IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED March 9, 1998 FOR PUBLICATION Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) Filed: March 9, 1998 Appellee ) ) ) KNOX CRIMINAL ) Vs. ) ) HON. RICHARD BAUMGARTNER, ) JUDGE ) THOMAS DEE HUSKEY, ) ) Appellant. ) No. 03S01-9610-CR-00096
For Appellant: For Appellee:
Herbert S. Moncier John Knox Walkup Knoxville, Tennessee Attorney General & Reporter
Gregory P. Isaacs Michael E. Moore Knoxville, Tennessee Solicitor General
John H. Baker, III Assistant Attorney General Nashville, Tennessee
At Trial: Randall Eugene Nichols District Attorney General Knoxville, Tennessee
Professor Neil Cohen Special Assistant Attorney General Knoxville, Tennessee
OPINION
TRIAL COURT AFFIRMED ANDERSON, C.J. We granted interlocutory review in this death penalty case to
determine whether the trial court’s orders compelling the defendant to undergo a
mental examination in accordance with Tenn. R. Crim. P. 12.2(c), and requiring
disclosure to the prosecution of material related to the examination, violated the
right to counsel or the right against self-incrimination under the United States or
Tennessee Constitutions.
We recently held that where a defendant asserts an insanity
defense or seeks to introduce testimony with regard to a mental condition, a
court-ordered mental evaluation, and disclosure of materials from the evaluation,
does not violate the right against self-incrimination provided that any statements
made by the defendant during the evaluation, and any “fruits” derived from such
statements, are admissible at trial against the defendant only for impeachment or
rebuttal of an issue respecting mental condition on which the defendant has
introduced testimony. We also held that a defendant does not have the right to
the physical presence of counsel during a court-ordered examination. State v.
Martin, 950 S.W.2d 20 (Tenn. 1997); see Tenn. R. Crim. P. 12.2.
After reviewing the record, we conclude that our ruling in Martin
controls much of the outcome of this case, and that the trial court’s orders did not
violate the defendant’s rights under the United States or Tennessee
Constitutions. The trial court’s judgment is affirmed and the case is remanded
for trial.
BACKGROUND
The defendant, Thomas Dee Huskey, was indicted in case number
51903 for four counts of first-degree murder committed against four victims:
Patricia Rose Anderson, Patricia Ann Johnson, Darlene Smith, and Susan East
-2- Stone.1 The prosecution filed notice of its intent to seek the death penalty for
each offense. This appeal pertains solely to the four capital charges in case
number 51903; however, we will review the salient portions of the entire record to
place the issues in procedural context.
In March and April of 1994, Huskey filed notice of his intent to use
expert testimony with regard to a mental condition and to rely on an insanity
defense with respect to all the cases. When the State filed a motion to compel
Huskey to undergo a mental examination under Rule 12, Huskey moved for a
protective order requiring, among other things, that counsel and a defense expert
be permitted to attend the examination and that the examination be recorded.
Huskey argued that these measures were necessary to preserve his right to
counsel and his right against self-incrimination.
The trial judge, Judge Ray Lee Jenkins, denied the motion for a
protective order and entered three written orders in all cases compelling Huskey
to undergo a mental examination at the Helen Ross McNabb Mental Health
Center in Knoxville. Although orders were entered on May 17, 1994, May 8,
1995, and May 11, 1995, no examinations were conducted because the defense
refused. Judge Jenkins later ruled that because of the refusal to be examined,
the defense could not rely on an insanity defense or introduce expert testimony
as to a mental condition in one of the non-capital cases, case number 49828,
which was finally tried in October of 1995.2 Huskey was convicted of rape and
related offenses.
1 The defendant was also indicted in case numbers 49828, 49829, 49830, 49831, 50090, and 50 091 for m ultiple rapes , robberies , and kidn appings com mitted a gainst se veral victim s. Although the defendant has raised s everal issues with respect to these cases, they are not before us in this ap peal.
2 When Judge Jenkins subsequently recused himself, all of the cases, including the capital cases in number 51 903, were assigned to Judg e Richard Baum gartner.
-3- With regard to the remaining cases, including the capital cases we
are concerned with here, more hearings were held on the mental examination
issues in February, April, and May of 1996. On May 2, 1996, Judge
Baumgartner ordered that Huskey was to be examined by Dr. Clifton Tennison at
the McNabb Mental Health Center. After a two-hour interview with Huskey,
Tennison reported to the trial court that he needed more sessions with Huskey,
additional background information, and also “someone with substantive
experience and demonstrated expertise,” specifically in the field of disassociative
identity disorder.
