People v. Uncangco

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 THE PEOPLE OF GUAM, ) CRIMINALCASE~No. CF 0429-12 4 ) ) 5 v. ) DECISION AND ORDER ) On People's Motion for Appointment 6 DAVID Q. UNCANGCO, ) of Defense Expert and Protective Order 7 ) Defendant. ) 8

9 INTRODUCTION 10

11 This matter carne before the Honorable Judge Michael J. Bordallo on October 3, 2012 o

12 the Defendant's "Motion for Appointment of Defense Expert; Protective Order." The People o 13 Guam were represented by Assistant Attorney General David Rivera. The Defendant wa 14 represented by Assistant Public Defender Maria Fitzpatrick. Having reviewed the memorand 15

16 and papers presented, the court now issues the following decision DENYING the Appointmen

17 of Defense Expert, GRANTING the Motion for Independent Psychiatric Evaluation, an 18 DENYING the Motion for Protective Order. 19 FACTUAL HISTORY 20 The Defendant was indicted on July 16, 2012 on two counts each of Second Degre 21

22 Robbery and Possession and Use of a Deadly Weapon in the Commission of a Felony. Th

23 charges arise from two separate robberies, both of which the Defendant confessed to upon arrest. 24 The Defendant was arraigned on August 1, 2012 and filed the current motions on September 13 25 2012. The first motion, requesting appointment of a defense expert, is improperly titled. Th 26

27 motion is made pursuant to 9 GCA §7.22(b), which permits a defendant to plead the affirmativ

28 defense of not guilty by reason of mental illness, disease, or defect. Similarly, the first motio

Page 1 of9 relies exclusively on case law establishing the right to an independent psychiatric evaluation. Fo 2 these reasons, the Court denies the motion for defense expert and treats the motion a 3 Defendant's request to place his mental health at issue before the court. 4 The second motion requests a protective order for the results of any court-ordere 5

6 psychiatric evaluation. A protective order is necessary, the Defendant argues, because requirin

7 full disclosure of the evaluation to the prosecution "undermines" his ability to prepare a 8 adequate defense. The People disagree and timely filed an opposition. The People's motion doe 9 not oppose appointment of an independent psychiatrist, but does object to having the results o 10

11 the court-ordered evaluation placed under protective order. For the following reasons, the Cou

12 agrees with the People. 14 The Defendant has motioned to place his mental health at issue before the court and, i 15 granted, to receive a protective order for the results of his psychiatric evaluation. The firs 16

17 motion is argued "on the grounds that counsel cannot determine whether to put [Defendant's]

18 mental state at issue." The second motion, to have the results of the psychiatric evaluation place 19 under a protective order, is purportedly necessary because competent psychiatric assistance i 20 "undermined if full disclosure is required to be made to the prosecution." The People do no 21 oppose the appointment of an independent psychiatrist, but timely filed an opposition to th 22

23 Defendant's motion to place evaluation results under protective order. The Court addresses eac

24 of motion in tum. 25 I. Tlte Motion to Appoint an Independent Psycltiatrist 26 Guam law protects the right of defendants to plead the affirmative defense of menta 27

28 illness, disease or defect to pending criminal charges. 7 GCA §7.22. A defendant should plea

Page 2 of9 the defense within ten days of arraignment, unless good cause for delay is demonstrated. !d. I 2 the case presently before the Court, the Defendant has moved to enter a plea of not guilty b 3 reason of mental disease or defect, but has done so more than a month after his arraignment. Th 4 Defendant offers no explanation for why his motion was not timely filed. 5

6 The Court has the discretion to allow a Defendant to enter a late plea of not guilty b

7 reason of mental disease or defect. The law states that the defendant shall plead "not later tha 8 ten days after his arraignment or at such later time as the court for good cause may allow." 9 GCA §7.22(d) (emphasis added). Good cause generally requires the defendant "to produc 10

11 evidence which would show the trial judge that there were reasonable grounds to believe that a

