Graham v. State

• Decision Date: 31 January 1977
• Citation: 547 S.W.2d 531
• Parties: Larry Gene GRAHAM, Petitioner, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 531

547 S.W.2d 531

Larry Gene GRAHAM, Petitioner, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

Jan. 31, 1977.

Rehearing Denied Feb. 28, 1977.

Thomas A. Harris, Chattanooga, for petitioner.

Tennessee Association of Crim. Defense Lawyers, Jerry H. Summers, Chattanooga, for amicus curiae.

R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, John Goza, Jerry S. Sloan, Asst. Dist. Attys. Gen., Chattanooga, for respondent.

OPINION

HENRY, Justice.

We granted certiorari in this criminal action to consider four significant questions, viz:

a. The right of an indigent criminal defendant, pleading not guilty by reason of insanity, to a psychiatric examination at state expense.

b. The admissibility of hospital records under the Uniform Business Records as Evidence Act (Sections 24-712 24-715, T.C.A.) in a criminal action.

c. The correct test for determining the question of criminal responsibility.

d. The correct jury instruction with respect to the burden of proof in criminal prosecutions wherein insanity is pleaded as a defense.

I. Factual Background

Petitioner was convicted of bank robbery, grand larceny and assault with intent to commit murder. All convictions grew out of a bizarre series of events that occurred in the Chattanooga vicinity on 14 October, 1974.

Petitioner, a twenty-eight (28) year old man, with a history of mental disorders, marital difficulties and occupational problems, was residing in Chattanooga with his parents. He had been married and was the father of five (5) children. The record suggests his wife's infidelity; and that she lost her life in an automobile wreck while out with other men. The children ultimately were placed in a foster home by the Tennessee Department of Public Welfare (now Department of Human Services).

He had been treated in the psychiatric ward of Baroness Erlanger Hospital from May 19, 1973 to June 19, 1973, with diagnosis of "paranoid state", followed by treatment at Central State Psychiatric Hospital. He was again treated at Baroness Erlanger from February 15, 1974 to February 19, 1974, for the same malady, followed by treatment at Moccasin Bend Psychiatric Hospital.

On 14 October 1974, he went to the office of Dr. J. S. Cheatham, who had treated him while a patient at Baroness Erlanger, but the doctor was out. After leaving the doctor's office, he purchased and consumed a half pint of whiskey. It should be noted that petitioner was a problem drinker if not an alcoholic.

Thus fortified he began his foray. First he went to a hardware store located in the vicinity of his home, where his father formerly worked, where he normally traded, and whose owner had known him for many years. There, in plain view, after pricing a shotgun, he took the gun and two boxes of shells and openly and slowly walked out of the store with them.

Next he went to a service station where he was known by one of the attendants and, after being refused credit, brandished the stolen shotgun and ordered the attendant to fill up his automobile. After the attendant complied, he sped off before the cap could be replaced on the gasoline tank. But, as he left he "throwed out a billfold" containing full identification.

He then drove out to the Red Bank branch of Hamilton Bank where he entered the banking room and, without mask or other disguise, robbed a teller of approximately $2400.00, sauntered out and drove off at a normal rate of speed.

By this time the police had been alerted and ultimately he was pursued by a policeman. He stopped his car and the police car stopped behind him. As the policeman got out of his car petitioner shot and wounded him, rolled him over to the side of the road, and kicked him a few times. He then took charge of the police car and drove it around for a short time with the blue light flashing and rotating. He returned, got back in his own car, and started toward Dayton. He surrendered to the Rhea County Sheriff in the vicinity of Graysville. Subsequently, he made a full confession.

Petitioner's sole defense was not guilty by reason of insanity.

After his conviction he appealed to the Court of Criminal Appeals and that Court affirmed the verdict of the jury and the judgment of the trial court thereon.

No assignment challenges the sufficiency of the evidence. Indeed, the petitioner, testifying in his own behalf, admitted each offense. The sole issues before the Court are those hereinabove set forth.

II. Right to Psychiatric Examination

Prior to the trial petitioner's court appointed counsel ¹ moved the Court for an examination by a private psychiatrist, at State expense. The trial judge's denial of this motion forms the basis of petitioner's first assignment in this Court.

