Ballew v. State

• Decision Date: 17 December 1980
• Docket Number: No. 59663,No. 3,59663,3
• Citation: 640 S.W.2d 237
• Parties: Francis Van Eldon BALLEW, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 237

640 S.W.2d 237

Francis Van Eldon BALLEW, Appellant, v. The STATE of Texas, Appellee.

No. 59663.

Court of Criminal Appeals of Texas,

Panel No. 3.

Dec. 17, 1980.

On Rehearing Oct. 27, 1982.

Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty., Steve Wilensky and Hugh Lucas, Jr., Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, ODOM and PHILLIPS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction of murder. Punishment was assessed at life imprisonment.

Appellant contends that the court erred in allowing discovery of notes made by appellant's expert witness. Appellant also sets forth several grounds of error complaining of the prosecutor's improper examination of witnesses and argument to the jury. The sufficiency of the evidence is not disputed.

Appellant contends that his attorney-client privilege was violated when the trial court allowed the prosecutor to examine the notes of appellant's expert psychiatric witness, Dr. David R. Baker. The record reflects that appellant hired Dr. Baker to aid in preparation of a sanity defense. At trial, Dr. Baker testified that he examined appellant several times over a two-month period preceding the trial. Dr. Baker's opinion was that appellant was insane at the time of the offense. Before commencing cross-examination, the prosecutor requested and the court ordered Dr. Baker to turn over reports and notes he took during his examinations of appellant. Appellant's objection that the notes were protected under the attorney-client privilege was overruled. The prosecutor then utilized the reports and notes to impeach Dr. Baker's testimony and opinion.

The question presented to us today is one of first impression: In a criminal proceeding, can the state discover and utilize reports and notes of a defendant's expert psychiatric witness?

In Texas the attorney-client privilege is statutorily embodied as Article 38.10, V.A.C.C.P. This provision represents a codification of the deeply-rooted common law rule. It serves as a rule of evidence that bars disclosure, without the consent of the client, of communications that pass in confidence between the client and his attorney during the course of professional employment. See Brasfield v. State, 600 S.W.2d 288 (Tex.Crim.App.1980); Russell v. State, 598 S.W.2d 238 (Tex.Crim.App.1980).

Given the complexities of our modern society, lawyers often cannot represent their clients effectively without nonlegal assistance. As a result, it has become generally accepted that the scope of the attorney-client privilege encompasses agents whose services are required by the attorney in order to properly prepare his client's case. E.g., United States v. Alvarez, 519 F.2d 1036 (3rd Cir.1975) (psychiatrist); United States v. Kovel, 296 F.2d 918 (2nd Cir.1961) (accountant); United States v. White, 617 F.2d 1131 (5th Cir.1980) (psychiatrist). 8 Wigmore, Evidence Sec. 2301 (McNaughton rev. 1961).

Numerous states have extended the attorney-client privilege to include psychiatrists hired by the defense attorney to aid in the preparation of a sanity defense. See e.g. Pouncy v. State, 353 So.2d 640 (Fla.App.1977); Houston v. State, 602 P.2d 784 (Alaska 1979); State v. Pratt, 398 A.2d 421 (Md.App.1979); People v. Sorna, 276 N.W.2d 892 (Mich.App.1979); People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793 (1975).

As aptly stated in United States v. Taylor, 437 F.2d 371, 377 n. 9 (4th Cir.1971):

The assistance of a psychiatrist is crucial in a number of respects to an effective insanity defense. In the first place, the presence or absence of psychiatric testimony is critical to presentation of the defense at trial. "In practical terms, a successful defense without expert testimony will be made only in cases so extreme, or so compelling in sympathy for the defendant, that the prosecutor is unlikely to bring them at all." Goldstein, The Insanity Defense, 124-125 (1967).

Moreover the use of an expert for other, non-testimonial, functions can be equally important. Consultation with counsel attunes the lay attorney to unfamiliar but central medical concepts and enables him, as an initial matter, to assess the soundness and advisability of offering the defense. The aid of a psychiatrist informs and guides the presentation of the defense, and perhaps most importantly, it permits a lawyer inexpert in the science of psychiatry to probe intelligently the foundations of adverse testimony.

"If an accused is to raise an effective insanity defense, it is clear that he will need the psychiatrist as a witness. He will need his aid in determining the kinds of testimony to be elicited, the specialists to be consulted, and the areas to be explored on cross-examination of opposing psychiatrists." (citations omitted)

In light of the foregoing, we hold that the attorney-client privilege extended to Dr. Baker's testimony and his notes and reports from the examinations. However, the privilege is not absolute, and may be waived. Cruz v. State, 586 S.W.2d 861 (Tex.Crim.App.1979). We now determine whether appellant waived the attorney-client privilege by calling his psychiatrist to the stand.