The trial court instructed Tennison to inquire into the availability of
additional experts in the field after finding that someone with further expertise
and experience was necessary to effectively complete the examination:
[Dr. Tennison] advised us that due to the nature of the illness that Mr. Huskey may suffer from, that he felt that he was not personally capable of providing the Court with the best evaluation that could be accomplished. And that he felt the appropriate thing for him to do within the discipline that he’s an expert in is to employ the services of an individual who was more qualified, had more experience, [and] had studied in this specific area of disassociative identity disorder.
At a later hearing, Tennison related the qualifications and experience of several
experts in the field of disassociative identity disorder, including Dr. Phillip Coons,
a psychiatrist in Indiana who had been brought to Tennison’s attention by the
prosecution.
On May 9, 1996, the trial court ordered in all the cases that Huskey
be examined by Tennison and Coons. The order required the examination to be
recorded but stated that no one could be present during the examination unless
approved by Tennison and Coons. The order required counsel for the State and
the defense to make available Huskey’s medical records, employment records,
-4- school records, psychological/psychiatric records, and witnesses with knowledge
of Huskey’s conduct. The order stated that upon completion of the examination,
the defense would have “a reasonable period” in which to decide whether it
intended to proceed with an insanity defense or evidence respecting a mental
condition; if it did, the State would be provided with the “evaluation and test
results from the examination.”
Huskey objected to the participation of Coons, and argued that the
order violated his right to counsel, right against self-incrimination, and right to
due process. With regard to the four capital cases, the trial court granted
Huskey’s request for an interlocutory appeal of the May 9, 1996 order pursuant
to Tenn. R. App. P. 9.3 After the Court of Criminal Appeals denied the appeal,
we granted Huskey’s application for permission to appeal to this Court, finding
that review of the May 9th order prior to conducting the examination would
provide guidance to the trial court on these issues and avoid the possibility of
serious errors that potentially would require retrials of four complex capital cases.
Because neither the defense nor the State sought a stay of the
proceedings while the appeal was being sought, however, further events and
hearings continued to unfold in the trial court. Although no examination was
conducted pursuant to the May 9th order, the defense later moved that Huskey
be examined by the Middle Tennessee Mental Health Institute (MTMHI) because
MTMHI had conducted examinations with regard to disassociative identity
disorder in prior cases. Hearings on this case culminated in the trial court
entering an order on August 12, 1996, that expressly superseded its May 9th
order.
3 With regard to the remaining non-capital cases, 49829, 49830, 49831, 50090, and 50091, which were tried in May of 1996, the trial court ruled that Huskey’s failure to submit to the examination precluded him from relying on an insanity defense or introducing expert testimony respecting a mental condition.
-5- The superseding August order directed that Huskey was to be
examined at Middle Tennessee Mental Health Institute (MTMHI) to determine his
“mental responsibility” at the time of the offenses. It provided that all “clinical
interviews” with Huskey were to be videotaped, but that defense counsel or
defense experts could not attend the examination process. The order stated that
MTMHI was to direct any requests for additional assistance to Dr. Tennison, who
was to report the request to the trial court. Unlike the May 9th order, the
superseding order did not require disclosure of records and witnesses but
“encouraged [prosecution and defense counsel] to cooperate with requests for
information from [MTMHI], subject to the attorney-client or other applicable
privileges.” Finally, the order provided that all information and opinions formed in
the examination would be held confidential until the defense was given a copy of
the report and also a reasonable period in which to determine whether to
proceed with an insanity defense or expert testimony regarding a mental
condition. The State was then to be given the “evaluation and test results” from
the examination.
After beginning its examination, MTMHI notified Tennison that it
required additional assistance with regard to disassociative identity disorder. At
a later hearing, Tennison and Dr. Samuel Craddock, a psychiatrist with MTMHI,
testified that further expert assistance was needed to complete the examination.
The trial court once again instructed Tennison to inquire as to the availability of
additional experts. When Tennison later informed the court of Dr. Richard Kluft,
a psychiatrist from Philadelphia, Pennsylvania, the court considered Kluft’s
qualifications and availability, and made the following findings:
[I]t is clear to the Court at this point in time, based on the record, that someone who has more experience, someone who is more versed in this area is needed to complete the evaluation process. What we have at this stage is an incomplete process which is not going to be of benefit to the Court or, ultimately, to the trier of fact in this case. . . .
