United States v. Harper

• Decision Date: 25 October 1971
• Docket Number: No. 30324.,30324.
• Citation: 450 F.2d 1032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James L. HARPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

450 F.2d 1032 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. James L. HARPER, Defendant-Appellant.

No. 30324.

United States Court of Appeals, Fifth Circuit.

October 25, 1971.

COPYRIGHT MATERIAL OMITTED

John B. Farese, Ashland, Miss., Emory Walters, Ocilla, Ga., Peggy A. Jones, Ashland, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Before WISDOM, Circuit Judge, DAVIS,^* Judge, and GOLDBERG, Circuit Judge.

WISDOM, Circuit Judge:

James Laverne Harper was charged in a two-count indictment with the unlawful manufacture of methadone, a narcotic drug, in violation of 21 U.S.C. § 505, and the unlawful sale of the drug not in or from the original stamped package, in violation of 26 U.S.C. § 4704(a). He pleaded not guilty and stood trial by jury. At the close of the Government's case, the court granted Harper's motion for judgment of acquittal on Count Two. The jury then found Harper guilty as charged in Count One. The court sentenced him to serve a three-year term in an institution to be designated by the Attorney General.¹

On appeal Harper presents a number of contentions, largely relating to the admissibility and sufficiency of the Government's evidence as to his sanity at the time he was alleged to have committed the offense. We affirm.

I.

Harper contends that the court erred in permitting Drs. Hubbert and Fain to testify in this case. In accordance with an order of the court both doctors examined Harper after his arrest to determine his competency to stand trial.² Harper argues that permitting them to testify in court about the nature of their examinations and their diagnoses violated the physician-patient privilege granted him by Mississippi law. See Mississippi Code of 1942, § 1697.

This contention is without merit. Rule 26 of the Federal Rules of Criminal Procedure states that in federal criminal trials the admissibility of evidence and the witnesses are to be governed by the principles of the common law, except as modified by Act of Congress. At common law there was no physician-patient privilege. See 8 Wigmore; Evidence § 2380; McCormick, Evidence § 101. And we know of no federal statute creating such a privilege.³ Under controlling federal standards, therefore, the testimony of the two doctors was admissible. See United States v. Mancuso, 5 Cir. 1971, 444 F.2d 691; Ramer v. United States, 9 Cir. 1969, 411 F.2d 30, 39-40; United States v. Mullings, 2 Cir. 1966, 364 F.2d 173, 176 n. 3.

Moreover, in the circumstances of this case the Mississippi physician-patient privilege would not bar the testimony of Doctors Hubbert and Fain. The Mississippi statute declares privileged only those communications made to a physician "by a patient under his charge or by one seeking professional advice." Mississippi Code of 1942, § 1697. In several cases the Mississippi Supreme Court has held that the statute does not apply to a physician appointed by the court or by the prosecution to examine the defendant to determine whether he is mentally competent to stand trial. See Hopkins v. State, 212 Miss. 772, 55 So.2d 467 (1952); Keeton v. State, 175 Miss. 631, 167 So. 68 (1936); Norwood v. State, 158 Miss. 550, 130 So. 733 (1930). See also Hardy v. Riser, N.D.Miss.1970, 309 F.Supp. 1234, 1239. Thus even if we were to hold that state-created privileges apply in federal criminal trials, the testimony of the two doctors as to their court-ordered examinations would not violate the physician-patient privilege granted the defendant by Mississippi law.

II.

Second, Harper argues that the court erred in permitting Drs. Hubbert and Fain to testify that they examined Harper under a court order to determine whether he was mentally competent to stand trial and that they found him to be mentally competent. The doctors' testimony, Harper argues, violates the spirit, if not the letter, of 18 U.S.C. § 4244. That section provides in part as follows:

A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.

Allowing the doctors to testify that they examined him pursuant to a court order violates the statute, Harper contends, because it is the express purpose of the statute to prevent the jury from learning that the court has ordered a mental examination.

We cannot agree. The only evidence ruled inadmissible by the above quoted section of the statute is the trial judge's finding that the accused is competent to stand trial. In this case neither Dr. Hubbert nor Dr. Fain mentioned that the trial court had found Harper competent to stand trial. Each testified merely that he had examined Harper and found him mentally competent at the time of the examination. Moreover, the doctors' only mention of the court's examination order came in brief response to the question, "How did you come to know Harper?" In these circumstances we conclude that the doctor's testimony did not violate 18 U.S.C. § 4244.⁴See Edmonds v. United States, 1969, 106 U.S. App.D.C. 373, 273 F.2d 108, 114 (en banc); Bailey v. United States, 1957, 101 U.S.App.D.C. 236, 248 F.2d 558, 560.

