Gibson v. Com., 750071

• Decision Date: 01 December 1975
• Docket Number: No. 750071,750071
• Citation: 219 S.E.2d 845,216 Va. 412
• Parties: Theodore Roosevelt GIBSON, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 845

219 S.E.2d 845

216 Va. 412

Theodore Roosevelt GIBSON, Jr. v. COMMONWEALTH of Virginia.

Record No. 750071.

Supreme Court of Virginia.

Dec. 1, 1975.

Overton P. Pollard, Richmond (Moore & Pollard, Richmond, on brief), for plaintiff in error.

Jerry P. Slonaker, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief, for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

CARRICO, Justice.

The defendant, Theodore Roosevelt Gibson, Jr., was indicted for the murders of his wife, Marian J. Gibson, and of his father-in-law, Maryland Elmore Coley. Tried by a jury upon his pleas of not guilty, the defendant was convicted of murder of the first degree for the death of his wife, with punishment fixed at life imprisonment, and of murder of the second degree for the death of his father-in-law, with punishment fixed at twenty years imprisonment. The trial court approved the convictions and imposed the sentences fixed by the jury.

At trial, the defendant challenged the sufficiency of the evidence, asserted a defense of insanity, and objected to several rulings of the trial court. On appeal, the questions involve: the admissibility of incriminating statements made by the defendant to his examining psychiatrist; the propriety of certain remarks made by the trial judge concerning the testimony of the psychiatrist; the admissibility of evidence of prior crimes; and the refusal of a defense instruction on insanity.

The record shows that on the night of April 10, 1974, the defendant shot and killed his wife and father-in-law. Warrants were issued charging the defendant with the crimes. On April 14, he was arrested. The following day, counsel was appointed to represent him. On April 17, upon motion of his counsel, the defendant was ordered examined by a Richmond psychiatrist. Two days later, the April 17 order was voided, and on April 22, the defendant was ordered committed to Central State Hospital to determine his mental competence 'to plead and stand trial.' On July 11, the hospital reported to the trial court that the defendant was 'considered to be mentally competent and capable of standing trial.'

During the defendant's trial in the court below, the Commonwealth called as a witness Dr. James C. Dimitris, who had examined the defendant at Central State Hospital. Over objection of defense counsel, Dr. Dimitris was permitted to testify that the defendant, in the course of interviews conducted to determine his mental condition, had admitted killing his wife and father-in-law.

Admission of this testimony is the basis of the defendant's first contention. He argues that admission of the testimony violated the physician-patient privilege and his constitutional right against self-incrimination.

There exists, however, no physicianpatient privilege in a criminal prosecution in Virginia. The common law recognized no such privilege in either civil or criminal proceedings. McCormick, Evidence § 98 (2d ed. 1972). While Virginia has enacted a statutory privilege, it is expressly confined to civil proceedings. Code § 8--289.1. In the present case, therefore, admission of the doctor's testimony did not violate any physician-patient privilege.

Neither, in our opinion, did admission of the testimony violate the defendant's constitutional right against self-incrimination. While the authorities are divided upon the subject, we believe the appropriate rule is found in the nature of the constitutional right itself. It is Compulsory self-incrimination against which constitutional protection is afforded. Proceeding from that predicate, it logically follows that, whether an accused consents or is required to submit to a psychiatric examination, if during the examination he is Not compelled to answer questions concerning the offense with which he is charged, there is no violation of his right against self-incrimination. See People v. Ditson, 57 Cal.2d 415, 438, 20 Cal.Rptr. 165, 184, 369 P.2d 714, 733 (1962); Commonwealth v. Byrd, 421 Pa. 513, 517, 219 A.2d 293, 294--95, Cert. denied, 385 U.S. 886, 87 S.Ct. 181, 17 L.Ed.2d 114 (1966).

Here, nothing in the order of commitment or in the statute authorizing the commitment (Code § 19.1--228, now § 19.2--169) compelled the defendant to answer questions propounded by his examining psychiatrist concerning the crimes with which he was charged. Neither does not record disclose that during the psychiatric examination any compulsion was employed to elicit the statements which were later used against the defendant at trial. Indeed, the examining psychiatrist testified that although the defendant was told it 'would be helpful' if he related the circumstances of the crimes, he was also informed he had 'the absolute right to tell . . . or not to tell' his examiners about the offenses. Notwithstanding this clear warning and despite the fact that he was represented by competent counsel throughout the commitment and examination period, the defendant freely recited the details of the offenses with which he was charged. His incriminating statements, therefore, were voluntary, and hence admissible. See Jones v. Commonwealth, 214 Va. 723, 204 S.E.2d 247 (1974).

The defendant next contends that the trial court erred in denying his motion for mistrial. This point arose when the defendant called Dr. Dimitris, the psychiatrist from Central State Hospital, to testify is support of the defense of insanity. In the presence of the jury, the trial judge inquired of defense counsel whether he was calling the doctor as an adverse witness. When counsel answered affirmatively, the judge stated that he saw no reason to allow the defense to treat the doctor as adverse because, in his previous testimony, the witness had not shown any 'hostility toward one side or the other' or any 'preconceived notions that would be . . . adverse.' The judge further stated, however, that if the witness proved hostile, the defense could then treat him as adverse.

The judge's statements, the defendant argues, constituted comment upon the cerdibility of the witness, 'gave the jury the impression of the court being biased' against the defense, and necessitated a declaration of mistrial. We disagree with the defendant. The statements were nothing more than the judge's explanation of a correct ruling that the defense, at that point in the trial, could not treat the witness as adverse.

The next question is whether the trial court erred in admitting evidence tending to show that the defendant had committed prior crimes. This question involves evidence showing that on February 22, 1974, some seven weeks before occurrence of the murders now under consideration, the defendant had shot and wounded his wife and daughter.

The general...