Coffey v. Messer

• Decision Date: 22 May 1997
• Docket Number: No. 97-SC-46-MR,97-SC-46-MR
• Citation: 945 S.W.2d 944
• Parties: Jeffrey COFFEY, Appellant, v. Hon. Roderick MESSER, Judge, Laurel Circuit Court, Div. II, Appellee, and Commonwealth of Kentucky, Real Party in Interest.
• Court: United States State Supreme Court — District of Kentucky

Page 944

945 S.W.2d 944

Jeffrey COFFEY, Appellant, v. Hon. Roderick MESSER, Judge, Laurel Circuit Court, Div. II, Appellee, and Commonwealth of Kentucky, Real Party in Interest.

No. 97-SC-46-MR.

Supreme Court of Kentucky.

May 22, 1997.

Mark J. Stanziano, Somerset, Stefanie M. McArdle, Appellate Public Advocate, Frankfort, for Appellant.

Roderick Messer, London, pro se.

A.B. Chandler, III, Attorney General, David A. Smith, Criminal Appellate Division, Office of Attorney General, Frankfort, Lawrence Ray Carmichael, Commonwealth Attorney, Somerset, for Real Party in Interest.

COOPER, Justice.

Appellant is charged with the August 31, 1995 murders of fifteen-year-old Taiann Wilson and seventeen-year-old Matthew Coomer. On March 17, 1996, Appellant's trial counsel arranged for Appellant to be evaluated by a mental health professional in preparation for trial. On August 12, 1996, pursuant to RCr 7.24(3)(A)(i), the Commonwealth filed a motion to compel discovery of mental health evidence, so that it could determine whether to move for a separate mental examination in accordance with RCr 7.24(3)(B)(ii). At that time, Appellant had not given notice pursuant to RCr 7.24(3)(B)(i) of his intention to introduce expert mental health testimony. His response to the Commonwealth's motion stated that he did not intend to prove mental illness or insanity and had not given notice of any mental health defense which would entitle the prosecution to its own evaluation.

On September 3, 1996, pursuant to KRS 504.070(1) and/or RCr 7.24(3)(B)(i), Appellant gave written notice of his intention to introduce mental health evidence at trial. However, the notice further stated that Appellant's counsel were not able to discern at that time whether (1) an insanity defense existed; (2) Appellant was competent to stand trial; and/or (3) Appellant was under the influence of extreme emotional disturbance at the time of the charged offenses. On October 8, 1996, the Commonwealth renewed its discovery motion and also moved for an order requiring Appellant to submit to a mental examination by a psychiatrist selected by the Commonwealth. On November 25, 1996, the trial judge entered an order holding that:

[E]vidence of extreme emotional disturbance does bear on the issue of guilt. Therefore, if the defendant files such notice, the Commonwealth shall have the right to have the defendant submit to a mental health exam....

On December 7, 1996, Appellant underwent a second mental health examination by an expert of his choice. On December 9, 1996, he filed another notice of his intent to introduce mental health expert testimony at trial. Specifically, the notice stated that (1) Appellant was not currently incompetent to stand trial and/or assist in his defense; (2) Appellant did not intend to present an insanity defense at trial; and (3) Appellant did intend to introduce the testimony of a mental health expert to support Appellant's claim of extreme emotional disturbance and in any penalty phase of the trial. On December 17, 1996, the trial judge entered an order granting the Commonwealth's motion for a mental health evaluation of Appellant. Appellant then petitioned the Court of Appeals for a Writ of Prohibition against enforcement of that order. The Court of Appeals denied the petition and Appellant appeals to this Court as a matter of right. Ky. Const., § 115.

I.

Appellant first asserts that KRS 504.070 authorizes the Commonwealth to obtain a mental health examination only if the defendant gives notice of his intention to introduce expert testimony relating to a defense of insanity or mental illness. In fact, the statute does not mention the word "defense," but rather authorizes an examination if the defendant gives notice of his intent to introduce evidence of mental illness or insanity at trial. KRS 504.070(1), (2). In Stanford v. Commonwealth, Ky., 793 S.W.2d 112, 115 (1990), we held that the definition of mental illness was broad enough to include extreme emotional disturbance (EED) and that the defendant's failure to give notice justified the trial court's decision to exclude the defendant's mental health evidence.

Regardless of the language of KRS 504.070, RCr 7.24(3)(B)(i) and (ii) authorize a mental examination of the defendant if he gives notice of his intention to introduce expert testimony "relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his guilt...." (Emphasis added.) Appellant posits that even if EED falls within the category of "any other mental condition," it does not bear upon the issue of guilt, since EED is not a defense, but only a mitigating factor which serves to reduce the charged offense of murder to the lesser offense of first-degree manslaughter.