-6- It appears to me, based on again Dr. Tennison’s testimony here today, that Dr. Kluft . . . a medical doctor from the Philadelphia area . . . [and] director of Disassociate Identity Disorder Center . . . sounds to me to be the most appropriate individual; and also . . . the most available at this stage of the proceedings, and I am going to ask Dr. Tennison to employ the services of Dr. Kluft for the purposes of completing this evaluation.
Over defense objections, the trial court conducted a teleconference with Kluft
and then ordered that Huskey be examined by Kluft.
Huskey was examined by Dr. Kluft, subject to defense objections.
On October 26, 1996, after Kluft’s examination, the trial court provided a copy of
Kluft’s report to the defense. The report indicated that Huskey suffered from
disassociative identity disorder and met the standard for insanity. On
October 28, 1996, the trial court ruled that the defense had 48 hours in which to
elect to proceed with a mental responsibility defense, after which the materials
stemming from the examination would be disclosed to the State. The defense
objected to the disclosure of the material and on October 29, 1996, sought a stay
of the order from this Court.
In seeking the stay of the trial court’s order, Huskey for the first
time advised this Court of the events that had transpired since the May 9th order;
specifically, that the trial court had entered the August 12th superseding order,
and that an examination had occurred. Despite the changed circumstances, we
concluded that the reasons for granting interlocutory review remained valid:
After due consideration, this Court concludes that the reasons for reviewing the interlocutory appeal granted on October 7, 1996, remain valid, notwithstanding the fact that the defendant has now undergone an evaluation. . . . An interlocutory appeal will serve the interest of deciding complex issues before the trial proceeds, thus reducing the potential for a serious error that would necessitate a retrial. Moreover, this Court further concludes that the trial court ruling of October 28, 1996, granting the State access to
-7- records from the evaluation, is directly related to the right to counsel and self-incrimination issues this Court has already elected to review.
We therefore stayed the trial court’s order and the trial so as to complete our
review of the issues presented in this interlocutory appeal.
MENTAL EXAMINATIONS
A defendant who seeks to rely on an insanity defense or introduce
expert testimony with respect to a mental disease, defect or condition, must file
notice prior to trial in accordance with Tenn. R. Crim. P. 12.2 (a) and (b). When
notice is filed, the prosecution may request that the defendant be compelled to
undergo a mental examination “by a psychiatrist or the other expert designated
for this purpose” by the court. Tenn. R. Crim. P. 12.2(c). The rules limit the use
at trial of statements made by the defendant in the course of the court-ordered
examination:
No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except for impeachment purposes or on an issue respecting mental condition on which the defendant has introduced testimony.
Tenn. R. Crim. P. 12.2(c). If a defendant fails to comply with a court-ordered
examination, the trial court may preclude the defendant from relying on the
insanity defense or introducing expert testimony as to a mental condition. Tenn.
R. Crim. P. 12.2(d).
We observed in Martin, supra, that “there are obvious concerns
generated when a defendant is compelled to undergo a mental examination at
which he or she will, in all likelihood, discuss not only details of his or her life but
also information about the charged offense.” Like the defendant in Martin,
-8- Huskey challenges the court-ordered mental examination as violative of his right
against self-incrimination and his right to counsel under the United States and
Tennessee Constitutions. Huskey also raises several issues with regard to the
number and nature of examinations ordered by the trial court, as well as the trial
court’s order granting discovery of materials and results stemming from the
court-ordered examination to the prosecution.4
SELF-INCRIMINATION
The Fifth Amendment to the United States Constitution provides in
part that “no person . . . shall be compelled in any criminal case to be a witness
against himself.” Article I, § 9 of the Tennessee Constitution states that “in all
criminal prosecutions, the accused . . . shall not be compelled to give evidence
against himself.” Although we may extend greater protection under our State
Constitution, we have traditionally interpreted article I, § 9 to be no broader than
the Fifth Amendment. See Martin, 950 S.W.2d at 22; State v. Frazier, 914
S.W.2d 467, 473 (Tenn. 1996).