12 the time of the commission of the crime he was legally insane." People v. Hererra, 163 Cal.Rpt 13 435, 439 (1980) (citing People v. Morgan, 50 P2d. 1051, 1062). Because the Defendant ha 14 neither addressed the tardiness of his motion, nor offered any evidence of good cause for hi 15 delay, the Court could reasonably decide to deny the motion. 16

17 Ensuring the Defendant's due process rights outweighs denying him the opportunity t

18 enter his affirmative defense. This discretionary decision is supported by the fact that the Peopl 19 do not object to the Defendant placing his mental health at issue before the court despite hi 20 having missed the statutory deadline. Furthermore, the Court will presume that the Defendan 21 mistakenly titled his motion as a request to appoint defense expert and did not intentionally see 22

23 to avoid demonstrating good cause for his delay. For these reasons the Court exercises it

24 discretion to grant the Defendant an independent psychiatric evaluation. 25 II. The Motion for Protective Order 26 The Defendant has motioned for a protective order to prevent any statements mad 27

28 during a court-ordered psychiatric evaluation from being disclosed to the People. Defendant i

Page 3 of9 concerned that "a neutral court psychiatrist does not satisfy due process if [the] psychiatrist i 2 required to disclose his evaluation to the court sitting as fact finder." The Defendant furthe 3 insists that a protective order is necessary to ensure that the statements are admitted solely "o 4 the issue regarding mental condition on which defendant has introduced evidence o 5

6 incompetency." To do otherwise, the Defendant suggests, would violate his Fifth Amendmen

7 right against self-incrimination. In support of these arguments, the Defendant relies on two Nint 8 Circuit cases, Smith v. McCormick and Pawlyk v. Wood, as well as the U.S. Supreme Court cas 9 of Ake v. Oklahoma. The Court will rely on these same cases, as well as Guam statutory law, t 10

11 demonstrate why the Defendant's claims are unfounded.

12 A. Guam Law Requires Disclosure 13 Guam statute 7 GCA §7.22 delineates the procedure for pleading the affirmative defens 14 of not guilty by reason of mental disease or defect. This statute protects the due process rights o 15 the defendant, as well as the right of the People to prepare an adequate rebuttal to the defense. 16

17 See 7 GCA §7.22 comment. Accordingly, no evidence of mental disease or defect may b

18 presented by the Defendant until he has properly admitted his plea. §7.22(b). This plea shall b 19 made in open court or in writing no later than ten days after arraignment. §7.22(c). Once the ple 20 is entered the court is mandated to order a psychiatric evaluation as provided in Section 7.25 21 §7.22(d). After the evaluation is complete and a report has been produced, "Copies of an 22

23 records, reports, or documents or any information furnished by either party to the psychiatris

24 appointed in this Section shall be given to the other party in the action." §7.25(f)(emphasi 25 added). 26 Guam law mandates the disclosure of reports generated from court-ordered psychiatri 27

28 evaluations. The statutory law is not only unequivocal, is decidedly detailed in the exac

Page 4 of9 procedure that must be undertaken. The law requires that "Each psychiatrist appointed by th 2 court who examines the defendant pursuant to this Section shall file a written report with th 3 clerk of court who shall deliver copies to each party." §7.25(g) (emphasis added). The law als 4 delineates the information the psychiatrist places within the report and that information to whic 5

6 the psychiatrist may testify to at trial. §7.25(g)(l)-(8); (h). The law governing the appointe

7 psychiatrist's report and testimony prevents the introduction of evidence not specific to the issu 8 of mental competency and addresses the Defendant's concern that his statements be admitte 9 solely on the issue ofhis affirmative defense. 10

11 B. The Court Will Appoint a Psychiatrist and Will Not Sit as a Fact Finder

12 The Defendant correctly points out that an indigent defendant's right to psychiatri

13 counsel is not satisfied when the psychiatrist is required to disclose his evaluation to the cou 14 sitting as afactfinder. Smith v. McCormick, 914 F.2d 1153, 1158 (1990): Pawlykv. Wood, 248 15 F.3d 815, 824 (2001). The Pawlyk court, referencing their earlier decision in Smith, clarifies tha 16

17 the right to counsel is not satisfied when:

18 "the trial court rather than the defendant determined the scope of the psychiatrist's duties. In so doing, the trial court denied the defendant access to the psychiatrist 19 to perform the core functions for which a psychiatrist must be made available to 20 the defendant. First, as the trial court determined the scope of the psychiatrist's evaluation, the defendant was precluded from obtaining the assistance of the 21 psychiatrist in evaluating other mental status issues. Second, the defendant and his counsel were denied any opportunity to discuss the viability of particular defenses 22 with the appointed psychiatrist in light of his evaluation. Indeed, the disclosure of 23 the neutral psychiatrist's report to the court precluded the defense from deciding whether particular claims, along with the underlying evidence, should be 24 presented to the fact-finder. Third, the duties of the neutral psychiatrist, as defined by the trial court, did not include assistance to the defendant in preparing a 25 defense. Fourth, the defendant was deprived of the aid of the appointed 26 psychiatrist in rebutting the state's evidence. The defendant did not have the benefit of a psychiatrist to assist in interpreting the neutral psychiatrist's 27 evaluation, or preparing an examination of the neutral psychiatrist, or providing 28 testimony if appropriate."

Page 5 of9 248 F.3d 815, 825 (2001). The determinative facts in Smith are not, however, analogous to th 2 Defendant's case. In appointing an independent psychiatrist, the Court will neither sit as a fact 3 finder, nor determine the scope of the psychiatrist's duties. 4 The Pawlyk case, like Guam statutory law, very precisely delineates the constitutiona 5

6 rights afforded an indigent defendant who places his mental health at issue before the court. Du

7 process guarantees the defendant access to a single, competent psychiatrist. !d. at 823. Th 8 seminal U.S. Supreme Court case of Ake v. Oklahoma made clear that this does not give th 9 defendant "a constitutional right to choose a psychiatrist of his personal liking or to receive fund 10

11 to hire his own." 470 U.S. 68, 83 (1985). Additionally, "Ake does not guarantee access to

12 psychiatrist 'who will reach only biased or favorable conclusions."' Pawlyk at 823 (quotin 13 Harris v. Vasquez, 949 F.2d 1497, 1516-17 (9th Cir.1990)). The Ninth Circuit summarizes· 14 "That due process guarantees a defendant access to a single, competent psychiatrist, but does no 15 guarantee a favorable evaluation, leads inexorably to the conclusion that a psychiatrist' 16

17 evaluation or opinion may have an adverse, but constitutionally permissible, effect on particul

18 mental status defenses that a defendant might wish to present." !d. Therefore, defendants must 19 "consider whether the testimony will be harmful or helpful in light of the psychiatrist' 20 evaluation." !d. 21 Defendants who place their mental health at issue before the court, do so knowing tha 22

23 the results of a court-order psychiatric exam will be made available to the People. Both befor

24 the psychiatric evaluation and after receiving the evaluation results, the Defendant must decide i 25 he wishes to assert the affirmative defense. Furthermore, because the defendant seeks to prov 26 that he is not criminally liable by reason of mental disease or defect, the defendant canno 27

28 withhold evaluation evidence relevant to the very issue he has placed before the court. See !d. a

Page6 of9 825. In Pawlyk, the defendant was able to obtain two independent psychiatric evaluations- th 2 first of which was unfavorable to his defense. When the defendant called the second psychiatris 3 to testify on his behalf, the prosecution sought to have the first psychiatric evaluation admitte 4

5 into evidence for the purpose of rebuttal. The Ninth Circuit upheld the Washington Suprem

6 Court's finding that the first report was discoverable, admissible evidence. The first evaluatio 7 was discoverable because "the compelled disclosure of Dr. Harris' evaluation was not tantamoun 8 to appointing a psychiatrist upon a condition of full disclosure, but was the consequence of [th 9 defendant's] decision to assert an insanity defense." !d. at 826. 10

11 C. The Defendant's Fifth Amendment Rights are not Implicated

12 Where a psychiatrist's evaluation is limited to the issue of a defendant's competency t 13 stand trial and the ability to aid in his own defense, the Fifth Amendment is not implicated 14 Estelle v. Smith, 451 U.S. 454,465 (1981). The Defendant argues that he needs a protective orde 15 for his psychiatric evaluation to ensure "Any statement by defendant made to the expert, an 16

