People v. Rosenthal, 80SA221

• Decision Date: 29 September 1980
• Docket Number: No. 80SA221,80SA221
• Citation: 617 P.2d 551
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Christina ROSENTHAL, a/k/a Tina Rosenthal, a/k/a Tina LaPlant, Defendant- Appellee.
• Court: Colorado Supreme Court

Page 551

617 P.2d 551

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Christina ROSENTHAL, a/k/a Tina Rosenthal, a/k/a Tina LaPlant, Defendant- Appellee.

No. 80SA221.

Supreme Court of Colorado, En Banc.

Sept. 29, 1980.

Paul Q. Beacom, Dist. Atty., Marc P. Mishkin, Deputy Dist. Atty., Brighton, for plaintiff-appellant.

Thomas J. B. Reed, Boulder, for defendant-appellee.

QUINN, Justice.

The People in this interlocutory appeal challenge the ruling of the trial court suppressing as substantive evidence during the prosecution's case-in-chief at the guilt trial certain admissions made by the defendant to a privately retained psychiatrist in connection with the defendant's previously entered plea of not guilty by reason of insanity. We affirm the ruling of the trial court.

The defendant, Christina Rosenthal, was charged in a four-count information with murder in the first degree after deliberation, section 18-3-102(1)(a), C.R.S.1973 (1978 Repl.Vol. 8), felony-murder during the course of a robbery, section 18-3- 102(1)(b), C.R.S.1973 (1978 Repl.Vol. 8), aggravated motor vehicle theft, section 18-4-409(2), C.R.S.1973 (1978 Repl.Vol. 8 and 1979 Supp.), and conspiracy to commit murder in the first degree and aggravated motor vehicle theft, section 18-2-201, C.R.S.1973 (1978 Repl.Vol. 8). The charges arose out of an incident on March 13, 1979, in which the victim was stabbed to death and robbed allegedly by the defendant and her claimed common-law husband, who was also charged jointly with the defendant. The defendant entered a plea of not guilty by reason of insanity and the court, pursuant to section 16-8-105(1), C.R.S.1973 (1978 Repl.Vol. 8), ordered a sanity examination at the Colorado State Hospital. The examining psychiatrist concluded that the defendant was sane. Thereafter, the defendant's attorney arranged for a psychiatric examination by Dr. Jeffrey L. Metzner. This examination was not pursuant to motion and court order. A relative of the defendant paid for the examination and it was conducted at the county jail where the defendant was being held on the pending charges. The sheriff's department granted the psychiatrist access to the jail and made the defendant available for the examination. The examination included about eight hours of psychiatric interviews with the defendant, during which she made statements to the psychiatrist about her participation in the alleged offenses. Prior to the sanity trial, the defendant's attorney tendered Dr. Metzner's report to the district attorney. Dr. Metzner testified at the sanity trial as a defense witness. The defendant was found sane.

Thereafter, the district attorney subpoenaed Dr. Metzner as a prosecution witness for the trial on the merits, admittedly for the purpose of presenting in the prosecution's case-in-chief statements made by the defendant to the psychiatrist about her participation in the alleged offenses. The defendant challenged by motion the prosecution's right to elicit such testimony. The trial court ruled that the same limitations on prosecutorial use of an accused's psychiatric communications applicable to a court appointed psychiatrist-to rebut defense evidence of incapacity to form the requisite specific intent and to impeach the defendant if she testifies at the guilt trial, section 16-8-107(1), C.R.S.1973 (now in 1978 Repl.Vol. 8)-apply to a privately retained psychiatrist who examines an accused in connection with an insanity plea. Accordingly, the court entered an order prohibiting the prosecution from eliciting in its case-in-chief at the guilt trial testimony from Dr. Metzner about statements made by the defendant to him during the sanity examination.