States generally have held that the privilege is waived when the defendant calls his psychiatrist to the stand. See e.g. Pouncy v. State, supra; State v. Tensley, 249 N.W.2d 659 (Iowa 1977); People v. Newbury, 290 N.E.2d 592 (Ill.1972); State v. Gregory, 488 P.2d 757 (Wash.1971); Tarrants v. State, 236 So.2d 360 (Miss.1970); People v. Whitmore, 251 Cal.App.2d 359, 59 Cal.Rptr. 411 (1967); see also State ex rel. Juv. Dept. for Lane County v. Brown, 528 P.2d 569 (Or.App.1974); United States v. Alvarez, supra; compare Houston v. State, supra.

In the case before us, appellant called his private psychiatrist, Dr. Baker, to the stand. Dr. Baker testified in detail concerning his examinations of appellant. The notes and reports taken during the examinations were material to the issue of appellant's sanity. Following the wisdom of our sister states, we hold that appellant waived his attorney-client privilege, as extended to the psychiatrist, when he put Dr. Baker on the stand. No error is shown.

In several other grounds of error, appellant challenges the authority of the prosecutor to discover Dr. Baker's medical reports and notes. Appellant contends that no predicate for discovery was established pursuant to the "use before the jury" rule, the "Gaskin" rule, or the "recollection refreshed" rule. Having decided that once Dr. Baker took the stand his reports were no longer privileged and were discoverable, we need not consider these contentions. The grounds of error are overruled.

Appellant next contends that he was deprived of a fair trial because the prosecutor improperly revealed statements made by appellant to Dr. Baker during the sanity examinations. At trial, Dr. Baker testified that appellant was insane at the time of the offense. The prosecutor requested and was allowed to review Dr. Baker's notes. During cross-examination, the prosecutor made repeated reference to statements made by appellant to Dr. Baker during the private examinations. Appellant objected that use of the statements to Dr. Baker violated Article 46.02(3)(g), V.A.C.C.P. ¹ The objection was overruled.

Prior to trial appellant had been found competent to stand trial. At trial the issue before the jury was appellant's sanity. In DeRusse v. State, 579 S.W.2d 224, 230 (Tex.Crim.App.1979), it was held that Article 46.02(3)(g), supra, does not prohibit "the trial use, relative to the sanity defense, of the defendant's statements to the psychiatrist during a combined competency/sanity examination." Dr. Baker examined appellant subsequent to the competency hearing. Dr. Baker's testimony was presented only in regard to appellant's sanity at the time of the offense. No violation of Article 46.02(3)(g), supra, is shown. See also Riles v. State, 595 S.W.2d 858 (Tex.Crim.App.1980). The ground of error is overruled.

Appellant next complains of improper jury argument by the prosecutor. During the guilt-innocence stage of the trial, the prosecutor argued:

Then we brought you Dr. John Holbrook. Now, a few things about Dr. Holbrook that I think are important. Dr. Holbrook was appointed by a Judge, by Judge John Mead because of his experience.

Appellant's objection was sustained and the jury was instructed to disregard. Appellant's motion for mistrial was overruled.

Any error in the prosecutor's comment was cured by the court's action in sustaining the objection and giving the instruction to disregard. Compare Johnson v. State, 510 S.W.2d 944 (Tex.Crim.App.1974). The ground of error is overruled.

In two grounds of error, appellant again complains of improper jury argument by the prosecutor. The first alleged error occurred when the prosecutor stated:

And I was asking Dr. Baker--I was saying, "Can you give me an example of a psychotic episode?" I don't know if he ever did give me an example of the psychotic episode.

MR. MITCHELL: Your Honor, I object. That's a misstatement of the evidence. I believe the doctor said, "Look at the tape of Van Ballew."

Following the court's overruling of appellant's objection, the prosecutor elaborated on his previous comment:

MR. TOKOLY: I'll come to that, also. Then I got around to asking him, I said, "Doctor, did you observe any psychotic episodes?"

* * *

* * *

And his answer was, "No, not except my interpretation of the video tapes."

Now let's stop right there. He observed no psychotic episodes, therefore, in any of his four interviews, according to the emphatic testimony of Dr. Baker. And the only psychotic episodes that he interprets is in the video tapes. And here's the point. And here's the crux of the matter. He saw the video tapes after he made his diagnosis of borderline syndrome. Not before.

The other argument that appellant asserts was improper involved the prosecutor's reference...