State v. Devine

372 N.W.2d 132, 1985 S.D. LEXIS 330

• Court: South Dakota Supreme Court
• Decided: July 31, 1985
• Docket: 14640-a-JF
• Status: Published

Opinions

FOSHEIM, Chief Justice.

James Devine (Devine) appeals from a jury conviction for second degree burglary, SDCL 22-32-3, and habitual offender, SDCL 22-7-8. We affirm.

Phoebe Bordeaux, Devine’s aunt, lived in an apartment at the St. Charles Hotel in Pierre, South Dakota. Michel Delon, the owner and manager of the hotel, occupied an adjoining apartment. Both dwellings overlook the roof of another building. At approximately 1:15 p.m., on November 6, 1983, Mr. Delon observed broken glass and other items on the roof of the adjacent building, which he concluded came from the Bordeaux apartment. He heard noises indicating items were being broken. He went to the Bordeaux apartment and observed the door was open and the interior was in a shambles. Devine was standing in the apartment. After summoning the police, Mr. Delon continued to observe De-vine, who remained in the apartment. A police officer and Mr. Delon testified that Devine responded slowly to their questions and that he appeared intoxicated.

Devine entered pleas of not guilty and not guilty by reason of mental illness to the burglary charge. At the request of De-vine’s counsel, the trial court ordered a psychiatric evaluation. Devine remained at the Yankton, South Dakota Human Services Center for examination from December 1, 1983, to December 23, 1983. Dr. Ulises Pesce interviewed Devine ten times. De-vine told Dr. Pesce that he was attempting to find some alternative that would keep him from going to prison. Dr. Pesce found Devine sane and competent to stand trial. Devine then requested an alternative evaluation, which was granted.

Devine was also examined by Dr. Charles Warrender in Pierre, South Dakota. During this interview, Devine related that he had previously made up symptoms of mental illness so that he could be transferred from the Sandstone Federal Penitentiary in Minnesota to the United States Medical Center for federal prisoners in Springfield, Missouri. Dr. Warrender found Devine sane and competent to stand trial, and testified that he possessed an antisocial personality disorder characterized by repeated acts of vandalism, theft and incarceration. Both Drs. Pesce and Warrender were called as state’s witnesses and allowed to reveal Devine’s statements. The State also called Mr. Lynn Goehring, a psychologist who administered certain tests ordered and considered by Dr. Warrender in his evaluation.

Dr. Aris K. Kargas was called as a defense witness. He had interviewed and frequently observed Devine at the United States Medical Center from August 12, 1982, until March 14, 1983. Devine’s treatment at the Center included a psychotic medication and an antidepressant drug. In his discharge recommendation, Dr. Kargas specified that Devine should continue psychiatric hospitalization with the prescribed medication for an indefinite period, and that the medication should be forcibly injected, if necessary; otherwise, a relapse of Devine’s psyschotic condition would occur.

Dr. Kargas stated that, in his opinion, Devine was not making up symptoms during his stay at the United States Medical Center. Dr. Kargas again interviewed De-vine in Pierre the evening before trial to update his conclusions. Dr. Kargas testified that in this interview, Devine said that he “intentionally” got into trouble. Dr. Kargas testified that in his opinion Devine was sane and competent to stand trial, and that Devine was in remission from a schi-zoaffective disorder when discharged from his care, but was suffering from an anti-social personality disorder.

Devine challenges the admissibility of the statements he made to the psychiatrists during the course of their examinations. He argues that SDCL 23A-10-2 and 23A-10-4, when read in connection with SDCL 19-13-7,19-13-10, and 19-13-11, impermis-sibly compel him to choose between exercising his Fifth Amendment constitutional right not to incriminate himself and his due process right to seek out available defenses. See Collins v. Auger, 428 F.Supp. 1079, 1083 (S.D.Iowa 1977), reasoning approved, 577 F.2d 1107 (8th Cir.1978).

A defendant in a criminal case raising the insanity defense must, at his arraignment, specially plead “not guilty and not guilty by reason of insanity.” SDCL 23A-10-2.¹ SDCL 23A-10-4 provides for court-appointed medical experts and requires that the defendant submit himself for examination by the experts. SDCL 23A-10-4 further states that “[n]o statement made by an accused in the course of any examination provided for by this section, whether the examination was with or without the consent of the accused, shall be admitted in evidence against him on the issue of guilt in any criminal proceeding except for the purpose of impeaching the defendant.” SDCL 23A-10-4.

Pursuant to SDCL 19-13-7, “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his ... mental or emotional condition ... among himself, ... or psychotherapist....”²

SDCL 19-13-10 creates an exception to this privilege: “If the court orders an examination of the ... mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under § 19-13-7 with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.”

