Mayben v. State

• Decision Date: 18 June 1993
• Citation: 629 So.2d 723
• Parties: Jonathan David MAYBEN v. STATE. CR 92-398.
• Court: Alabama Court of Criminal Appeals

Page 723

629 So.2d 723

Jonathan David MAYBEN v. STATE.

CR 92-398.

Court of Criminal Appeals of Alabama.

June 18, 1993.

Rehearing Denied Aug. 13, 1993.

Mac Downs, Gadsden, for appellant.

James H. Evans, Atty. Gen., and Gregory O. Griffin, Sr., Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Jonathan David Mayben, the appellant, was convicted for attempted murder and was sentenced to life without parole as a habitual felony offender with four prior convictions. He raises two issues on this direct appeal from that conviction.

I.

The appellant's conviction must be reversed because of the improper admission of a forensic evaluation report.

Prior to trial, defense counsel filed a "motion for court-ordered mental examination of defendant." C.R. 8. Psychologist Karl Kirkland examined the appellant and prepared an "outpatient forensic evaluation report." He concluded that the appellant was both competent to stand trial and sane at the time of the offense:

"In summary, this forensic psychological evaluation of Jon Mayben reveals that he is capable of assuming the role of the defendant at this time. Evaluation further reveals that his well documented problem with chronic drug dependence did not render him unable to appreciate the criminality of his behavior at the time of the offense." C.R. 103-04.

The forensic evaluation report contained the forensic psychologist's diagnosis of the appellant and the information upon which that diagnosis was based. The report stated that it was based on information "obtained from data supplied by the district attorney's office of Etowah County, previous treatment records, interviews with the defendant, and materials supplied by the defendant's mother and an interview with the defendant himself." C.R. 98. The report contained a "summary of alleged offense," which included statements attributed to the victim and the appellant. It also contained numerous statements allegedly made by the appellant to the psychologist including the appellant's admissions concerning suicide attempts, sexual history, and extensive drug and alcohol abuse. The report contains information which is extremely prejudicial to the appellant and which is not admissible in evidence.

The appellant entered pleas of not guilty and not guilty by reason of insanity. At trial, he presented lay witnesses as to his mental condition and abnormal behavior. The appellant testified in his own defense and stated that he was insane at the time of the crime. R. 145. On cross-examination of the appellant, the prosecutor was allowed, over objection, to introduce into evidence the entire "outpatient forensic evaluation report." Apparently, the trial judge accepted the prosecutor's argument that the report should be admitted "[o]n the basis on the medical business records that have been presented to the court pursuant to the court's order, and ... is a part of this court file." R. 152.

A significant portion of the prosecutor's closing argument to the jury was spent on the forensic evaluation report. Portions of the prosecutor's argument were prefaced by the phrase "Dr. Kirkland says," or "Dr. Kirkland tells." R. 244, 247. The prosecutor emphasized Dr. Kirkland's qualifications and that while Dr. Kirkland, a forensic psychologist, had found the appellant sane, no psychiatrist or psychologist had testified for the appellant. Moreover, the prosecutor urged the jury to read the entire report: "I want you to do that. I want you to read every bit of it." R. 244.

Indeed, the entire case hinged on whether the jury "believed" the "testimony" of Dr. Kirkland. As the prosecutor argued in his final closing argument to the jury:

"I submit to you that Mr. Downs [defense counsel] just told you in his closing argument that there was an attempted murder, unless he was insane. His statement to you was we've never disputed that the assault, the attack actually took place, and Jonathan Mayben is the one that did it. And then, he meant he meant [sic] to kill his ex-wife, that is what you were just told. That's attempted murder. The only way, then in that incidence that you could find the defendant not guilty would be to find that he was legally insane....

"Now, Mack would suggest to you, you know, I didn't have a chance to talk to Dr. Kirkland, but--I think your common sense tells you that if he had the authority to file a motion with this Court and get Dr. Kirkland to do the examination, he had the authority, just like I did, to issue a subpoena and bring him in, but he didn't want you to do that because he didn't know what Dr. Kirkland was going to say.

"He's saying, simply discount Dr. Kirkland's statements, because he only interviewed him [appellant] three hours. But, this is a licensed clinical psychologist who is experienced and who is trained, he interviews him, expresses his opinion, and goes way, way, way beyond that in his report. He spends the time not only examining this man, but also reviewing all of these hospital records. It says in the hospital records, it ain't just me, but all of these other people that have seen this man, not one of them found a mental defect. Everyone of them says, the only thing wrong with this guy is he abuses drugs." R. 255-56.

