457 N.W.2d 564 (Wis.App. 1990), 89-0896-CR, State v. Lindh

Docket Nº:89-0896-CR.
Citation:457 N.W.2d 564, 156 Wis.2d 768
Opinion Judge:The opinion of the court was delivered by: Gartzke
Party Name:STATE of Wisconsin, Plaintiff-Respondent, [d] v. Aaron LINDH, Defendant-Appellant.
Attorney:For the defendant-appellant the cause was submitted on the brief of Kenneth P. Casey, assistant state public defender.
Case Date:May 24, 1990
Court:Court of Appeals of Wisconsin

Page 564

457 N.W.2d 564 (Wis.App. 1990)

156 Wis.2d 768

STATE of Wisconsin, Plaintiff-Respondent, d

v.

Aaron LINDH, Defendant-Appellant.

No. 89-0896-CR.

Court of Appeals of Wisconsin.

May 24, 1990

Submitted on Briefs Dec. 8, 1989.

Opinion Released May 24, 1990.

Page 565

[156 Wis.2d 769] Kenneth P. Casey, Asst. State Public Defender, on the brief, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., by Sally L. Wellman, Asst. Atty. Gen., on the brief, for plaintiff-respondent.

Before GARTZKE, P.J., and SUNDBY and DYKMAN, JJ.

GARTZKE, Presiding Judge.

Aaron Lindh appeals from a judgment of conviction of two counts of first-degree murder, sec. 940.01(1), Stats. 1985, while using a dangerous weapon, sec. 939.63(1)(a)2, Stats., of attempted first-degree murder while using a dangerous weapon, sec. 939.32(1)(a), and of carrying a firearm in a public building, sec. 941.235(1), Stats.

[156 Wis.2d 770] On January 15, 1988, Lindh carried a shotgun into the City-County Building in Madison, Wisconsin, and shot three people he did not know. When deputy sheriff Louis Molnar ordered Lindh to stop and put down his weapon, Lindh advanced on him while shouting "Shoot me! Kill me!" Lindh and Molnar simultaneously fired at each other. Lindh was hit and disabled. Molnar was not hit. Two of Lindh's three victims died.

Lindh pled not guilty by reason of mental disease 1 to all charges. A bifurcated trial

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was held pursuant to sec. 971.165, Stats. He pled guilty to the firearm charge and the dangerous weapon penalty enhancer and was found guilty of the other charges by a jury. The jury then found Lindh did not have a mental disease at the time of the shootings. Lindh challenges only that finding.

Lindh contends that the trial court erred by refusing to suppress statements he made to a psychiatrist. We conclude that the court did not err in that regard. Lindh also contends that he should have been allowed to cross-examine the psychiatrist about pending investigations into his sexual misconduct with patients. We agree, and because the error was prejudicial, we reverse the judgment and remand for a new trial as to Lindh's mental state.

[156 Wis.2d 771] 1. FACTS

Lindh was taken to the hospital after deputy Molnar shot him, was placed under general anesthesia, and underwent surgery which ended at 3:30 p.m. Lindh was then sedated, placed in intensive care, and given pain medication.

During the afternoon, the prosecutor assigned to the case retained Dr. Leigh Roberts, a psychiatrist with a specialty in forensic psychiatry. The prosecutor told Dr. Roberts that a shooting had occurred, that Lindh was in custody, and that questions might be raised regarding his mental state during the shooting. The prosecutor asked Dr. Roberts to interview Lindh.

At 8:34 p.m., two Madison detectives questioned Lindh in intensive care. They questioned him for thirty minutes after first identifying themselves and warning him in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 2 They concluded the interview when Lindh said he was thirsty and was starting to feel some pain.

At 9:33 p.m., Dr. Roberts came to Lindh's hospital room. At the suppression hearing, Dr. Roberts testified as follows:

[156 Wis.2d 772] Q: When you first contacted [Lindh], what did you tell him, if anything?

A: When I first contacted him, I introduced myself. I explained that you [the prosecutor] had sent me. I explained the purpose of the examination, related to my determining his mental state as of that time and as of earlier that day. As I went through each of the items with him, I asked him if he understood and got a verbal affirmative response from him. I explained to him that our discussion was not of a confidential nature, that anything that was reported could subsequently be reported to other persons, since it was done at the request of the District Attorney's office and it related to legal matters. I explained to him that he did not have to speak with me. I asked him if he had an attorney. He indicated, "No." I asked him if he wanted an attorney before he spoke with me. And, again, he indicated, "No." I asked him if he understood that he was giving up his right to have an attorney before talking with me, if he did talk with me. And he indicated he did. I explained to him that the

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concerns about his mental state had to do with was he at risk to harm himself.

