State v. Glover

Decision Date17 April 1978
Citation577 P.2d 91,33 Or.App. 553
PartiesSTATE of Oregon, Respondent, v. Billy Irl GLOVER, Appellant.
CourtOregon Court of Appeals

Gary D. Babcock, Public Defender, and Robert C. Cannon, Deputy Public Defender, Salem, filed the brief for appellant.

James A. Redden, Atty. Gen., Al J. Laue, Sol. Gen., and W. Benny Won, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before SCHWAB, C. J., and LEE, RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

Defendant appeals his conviction by jury verdict of two charges of Robbery in the Second Degree, ORS 164.405. Although the charges were unrelated, and in two separate indictments, defendant agreed to having both indictments tried in a single trial. Defendant admitted both robberies but relied on the affirmative defense of mental disease or defect pursuant to ORS 161.295. The sole issue at trial was defendant's mental state at the time the robberies were committed. On appeal defendant raises two assignments of error. First, the denial of his motion for appointment of an additional psychiatrist to testify in his behalf. Second, the denial of his motion to discharge his court appointed attorney and have other counsel appointed.

While incarcerated in California, awaiting extradition to Oregon, defendant was examined by Dr. McAllister, a psychiatrist, at the request of defendant's wife. The trial was scheduled to commence on March 3, 1977. Sometime prior to this date defendant, who was indigent, requested sufficient funds to make Dr. McAllister available as a witness and to have Dr. Dixon appointed to examine defendant and testify at trial. The court informed defendant that only one psychiatrist would be provided at public expense and he could choose either Dr. McAllister or Dr. Dixon. Defendant elected to have Dr. McAllister testify.

Approximately a week prior to the scheduled trial date defendant requested an order authorizing expenditure of funds to have Dr. Ruth Jens, a physician who practiced psychiatry, examine him and testify in his behalf. The court again informed defendant that only one doctor would be provided and told him he could select Dr. McAllister, Dr. Dixon or Dr. Jens. Defendant again decided to have Dr. McAllister testify.

The state, pursuant to ORS 161.315, obtained an order for examination of defendant by a psychiatrist. This examining doctor was the only expert called by the state respecting the affirmative defense.

The denial of his motion to provide funds for Dr. Jens' examination and testimony is the basis of his claim of error.

Defendant testified, in support of the motion, that Dr. Jens had examined him in 1971 but had had no contact with him since then. Her examination was necessary, defendant contends, to update her diagnosis and to support the diagnosis and opinion of Dr. McAllister that defendant was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Defendant made no challenge to the competency of Dr. McAllister.

Pursuant to ORS 135.055(2) the defendant was provided with witness fees for one expert witness. The question is whether an indigent accused, who has already been provided with one psychiatrist whose competency has not been challenged, is entitled, by reason of constitutional due process, to have the state furnish another doctor selected by him. Defendant cites Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), in support of his due process claim. That case involved a Texas statute which forbade an accused from calling an accomplice as a witness in his behalf. The court found the statute constitutionally infirm. The accomplice in that case was an eyewitness to the crime who could testify from his own knowledge and observation. A physician, as an expert witness, gives an opinion based on examination of the defendant or in response to hypothetical questions. A particular physician is therefore not a necessary witness. We have found no case and have been furnished none by the defendant which stretches the constitutional mandate as far as defendant wishes. See State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975); 34 A.L.R.3d 1256 (1970).

Although we decline to give a stamp of approval to a hard and fast rule that an accused is entitled to only one psychiatrist at state expense, we conclude that in this case defendant was provided with the means to adequately prepare and present his affirmative defense. Dr. McAllister testified that he was aware of...

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6 cases
  • Johnson v. State
    • United States
    • Maryland Court of Appeals
    • January 7, 1982
    ...288 N.C. 553, 220 S.E.2d 600, 612-13 (1975); State v. Downs, 51 Ohio St. 2d 47, 364 N.E.2d 1140, 1149 (1977); State v. Glover, 33 Or.App. 553, 577 P.2d 91, 93 (1978); Utsler v. State, 84 S.D. 360, 171 N.W.2d 739, 742 (1969); Graham v. State, 547 S.W.2d 531 (Tenn.1977); Hammett v. State, 578......
  • Tower v. Glover
    • United States
    • U.S. Supreme Court
    • June 25, 1984
    ...was convicted; five days later he was sentenced to 10 years in prison. This conviction was affirmed on April 17, 1978. Oregon v. Glover, 33 Or.App. 553, 577 P.2d 91. Petitioner Babcock represented Glover in this state-court appeal as Meanwhile, on December 6, 1977, the Federal Magistrate to......
  • State v. Wilson, C83-01-30045
    • United States
    • Oregon Court of Appeals
    • October 19, 1984
    ...v. Jackson, 228 Or. 371, 365 [69 Or.App. 573] P.2d 294 (1961); State v. Williams, 43 Or.App. 949, 607 P.2d 740 (1979); State v. Glover, 33 Or.App. 553, 577 P.2d 91 (1978); State v. Pflieger, 15 Or.App. 383, 515 P.2d 1348 (1973), rev. den. Defendant argues that the trial court erred in admit......
  • State v. Reid, 24561
    • United States
    • Oregon Court of Appeals
    • October 2, 1978
    ...In the posture of this case, the interests of justice did not require appointment of another attorney. See State v. Glover, 33 Or.App. 553, 577 P.2d 91 (1978). The defendant next asserts it was error to allow the officer to testify respecting defendant's response after he was advised of his......
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