Park v. Montana Sixth Judicial Dist. Court, Park County

Decision Date03 April 1998
Docket NumberNo. 97-516,97-516
Citation961 P.2d 1267,1998 MT 164,289 Mont. 367
PartiesThomas Alan PARK, Petitioner, v. MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY; Hon. Wm. Nels Swandal, Presiding Judge; and State of Montana, Respondents. . Heard
CourtMontana Supreme Court

Daniel P. Buckley; Berg, Lilly, Andriolo and Tollefsen; and Herman A. Watson III and Anne H. Watson (argued); Watson Law Offices; Bozeman, for Petitioner.

Joseph P. Mazurek, Attorney General; Carol Schmidt (argued), Assistant Attorney General; Helena, Tara DePuy, Park County Attorney; Livingston, for Respondents.

John P. Connor, Jr. (argued), Assistant Attorney General, County Prosecutor Services Bureau Chief; Helena, for Amici Curiae Montana County Attorneys' Association.

William F. Koeppen; Koeppen Law Office; Bozeman, for Amici Curiae Montana Association of Criminal Defense Lawyers.

Gary E. Wilcox and L. Sanford Selvey II; Yellowstone County Public Defender's Office; Billings,for Amici Curiae Yellowstone County Public Defender's Office.

TRIEWEILER, Justice.

¶1 The defendant, Thomas Alan Park, was charged in the District Court for the Sixth Judicial District in Park County with deliberate homicide and forgery. After he ¶2 There are three issues before this Court:

identified mental health care providers who would testify on his behalf, the District Court ordered Park to submit to a psychological examination by the State's expert. Park objected and applied to this Court for a writ of supervisory control. We assume supervisory control, affirm in part and reverse in part the order of the District Court, and remand this case to the District Court for proceedings consistent with this opinion.

¶3 1. Is supervisory control appropriate in this case?

¶4 2. Is the State entitled to a psychological examination of a defendant by its own expert for the purpose of rebuttal when the defendant has asserted the affirmative defense of mitigated deliberate homicide due to extreme mental or emotional stress?

¶5 3. If the answer to the preceding question is in the affirmative, to what extent must the defendant answer questions regarding acts of which he is accused?

FACTUAL BACKGROUND

¶6 On July 15, 1996, Thomas Alan Park was charged in the District Court for the Sixth Judicial District in Park County with deliberate homicide and forgery. On August 27, 1996, the State filed its notice of intent to seek the death penalty in the event that Park is convicted.

¶7 On July 8, 1997, Park filed his notice of affirmative defenses. He asserted that he "acted under the influence of extreme mental or emotional stress for which there was a reasonable explanation or excuse," and that he "acted with justifiable use of force." Park submitted a list of potential witnesses who would testify in support of the defenses, including Susan Sachsenmaier, Ph.D., a forensic psychologist, and Dr. Joseph Rich, a psychiatrist. In response to Park's notice of intent to use expert psychological testimony, the State requested an examination of Park by William Stratford, M.D. Park's attorney originally agreed to Dr. Stratford's examination.

¶8 However, on two separate occasions, when Dr. Stratford attempted to evaluate Park, Park refused to cooperate. He stated that he would only fill out the written testing material that Dr. Stratford provided. Based in part on Park's refusal to cooperate, the State moved for sanctions and an order to prohibit Park from introducing any evidence, including expert testimony, regarding the extreme mental or emotional stress defense. After a hearing at which Dr. Stratford testified about his need to interview Park, the District Court renewed its order and allowed the examination of Park. In addition, the order was amended to permit Dr. Stratford to question Park regarding the acts of which he was accused. The District Court then stayed the order and allowed Park to submit a brief in opposition to the examination.

¶9 In his brief, Park withdrew his attorney's earlier consent to allow Dr. Stratford's examination. Park contended that the State was not entitled to an examination because his defense was not based on a mental disease or defect and, therefore, was not the type for which a state examination is statutorily provided. In addition, Park challenged that part of the District Court's order which compelled Park to discuss with Dr. Stratford facts related to the charges against him on the bases that such inquiry was not authorized by statute and violated his rights provided for by the Fifth Amendment to the United States Constitution, and Article II, Section 25, of the Montana Constitution.

