Loveless v. State, 3320

• Decision Date: 30 March 1979
• Docket Number: No. 3320,3320
• Citation: 592 P.2d 1206
• Parties: David Edward LOVELESS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1206

592 P.2d 1206

David Edward LOVELESS, Appellant, v. STATE of Alaska, Appellee.

No. 3320.

Supreme Court of Alaska.

March 30, 1979.

Sue Ellen Tatter, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant.

Peter A. Michalski and Glen C. Anderson, Asst. Attys. Gen., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

MATTHEWS, Justice.

David Edward Loveless was convicted of second degree murder after a jury trial. ¹ He was initially sentenced to life imprisonment with parole eligibility in ten years, but the sentence was subsequently amended to increase the minimum time to be served to fifteen years. Loveless appeals the judgment of conviction and the imposition of the amended sentence.

On the evening of August 30, 1974, Loveless, Allen Hanson, and several other men were in the Ship's Bar in Kodiak. Loveless and Hanson engaged in several arm-wrestling matches which Hanson won. The two later walked to the bar's vestibule, where at approximately 11:00 P.M., Hanson was fatally shot. No one but Loveless saw the shooting, but immediately afterward Loveless was seen walking away from the bar, shoving a gun into his belt or pants. It was revealed at trial that Hanson had been shot in the face at a range of less than twelve inches.

Loveless was arrested and taken into custody at approximately 2:00 A.M. on August 31st. The police feared that he was suicidal and called Dr. William McIver, a clinical psychologist, to the jail for the purpose of conducting a psychological examination. The examination took place in Loveless's cell, commencing at approximately 3:20 A.M. and lasting for forty-five minutes. No Miranda ² warning was given. Dr. McIver later made a written report of his findings.

Loveless was subsequently indicted for first degree murder. ³ At trial, Loveless testified in his own defense. He admitted the shooting, but contended that it had occurred accidentally when Hanson grabbed the gun while Loveless was showing it to him. The defense also contended that Loveless had been too intoxicated to be capable of forming an intent to commit murder on the night of the crime.

At trial, Dr. Joseph Bloom, a psychiatrist, was called as an expert witness on the subject of Loveless's psychiatric makeup. He testified that at the time of the crime Loveless's judgment and thinking processes had been sufficiently impaired by alcohol so as to prevent him from formulating the intent to commit murder. ⁴ Implicit in Dr. Bloom's conclusion in this regard was his acceptance of Loveless's contention that he had been intoxicated when Hanson was killed, because Dr. Bloom also testified that Loveless suffered no permanent diminishment of capacity although he did exhibit signs of personality disorder.

Over the objection of the defense counsel, the state was allowed to call Dr. McIver as a rebuttal witness. The court limited the scope of his testimony by ruling that he could not reveal any statements made by Loveless concerning the events surrounding the crime. Dr. McIver testified that at the time of the jailhouse examination a few hours after the crime, Loveless had exhibited no signs of intoxication, that his mental faculties had been unimpaired, and that, in general, Loveless had exhibited no signs of mental disease or incapacity. He also testified that Loveless had undergone two epileptic seizures which, in the psychologist's opinion, were "faked".

Loveless contends on appeal that the admission of Dr. McIver's testimony violated his privilege against self-incrimination ⁵ because the jailhouse examination had been conducted without a Miranda warning. Although he recognizes that no statements directly relating to the shooting were admitted, Loveless contends that since Dr. McIver's testimony pertained to his capacity to form intent it was directed at the issue of guilt and should therefore have been excluded.

The appellant's contention is ill-founded, because the privilege against self-incrimination extends only to testimonial evidence. ⁶ Our examination of the trial transcript reveals that on direct and re-direct examination, Dr. McIver's testimony was carefully limited to a description of Loveless's conduct at the time of the interview and to the psychologist's conclusions regarding his mental status at that time. The conclusions were based on Dr. McIver's observations and on Loveless's responses to verbally administered questions which were designed to test his mental faculties and which were unrelated to the crime. We find therefore that the evidence elicited from the appellant was of the nature of "real" or non-testimonial evidence to which the right against self-incrimination does not attach. ⁷

