which place 5 the defendant's mental condition in issue."), Newman v. State, 773 S.E. ad 716 (Ga. 2015) 6
(finding that attorney-client privilege extended to two psychologists retained by the defendant 7
8 on an insanity defense unless they testified), State v. Hitopoulus, 309 S.E. 2d 747, 749 (S.C.
g 1983) (finding that "the attorney-client privilege extends to [defendant's] communications to the 10 psychiatrist employed by his attorney to aid in preparation of his defense."), Houston v. State, ll 602 p. Zd 784 (Alaska 1979) (finding that the psychiatrist's "examination of appellant comes 12
13 within Alaska's attorney-client privilege."), Stale v. Pratt, 398 A 2d 421, 424 (Md. 1979)
14 (finding that a psychiatrist working with the defense team in preparing an insanity defense was
15 "protected within the scope of the attorney-client privilege."), People v Lines, 531 P. ad 793, 16 800 (Cal 1975) (affirming a previous holding that "when communications by a client to his 17
attorney regarding his physical or mental condition require the assistance of a physician to 18
19 interpret the client's condition to the attorney, the information obtained by the physician as a
Z1
22 client privilege rule to read that "[a] defendant who places his mental condition at issue by pleading not guilty by reason of insanity ... waives any claim of confidentiality or privilege as to communications ...." § Co. St. 13-90- 23 l07(3)(I987). Before the enactment of the amended statute, the Supreme Court of Colorado recognized the attorney- client privilege to protect the reports drafted by a defendant's psychiatrist. See Miller v. District! Court, 737 P. ad 24 834 (Colo. 1987). Similarly, the Montana Supreme Court in Stare v. Carter, 641 S. W. ad 54 (Mo. 1982) refused to recognize any privilege between a Defendant and his psychiatrist because the state's privilege statue explicitly 25 limited the attorney-client privilege to just the client and the attorney. Miller and Carter are both inapplicable here because Guam has neither enacted a statute explicitly waiving the attorney-client privilege for a defendant who ZN pleads not guilty because of insanity nor has it explicitly limited the attorney-client privilege between just the attorney and the client. 27
Page 18 of 2{] 28 People vs.Kkozhfev, CF0566-21 Decision & Order result remains protected firm disclosure even if the clients places his physical or mental l
2 condition in issue.").
3 The Guam Supreme Court has yet to address the question of an indigent defendant's
4 right against the automatic disclosure ofhis independent psychiatric expert's writtenreport, or, 5 more aptly stated, whether Section 7.25(g) violates an indigent defendant's due process rights 6 7 by the discriminatory requirement of disclosure, which does not apply to a non-indigent
8 defendant. In lieu of any mandatory guidance, the Court turns to other jurisdictions for
9 persuasive guidance, including those cited herein. 10 The automatic disclosure of the report(s) from the Defendant's independent psychiatric ll expert under 7.25(g) would be patently unfair in this case. The purpose of the attomey»c1ient 12
13 privilege "is to encourage full and Hank communication between attorneys and their clients and
14 thereby promote broader public interests in the observance of law and administration of justice. $1
15 Ugahn Co. v, United Stales, 449 U.S. 383, 389 (1981). Since the attorney-client privilege 16 extends to the Defendant's communications with his psychiatric expert, the same purpose [7 applies here. The defense expert's ability to uncover the reality concerning defendant's sanity 18
19 defense could very well be diminished if the Defendant hesitates to be frank with his expert in
20 fear that his own words could then be used against him by the prosecution. See, Parkinson v. 21 Gogh/e, 1986 WL68928 at *2 (D. GuamJuly7, 1986). 22 The Court finds overwhelming the concerns respecting the violation of Defendant's due 23
z4 process rights under the disclosure requirements of 7.25(g), a provision which was enacted in
25 1968 and which has not been amended to reflect decisions including those of Aka, Dunn and
Page 19 of20 28 People vs. Khozhfev CF0566-21 Decision & Order subsequent Guam cases." As such, the Court adopts the views held by a vast majority of 1 z jurisdictions as discussedherein. The reports of any independent psychiatric expert appointed by
3 the Com pursuant to 7.25(a) and who aide the Defendant in preparing for his defense are not 4 subject to automatic disclosure pursuant to the provisions of 7.25(g) as attorney-client privileged 5 material. Instead, any disclosure remains subject to the GRE and the applicable common law 6 1 principles of disclosure or order of this Court.
8 Iv. CONCLUSION
9 For the reasons set forth herein, the Court GRANTS Defendant's Motion to Appoint an 0 1 Independent Psychiatric Expert to assist the Defendant in the preparation of his defense. The
Defendant shall identify the psychiatric expert within thirty (30) days of the issuance of this 12
13 Decision and Order, which time shall not be extended absent good cause, and further, shall seek
14 the CourTs approval of such expert by submitting a Proposed Order identifying the expert, who
15 shall be appointed at the expense of the court,pursuant to 7.25(b) and MR 1.1.4. 16 IT IS FURTHER ORDERED that any report made by the psychiatric expert appointed 17
18 herein is not subject to automatic disclosure under 7.25(g), however, the Defendant is placed on
19 notice that the Court may determine disclosure to be appropriate upon consideration of any
ZN future motion by the People for such disclosure t`ounded_upon applicable rule or law. 21 SO ORDERED this JUN30_2l]22 SERVICE VIA EMAIL 22 I acknowledge that an ekcuunlc 1-i1 cow of the Iarigvnal am emailed yr; '_ Vr _ s 23 M S. Purim n HONORABLE MARIA T. GENZON 24 W D' 1% C%zZZIQQO Judge, Superior Court of Guam Date: lb Wat) Ti 25 I
26 p e ii cu fa 19 9 c.
Page 20 of20 28 People vs.Khozhiev, CF0566-2 I Decision & Order