A further limitation on the SDCL 19-13-7 privilege appears in SDCL 19-13-11: “There is no privilege under § 19-13-7 as to a communication relevant to an issue of the ... mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense.... ”

SDCL 23A-10-4 prohibits the use of psychiatric testimony against a defendant on the issue of guilt. Psychiatric examinations are ordered for the purpose of determining sanity or competency. SDCL 19-13-10 only excepts from the physician-patient privilege those communications made in connection with the particular purpose for which an examination is ordered — i.e., to determine sanity or competency, not guilt. Likewise, SDCL 19-13-11 excepts from the physician-patient privilege those communications relevant to the defendant’s defense. In light of SDCL 23A-10-4, we read SDCL 19-13-11 to mean that the exception to the SDCL 19-13-7 privilege is limited to communications that are relevant to establish mental illness or competency, rather than guilt.

In Collins v. Auger, 577 F.2d 1107 (8th Cir.1978), the Eighth Circuit Court of Appeals prohibited a State from admitting psychiatric testimony evidencing incriminating statements by a defendant elicited during a mental illness defense examination. As noted our statutes compel the same conclusion.

The Fifth Amendment privilege bars the use of an incriminating statement made to a psychiatrist for the purpose of proving a defendant’s guilt. See United States v. Bennett, 460 F.2d 872, 878-80 (1972); Thornton v. Corcoran, 407 F.2d 695, 699-701 (D.C.Cir.1969); United States ex rel. Smith v. Yeager, 451 F.2d 164, 165 (3d Cir.), cert. denied, 404 U.S. 859, 92 S.Ct. 112, 30 L.Ed.2d 101 (1971); United States v. Williams, 456 F.2d 217, 218 (5th Cir.1972); United States v. Reifsteck, 535 F.2d 1030 n. 1 (8th Cir.1976); United States v. Julian, 469 F.2d 371, 375-76 (10th Cir.1972). The same rule applies in the state courts by force of the Fourteenth Amendment. Gibson v. Zahradnick, 581 (4th Cir.1978) cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1978).

The question remains whether such incriminating statements are admissible to establish mental condition in a unitary trial which involves both sanity and guilt issues, without prejudicing the defendant’s due process rights. Id. See also Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941).

The lower court in Collins v. Auger stated:

[I]t is fundamentally unfair to use defendant’s incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution’s case to establish his guilt. It is immaterial in this regard whether the Court ordered examination was at the request of Defendant or the prosecution or whether it was to determine his capacity to aid in his own defense or his mental condition at the time of the crime. The fundamental unfairness of the introduction of such evidence violates Defendant’s right to due process under the 14th Amendment to the Constitution of the United States. The Defendant is entitled to raise his mental condition at the time of the offense as a defense. He is also entitled under proper circumstances, to an examination to determine his competency to stand trial. Psychiatric examinations are essential to and proof of his mental condition. ...

If a Defendant cooperated with the psychiatrist and made a full disclosure of his thinking processes and his background, including incriminating statements and if he failed to establish his lack of mental capacity, he would be faced with these admissions on trial. If a Defendant exercised his right to remain silent and refused to cooperate with the psychiatrist, the likelihood of a meaningful and reliable examination would be considerably decreased and his opportunity to urge a possible defense forfeited. A Defendant must not be compelled to choose between exercising his 5th Amendment right not to incriminate himself and his due process right to seek out available defenses.

Collins v. Auger, 428 F.Supp. 1079. 1082-83 (S.D.Iowa 1977) (quoted in large part by Collins, 577 F.2d at 1109-1110). The Collins decision does, however, indicate a different result had the independent evidence of guilt been so overwhelming that the only real issue before the jury was the mental condition of the defendant. From our reading of Collins, the admission of incriminating statements made by the defendant to a psychiatrist during a psychiatric examination constitutes prejudicial error when other evidence of guilt presented at the trial is not so strong as to negate any actual prejudice resulting from the statements. We are not persuaded by the state’s argument that this prohibition applies only to proof of guilt, but that the statements are nevertheless admissible to establish the defendant’s mental condition at a unitary trial, involving both sanity and guilt.