No hospital records were admitted into evidence.

In his instructions to the jury, the trial judge stated:

"I charge you, ladies and gentlemen of the jury, witnesses have testified in this case.

"There is an exhibit, a report by Dr. Kirkland I believe, as an expert. In this case experts have been permitted to express an opinion or draw a conclusion. You will find that in the report." R. 270-71.

In this case, we are not concerned with records from a state mental hospital or with any "medical examination" exception to the hearsay rule. See White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Here, the evaluation was conducted by a clinical psychologist in the medical offices of Kilby Prison. C.R. 97. This evaluation was not shown to qualify as a "hospital record" under Ala.Code 1975, § 12-21-5. See Ex parte Frith, 526 So.2d 880, 883 (Ala.1987), holding that a letter written by a Bryce Hospital staff psychiatrist and sent to a psychiatric social worker who was a defense witness was not a hospital record. See also C. Gamble, McElroy's Alabama Evidence § 254.01(7) (4th ed. 1991).

The comments of the Alabama Supreme Court in Ex parte Baker, 473 So.2d 1130 (Ala.1985), are applicable.

"This case is unlike Seay v. State, 390 So.2d 11 (Ala.1980), in which this Court held that Code 1975, § 22-50-22 providing for depositions of physicians at state mental health facilities 'furnish[es] a constitutional alternative to compulsory attendance at trial.' 390 So.2d at 14.

"No such procedure exists to substitute for the cross-examination of a state toxicologist or his assistants.... Therefore, we do not approve of the language of the Court of Criminal Appeals, 473 So.2d 1127, holding that the admission of the pathologist's report was not error."

Ex parte Baker, 473 So.2d at 1131. See also Grantham v. State, 580 So.2d 53, 55 (Ala.Cr.App.1991) (admission of toxicologist's report was hearsay and violated defendant's right of confrontation).

Furthermore, even if the forensic evaluation report in this case be considered a "hospital record," its admission without the presence of Dr. Kirkland denied the appellant his constitutional rights of confrontation and cross-examination.

"The admission of such items as autopsy reports and hospital records without the attendance of their makers can constitute reversible error unless alternatives such as depositions or an opportunity to cross-examine at trial are provided. In determining whether documentary evidence introduced against a criminal defendant without the opportunity to cross-examine the maker satisfies the requirements of the confrontation clause, relevant facts include (1) whether the evidence has a degree of reliability, (2) whether the evidence is essentially documentary or essentially testimonial, (3) whether the evidence is collateral, used only in rebuttal or is probative of a material element of the offense and, if the latter, whether the evidence is cumulative, (4) whether the evidence connects the defendant directly to the offense, and (5) whether the defendant has an alternative to, or had a prior opportunity for, cross-examination."

W. Schroeder and J. Hoffman, Alabama Evidence § 8-3(6)(a)(2), 426 (2d ed. 1993).

"Unless a statute provides otherwise, evidence generally only comes into court through articulation by a witness. That is, except for those things self-proving or matters presumed or noticed without proof, there is no anonymous evidence." Hutchens v. State, 45 Ala.App. 507, 518, 232 So.2d 687, 697, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970), quoted in Pickett v. State, 456 So.2d 330, 333 (Ala.Cr.App.1982).

In Lowery v. State, 55 Ala.App. 514, 518-20, 317 So.2d 365, 369-70, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975), this Court noted:

"We find that ... [Ala.Code 1975, § 12-21-5] allows a properly certified copy of hospital records to be admitted into evidence without parol evidence from the custodian, but only, by the explicit terms of that statute, when the original would be admissible.

"....

"... We further hold that where ... [§ 12-21-5] is used to prove a material element in a criminal prosecution, there may arise a strong probability that the defendant may be denied his right to be confronted by witnesses and to cross examine them pursuant to Article I, § 6, Constitution of Alabama 1901 and Amendments Six and Fourteen of the United States Constitution."

We also held in Lowery that, under what is now § 12-21-101, "a certified copy of a death certificate cannot be used alone to prove the cause of death as alleged in a murder indictment where the physician attending the deceased at the time of his death, and who signed the death certificate, was within the state, but was not...