The People argue that the trial court's ruling was erroneous because the limited-use provision of section 16-8-107(1), C.R.S.1973, applies only to a court appointed psychiatrist; and since Dr. Metzner was privately retained, neither the privilege against self-incrimination, U.S.Const. Amends. V and XIV; Colo.Const. Art. II, Sec. 18, nor the physician-patient privilege, section 13-90-107(1)(d), C.R.S.1973 (1979 Supp.), nor the statutory procedures relating to insanity pleas, section 16-8-101 et seq., C.R.S.1973 (now in 1978 Repl.Vol. 8), prohibit the prosecution from eliciting the defendant's communications to the privately retained psychiatrist during its case-in-chief at the guilt phase of the proceedings. The defendant concedes that the physician-patient privilege is inapplicable to this case, and further concedes that the privilege against self-incrimination does not bar the prosecution from utilizing such evidence during the guilt trial for the limited purposes outlined in section 16-8-107(1). Lewis v. Thulemeyer, 189 Colo. 139, 538 P.2d 441 (1975). Her principal argument in support of the trial court's ruling is that prosecutorial use of her communications to a privately retained psychiatrist as substantive evidence would undermine her right to procure psychiatric evidence in her own behalf as contemplated by section 16-8-108(1), C.R.S.1973 (now in 1978 Repl.Vol. 8). ¹ We resolve this issue on broader grounds than those urged by the defendant. We conclude that the privilege against self-incrimination, U.S.Const. Amends. V and XIV; Colo.Const. Art. II, Sec. 18, precludes the prosecution from offering into evidence during its case-in-chief at the guilt trial the psychiatric communications made by the defendant to a privately retained psychiatrist in the course of a sanity examination conducted in preparation for the defendant's sanity trial.

I.

Article 8 of the Colorado Code of Criminal Procedure, section 16-8-101 et seq., C.R.S.1973 (1978 Repl.Vol. 8), contains the procedures governing the plea of insanity, the court-ordered psychiatric examination in connection therewith, and the limited-use restriction on the defendant's psychiatric communications made in the course of a court-ordered examination. While these statutory provisions do not expressly address the issue before us, they were enacted primarily to obviate the self-incrimination problem inherent in a unitary trial proceeding and, to that extent, are helpful to an understanding of the constitutional underpinnings of our holding. See People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976); Lewis v. Thulemeyer, supra.

Upon entry of an insanity plea the court is required to commit the defendant for a sanity examination, section 16-8-105(1), C.R.S.1973 (1978 Repl.Vol. 8), either at the Colorado psychiatric hospital in Denver, the state hospital at Pueblo, the place where the defendant is confined, or other public institution designated by the court, section 16-8-106(1), C.R.S.1973. The examination is to be conducted by physicians who are specialists in nervous and mental diseases. Section 16-8-106(1), C.R.S.1973. Section 16-8-106(2) provides that "(t)he defendant shall have a privilege against self-incrimination during the course of (a court-ordered) examination under this section." The examining psychiatrist may use confessions and admissions in questioning the defendant, may employ special testing devices in the examination, and may testify at the sanity trial about the defendant's statements and reactions to the examination, insofar as pertinent to the examiner's opinion on sanity. Section 16-8-106(3), C.R.S.1973. Section 16-8-107(1), C.R.S.1973, limits prosecutorial use at the guilt trial of communications derived from defendant as follows:

"Except as provided in this subsection (1), no evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination under section 16-8-106 is admissible against the defendant on the issues raised by a plea of not guilty, if the defendant is put to trial on those issues, except to rebut evidence of his mental condition introduced by the defendant to show incapacity to form a specific intent; and, in such case, that evidence may be considered by the trier of fact only as bearing upon the question of capacity to form a specific intent, and the jury, at the request of either party, shall be so instructed. If the defendant testifies in his own behalf upon the trial of the issues raised by the plea of not guilty, the provisions of this section shall not bar any evidence used to impeach or rebut the defendant's testimony."

Additional examinations may be ordered by the court on its own motion, or upon motion of the prosecution or defendant for good cause shown. Section 16-8-106(1), C.R.S.1973. Subsection 16-8-106(1), C.R.S.1973, states that "(n)othing in this section shall abridge the right of the defendant to procure a psychiatric examination as provided in section 16-8-108." Under the latter section an incarcerated defendant can obtain a court order...