We observed in Martin that virtually every federal and state
jurisdiction has held that where a defendant raises an insanity defense, a court-
ordered psychiatric examination and the prosecution’s use of evidence from the
examination to rebut evidence of a mental condition introduced by a defendant
does not violate the Fifth Amendment privilege against self-incrimination. 950
S.W.2d at 24 n. 3 (collecting cases). We likewise found that a court-ordered
mental examination does not violate article I, § 9 of the Tennessee Constitution,
provided that any statements made by the defendant during an examination, and
4 By filing several motions with this Court and by restating the issues in his briefs on app eal, d efen se c oun sel ha s rep eate dly sou ght to expa nd th e num ber o f issu es fo r revie w, as well as to include issues pertaining to the non-capital cases in 49828, 49829, 49830, 49851, 50090, and 50091. Our review, however, is limited to case number 51903; specifically, whether the court’s orders compelling Huskey to undergo the mental examination and requiring disclosure of the examination material to the prosecution violated the defendant’s right to counsel and the right against self-incrimination. Accordingly, we express no view on any of the other arguments made by Husk ey.
-9- any “fruits” from such statements, are admissible at trial only for impeachment
and to rebut any evidence respecting a mental condition introduced by the
defendant. Id. at 24-25; see Tenn. R. Crim. P. 12.2(c).
Our reasoning was two-fold. First, as stated by the United States
Supreme Court, “when a defendant asserts the insanity defense and introduces
supporting psychiatric testimony, his silence may deprive the State of the only
effective means it has of controverting his proof on an issue that [the defendant]
has interjected into the case.” Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct.
1866, 1874, 68 L.Ed.2d 359 (1981). As one commentator has summarized:
Once either or both notices are filed [by a defendant], the court, upon motion of the prosecution, can order the defendant to submit to a psychiatric examination by a psychiatrist designated by the court. This provision is the key to the notice requirement because the prosecution would be placed at a serious disadvantage if it could not introduce its own expert testimony, based upon the examination of the defendant, in response to the alleged lack of responsibility due to mental condition.
Wayne R. LaFave, Criminal Practice and Procedure, § 19.4 at 517.
Second, the admissibility of the defendant’s statements made
during an examination at trial is expressly limited to impeachment or rebuttal of
the mental condition evidence introduced by the defendant. “In other words,
such material may not be used by the prosecution to prove the guilt of the
defendant and may not be used if the defense does not introduce testimony at
trial on mental condition.” Martin, 950 S.W.2d at 24-25; LaFave, supra, § 19.4 at
517-18.
In this case, Huskey initiated Rule 12 proceedings by properly filing
notice of his intent to rely on expert testimony as to a mental condition and the
defense of insanity. The prosecution moved the trial court to order Huskey to
-10- undergo a mental examination. After numerous hearings, Judge Baumgartner
required Huskey to submit to a mental examination.
Under Martin, supra, and the overwhelming weight of state and
federal authority, such a procedure did not in and of itself violate the defendant’s
right against self-incrimination. It is now incumbent upon the trial court and the
parties to adhere to the protections built into Tenn. R. Crim. P. 12.2(c): any
statements made by Huskey during the examination, any expert testimony based
on such statements, and any “fruits” derived from the statements are admissible
at trial against the defendant only for impeachment or rebuttal of evidence of
mental condition or insanity introduced by the defendant. These limitations
ensure full protection of the defendant’s right against self-incrimination.
RIGHT TO COUNSEL
The Sixth Amendment to the United States Constitution and article
I, § 9 of the Tennessee Constitution guarantee the right to the assistance of
counsel at critical stages “where counsel’s absence might derogate from the
defendant’s right to a fair trial.” The right to counsel “preserves the defendant’s
basic right to a fair trial as affected by [the] right meaningfully to cross examine
the witnesses . . . and to have effective assistance of counsel at the trial itself.”
Martin, 950 S.W.2d at 25 (quoting, United States v. Wade, 388 U.S. 218, 226, 87
S. Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967)).
In Martin, we joined the majority of jurisdictions in holding that a
defendant does not have the right to the physical presence of counsel during a
court-ordered mental examination:
-11- [W]e agree with the courts which have distinguished the ‘critical stage’ prior to a psychiatric examination from the examination itself. We are convinced that the examination differs in purpose and procedure from other stages of the adversarial system, and that counsel’s physical presence in a strictly passive, observational capacity, is not necessary to protect the defendant’s related rights to a fair trial and to confront witnesses. In particular, the defendant has access to the information and results generated by the mental examination, as well as the right to interview, subpoena, and cross-examine the experts with regard to their methodology, opinions, and results.
950 S.W.2d at 26-27. In contrast, a defendant does have the constitutional right
to counsel in making the decision whether to assert a mental condition defense
and thereby submit to a psychiatric examination. Id. at 25 (citing, Estelle v.