¶10 After another hearing, the District Court issued an order which required Park to submit to the State's examination and answer questions about events related to the charges against him or suffer the sanction of having his own expert testimony excluded. The District Court explained that Park, by voluntarily raising the affirmative defense of mitigated deliberate homicide based on extreme mental or emotional stress, had waived the right to remain silent about the acts with which he was charged. It found that in order for Dr. Stratford to be able to discuss at trial Park's mental state at the time of the alleged offense, he needed to examine Park regarding the alleged offense. Finally, the order restricted the State's experts from disclosing to the State any incriminating statements made by Park during their examination, and stated that the experts could only testify regarding their conclusions in rebuttal to Park's expert testimony.

¶11 On September 4, 1997, the District Court conducted another hearing at which the record was supplemented with Sachsenmaier's testimony in anticipation of Park's application to this Court for a writ of supervisory control. She testified that her diagnosis of Park was that he was under extreme mental or emotional stress at the time of the alleged offense, and that it would not be necessary to interview the defendant in order to evaluate his mental status. The District Court's order was not modified following that hearing, and Park's petition followed.

ISSUE 1

¶12 Is supervisory control appropriate in this case?

¶13 We held in Plumb v. Fourth Judicial District Court (1996), 279 Mont. 363, 368-69, 927 P.2d 1011, 1014-15, that we will assume supervisory control over a district court to control the course of litigation where the district court is proceeding based on a mistake of law which, if uncorrected, would cause significant injustice, and where the remedy by appeal is inadequate. Our determination of whether supervisory control is appropriate is a case-by-case decision, based on the presence of extraordinary circumstances and a particular need to prevent an injustice from occurring. See State ex rel. Mazurek v. District Court (1996), 277 Mont. 349, 352-53, 922 P.2d 474, 476-77.

¶14 In this case, the District Court's order implicates Park's constitutional right not to be a witness against himself. Once violated, the damage cannot be undone on appeal.

¶15 It is well-recognized that a normal appeal is generally inadequate when a party's constitutional or statutory privilege is at stake. See State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 529, 822 P.2d 91, 94; State ex rel. Burlington N. R.R. Co. v. District Court (1989), 239 Mont. 207, 212, 779 P.2d 885, 889; see also Emergency Care Dynamics, Ltd. v. Superior Court (Ariz.Ct.App.1997), 188 Ariz. 32, 932 P.2d 297; Arizona Bd. of Med. Examiners v. Superior Court (Ariz.Ct.App.1996), 186 Ariz. 360, 922 P.2d 924; City of Fresno v. Superior Court (1988), 205 Cal.App.3d 1459, 253 Cal.Rptr. 296; State ex rel. Stephan v. O'Keefe (1984), 235 Kan. 1022, 686 P.2d 171; City of Alhambra v. Superior Court (1980), 110 Cal.App.3d 513, 168 Cal.Rptr. 49; Glade v. Superior Court (1978), 76 Cal.App.3d 738, 143 Cal.Rptr. 119. In Mapes, for example, this Court granted supervisory control to address a defendant's right of access to confidential communications between the plaintiff and his psychologist. We held that "[o]nce confidential communications have been disclosed or publicized, the damage cannot be undone on appeal." Mapes, 250 Mont. at 529, 822 P.2d at 94.

¶16 The same principle applies in this case, where the District Court's order has the effect of compelling Park to disclose potentially privileged testimony. As soon as Park has been made to disclose that which his constitutional privilege may allow him to withhold, the constitutional protection can serve no purpose, certainly not a retroactive one, and an appeal cannot restore that which has already been violated.

¶17 Furthermore, the State's right to its own examination of the defendant under the circumstances presented is a strictly legal issue of statewide importance which is presented for the first time.

¶18 Accordingly, we assume supervisory control to consider the issues raised by Park's petition.

ISSUE 2

¶19 Is the State entitled to a psychological examination of a defendant by its own expert for the purpose of rebuttal when the defendant has asserted the affirmative defense of mitigated deliberate homicide due to extreme mental or emotional stress?

¶20 Park contends that the State is not entitled to a psychological examination by its own expert. He claims that the circumstances in this case are not covered by the language of §§ 46-14-204 and -205, MCA, because he does not claim a mental disease or defect, and that State v. Hess (1992), 252 Mont. 205, 828 P.2d 382, is inapplicable because it was based on the justifiable use of force defense.

¶21 Section 46-14-204, MCA, states that "[w]hen the defense ... files a notice of the intention to rely on a defense of mental disease or defect, the prosecution is entitled to have the defendant examined by a qualified psychiatrist or licensed clinical psychologist." Section 46-14-205, MCA, states:

If either the defendant or the...

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