Shepard v. Bowe

• Decision Date: 03 January 1968
• Citation: 250 Or. 288,442 P.2d 238
• Parties: Bennie Cecil SHEPARD, Plaintiff, v. Honorable Samuel M. BOWE, Judge of the Circuit Court of the State of Oregon for Jusephine County, Defendant. . Argued and Submitted on Defendant's Demurrer to Alternative Writ
• Court: Oregon Supreme Court

Page 238

442 P.2d 238

250 Or. 288

Bennie Cecil SHEPARD, Plaintiff, v. Honorable Samuel M. BOWE, Judge of the Circuit Court of the State of Oregon for Jusephine County, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted on Defendant's Demurrer to Alternative

Writ Jan. 3, 1968.

Decided June 14, 1968.

Donald F. Myrick, Grants Pass, argued the cause for plaintiff. With him on the brief was Donald C. Williams, Grants Pass.

Michael S. Killoran, Dist. Atty., Grants Pass, argued the cause for defendant. With him on the briefs was Robert M. Burrows, Deputy Dist. Atty., Grants Pass.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

DENECKE, Justice.

The issue is the extent of the pretrial psychiatric examination that a trial court can require of a defendant who has pleaded not guilty by reason of insanity. The criminal charge was failing to stop at the scene of an accident resulting in an injury.

The District Attorney moved for an order requiring the defendant to be examined by a psychiatrist selected by the court or the state. The court so ordered. In response to a motion for clarification of the court's order the court further ordered:

'IT IS THEREFORE ORDERED:

'1. That Defendant answer questions concerning his accident or conduct at or immediately near the time of the commission of the alleged crime;

'2. Counsel for the Defendant is ordered not to advise the Defendant to refuse to answer questions concerning his accident or conduct at or immediately near the time of the commission of the alleged crime;

'3. Counsel is ordered not to interfere by advising Defendant not to answer questions the answer to which might tend to incriminate him; and,

'* * *.'

In response to defendant's petition, this court, exercising original jurisdiction, issued an alternative writ of mandamus, ordering the defendant trial court to show cause why it should not vacate its order. The trial judge demurred and answered, admitting all the facts alleged in the alternative writ.

In State v. Phillips, 245 Or. 466, 422 P.2d 670 (1967), we held that the state has a right to have a mental examination of a defendant who pleads not guilty by reason of insanity. We reasoned that this did not violate the federal and state constitutional prohibition of compulsory self-incrimination because it did not involve testimonial compulsion. In State v. Phillips, supra, 245 Or. 466, 422, P.2d 670, the trial court's order provided that the defendant could not be questioned concerning his acts or conduct at or immediately near the scene of the crime and required that his attorney be permitted to be present. These restrictions were not in issue on the appeal and we did not decide whether they were necessary.

In State v. Smith, Or., 426 P.2d 463 (1967), we expressly did not decide whether State v. Phillips, supra, 245 Or. 466, 422 P.2d 670, requires that counsel be present when the psychiatric examination is made.

The issue is now squarely presented to us: Does the court have the authority to require that the defendant, at a pretrial mental examination, answer questions concerning his conduct relating to the offense charged, and can the court order defendant's counsel not to advise his client to refuse to answer questions upon the ground that they might incriminate him?

It is apparent that the defendant's answers to the psychiatrist's questions might be incriminating upon any of the issues in the trial, including the issue whether the defendant committed the act charged. ¹

Other jurisdictions have solved this problem in varying ways.

In State v. Whitlow, 45 N.J. 3, 210 A.2d 763 (1965), the trial court ordered the defendant to answer all questions put to him by the psychiatrist in an examination ordered by the court upon the motion of the state. It further denied defendant's attorney's request to be present at the examination and forbade disclosure of the report of the examination until further order of the court. The Supreme Court of New Jersey affirmed and stated a detailed procedure to be followed. If the defendant refuses to cooperate in the examination, the court can send him to a state institution for observation without any questioning. If the defendant cooperates with the psychiatrist who examined him on his own behalf, the court will refuse to let such psychiatrist testify to any history or other matter communicated to the psychiatrist by the defendant unless he cooperates to the same extent with the state's psychiatrist; or, such refusal can be conditioned upon the defendant undergoing a cooperative examination at a recess of the trial, i.e., either the defendant submits to a cooperative examination by a psychiatrist engaged on behalf of the state or his expert will be limited in his testimony. The jury will be instructed that any inculpatory statement made by the defendant to the psychiatrist cannot be considered in deciding the issue of guilt, as distinguished from the issue of insanity. The defense attorney may not be present at the examination; however, the defendant's own psychiatrist may be.

Most recently in State ex rel. LaFollette v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967), the Wisconsin court offered a bifurcated trial as the solution, with the first trial on the issue of guilt, and if a guilty verdict were returned, a trial by the same jury upon the issue of insanity. No incriminating statements made by the defendant to the psychiatrist could be introduced in the guilt trial. The psychiatrist would be permitted to question the defendant at the examination and defense counsel would be excluded at such examination.

A majority of the courts which have squarely considered the problem, however, have held that the defendant upon a pretrial mental examination cannot be required to answer questions.

The decision in State v. Whitlow, supra, 45 N.J. 3, 210 A.2d 763, was criticized in State v. Olson, 274 Minn. 225, 143 N.W.2d 69 (1966), particularly that portion providing for an instruction to the jury that they must disregard any inculpatory statement when they are considering the issue of guilt. The court in State v. Olson, supra, 274 Minn. 225, 143 N.W.2d 69, reversed an order for a pretrial mental examination. The court assumed that an examination would necessarily involve questions and answers. The opinion suggests that if the defendant put on expert testimony supporting his defense of insanity, the state would be entitled to some kind...