State v. Carter

641 S.W.2d 54, 1982 Mo. LEXIS 504

• Court: Supreme Court of Missouri
• Decided: August 31, 1982
• Docket: 63653
• Status: Published

Opinions

NORWIN D. HOUSER, Senior Judge.

Michael Ray Carter, convicted of murder in the second degree and sentenced to 30 years’ imprisonment, appealed to the Missouri Court of Appeals, Southern District. The appeal was transferred to this Court before opinion for the assigned reason that the issues raised with respect to the interpretation of the Rules of the Supreme Court relating to discovery are matters of first impression in this State and of general interest and importance requiring a conclusive determination by this Court.

The homicide, which occurred in the juvenile dormitory of the Jasper County Jail, was witnessed by several inmates of the jail, jail employees and a probation officer. The State introduced strong and uncontra-dicted evidence that defendant, a jail inmate, made an unprovoked attack on a fellow inmate, Billy Joe Kralicek, striking him 15 to 25 times with a 30-pound metal mop wringer, and killing him.

Defendant pleaded not guilty by reason of mental disease or defect. § 552.030, RSMo 1969. Prior to trial defendant employed and was examined by two psychiatrists for the purpose of obtaining expert testimony in support of his defense: Dr. Turfboer, who concluded that defendant suffered from a toxic psychosis excluding criminal responsibility, and Dr. Roy Wilson, who, contrary to defendant’s expectations, concluded that defendant was not suffering from a mental disease or defect excluding criminal responsibility. Counsel for defendant decided not to call Dr. Wilson as a defense witness. The State moved for a court order to compel defendant to disclose Dr. Wilson’s report. Following a contested hearing, the State’s motion was sustained and defendant’s motion to suppress Dr. Wilson’s testimony was overruled. Pursuant to the court order Dr. Wilson disclosed his report to the State. At the trial, following direct testimony pro and con on the question of defendant’s mental condition, the State called Dr. Wilson as a witness in rebuttal. He testified over objection that in his opinion defendant was not suffering from a mental disease or defect excluding mental responsibility.

First, defendant contends that the disclosure should not have been ordered and the State should not have been allowed to use Dr. Wilson’s testimony in rebuttal because this (1) deprived defendant of the right to remain silent, thereby invading the Fifth Amendment prohibition against compulsory self-incrimination; (2) deprived defendant of due process of law because Dr. Wilson’s report constituted the work product of the defense attorney who actually employed Dr. Wilson — that under the work product doctrine material prepared by agents for the defense attorney as well as material prepared by the attorney himself is protected; (3) deprived defendant of his Sixth Amendment right to the effective assistance of counsel, and (4) violated the attorney-client privilege.

The attorney-client privilege is created by statute. Section 491.060(3), RSMo 1978, makes an attorney incompetent to testify “concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client.” The privilege is the client’s to claim and runs from the client to the attorney. Ehrhardt v. Stevenson, 128 Mo.App. 476, 106 S.W. 1118 (1907). The privilege is limited to communications between the attorney and the client. State v. Hardin, 558 S.W.2d 804, 807 (Mo.App.1977). It operates only to render the attorney incompetent to testify to confidential communications made to him by a client. It does not extend to communications between the client and a psychiatrist employed by the client through his attorney in an effort to obtain an opinion in support of his defense of mental disease or defect excluding criminal responsibility. The testimony under challenge is not within the attorney-client privilege. People v. Sorna, 88 Mich.App. 351, 276 N.W.2d 892 (1979); People v. Edney, 39 N.Y.2d 620, 350 N.E.2d 400, 385 N.Y.S.2d 23 (N.Y.App.1976); United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976); Annot. 14 A.L.R. 4th 594 (1982).