There is no statutory predicate for the appointment of a private psychiatrist. Section 33-708(a), T.C.A., provides as follows:

When a person charged with a criminal offense is believed to be incompetent to stand trial, or there is a question as to his mental capacity at the time of the commission of the crime, the criminal or circuit court judge before whom the case is to be tried may, upon his own motion or upon petition by the district attorney general or by the attorney for the defendant and after hearing, order the defendant to be evaluated on an outpatient basis by the community mental health center designated by the commissioner to serve the court or, if the evaluation cannot be made by the center, on an outpatient basis by the state hospital or the state supported hospital designated by the commissioner to serve the court. If in the opinion of those performing the mental health evaluation, further evaluation is needed, the court may order the defendant hospitalized, and if in a state hospital or state supported hospital, in the custody of the commissioner for not more than thirty (30) days for the sole purpose of further evaluation. (Emphasis supplied).

It will be noted that the statute is discretionary, since it in no sense requires such an examination, nor does it specify that the examination be conducted by a psychiatrist as opposed to a psychologist, ² nor does it contemplate the employment of a private practitioner.

Since there is no statutory sanction for the employment of a private psychiatrist at state expense, we look to case law for precedent. Our investigation into the law leads us to the conclusion that this is an area wherein the law has not been fully and finally settled. There is an apparent cleavage, with no qualitative or quantitative preponderance. See annotation, Right of Indigent Defendant In Criminal Case to Aid of State by Appointment of Investigator or Expert, 34 A.L.R.3d 1256, and more particularly, sections 6(c) and (d).

Pertinent to the issue is the rationale of Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), wherein the Court was dealing with the due process right of an indigent defendant to a second tier appellate review. There the Court said:

The Fourteenth Amendment "does not require absolute equality or precisely equal advantages", (citations omitted) nor does it require the State to "equalize economic conditions." 417 U.S. at 612, 94 S.Ct. at 2444.

In Collins v. State, 506 S.W.2d 179 (Tenn.Cr.App.1973), the defendant, prior to preliminary hearing, was committed to Central State Psychiatric Hospital for observation and a report thereof was submitted to the Court. Subsequently, both at a hearing to determine competency to stand trial and at the main trial, the reporting psychiatrist testified for the defendant, although "some of his testimony was damaging". 506 S.W.2d at 187. The trial judge rejected a motion to appoint a private psychiatrist, at state expense, and the Court affirmed, holding that the defendant had no right to a "psychiatric advocate."

The Collins court relied in part on United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953), which held that the state was not required to appoint a psychiatrist to make a pre-trial examination of an indigent patient.

See also Crum v. State, 530 S.W.2d 103 (Tenn.Cr.App.1975).

Essentially this is a matter that addresses itself to the judgment and discretion of the legislature. Thus far it has not seen fit to provide such services to indigent defendants.

In this particular case the defendant called as a witness a highly qualified psychiatrist whose testimony fully supported his plea of insanity. We cannot see that he was prejudiced by the action of the trial judge, in law or in fact.

We hold that an indigent defendant does not have a right under the federal or state constitution, to the services of a private psychiatrist, at state expense.

III. Admissibility of Hospital Records

The assignment relating to the admissibility of medical and hospital records of Baroness Erlanger Hospital presents a question of first impression in this jurisdiction.

As has been pointed out, supra, petitioner had a previous history of mental problems with treatment at various hospitals. In order to show this medical history, along with the severity and degree of his previous mental difficulties, and to form a predicate for certain hypothetical questions to the psychiatrist testifying in his behalf, he attempted to introduce the records of Baroness Erlanger Hospital, covering three periods of hospitalization. The trial judge permitted their introduction for identification only.

We briefly summarize these records.

His first hospitalization in 1971 was for gunshot injuries to the right chest.

He was next admitted on May 19, 1973 with admitting diagnosis of "paranoid state." Two days after his admission the hospital forwarded a form letter to the Mental Health Officer at Chattanooga, requesting that proceedings be initiated to commit petitioner to Moccasin Bend Psychiatric Hospital stating that he is in need of continued care and treatment and is potentially dangerous to himself and others.

The appropriate psychiatric diagnosis...