Smith, 451 U.S. at 470-71, 101 S. Ct. at 1877; Satterwhite v. Texas, 486 U.S.
249, 254, 108 S. Ct. 1792, 1796, 100 L.Ed.2d 284 (1988); Powell v. Texas, 492
U.S. 680, 685, 109 S. Ct. 3146, 3150, 106 L.Ed.2d 551 (1989)).
In this capital case, the trial court’s May 9th order deferred the
question of the presence of counsel or a defense expert to the mental
evaluators, and the August 12th order precluded counsel or a defense expert
from being present at the examination. Although not constitutionally required,
the trial court’s orders required recording of all the examinations of Huskey, a
measure we endorsed and encouraged in Martin to “preserve evidence and to
enhance the accuracy and reliability of the truth-seeking function of the trial.”
950 S.W .2d at 27. This issue is controlled by Martin. The trial court’s orders did
not violate Huskey’s right to counsel under the United States or Tennessee
Constitutions.
MULTIPLE EXAMINATIONS
In addition to the Martin issues, the defendant challenges the
number and nature of the trial court’s orders compelling the mental examination.
-12- He contends that Rule 12.2(c) limits the prosecution to a single examination,
regardless of whether the examination yields a particular conclusion or result.5
The record shows that the trial court initially ordered a mental
examination to be conducted by Dr. Tennison of the McNabb Mental Health
Center. After conducting a two-hour interview with Huskey, Dr. Tennison told the
trial court that he could not complete an examination without more information
and additional expert assistance. After additional hearings, the trial court, on
May 9, 1996, ordered Huskey to be examined by Tennison and Dr. Phillip
Coons. When this examination never took place, because of the refusal by the
defense, additional hearings culminated in the August 12th superseding order
that required Huskey to be examined by Dr. Tennison and experts at MTMHI.
The superseding order contained numerous safeguards: officials
were ordered to determine only Huskey’s mental responsibility at the time of the
offense; all clinical interviews with Huskey were to be recorded; requests by
MTMHI for information were subject to the attorney-client or other applicable
privileges; and the defense was to receive a copy of the examination results and
a period of time in which to determine whether it would proceed with its mental
condition defense prior to disclosure of any material to the prosecution. While
Huskey consented to the examination pursuant to this order, the examination
once again could not be completed. Tennison and Dr. Craddock of MTMHI
informed the trial court that additional expert assistance was needed to complete
the examination. The trial court then ordered that Huskey was to be examined
by Dr. Kluft. This examination took place as ordered, and Kluft rendered his
findings and opinions.
5 Although Huskey includes the orders entered by Judge Jenkins in his argument, we reiterate tha t our review is solely over the rulings of J udge B aum gartner in c ase nu mbe r 51903 . Huskey also argues that the prosecution “manipulated” its filing of motions under Rule 12.2(c), resulting in the examinations being ordered just prior to the non-capital trials and leaving insufficient time for adequate preparation. While we note that the trial court expressly rejected this c onte ntion , the is sue is not am ong thos e on w hich we gr ante d this interlo cuto ry app eal.
-13- We do not interpret Tenn. R. Crim. P. 12.2(c) so narrowly as to
allow only a single interview. See Martin, 950 S.W.2d at 21; see also State v.
Lovelace, 469 A.2d 391 (Conn. 1983), cert. denied, 465 U.S. 1107, 104 S.Ct.
1613, 80 L.Ed.2d 142 (1984)(discretionary with trial court). The record reflects
that Dr. Tennison was unable to complete the examination and candidly
informed the trial court that he needed additional assistance. Dr. Craddock of
MTMHI also was unable to complete an examination and requested assistance.
Dr. Kluft, an expert in disassociative identity disorder, was located and was able
to complete the examination. Accordingly, the trial court monitored the
proceedings, carefully considered the expert testimony, and, based on the
evidence, ensured that the defendant was subjected to a complete examination.
We conclude there was no abuse of the trial court’s discretion.
DISCOVERY
Much of Huskey’s argument is aimed at the trial court’s orders
allowing disclosure of material relating to the court-ordered examination under
Rule 12.2(c) to the prosecution. His primary contention is that discovery of
materials related to expert testimony is governed by Tenn. R. Crim. P. 16, and
that the State is not entitled to materials relating to the examinations conducted
by Dr. Tennison, MTMHI experts, or Dr. Kluft, unless the defense presents these
experts as witnesses. The trial court ruled that Rule 12.2(c) was not limited by
Rule 16. We agree.