Had the testimony of Dr. Wilson been within the privilege, it still would not have been available to defendant because defendant waived the privilege. By interposing the defense of insanity, defendant effectively waived any right to assert any claim of privilege, including the attorney-client privilege. When defendant filed his notice of intention to rely upon the defense of mental disease or defect excluding criminal responsibility, he thereby opened up the inquiry into his mental condition and entitled the State to move for disclosure of the underlying factual basis of his insanity plea and the result of the examinations by defendant’s psychiatrists. It is well settled that when a party once places the question of his mental condition in issue he thereby waives the physician-patient privilege to exclude testimony of any doctors who have examined him for that purpose. State v. Sapp, 356 Mo. 705, 203 S.W.2d 425, 429 (1947); State v. Cochran, 356 Mo. 778, 203 S.W.2d 707, 711 (banc 1947); State v. Swinburne, 324 S.W.2d 746, 750-751[4] (Mo. banc 1959); State v. Speedy, 543 S.W.2d 251, 256 (Mo.App.1976); State ex rel. Husgen v. Stussie, 617 S.W.2d 414, 416[4] (Mo.App.1981); State v. Long, 257 Mo. 199, 165 S.W. 748, 753 (banc 1914); State v. Lewisohn, 379 A.2d 1192, 1211 (Me.1977). “Appellant could not be permitted to call as witnesses only those doctors whom he desired to call, and then claim the right to object as to other doctors who treated and examined him for the same condition (citing three Missouri cases).” State v. Sapp, supra, 203 S.W.2d at 429.

By the same token and for the same reasons a defendant who pleads insanity waives all other privileges, including the attorney-client privilege, People v. Edney, supra, and the privilege against self-incrimination. State v. Cochran, supra; State v. Swinburne, supra; State v. Speedy, supra.

There is another fundamental reason why the privileges sought to be invoked by defendant are not grounds for reversal of this judgment of conviction, namely, the profound impact the promulgation by the Supreme Court of reciprocal rules of discovery has had upon the exclusionary rules of privilege.

Under Rule 25.05(A)(1) a defendant is required to disclose to the State, without court order, results of mental examinations which the defense intends to introduce in evidence at the trial. Under Rule 25.06(A), subject to constitutional limitations, a defendant may be required, by court order on motion, to disclose to the State material and information not covered by Rule 25.05, upon a finding by the court that the State’s request is reasonable, and that the material and information sought is relevant and material to the State’s case.

If and when a request is made by the State for material and information which would ordinarily be shielded and protected from disclosure by the attorney-client privilege, the rule calls upon the court to determine the reasonableness of the request and the materiality to the State’s case of the material and information sought. In making this determination the court must exercise a sound judicial discretion, balancing the respective interests of the State and the defendant in disclosure or nondisclosure.

The prescribed procedure was complied with. The State filed a motion under the rule. The court made the requisite findings and ordered the disclosure. There is nothing to indicate an abuse of discretion on the part of the court. On the contrary, the court appears to have exercised its discretion properly, under the record. Unquestionably the material disclosed and information sought was relevant and material to the State’s case. Dr. Wilson’s report and testimony bore directly upon the central issue in the case: whether defendant at the time of the homicide was mentally responsible for his acts. It has not been shown or suggested that the ruling was not reasonable. Every consideration supports the reasonableness of the order. Essential fairness would seem to require such a ruling. Let us assume a homicide case where the defense is insanity. The prosecutor causes a psychiatrist to be employed by the State to examine the defendant in the hope of bolstering the State’s position that defendant was sane at the time of the homicide. To the surprise and dismay of the prosecutor the doctor reports that his examination discloses, and he concludes, that defendant was insane at the time in question and was mentally irresponsible for his homicidal act. The prosecutor does not intend to call the psychiatrist to testify at the trial. Is there any doubt that defendant could compel disclosure of this evidence and be entitled to use it at the trial? Would it be fair to deprive defendant of the benefit of this evidence on the vital issue? Would it be fair or wise to deprive the trier of the fact of this evidence? Just as the evidence would be available to the defendant in that case, so the evidence is available to the State in this. It is a poor rule that does not work both ways.