....

I explained to him, also, that the purpose of the examination had to do with his mental abilities now, in terms of talking with people, and my assessment of his mental abilities that afternnoon, and that that might be used later in a court process, concerning was he mentally responsible.

....

Q: Did you indicate to him, sir, that if he couldn't afford to hire an attorney, one would be provided for him, before you talked to him?

A: No. I did not.

[156 Wis.2d 773] Dr. Roberts did not tell Lindh that he could stop the questioning at any time.

Dr. Roberts asked Lindh if he could recall what had happened earlier that day in the City-County Building. Lindh said he had a limited amount of recall but remembered shooting three people. When asked why, Lindh responded that he did not know and that he did not want to discuss the details at that time. Dr. Roberts then suggested that Lindh might want to reconsider whether to talk at all because he did not have a lawyer. Lindh responded by closing his eyes. Dr. Roberts stated that he would leave, wait a few minutes, and then return.

Dr. Roberts left Lindh and returned twelve minutes later. Lindh said he understood that he did not have to talk with Dr. Roberts and understood why Dr. Roberts was there. Dr. Roberts then mentioned the absence of a lawyer but Lindh said he would talk. Dr. Roberts asked Lindh about his background, what had led to the shooting incident, and his past and present mental state. This second meeting lasted for about thirty minutes.

On March 8, 1988, Dr. Roberts learned that the University of Wisconsin hospital was investigating a claim that he had engaged in sexual misconduct with a female patient. He knew of sec. 940.22, Stats., which provides criminal penalties for the sexual exploitation of a patient by a therapist. In May 1988, he learned that the Medical Examining Board was investigating charges against him. The complaint before the board alleged several incidents of sexual misconduct by Dr. Roberts with three female patients.

On April 8, 1988, Lindh moved to suppress his statements to the police and Dr. Roberts because they were obtained in violation of Miranda. The trial court denied the motion by decision and order filed September 15, 1988.

[156 Wis.2d 774] Meanwhile, on June 22, 1988, Dr. Roberts again interviewed Lindh in the Dane county jail. The next day, the hospital referred the investigation of Dr. Roberts' sexual misconduct to the Dane county district attorney. The district attorney immediately sought to have a special prosecutor appointed. The circuit court made the appointment on June 28, 1988. Dr. Roberts learned of the appointment on July 8, 1988. On August 17, 1988, he issued a report concluding that Lindh did not suffer from a mental disease on the day of the shooting. On August 22, 1988, he again interviewed Lindh.

The state moved the trial court in limine to prohibit any inquiry at trial about the allegations of sexual misconduct against Dr. Roberts or any possible ramifications of the allegations. The court granted the motion.

At the mental disease stage of the trial, Dr. Ezra Griffith testified on behalf of Lindh. Dr. Griffith is a specialist in forensic psychiatry and an associate professor of psychiatry at Yale University. He opined that at the time of the shooting Lindh suffered from a mental disease. He was in the throes of a psychotic state diagnosed as a brief reactive psychosis. As a result of that state, Lindh lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

Dr. Griffith also testified that long before the shooting Lindh had suffered from mental disorders. Dr. Griffith characterized Lindh's long-term disorder as a mixed personality disorder which fit into two diagnostic categories: borderline personality disorder and narcissistic personality disorder.

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He then described the relationship between the long-term disorders and Lindh's psychotic state at the time of the shooting. He testified that brief reactive psychoses are known complications of each personality disorder.

[156 Wis.2d 775] Dr. Roberts was the state's principal witness. While being qualified in the presence of the jury as an expert witness, Dr. Roberts noted that he had "eight grandchildren up to nearly the age of Mr. Lindh," that he was a faculty member of the University of Wisconsin Medical School, an adjunct faculty member of the San Francisco Theological Seminary, and on the board of trustees of North Central College, that he had served on various committees dealing with mental retardation, rehabilitation, and the sex crimes law, that he had chaired conferences on mental health in relation to religion, rehabilitation, and law, and that he had recently been honored "as essentially the mid-west psychiatrist of the year." He had testified "several hundred times" on the mental condition of persons who have committed crimes.

Dr. Roberts opined that Lindh was not suffering from a mental disease at the time of the shooting. He had an antisocial personality disorder but that is not a mental disease. He had neither a borderline nor a narcissistic personality disorder. He did not suffer a brief reactive psychosis.

Dr. Roberts implied he had an advantage in diagnosing Lindh's mental state because he had interviewed Lindh within hours of the crime....

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