Hamill v. Powers

• Decision Date: 28 June 2007
• Docket Number: No. MA-2007-45.,MA-2007-45.
• Citation: 2007 OK CR 26,164 P.3d 1083
• Parties: Harold Duwayne HAMILL, Petitioner v. The Honorable Rocky L. POWERS, Associate District Judge, Bryan County, Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

164 P.3d 1083

2007 OK CR 26

Harold Duwayne HAMILL, Petitioner v. The Honorable Rocky L. POWERS, Associate District Judge, Bryan County, Oklahoma, Respondent.

No. MA-2007-45.

Court of Criminal Appeals of Oklahoma.

June 28, 2007.

As Corrected July 10, 2007.

ORDER ASSUMING JURISDICTION AND GRANTING WRIT OF MANDAMUS

¶ 1 The Petitioner, Harold Duwayne Hamill, is charged in the District Court of Bryan County, Case No. CF-2005-524, with First Degree Rape. He has petitioned this Court for a writ of mandamus, to order the Respondent to permit a psychological evaluation of the complainant by an expert chosen by the defense. For the reasons explained below, we assume original jurisdiction in this matter and grant Petitioner's request.

PROCEDURAL HISTORY

¶ 2 Petitioner is charged with the First Degree Rape of an adult woman. The State alleges that the complainant was incapable of consenting to sexual relations due to mental retardation.¹ Before filing charges, the State employed a licensed counselor to examine the complainant and administer intelligence tests to her. The counselor testified at preliminary hearing and gave his opinion about the complainant's ability to understand and make decisions about sexual matters.

¶ 3 After bindover, Petitioner moved the district court to order the production of certain records concerning the complainant's mental capacity, and asked the court to permit the defense to have the complainant evaluated by its own qualified expert. After a hearing, the court (without objection by the State) granted the request for production of certain records, but took the request to permit another psychological evaluation under advisement and invited the parties to submit any authority they might have on the issue. On August 14, 2006, the district court denied Petitioner's request by court minute, stating that "[n]o authority has been presented to sustain [Petitioner's] position." This ruling was later memorialized in a formal order issued January 10, 2007. On January 12, 2007, Petitioner filed a Petition for Writ of Mandamus in this Court with a brief in support, and submitted relevant documents and transcripts filed below. On January 19, 2007, we stayed the district court proceedings pending resolution of the Petition. On March 14, 2007, we directed a response from the Respondent or his designated representative, and permitted the complainant or her representative to respond as well.

¶ 4 Petitioner claims that he has a clear legal right to have the complainant examined by an expert secured by the defense, because the State intends to use its own expert evaluation to prove that the complainant lacked the ability to consent to sexual relations. The State, on behalf of the complainant, responds that there is no legal authority for granting Petitioner's request, since it does not involve inspection of physical evidence, to which Petitioner would clearly be entitled. The State argues that Petitioner can sufficiently prepare his defense by reviewing the conclusions of the State's expert, and the various records on which that expert relied in addition to his personal interview with the complainant. The Honorable Respondent concurs in the State's argument.

PROPRIETY OF THE WRIT

¶ 5 We must first determine whether the issue presented is the proper subject of an extraordinary writ. This Court is vested with authority to issue writs as necessary in aid of its exclusive appellate jurisdiction over criminal prosecutions. Okl. Const. art. 7, § 4; 20 O.S.2001, § 41. We have often noted that writs of mandamus and prohibition are not appropriate to interfere in matters wholly within a district court's discretion, or where some alternative remedy is available to the petitioner.² But we have also held that writs may issue to prevent a district court from taking action which would clearly be an abuse of its discretion.³ Furthermore, we have held, in other contexts, that a district court abuses its discretion when it acts under a mistaken belief that it has no discretion as to a particular matter.⁴ Finally, we have often found issuance of such writs to be appropriate to resolve matters of constitutional significance.⁵ We are not alone in having used writs of prohibition and mandamus in these circumstances.⁶

¶ 6 On several occasions, we have found the issuance of a writ of mandamus or prohibition appropriate to afford the accused pretrial access to certain types of evidence in the State's possession. At the time many of these cases were decided, there was no explicit statutory authority for the result reached. Rather, each case was decided on its particular facts and the overarching constitutional right to a fair trial.⁷

¶ 7 From a review of the record, it appears that the district court believed it had no authority to permit a defense expert to conduct a psychological evaluation of the complainant. For the reasons explained below, we find that the court does have such authority under the particular circumstances of this case. We grant the writ to answer that limited question, because in these circumstances it bears directly on Petitioner's constitutional right to a fair trial.