Where independent evidence of guilt is not so strong as to negate the actual prejudice, Collins seems to require a bifurcated trial to insure fairness. The alternative to a bifurcated trial when a unitary trial cannot satisfy due process is for the jury to resolve the sanity issue without all the relevant facts. The prosecution would then be precluded from extensive inquiry concerning the insanity defense. “Not only was the mental examination to determine [the defendant's] sanity required to maintain a ‘fair state-individual balance,’ but it follows that if the State must ‘shoulder the entire load’ of establishing sanity beyond a reasonable doubt, it must have the means to do so at its disposal. The State should not have to rely on examinations made only by experts chosen by [the defendant] leaving it with recourse only to cross-examination of them, or to its selected and hypothetical questions.” See Bremer v. State, 18 Md.App. 291, 316-18, 307 A.2d 503, 519-20, cert. denied, 269 Md. 755 (1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1440, 39 L.Ed.2d 488 (1974) (relying on Miranda v. State, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

Under Devine’s position the psychiatrists in a unitary trial could express their conclusions but give no background or foundation if it involved incriminating admissions. This denies the trier of fact the opportunity to hear all the evidence necessary to weigh the validity and credibility of the expert’s conclusions. See People v. Culpepper, 59 Mich.App. 262, 266, 229 N.W.2d 407, 409 (1975). It is for the finder of fact to determine the weight and credibility to be given the experts’ opinions as justified by the foundation for those opinions and other facts. State v. Gallegos, 316 N.W.2d 634 (S.D.1982); State v. Romero, 269 N.W.2d 791 (S.D.1978); State v. Bush, 260 N.W.2d 226 (S.D.1977); State v. Graves, 83 S.D. 600, 163 N.W.2d 542 (1968).

A bifurcated trial has been used in California and Colorado since 1927, in Texas since 1937, and in Louisiana since 1928. State v. Shanahan, 10 Ariz.App. 215, 216, 457 P.2d 755, 756-57 (1969). “The concept of bifurcated trials arose from the realization that ‘substantial prejudice may result from the simultaneous trial on the pleas of insanity and not guilty.’ ” Jackson v. United States, 404 A.2d 911, 925 (D.C.1979), citing Holmes v. United States, 363 F.2d 281, 282 (D.C.Cir.1966). “The aim of a bifurcated trial is to mitigate the possibility of such prejudice by separating as much as possible the issue of mental responsibility from the factual elements of the accused’s conduct.” Jackson, 404 A.2d at 925, citing United States v. Taylor, 510 F.2d 1283 (D.C.Cir.1975).

In some states a bifurcated trial is conducted as a matter of course pursuant to statute when there are dual issues of sanity and guilt. See People v. Phillips, 90 Cal.App.3d 356, 153 Cal.Rptr. 359 (1979); People v. Rosenthal, 617 P.2d 551 (Colo.1980); State v. Spurgin, 358 N.W.2d 648 (Minn.1984); Commonwealth v. DiValerio, 283 Pa.Super. 315, 423 A.2d 1273 (1980). Generally, the issue of guilt is tried first, followed by trial on the sanity issue. See Cal.Penal Code § 1026 (1956); Art. 8, Colo. C.Crim.P. § 16-8-101, et seq., C.R.S.1973 (1978 Rep'l.Vol. 8); Me.Rev.Stat. tit. 17-A, § 59 (Supp.1977); Minn.R.Crim.P. 20.02 subd. 6 (as found in the Minnesota Statutes vol. 49 (Supp.1983)); Sec. 404(c) of the Mental Health Procedures Acts, 50 P.S. § 7404(c), Pa.R.Crim.P. 305(C)(1)(b). South Dakota does not have statutes directing a bifurcated trial.

Other states addressing the issue without the benefit of statutory guidance allow bifurcated trials only when a defendant shows he or she has a substantial insanity defense and a substantial defense on the merits to any element of the crime charged, and that either defense may be prejudiced by the other in a unitary trial. See Houston v. State, 602 P.2d 784, 787 (Alaska 1979); Garrett v. State, 320 A.2d 745, 748 (Del.1974); People v. Alerte, 120 Ill.App.3d 962, 974, 76 Ill.Dec. 452, 460-61, 458 N.E.2d 1106, 1114-1115 (1983); People v. Robinson, 102 Ill.App.3d 884, 889, 58 Ill.Dec. 23, 28, 429 N.Ed.2d 1356, 1361 cert. denied, 105 S.C. 777 (1981); State v. Monk, 63 N.C.App. 512, 305 S.E.2d 755, 760-61 (1983). The rationale of these decisions seems alien to the foundation of criminal law concerning the burden of proof, Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), because they require the defendant to show a substantial defense. It is not confined to the sufficiency of the prosecution’s showing. This court has consistently preserved the absolute burden of the state at all stages of a criminal prosecution to establish every material element of the offense, State v. Wilcox, 48 S.D. 289, 204 N.W. 369 (1925), including sanity. State v. Gallegos, 316 N.W.2d 634 (S.D.1982); State v. Kindvall, 86 S.D. 91, 191 N.W.2d 289 (1971).

In Novosel v. Helgemoe, 118 N.H. 115, 124, 384 A.2d 124, 129 (1978), the New Hampshire Supreme Court held that when a defendant pleads not guilty and not guilty by reason of insanity “[i]n the normal course, ... the not guilty plea coupled with an insanity defense should be bifurcated upon request of the defendant.” (Emphasis supplied.)