17 fruits of the statement as well as any statement made by the expert based upon the statement rna

18 not be used against the defendant in any criminal proceeding except on the issue regardin 19 mental condition on which the defendant has introduced evidence of incompetency," (emphasi 20 added). The Defendant's concern is addressed by statutory and case law requiring that the repo 21 be admitted for the limited purpose of establishing a defendant's ability to stand trial and hi 22

23 mental competency during the acts charged. See Estelle (holding that psychiatric evaluatio

24 results could not be used to establish 'future dangerousness' for sentencing purposes followin 25 conviction). 26 The Defendant's due process rights are not currently implicated. Defendant correctl 27

28 notes that allowing the prosecution to "enlist the psychiatrists' efforts to help secure a convictio

Page 7 of9 would deprive an indigent defendant of due process." While this statement is true, it does no 2 apply to this case. There is a critical distinction between using the information contained withi 3 the psychiatric evaluation for rebuttal purposes which is permitted by law - and using the sam 4 information to establish a conviction. The People have made no motion indicating that they see 5

6 to use the results of the as yet incomplete, future report to establish the Defendant's guilt.

7 Instead, the People support the motion to appoint an independent psychiatrist and seek only t 8 enforce their statutory right to have access to the results ofthe court-ordered evaluation. 9 None of the case law offered by the Defendant supports denying the People access to th 10

11 results of a court appointed psychiatric evaluation. The People's right to have access to the repo

12 is mandated by Guam law and supported by case law from both the U.S. Supreme Court and th 13 Ninth Circuit. The Supreme Court has made clear that, "Where, however, a defendant places hi 14 mental status at issue and thus relies upon reports of psychological examinations, he shoul 15 expect that the results of such reports may be used by the prosecutor in rebuttal." Buchanan v. 16

17 Kentucky, 483 U.S. 402, 425 (9187). In Buchanan, the defendant challenged the introduction o

18 results from a court-appointed psychiatric evaluation on grounds that he had not been informe 19 that his statements could be used against him at trial. The Supreme Court affirmed th 20 admissibility of the reports and found no Fifth Amendment violation because "the psychiatris 21 had set forth his general observations about the mental state of petitioner but had not describe 22

23 any statements by petitioner dealing with the crimes for which he was charged." !d. at 424.

24 When a defendant requests a psychiatric evaluation, the People can rebut "with evidenc 25 from the reports of the examination that the defendant requested," because the defendant has "n 26 Fifth Amendment privilege against the introduction of this psychiatric testimony by th 27

28 prosecution." !d. at 423. Additionally, a "defendant who asserts a mental status defense lacks

Page 8 of9 Fifth Amendment right to remain silent regarding the mental status that he has placed at issue,' 2 because "a defendant's communication to a psychiatrist regarding his mental status is often th 3 only meaningful evidence available to either the prosecution or the defendant regarding th 4 defendant's mental state." Pawlyk at 825 (citing Buchanan at 422-423; Estelle at 465). 5

6 Supreme Court and Ninth Circuit cases consistently find that reports from a court-appointe

7 psychiatrist are discoverable material available to the People when an indigent defendant elect 8 to place his mental health at issue before the court. This case law, coupled with the mandate o 9 Guam law requiring that the report be delivered to "the other party in the action," prevents th 10

II Court from granting a protective order. 9 GCA §7.25(g).

13 Because the Defendant did not properly motion for a defense expert pursuant to Gua 14 law, the Court DENIES the Motion for Appointment of Defense Expert. The Defendant's motio 15 is read as a motion to place mental state at issue before the court and the Court according! 16

17 GRANTS the Defendant's Motion for Independent Psychiatric Evaluation. Because th

18 Defendant has failed to demonstrate that production of the psychiatric report is not mandated b 19 the Court DENIES the Motion for Protective Order. Furthe both statute and case 20

23 fl 24 SO ORDERED, this Z5 day of January 2013. 25

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