The appellant relies on the nature of the examination, which was primarily a verbal exchange, and on the fact that some remarks that Loveless had made were revealed by Dr. McIver's testimony. This does not render the evidence testimonial in nature, however. The responses Loveless made were important not for their content but only as a means of ascertaining his mental state. Indeed, with minor exceptions, the contested evidence consisted solely of the test results. The few remarks by Loveless that were revealed were unrelated to the crime and were used to illustrate the basis of some of Dr. McIver's conclusions. They constitute "verbal acts" and were therefore properly admitted. ⁸

The appellant also contends that conducting the psychological examination without affording him the opportunity to have an attorney present violated his constitutional right to counsel. We do not agree. Unlike the privilege against self-incrimination, the right to counsel provided by the sixth amendment ⁹ attaches only after formal charges have been filed. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Although we are not limited to the scope of the sixth amendment when construing the right to counsel provided by our state constitution, ¹⁰ when we have provided a broader right in the past we have done so only to protect the accused during proceedings that are investigatory in nature and which are conducted in an adversary context. ¹¹ The rationale of requiring presence of counsel at such proceedings does not extend to pre-indictment physical or psychological examinations which are conducted where the welfare of the prisoner is a significant factor. ¹²

The appellant also contends that the use at trial of a written report prepared by Dr. McIver constituted reversible error. The contention is based on an assumption that both the original examination and the report violated AS 12.45.087(a) ¹³ and that the report and Dr. McIver's testimony were therefore inadmissible under Criminal Rule 26(g), which provides that "(e) vidence illegally obtained shall not be used for any purpose including the impeachment of a witness." The contention is without merit. The examination was properly authorized under AS 33.30.130(a), ¹⁴ and the evidence was therefore legally obtained. Although the report could not have been used to reveal testimonial evidence, it was not itself admitted into evidence and its use on cross-examination revealed only non-testimonial information.

The appellant's final contention concerning the use of Dr. McIver's testimony is that it violated the psychotherapist-patient privilege that we recognized in Allred v. State, 554 P.2d 411 (Alaska 1976). The contention is meritless. Dr. McIver testified only to his conclusions concerning Loveless's mental condition at the time of the examination. This was put in issue by the defendant when he raised the diminished capacity defense. Thus if the psychotherapist-patient privilege existed in the relationship between Dr. McIver and Loveless, it was waived. ¹⁵

One of the men who had been in the Ship's Bar on the night of the shooting identified himself as James Evans. He made a statement to the police and later testified before the grand jury, but the prosecution was unable to locate him for purposes of testifying at trial. ¹⁶ The prosecutor, after first establishing that Loveless had read a transcript of Evans's testimony before the grand jury, asked him:

On August the 29th, Mr. Loveless, did you tell Mr. Evans that you wanted to buy a .38 he had because you had a job to do?

Loveless emphatically denied this. The prosecutor then, in the presence of the jury, gave Loveless a copy of the grand jury transcript and asked him to read to himself a portion of Evans's testimony there. The court admonished the prosecutor, that "you cannot get into what is in here as to what this gentleman (Evans) said. . . ." After Loveless had silently read the transcript, the prosecutor asked: "Is that a fair statement of what occurred?" Again Loveless made a denial. Not satisfied with this, the prosecutor asked: "But in any event you never went to the Beachcomber and asked Mr. Evans if you . . . you had a .38 and you had a job to do?" Loveless again answered in the negative.

Loveless contends that this use of Evans's grand jury testimony violates his right to confront his accusers. ¹⁷ We enunciated the purposes of the right to confrontation in Lemon v. State, 514 P.2d 1151 (Alaska 1973):

This right of confrontation protects two vital interests of the defendant. First, it guarantees him the opportunity to cross- examine the witnesses against him so as to test their sincerity, memory, ability to perceive and relate, and the factual basis of their statements. Second, it enables the defendant to demonstrate to the jury the witness' demeanor when confronted by the defendant so that the inherent veracity of the witness is displayed in the crucible of the courtroom.

Id. at 1153 (footnotes omitted). Both of these interests are implicated here. It was apparent to the jury that the prosecutor's questions were based on the statements of Evans given to the...