Public policy considerations weigh heavily in favor of disclosure under the circumstances of this case. There is no question that defendant committed a brutal homicide under highly incriminating circumstances. The only live and vital question for decision by the jury was whether defendant was mentally responsible for his acts. The fundamental purpose of a criminal trial is the fair ascertainment of the truth. People v. Sorna, 276 N.W.2d 892, 895[4] (Mich.App.1979). The jury needed every bit of available evidence touching that issue in order to render an intelligent, fair and just verdict. Not only the defendant, but also the State of Missouri, has a direct interest in an accurate, just and informed verdict based upon all available relevant and material evidence bearing on the question. The trier of the fact must not be “so effectively deprived of valuable witnesses as to undermine the public interest in the administration of justice.” Pouncy v. Florida, 353 So.2d 640, 642 (Fla.App.1977). In United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff’d 556 F.2d 556 (2d Cir.1977), cert. denied 431 U.S. 958, 97 S.Ct. 2683, 53 L.Ed.2d 276 (1977), the court at 1046 referred to “The increased potential for inaccuracy in the truth-finding process as the trier of fact is deprived of valuable witnesses,” and referred to the salutary concept that “the trier of fact should have adequate access to as much of the available psychiatric testimony as possible where the defendant’s mental state is in issue." Id. at 1049.

The physician-patient privilege and the attorney-client privilege are to be used for preserving legitimate confidential communications, not for suppressing the truth after the privileged one lets the bars down.

No constitutional limitation is involved. These privileges have no constitutional underpinning; they are of purely statutory origin. Under the disclosure rules the benefits of the attorney-client privilege, when applicable, may be denied a party under the circumstances of this case.

The work product doctrine does not insulate Dr. Wilson’s report and testimony from disclosure and use at trial. Work product consists of “opinions, theories or conclusions of defendant’s attorney ... [and] communications between defendant and his attorney.” State v. Hardin, 581 S.W.2d 67, 69 (Mo.App.1979); State v. Roseman, 583 S.W.2d 232, 235 (Mo.App.1979). The report of Dr. Wilson was not an opinion, theory or conclusion of defendant’s counsel or a communication by defendant to his attorney, and therefore was not the work product of the attorney. Hired on a one-time basis to give defendant a psychiatric examination and prepare an objective report on defendant’s mental condition, Dr. Wilson acted in the capacity of an independent contractor, not as an agent of defense counsel in any real sense of the word, and not as a member of defense counsel’s legal or investigative staff. The fact that defendant’s mother paid Dr. Wilson’s fee did not create an agent-principal relationship. Dr. Wilson did not assume any fiduciary duty to defendant or his counsel by accepting payment of his fee.

Defendant was not deprived of his constitutional right to effective assistance of counsel by the court’s ruling. The fact that counsel in preparing the defense for his client could possibly choose a psychiatrist who might make a report adverse to counsel’s theory of defense, or that in a psychiatric examination a defendant might speak guardedly or be less than candid with the doctor, knowing that the doctor might turn out to be a witness against him are not considerations of sufficient importance in this case to outweigh and override the stated requirements of fairness, justice and public policy in determining whether a request by the State for disclosure is reasonable under Rule 25.06(A).

Defendant’s second point: “The trial court erred in failing to grant a mistrial when it was repeatedly brought out in evidence before the jury that Dr. Patil who did not testify had examined the defendant and found him not to be suffering from a mental disease or defect excluding responsibility, the central issue in the case, so as to present that opinion to the jury by way of inadmissible hearsay and deprive the defendant of his right of confrontation and cross-examination.”

Dr. Patil, an employee of Fulton State Hospital, examined defendant shortly after the homicide and was of the opinion that defendant was not suffering from a mental disease or defect excluding responsibility at the time. Dr. Patil was not called as a witness at the trial.

Dr. Leggett, who conducted a second examination of defendant at Fulton State Hospital, reached the same conclusion. Called by the State as a witness, Dr. Leg-gett was asked on redirect examination whether his evaluation and conclusion were identical to that of Dr. Patil. Before the witness answered the question defendant objected on the grounds of hearsay and right of confrontation. The objection was sustained and Dr. Leggett did not give an answer.