In Martin, we said that restricting disclosure of the results of a
court-ordered examination under Rule 12.2(c) “begs the question of how the
prosecution would recognize appropriate impeachment or rebuttal without
access to the material.” 950 S.W.2d at 25. Our conclusion was based on the
context and purpose of a court-ordered evaluation Rule 12.2(c):
-14- It would be most anomalous to say that a defendant may advance the defense of insanity, have himself examined by his own experts and then invoke the constitutional guarantees against self-incrimination for the purpose of preventing examination by the state. [Citation omitted]. It would be a strange doctrine, indeed, to permit a person charged with a crime to put in issue his want of mental capacity to commit it, and in order to make his plea invulnerable, prevent all inquiry into his mental state or condition.
Id. at 24 (quoting, State v. Whitlow, 45 N.J. 3, 210 A.2d 763, 767 (1965)).
The defendant’s reliance on discovery under Tenn. R. Crim. P. 16
is misplaced. In general, the state’s duty to disclose reports of examinations and
tests is set forth in Tenn. R. Crim. P. 16(a)(1)(D):
Reports of Examinations and Tests. Upon request of a defendant the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at the trial.
The defendant’s duty to disclose is governed by Tenn. R. Crim. P. 16(b)(1)(B):
Reports of Examinations and Tests. If a defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to the witness’ testimony.
Accordingly, disclosure of reports of physical and mental examinations and tests
by a defendant under Rule 16, assuming all other requirements are met,
-15- depends on whether the defendant intends to introduce evidence or call a
particular witness at trial.
There is, however, no similar provision limiting disclosure in Rule
12.2. The rule enables the prosecution to move for a court-ordered evaluation
after a defendant notices intent to rely on evidence as to insanity or mental
condition. The purpose of the rule is to provide the prosecution with a means to
obtain necessary information to rebut evidence of mental condition presented by
the defendant, while at the same time safeguarding a defendant’s right against
self-incrimination. This function simply could not be achieved were a defendant
permitted to prevent disclosure of the results by declining to use the evidence
generated by the examination or electing not to call the witness who conducted
the examination as a witness at trial. See, e.g., State Vilvarajah, 735 S.W.2d
837, 839 (Tenn. Crim. App. 1987)(noting distinction between evaluations under
Rule 12.2 and discovery under Rule 16(b)(1)(B)).
The defendant also contends, however, that disclosure should not
include information that is subject to the attorney/client privilege or protected by
the work product doctrine. In this regard, we note that the superseding order of
August 12th made disclosure by the defendant to mental health officials “subject
to” any applicable privileges. The protection in Rule 12.2(c) limiting the
admissibility of statements made by a defendant in the course of an examination
is a protection of the right against self-incrimination. See LaFave, supra, at 174.
Thus, in Martin, supra, we said that a defendant “is free to object in limine to any
material on the basis of privilege, relevance, or any other ground.” 950 S.W.2d
at 25. The defendant may, therefore, on remand, object to disclosure of specific
material and attempt to establish the applicability of a privilege or other basis for
non-disclosure.
-16- In summary, we hold that the court-ordered examination and the
disclosure of the examination material does not violate the defendant’s right
against self-incrimination, provided the admissibility of any statements made by
the defendant during the examination, and any “fruits” derived therefrom, is only
for impeachment or rebuttal of evidence of mental condition introduced at trial by
the defendant. Moreover, disclosure of the information from the examination is
not limited by Rule 16 and does not depend on whether the defendant intends to
use the information or witness involved in the Rule 12.2(c) examination.
CONCLUSION
For all of the foregoing reasons, we hold that the trial court’s order
compelling Huskey to undergo a mental examination pursuant to Tenn. R. Crim.
P. 12.2 did not violate the right to counsel or the right against self-incrimination
under either the United States or Tennessee Constitutions. We also hold that
disclosure of the material and results related to the examination to the State is
proper under the rules, provided any statements made during the examination by
the defendant, and any “fruits” derived from the statements, are admissible at
trial only for impeachment or rebuttal of evidence respecting a mental condition
introduced by the defendant.
Accordingly, the judgment of the trial court is affirmed and this case
is remanded to the trial court for further proceedings. Costs of this appeal are
taxed to the defendant, Thomas Dee Huskey, for which execution shall issue if
necessary.
________________________________ RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Reid, Birch, and Holder, JJ.
-17- -18-