Although we have occasionally described EED as a mitigating circumstance, e.g., Gall v. Commonwealth, Ky., 607 S.W.2d 97, 108 (1980), overruled on other grounds, Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 824 (1981), it is, in fact, a defense to the extent that its presence precludes a conviction of murder. KRS 507.020(1)(a). We have often characterized EED as a defense, ¹ and it is referred to as a "defense to the crime" in the mitigating circumstances section of our capital penalty statute. KRS 532.025(2)(b)2. Once evidence is introduced to prove the presence of EED, its absence becomes an element of the offense of murder. Gall v. Commonwealth, supra, at 109. As with other penal code defenses, the Commonwealth then assumes the burden of proof on the issue but is not required to produce direct evidence of its absence. Matthews v. Commonwealth, Ky., 709 S.W.2d 414, 421 (1985), cert. denied, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 170 (1986). Evidence of EED entitles the defendant to an instruction on the lesser included offense of first-degree manslaughter. KRS 507.030(1)(b). Although a lesser included offense is not a defense within the technical meaning of those terms as used in the penal code, it is, in fact and principle, a defense against the higher charge. Gall v. Commonwealth, supra, at 108; Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257 (1977). Even in Buchanan v. Kentucky, 483 U.S. 402, 408, 107 S.Ct. 2906, 2910, 97 L.Ed.2d 336 (1987), the United States Supreme Court characterized EED (too expansively, to be sure) as an "affirmative defense." Appellant's argument that RCr 7.24(3)(B)(i) only contemplates mental health evidence which would prove a complete defense ignores the fact that a verdict of guilty but mentally ill as defined in KRS 504.130 also is less than a complete defense. KRS 504.150.

Appellant cites Holbrook v. Commonwealth, Ky., 813 S.W.2d 811 (1991) for the proposition that "[t]he presence or absence of extreme emotional distress is a matter of evidence, and not an element of the crime [of murder]." Id. at 815. That quote originated in Wellman v. Commonwealth, Ky., 694 S.W.2d 696, 697 (1985) and is cited out of context. In Wellman, there was no evidence that the defendant was acting under the influence of EED at the time of the offense. The holding in Wellman was that the Commonwealth is not required to prove the absence of EED if there is no evidence tending to prove its presence. However, once evidence of EED is introduced, its absence is included as an element in the instruction on murder per KRS 507.020(1)(a).

An instruction on murder need not require the jury to find that the defendant was not acting under the influence of extreme emotional disturbance unless there is something in the evidence to suggest that he was, thereby affording room for a reasonable doubt in that respect.

694 S.W.2d at 697, quoting Gall v. Commonwealth, supra, at 109 (1980). (Emphasis added.) In Holbrook, supra, the absence of EED was included as an element in the instruction on murder. That case was reversed because the instructions did not include a separate instruction defining EED, as required by McClellan v. Commonwealth, Ky., 715 S.W.2d 464, 469 (1986), cert. denied 479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 986 (1987), and a separate instruction explaining the effect of a finding of EED pursuant to Gall v. Commonwealth, supra, at 110 and Edmonds v. Commonwealth, Ky., 586 S.W.2d 24, 27 (1979), overruled on other grounds, Wellman v. Commonwealth, supra, at 697.

In summary, once evidence of EED is introduced, the absence thereof becomes an element of the offense of murder. Therefore, the presence of EED is a defense which bears upon the issue of the defendant's guilt of the charged offense. When the defendant intends to introduce expert mental health evidence to prove that defense, the provisions of RCr 7.24(3)(B)(i) and (ii) are triggered.

II.

Secondly, Appellant asserts that to require him to submit to an examination by a mental health professional employed by the Commonwealth would violate his Fifth Amendment right against self-incrimination and his Sixth Amendment right to advice of counsel. For this proposition, he relies primarily on the decision of the United States Supreme Court in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In that case, the trial judge sua sponte ordered a psychiatric examination of the defendant to determine his competency to stand trial. The defendant was not advised of his right to remain silent and had no opportunity to consult with his attorneys prior to the examination. The defendant was found competent to stand trial and was convicted of murder. At the subsequent capital penalty phase of the trial, the defendant introduced no mental health evidence. However, as proof of the aggravating factor of "future dangerousness," the Commonwealth called the examining psychiatrist as a witness. The psychiatrist testified: (a) that the defendant "is a very severe sociopath;" (b) that "he will continue his previous behavior;" (c) that his sociopathic condition will "only get worse;" (d) ...