Noggle v. Marshall

• Decision Date: 05 May 1983
• Docket Number: No. 81-3382,81-3382
• Citation: 706 F.2d 1408
• Parties: 13 Fed. R. Evid. Serv. 645 Donald Lee NOGGLE, Petitioner-Appellee, v. Ronald C. MARSHALL, Supt., Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1408

706 F.2d 1408

13 Fed. R. Evid. Serv. 645

Donald Lee NOGGLE, Petitioner-Appellee, v. Ronald C. MARSHALL, Supt., Respondent-Appellant.

No. 81-3382.

United States Court of Appeals Sixth Circuit.

Argued Jan. 20, 1983.

Decided May 5, 1983.

Elizabeth Manton, Asst. Public Defender (argued), Columbus, Ohio, for petitioner-appellee.

J. Anthony Logan, Rita Eppler (argued), Asst. Attys. Gen., Columbus, Ohio, for respondent-appellant.

Before EDWARDS, Chief Judge, and KENNEDY and NIES, ^* Circuit Judges.

NIES, Circuit Judge.

In this appeal, we review the grant of a writ of habeas corpus under 28 U.S.C. Sec. 2254 by the United States District Court for the Southern District of Ohio, Western Division. Our jurisdiction is found in 28 U.S.C. Sec. 2253.

Petitioner, Donald Lee Noggle, was found guilty in the Court of Common Pleas of Crawford County, Ohio, of the murder of Lawrence Grauer. The petition raises issues concerning the admissibility of testimony of psychiatric experts over the objection of petitioner. Petitioner called two experts who testified that assuming petitioner committed the act, he was insane at that time. Upon cross-examination, the state was allowed to elicit from these witnesses petitioner's statements to them concerning his participation in the death of Mr. Grauer. The state was also permitted to call, as its rebuttal witness, a psychiatrist who interviewed petitioner at the behest of petitioner's counsel but who had not been called as a defense witness. This expert recounted petitioner's similar statements to him concerning the death of Mr. Grauer and testified that, in his opinion, petitioner was not mentally ill at the time of the alleged crime. On appeal the trial court's rulings on these matters were upheld and the judgment of conviction affirmed.

Noggle's petition is based on violation of his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel, as extended to the states by the Fourteenth Amendment. The District Court found no merit in petitioner's assertion that the medical experts' testimony revealing his incriminating statements to them violated his Fifth Amendment right against compulsory self-incrimination, or, with respect to those experts he put on the witness stand, his Sixth Amendment right to counsel. Noggle v. Jago, No. C-1-79-209 (S.D.Ohio May 26, 1981). ¹ We agree. The court granted the writ, and ordered a retrial, solely upon a finding that an attorney-client privilege under the Sixth Amendment prohibited the State from calling as its witness the third medical expert consulted by petitioner. While the District Court's view that psychiatric experts retained by the defense are shielded by the attorney-client privilege has been adopted in federal criminal proceedings and in the majority of states, we do not agree that the rule articulated by the District Court is constitutionally mandated. Accordingly, we reverse.

I

Petitioner-appellee Noggle was indicted by the September-November 1977 session of the Crawford County (Ohio) Grand Jury on two counts of aggravated murder, with the specification that the offense was committed while the accused was committing or attempting to commit aggravated robbery or aggravated burglary. On February 24, 1978, a jury found him guilty of one count of aggravated murder with the above specification. Noggle was, thereafter, sentenced to a term of life imprisonment, the trial court finding the mitigating factor of "mental deficiency." Our disposition of the case necessitates outlining the trial proceedings in some detail.

Lawrence Grauer was the victim of an assault on July 21, 1977. He received numerous stab wounds, which caused his death. Noggle, who was at that time 17 years old, and two others were alleged to have committed the offense. Noggle was ordered transferred to the Ohio Youth Commission for examination. As a result of that examination and subsequent hearings, it was determined that Noggle be tried as an adult, whereupon Noggle was indicted. Following his indictment, Noggle entered pleas of not guilty and not guilty by reason of insanity.

