Post v. State

580 P.2d 304, 1978 Alas. LEXIS 521
CourtAlaska Supreme Court
DecidedJune 9, 1978
Docket2851
StatusPublished
Cited by32 cases

This text of 580 P.2d 304 (Post v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Post v. State, 580 P.2d 304, 1978 Alas. LEXIS 521 (Ala. 1978).

Opinions

OPINION

MATTHEWS, Justice.

Arthur George Post picked up a 17 year old hitchhiker, threatened to shoot her if [306]*306she attempted to escape, and drove her to his cabin where he forced her to perform oral sex acts. He attempted to have sexual intercourse with her, but was physically incapable of doing so. Post then tied the arms and legs of his victim. She eventually escaped, after having been held prisoner for 20 hours. Post was convicted of kidnapping and assault with intent to rape. On appeal he contends that he should have been granted a bifurcated trial on his insanity defense; that certain evidence was erroneously admitted to his prejudice; and, that his sentence is excessive. We will deal with these issues in turn.

I

Post requested a bifurcated trial in which the question of whether he had committed the acts charged would be tried to a jury; if the jury found against him, the question of whether he was sane would be tried to the judge. When his request was denied he waived his right to a jury and the trial was conducted by the court.

AS 12.45.083(d) grants a defendant pleading insanity a unilateral right to waive a jury trial.1 Post argues that this statute permits him to waive a jury trial on the issue of insanity, while retaining a jury trial on all other issues. We do not agree. The statute refers only to waiver of “a jury trial”, which we interpret to refer to all issues ordinarily tried to a jury. There is no basis for an inference that the legislature intended to create a statutory right to a bifurcated trial.

The question remains, however, whether the trial court abused its discretion in not permitting a bifurcated trial. Bifurcated trials often are appropriate where insanity is a defense. There is a danger of prejudice when a jury charged with deciding whether a defendant committed a crime also hears evidence that he was insane at the time of the crime. At the least, the defendant’s credibility suffers. Moreover, there may be some tendency to resolve doubts concerning whether the defendant committed the act in favor of finding him not guilty by reason of insanity, instead of an outright acquittal, in order to assure confinement in a mental hospital. Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281 (1966). Further, when a court appointed psychiatrist examines a defendant he often inquires into the facts of the crime charged. If the defendant tells the psychiatrist that he committed the crime and the psychiatrist is permitted to testify to that effect, the privilege against self-incrimination would be seriously eroded without a bifurcated trial. See, Schade v. State, 512 P.2d 907, 919 (Alaska 1973).

We held in Kinsman v. State, 512 P.2d 901, 904 (Alaska 1973) that the question whether there should be a bifurcated trial was committed to the trial court’s discretion and would be reviewable on appeal only for abuse. We find no abuse of discretion here. Post made no showing prior to trial of any potential conflict between his insanity defense and his defense on the facts charged. Such a showing is required. Contee v. United States, 133 U.S.App.D.C. 261, 410 F.2d 249 (1969); Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559 (1968).

II

Approximately one month before committing the acts charged Post consulted a psychiatrist, Dr. John Morris. The State subpoenaed Dr. Morris to testify concerning [307]*307Post’s consultation. Post objected claiming the psychotherapist-patient privilege. The objection was overruled. Dr. Morris testified that Post had told him that he had feigned psychosis and mental illness in the past in order to avoid prosecution for criminal activity. Dr. Morris stated that in his opinion Post had a sociopathic personality and no serious mental illness. Dr. Morris further testified that Post was very sophisticated in the use of the language of psychiatry.

In Allred v. State, 554 P.2d 411 (Alaska 1976) we recognized a common law psychotherapist-patient privilege in criminal cases. We also recognized that the privilege could be waived. Id. at 418 n. 18. We now hold that the privilege is waived by the assertion of a defense of insanity as to communications which are relevant to that defense.

The psychotherapist-patient privilege protects a patient from embarrassment or humiliation which might result from disclosure of his statements to a psychiatrist.2 It is necessary to speak frankly concerning one’s inner feelings to a psychiatrist for therapy to be effective. It is thought that few would do so unless such communications were protected from disclosure. When one claims to be insane in a public trial, however, the humiliation which may be associated with the exposure of one’s inner self is disregarded in order to achieve another end, and the basis for the psychotherapist-patient privilege is largely eliminated. Moreover, we believe that it would give a defendant an unfair advantage at trial to allow him to claim insanity and to prohibit the prosecution from obtaining what may be the most reliable evidence available on the subject from the defendant’s treating psychiatrist.3

Our holding is in accordance with Rule 504(d)(1) of the proposed Alaska Rules of Evidence. That rule excepts from the psychotherapist-patient privilege “communications relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the condition of the patient is an element of the claim or defense of the patient . . . A model psychotherapist-patient privilege act proposed in Harvard Journal of Legislation contains a similar exception.4 Cases holding a waiver when insanity is raised as a defense include People v. Givans, 83 Ill.App.2d 423, 228 N.E.2d 123 (1967) and People v. Buthy, 38 A.D.2d 10, 326 N.Y.S.2d 512 (1971). See also, Annot., 44 A.L.R.3rd 24 § 32 (1972). The only contrary case to [308]*308which we have been cited is Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398 (1955). The ruling in that case, however, was promptly overturned by what is now D.C.Code § 14-307(b)(2) (1973) which provides that the privilege does not apply to “evidence relating to the mental competency or sanity of an accused in criminal trials where the accused raises the defense of insanity . . . .” Douglas v. United States, 99 U.S.App.D.C. 232, 239 F.2d 52 (1956).

Post also argues that Dr. Morris should not have been allowed to express an opinion as to his probable mental state when he committed the acts charged because Dr.

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Bluebook (online)
580 P.2d 304, 1978 Alas. LEXIS 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/post-v-state-alaska-1978.