On cross-examination defendant’s witness Dr. Turfboer, asked what information he had on defendant when he examined him, testified that he had the Fulton report (Dr. Patil’s report). The prosecutor then asked: “And that report said there was no mental disease or defect?” Defendant objected and out of the hearing of the jury counsel requested a mistrial on the ground that the court had ruled the issue hearsay and that it violated defendant’s constitutional right to confront the witness against him. The court sustained the objection and cautioned counsel for the State not to make any references to or try to bring out the results of a report from a doctor who was not present to testify, but denied the motion for mistrial. The court stated that the jury had not “caught the drift” of what had been said. The prosecutor then elicited from Dr. Turfboer that his opinion was not consistent with either of the reports from Fulton. No immediate objection was made to this inquiry or testimony. The prosecutor later asked Dr. Turfboer whether his opinion was consistent with Dr. Wilson’s report. Out of the hearing of the jury defense counsel objected to this question on the ground that it invaded defendant’s right to confront Dr. Wilson. The court sustained the objection. Defense counsel then, for the first time, objected to the preceding question (already answered) relating to the first Fulton report, and the court sustained the objection. Defense counsel then requested a mistrial, which request was overruled. The court said to counsel that an earlier objection to the preceding question to Dr. Turfboer whether his opinion was consistent with the reports from Fulton State Hospital would have been sustained had such an objection been made.

Another mistrial motion was made when Dr. Wilson, on direct examination, volunteered without being asked that “Dr. Leg-gett and Dr. Patil essentially agreed with each other and they essentially agreed with me.” Defense counsel objected to the voluntary statement on the basis of hearsay and defendant’s right of confrontation and moved for a mistrial. The judge, observing that State’s counsel did not elicit the voluntary statement, sustained the objection and offered to instruct the jury to disregard it. The judge stated additionally that he did not regard it as serious — that he “did not think it really impressed the jury enough to make a mistrial necessary at this stage,” and admonished the prosecutor by saying, “The idea, Mr. McFarlane, is to keep away from this.”

The trial court did not err in denying the several requests for a mistrial. The question to Dr. Leggett whether his evaluation was identical with that of Dr. Patil was not answered. The questions to Dr. Turfboer as to the contents of Dr. Patil ⅛ and Dr. Wilson’s reports were not answered. Objections to both of these questions were sustained. When defendant finally objected to Dr. Turfboer’s testimony that his opinion was not consistent with the report from Fulton or Dr. Wilson’s report, the court sustained defendant’s objection. Dr. Wilson’s testimony that Drs. Leggett and Patil essentially agreed with each other and with him was volunteered, and an objection thereto was sustained. In none of these instances did defense counsel request that the objectionable questions or answers be stricken from the record and the jury instructed to disregard them. The court offered to instruct the jury to disregard the voluntary statement of Dr. Wilson but defense counsel did not accept the offer. In each instance defendant should have requested that the improper question or statement be stricken and the jury instructed to disregard it. This would have given the court an opportunity to consider corrective action short of a mistrial. State v. Cuckovich, 485 S.W.2d 16, 24[13] (Mo. banc 1972). No such request was made at any time. The only remedy defendant requested was the harsh and stringent remedy of a mistrial. The court granted all the relief defendant asked for, except a mistrial. Whether a mistrial should be declared is a matter within the sound discretion of the trial judge, who observes the proceedings and therefore is in a better position than the appellate court to evaluate the prejudicial or non-prejudicial effect of the incident and the possibility that the error can be corrected short of aborting the entire trial. State v. Smith, 431 S.W.2d 74, 82, 83 (Mo.1968); State v. Parker, 476 S.W.2d 513 (Mo.1972). The judge felt from all he saw and heard that the jury had not been sufficiently aware of the import of the references to the Fulton report to warrant the drastic step of mistrial, and in the exercise of his judicial discretion, the judge denied the several motions for mistrial. We cannot say that in so doing the court abused its discretion. State v. Lira, 372 S.W.2d 80, 82, 83 (Mo.1963).

Judgment affirmed.

DONNELLY, C.J., and RENDLEN and MORGAN, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. WELLIVER, J., dissents in separate dissenting opinion filed and concurs in separate dissenting opinion of SEILER, J. BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, J. HIGGINS, J., not sitting.