The principal witness during the prosecution's case-in-chief was Alvin Lee Morgan, who testified concerning his own involvement in the crime and implicated Noggle. Morgan related the chronology of events that occurred leading to the killing of Lawrence Grauer. He testified that on the evening of July 21, 1977, he and Donald Noggle and another person, Virgil Thurlman, had gone to Mr. Grauer's home (where they had done some yard work that day) in search of money to purchase alcoholic beverages. He testified that Noggle looked in the window of Mr. Grauer's residence, saw him in front of the television set, and entered the house while the other two waited outside. While Morgan was watching through the window, he saw Noggle hold Mr. Grauer by the throat and swing wildly at him with a bowie knife. Morgan and Thurlman then entered the house, and the three of them turned the victim over and took money from his pockets. Noggle also stabbed Mr. Grauer's dog. The three then proceeded to a reservoir to get rid of the knife.

In addition to Morgan's testimony of the incident, the State introduced into evidence a plaster cast of a footprint from the scene, which matched the print from Noggle's left tennis shoe. Further evidence against Noggle was provided by the testimony of Philip Lenthold, who had been undergoing diagnostic testing at the Ohio Youth Commission at the same time as Noggle. He testified that Noggle told him he had killed a man.

Prior to trial, defense counsel had Noggle examined by three medical experts in connection with entering an insanity defense. Upon the advice and instruction of counsel, Noggle refused to cooperate with an independent expert appointed for the benefit of the court. The record provided to this court does not clearly disclose that the State also sought to compel another psychiatric examination specifically for the purpose of proof of sanity by the prosecution. In a recorded bench conference, the prosecution did refer to "the refusal of the defendant to cooperate whatsoever with not only the court's personnel but also the State."

During presentation of the defense, Noggle offered no evidence to contradict the statements made by Morgan or to disassociate himself from the events leading to the death of Mr. Grauer. The defense witnesses consisted of friends and family who described Noggle's general character. His father testified Noggle told him he thought he had killed the old man (Grauer).

In addition, the defense used two of the medical experts who had interviewed Noggle before trial as witnesses, Doctor Weitman, a psychologist, and Doctor Vincencio, a psychiatrist. The two doctors reported on the result of their evaluation of Noggle, detailing the family history and his "disassociative mental state" that subjected him to blank spells in high-stress situations. Both experts testified that Noggle was insane in response to the defense's hypothetical question that assumed, for the purpose of the sanity determination, that Noggle had been a participant in the stabbing. The defense did not inquire into any statements Noggle had made to the two doctors concerning the crime.

On cross-examination, and over an objection by defense counsel of unspecified "privilege," the two doctors narrated what Noggle had related to each of them about his participation in the killing of Mr. Grauer, including his statement that he had stabbed the victim at least once.

On rebuttal, the State called the third expert consulted by the defense, Dr. Resnick. The defense objection to Dr. Resnick's testimony, as precluded by the physician-patient privilege provided under Ohio law, was overruled. ² Dr. Resnick testified that the "defendant's own words, his description of his actions, his behavior is the most single important information in addition to the background material on which [to] base my conclusion." He narrated in detail statements made to him by Noggle during the course of his interview, including Noggle's statement that Noggle had stabbed the victim. The prosecution brought out during the testimony of this witness that a psychiatrist cannot tell the truth of such statements, Dr. Resnick stating: "There is no certain way that the psychiatrist can tell the veracity of the statements. There are two possibilities, one is the patient is consciously lying or distorting, and the other is that his own memory is impaired by, in this case, drugs or alcohol, so he does not have a clear recollection." On cross-examination defendant's counsel had Dr. Resnick repeat that the defendant had told him he had no intention of killing Mr. Grauer, and to restate that there is absolutely no way to tell whether Noggle, or any patient, was telling the truth or lying about the events.

The final State's witness was a medical expert from the State District V Forensic Center who testified that Noggle refused to participate in the court-ordered examination on advice of counsel. He testified further that his office formalized the waiver of the physician-patient privilege on a form signed by the person under examination to make the person fully aware that there was a waiver and that use of the report would be at the discretion of the court. Noggle refused to sign the form.

Following his conviction, Noggle pursued a direct appeal to the Ohio Court of Appeals, Third District, assigning as error, in so far as "privilege" is concerned, that permitting Dr. Resnick to testify as to confidential matters violated the physician-patient privilege. [No attorney-client privilege had up to that point been asserted.] The appellate court affirmed petitioner's conviction, holding that no physician-patient privilege attached to communications between petitioner and Dr. Resnick. As far as the record shows, the court, sua sponte, raised the issue of possible violation of an attorney-client...