In Jackson v. United States, 404 A.2d 911, 925 (D.C.1979), the Court of Appeals expressed what appears to be the procedure followed in at least part of the federal court system. Under that procedure the decision to bifurcate rests within the discretion of the trial judge. Id., citing Harris v. United States, 377 A.2d 34 (D.C.1977); Shanahan v. United States, 354 A.2d 524 (D.C.1976). “The court not only has a broad discretion in considering bifurcation, but also in prescribing its procedure.” Jackson, 404 A.2d at 925, citing Holmes, 363 F.2d at 283. “The procedure adopted, however, must effectuate the purpose of bifurcation by guarding against two types of prejudice inherent in a unitary trial involving insanity: (1) prejudice to a defendant’s insanity defense arising from the evidence on the merits, and (2) prejudice to a defendant’s defense on the merits arising from the insanity evidence.” Jackson, 404 A.2d at 925.

The necessity to find both guilt and sanity is activated in South Dakota when the defendant pleads “not guilty and not guilty by reason of insanity” under SDCL 23A-10-2. A two stage procedure assumes that guilt can be fully adjudicated without inquiry into the mental condition or defect.³ The bifurcation results in the separation of guilt from sanity because the factfinder is not allowed in the guilt phase to hear evidence of sanity until guilt has been determined. Novosel, 118 N.H. at 124, 384 A.2d at 129.

From Collins, Novosel, Jackson, and the case law of this State, we conclude that upon request of the defendant for a bifurcated trial based on incriminating statements made during a psychiatric examination in connection with a plea of not guilty and not guilty by reason of insanity, the court, in order to protect the defendant’s Fifth Amendment rights should generally direct a bifurcated trial. Failure to then bifurcate is prejudicial unless from the showing of the State, the court can reasonably conclude the evidence of guilt is so strong as to negate any actual prejudice to the defendant in a unitary trial from the incriminating statements. When a bifurcated trial is ordered, the court should also prescribe its procedure. As expressed in Jackson, supra, however, that procedure must effectuate the purpose of bifurcation by guarding against (1) prejudice to a defendant’s insanity defense arising from the evidence on the merits, and (2) prejudice to a defendant’s defense on the merits arising from the insanity evidence. If a bifurcated trial is not ordered, the jury must be clearly instructed that the incriminating statements may be considered only as to the issue of sanity.

The court’s determination involves discretion. See Jackson, 404 A.2d at 925. In practice, this requires a balancing process similar to that employed in reviewing the probative value versus prejudicial effect of evidence under SDCL 19-12-3. State v. Holland, 346 N.W.2d 302 (S.D.1984); see also State v. Means, 363 N.W.2d 565 (S.D.1985); State v. Dace, 333 N.W.2d 812 (S.D.1983); State v. Johnson, 316 N.W.2d 652 (S.D.1982); State v. Houghton, 272 N.W.2d 788 (S.D.1978).

We conclude that the evidence of the burglary was so strong in this case that the only real issue was Devine’s mental condition when it was committed. Because Devine’s statements were a necessary basis for, and relevant to, the psychiatrist’s opinions on sanity, Culpepper, supra; State v. Sarinske, 91 Wis.2d 14, 280 N.W.2d 725, 741 (1979), we believe he has failed to show prejudicial error or an abuse of discretion. See Holland, supra; Means, supra; Dace, supra; Johnson, supra; Houghton, supra. The evidence of his statements accordingly was no more than harmless error. SDCL 23A-44-14.

We have reviewed Devine’s challenge to the jury instructions. In light of our conclusion herein, we find that claim to be without merit.

Affirmed.

WOLLMAN and MORGAN, JJ., and WUEST, Supreme Court Judge, Acting as a Supreme Court Justice, concur. HENDERSON, J., dissents.

1 . Pursuant to SDCL 23A-7-2(5), a defendant may also plead "guilty but mentally ill.”

2 . Each expert witness qualified as a psychotherapist according to the SDCL 19-13-6(3) definition.

3 . Some jurisdictions have likewise experienced problems with that assumption when specific intent is a material element of the offense. Others have held that bifurcated trials which preclude any evidence on the defendant's mental state during the guilt phase of the trial unconstitutionally create an irrebuttable presumption of sanity and impermissibly relieve the state from its burden of proof on the mental elements of an offense. See State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 622 (1971); Morgan v. State, 392 So.2d 1315 (Fla.1981); State ex rel. Boyd v. Green 355 So.2d 789 (Fla.1978); Sanchez v. State, 567 P.2d 270 (Wyo.1977).