Harris v. State, 43469
| Decision Date | 28 October 1986 |
| Docket Number | No. 43469,43469 |
| Citation | 256 Ga. 350,349 S.E.2d 374 |
| Parties | HARRIS v. STATE. |
| Court | Georgia Supreme Court |
H. Gibbs Flanders, Jr., Kight, Larsen & Flanders, Dublin, for Darby harris.
Beverly B. Hayes, Dist. Atty., Dublin, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for the State.
Darby Harris was tried and convicted of the murder of both his parents and sentenced to consecutive life sentences after a bench trial. 1 The Court found him guilty but mentally ill. Harris told his girlfriend that he had killed his parents. He then fled to Jacksonville, Florida, where he turned himself in to police and gave a statement admitting guilt. About thirty minutes after the interview with police began and after appellant had admitted guilt he began to froth at the mouth and had to be taken to a hospital where he was admitted to the psychiatric unit.
1. In his first enumeration of error Harris complained that the court erred in failing to appoint a psychiatrist or psychologist to examine appellant and testify as required by OCGA § 17-7-130.1. The code section provides that "[w]hen notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial." In the present case the court did order an evaluation prior to trial and even prior to the appellant's notice that he intended to raise a sanity defense. This evaluation was made by a team of psychologists at Central State Hospital headed by Dr. Jerald Lower. Appellant's failure to seek appointment of an independent expert and his use of the court-appointed expert to testify at trial does not constitute error on the part of the court. This enumeration is without merit.
2. The second and third enmerations of error concern the court's failure to conduct a separate hearing into the appellant's competency to stand trial under OCGA § 17-7-130. Although appellant, who made no special plea of incompetency to stand trial, does not argue that he was entitled to a special jury trial on the issue of insanity, he does contend that the court erred in not granting him a hearing. The real question raised here is whether the trial court must hold a separate hearing on competency in the absence of a special plea of incompetency by a defendant when the trial court has been concerned enough about the issue of competency to independently order an evaluation of the defendant. In Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982), we held that even if a defendant makes no motion for a hearing on the issue of competency if the evidence indicates that there is an issue of competency the court must inquire into it. This is so because the accused has a constitutional right not to be put on trial while incompetent. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In Baker, we held that the trial court erred in failing to hold a hearing to determine competency once the issue was raised. The state argued that in fact evidence of competency was brought out at trial, but we found that the only evidence at trial was that he was incompetent. The present case is distinguishable in that respect from Baker because Dr. Marvin Long, the state's psychologist, testified that Harris could cooperate with his lawyer to some extent and could in a general way understand the proceedings. He indicated that appellant's illness was under control by drugs at the time of trial. Dr. Jerald Lower, the court-appointed psychologist, testified that at the time of his report to the court, he felt appellant was competent to stand trial. While there was testimony that he was competent to stand trial, there was no testimony that he was incompetent. The question then becomes whether when there has been testimony by two experts as to a defendant's competency the absence of specific findings by the court necessitates at the very least a post-appeal hearing on the question of competency. We find that it does not. Here, the trial court sua sponte appointed an expert to examine the appellant prior to trial. That expert, as well as the expert retained by the state obviously examined appellant to determine competency as well as his sanity at the time of the acts of murder for which he was tried. The fact that the court allowed the trial to go forward after testimony concerning appellant's competency is in effect a sub silentio finding that he was competent. We conclude that there was a sufficient inquiry into the question of appellant's competency. This is particularly true since this was a bench trial.
3. In his fourth enumeration of error appellant complains of the court's admitting testimony of the state's expert concerning an admission by appellant that he committed the murders. He was given no Miranda warnings before talking with the psychologist. The patient-psychologist privilege does not apply where, as here, the defense is insanity and the statement in question is made during an evaluation by a court-appointed psychologist. Pierce v. State, 243 Ga. 454, 254 S.E.2d 838 (1979). The same is true if the examining psychologist is the state's psychologist. There is a question, however, of the appellant's right against self-incrimination.
In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the United States Supreme Court found that admission of a psychiatrist's testimony on the issue of a defendant's future dangerousness at the penalty phase of a capital case when the testimony was the result of an in-custody court-ordered competency examination infringed the defendant's Fifth Amendment constitutional guarantee against self-incrimination. The Court distinguished a situation in which the application of the psychiatrist's findings was confined to a determination of the issue of competency. The court found no Fifth Amendment issue would arise in that situation. Similarly, a defendant who enters a plea of not guilty by reason of insanity may be required to submit to a sanity examination by the state's psychiatrist. The Court held that "[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." 451 U.S. at 468, 101 S.Ct. at 1876. Although the Court also found that the defendant's Sixth Amendment right to counsel had been violated because he was not allowed to consult with counsel concerning whether he should submit to the examination, the Court specifically noted that the Court of Appeals had not found any right to have counsel present during the examination. 451 U.S. at 471, n. 14, 101 S.Ct. at 1877 n. 14. See also, U.S. v. Cohen, 530 F.2d 43 (5th Cir.1976), cert. denied 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130.
It is not necessary to reach the question whether the court erred in admitting the testimony by the state's expert that appellant admitted the murders. Even if the admission of this evidence had been error it would have been harmless error because there was testimony that appellant had confessed to the murders two times in addition to his statements to the psychologist and harmless because the insanity defense here presupposes an admission of the act. Further, the court announced before admitting the testimony that it would be admitted only for the purpose of determining appellant's condition and not for the truth of the statement in question. The court in a bench trial is deemed to have considered only competent evidence. Simmons v. State, 249 Ga. 860, 295 S.E.2d 84 (1982).
4. In his fifth enumeration of error appellant claims that his statement to police in Jacksonville, Florida, was not voluntary because after approximately thirty minutes of questioning appellant began to froth at the mouth and had to be taken to the emergency room of the hospital from which he was admitted to the psychiatric unit.
The court held a Jackson v. Denno hearing and concluded that the statement taken before the onset of the illness was voluntary. This conclusion was reached after testimony by the detective who took the statement that the appellant appeared to understand his Miranda rights and appeared to be rational and lucid at the time of the statement. Even highly disturbed and psychotic persons are capable of periods of understanding and lucidity, Nelms v. State, 255 Ga. 473, 340 S.E.2d 1 (1986), and we will not overturn the trial court's finding of voluntariness unless it is clearly erroneous Mullinax v. State, 255 Ga. 442, 339 S.E.2d 704 (1986); Berry v. State, 254 Ga. 101, 326 S.E.2d 748 (1985).
5. Appellant's sixth enumeration of error concerns his claim that the trial court erred in requiring that he establish his insanity by a preponderance of the evidence. "Insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence." Murray v. State, 253 Ga. 90, 91-92, 317 S.E.2d 193 (1984); Brown v. State, 250 Ga. 66, 295 S.E.2d 727 (1982).
6. Finally, the appellant argues that there was not enough evidence so that " ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443...
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