ANALYSIS

¶ 8 There is no general constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). Nothing in the federal Constitution precludes the States from experimenting with different discovery schemes aimed at "enhanc[ing] the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence." Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970). Although the Due Process Clause "has little to say regarding the amount of discovery which the parties must be afforded, ... it does speak to the balance of forces between the accused and his accuser." Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82 (1973).

¶ 9 The United States Supreme Court has been "particularly suspicious" of state rules which provide nonreciprocal benefits to the prosecution, at least when the lack of reciprocity interferes with the defendant's ability to secure a fair trial. Wardius, 412 U.S. at 474 & n. 6, 93 S.Ct. at 2212 & n. 6. Over the past several decades, Oklahoma, like most jurisdictions, has moved away from a "trial by ambush" or "poker game" approach to criminal prosecutions, and toward more even-handed discovery procedures. This shift fosters the orderly administration of justice; it reduces the delay that accompanies surprise, enables the accused to make more informed decisions about his prospects at trial, and seeks, in the end, to make the trial an impartial search for truth. As noted above, we have often used writs of prohibition and mandamus to clarify what "due process" requires with regard to particular pretrial discovery issues. In this case, the State enjoys a benefit not through information obtained from the defense, but through its natural investigative advantage: its ability to psychologically evaluate a cooperative complaining witness even before charges are filed. Yet as the Supreme Court has noted, "the State's inherent information-gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the defendant's favor." Id. at 475 & n. 9, 93 S.Ct. at 2212 & n. 9.

¶ 10 The State apparently intends to use its expert to establish that the complainant was not mentally capable of consenting to sexual relations. The mental state of the complainant thus bears directly on an essential element of the offense with which Petitioner is charged. There is no question that under our Criminal Discovery Code, Petitioner is entitled to notice of the State's intention to use this expert as a witness at trial, and is entitled to a copy of any report the expert has compiled. 22 O.S.Supp.2002, § 2002(A)(1)(a), (d). Indeed, the defense was able to cross-examine the State's expert at preliminary hearing.

¶ 11 However, as the State's expert admitted, assessing the mental state of a person is largely a subtle and subjective endeavor.⁸ A defense expert's review of the State's expert's testimony and findings is not always sufficient. Such a second-hand assessment will often lack the aura of validity conferred upon the expert who actually performed the examination. We find that Petitioner's access to the findings of the State's expert does not completely satisfy due process concerns in this particular case.

¶ 12 While the situations warranting such action are admittedly rare, most jurisdictions at least recognize the trial court's authority to order a psychological examination of the complaining witness, even in the absence of express statutory provision.⁹ We are particularly persuaded by several decisions which hold that a defendant is entitled to conduct such an evaluation if he demonstrates sufficient compelling circumstances. Such circumstances include whether the complainant's mental state bears directly on an essential element of the charge, and whether the State intends to offer the testimony of its own expert to support that element of proof at trial. See, e.g., State v. Doremus, 2 Neb.App. 784, 514 N.W.2d 649 (1994);¹⁰ State v. Maday, 179 Wis.2d 346, 507 N.W.2d 365 (1993);¹¹ People v. Wheeler, 151 Ill.2d 298, 176 Ill.Dec. 880, 602 N.E.2d 826 (1992);¹² State v. Rhone, 566 So.2d 1367 (Fla.App.1990);¹³ and State v. Garcia, 94 N.M. 583, 613 P.2d 725 (App.Ct.1980).¹⁴ In several of these cases, the issue was considered by the appellate court through some sort of interlocutory appeal, similar to the procedural posture of this case.

¶ 13 We make two observations here. First, if the complainant here were to sue Petitioner in a civil action based on the alleged sexual assault, Petitioner would almost certainly be entitled, under Oklahoma's civil discovery rules, to have her undergo the...