III.

Third, Harper asserts that the court erred in allowing the Government to cross-examine the defense witness Dr. Little by reading to him or having the witness read excerpts from medical reports by Drs. Starry and Bell. These medical reports included the doctors' conclusions that Harper was not insane. Allowing those conclusions to be introduced into evidence in this manner, Harper contends, denied him his Sixth Amendment right to be confronted by the witnesses against him.⁵.

There are of course cases—both in this circuit and in others—holding that expert opinions as to the sanity of the defendant contained in hospital records are not admissible to prove the truth of the matters contained therein. Such opinions may thus be received into evidence only when the expert who made the report is available for cross-examination. See, e. g., Otney v. United States, 10 Cir. 1965, 340 F.2d 696, 699-700; Lyles v. United States, 1957, 103 U.S.App.D.C. 22, 254 F.2d 725, 731 (en banc); Mullican v. United States, 5 Cir. 1958, 252 F.2d 398, 404; England v. United States, 5 Cir. 1949, 174 F.2d 466, 468. In arguing that the court erred in permitting cross-examination of the defense witness Dr. Little through the use of the reports of Dr. Starry and Bell, Harper relies heavily on these cases. In the circumstances of this case, however, we deem them inapposite.

The Government did not attempt to offer the reports of Drs. Starry and Bell into evidence. On the contrary, the Government disclosed the nature and contents of the reports solely to impeach the testimony of the defense witness Dr. Little. Dr. Little had testified on direct examination that in his opinion from June 1968 to July 1969 Harper suffered from a mental disease or defect that rendered him incapable of appreciating the wrongfulness of his acts or conforming his conduct to the requirements of the law—i. e., he was legally insane.⁶ On cross-examination the Government sought to ascertain how Dr. Little arrived at his conclusion. He was thus asked how many times he interviewed Harper, whether he had administered any psychological tests, and whether he had based his opinions on any other physicians' reports. In response to the last question, Dr. Little admitted that he had studied the reports of Drs. Miller, Starry, and Bell. Dr. Miller had also concluded that Harper lacked the mental capacity to be responsible for his acts during the period from June 1968 to July 1969. Drs. Starry and Bell, however, had concluded that although Harper suffered from emotional disturbances, he was not insane. The Government then disclosed to the jury the nature and contents of the reports of Drs. Starry and Bell and inquired whether there was anything in those reports that supported Dr. Little's conclusion. At that point the court instructed the jury that the reports of Drs. Starry and Bell were to be considered by them only in determining the weight to be given to the testimony of Dr. Little and were not to be considered as proof of the facts asserted therein. In its charge to the jury at the conclusion of the trial the court repeated that instruction.

We hold that this limited use by the Government of the medical reports of Drs. Starry and Bell did not violate Harper's Sixth Amendment right to be confronted by the witnesses against him.

Although medical reports containing expert opinions as to the defendant's sanity may not be admitted directly into evidence, they may be used by other experts in arriving at a conclusion as to the defendant's sanity. E. g., Jenkins v. United States, 1962, 113 U.S.App. D.C. 300, 307 F.2d 637 (en banc); Rule 703, Proposed Rules of Evidence for United States Courts and Magistrates, 51 F.R.D. 315, 404 (1971). And if an expert witness considers such reports in reaching his conclusions, it is open to both sides to question him about what weight he gave the reports and why. See Brown v. United States, 1967, 126 U.S.App.D.C. 134, 375 F.2d 310, 318; Smith v. United States, 1965, 122 U.S. App.D.C. 300, 353 F.2d 838, 842 & n. 7; Birdsell v. United States, 5 Cir. 1965, 346 F.2d 775, 779; Rule 705, Proposed Rules of Evidence for United States Courts and Magistrates, 51 F.R.D. 315, 406 (1971).

The reason for that rule is clear. The issue of the defendant's insanity, when raised as a defense to a criminal prosecution, is to be decided by the jury on the basis of all the evidence. Therefore, although expert opinion evidence on the issue cannot be arbitrarily ignored, it is not binding upon the jury. Rather it is only advisory in nature. Indeed, it is the jury's function to assess the credibility of the expert...