State ex rel. Ott v. Cushing

• Jurisdiction: Oregon
• Parties: STATE ex rel. Calvin Roy OTT, Plaintiff, v. L. A. CUSHING, Judge of the Circuit Court of the State of Oregon for Josephine County, Defendant. SC 27785.
• Citation: State ex rel. Ott v. Cushing, 630 P.2d 861, 291 Or. 355 (Or. 1981)
• Court: Oregon Supreme Court
• Decision Date: 08 July 1981

Page 861

630 P.2d 861

291 Or. 355

STATE ex rel. Calvin Roy OTT, Plaintiff, v. L. A. CUSHING, Judge of the Circuit Court of the State of Oregon for Josephine County, Defendant.

SC 27785.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 2, 1981.

Decided July 8, 1981.

Donald H. Coulter, of Myrick, Coulter, Seagraves & Myrick, Grants Pass, argued the cause for plaintiff.

William F. Gary, Sol. Gen., Dept. of Justice, Salem, argued the cause for defendant.

PER CURIAM.

Petitioner, charged with murder, gave notice that he intended to invoke the defense of having acted under extreme emotional disturbance and to introduce expert testimony for this defense. ORS 163.115(1)(a), 163.135(1). ¹ The prosecution obtained an order from the circuit court which directed the defendant (petitioner here) to submit to an examination by a named psychiatrist on behalf of the state. This order originally included a provision directing the defendant to cooperate in all psychiatric tests and to answer all questions asked by the state's psychiatrist except questions concerning his conduct at or immediately near the time of the commission of the offense. This exception corresponded to the law as set forth in this court's decisions from Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968) to State ex rel. Johnson v. Woodrich, 279 Or. 31, 566 P.2d 859 (1977).

Defendant by means of an earlier petition for writ of mandamus in this court challenged certain provisions of the circuit court's order concerning the role of defendant's counsel in the psychiatric examination. We directed the circuit court to modify those provisions of the order. State ex rel. Ott v. Cushing, 289 Or. 695, 617 P.2d 610 (1980).

After examining the defendant under the amended order, however, the state's psychiatrist reported to the prosecutor that he could not render an opinion unless the defendant answered questions concerning his conduct, intentions, feelings, and thoughts at the time of the alleged offense, the subjects that were excluded by the court's order. The court thereupon further amended its order so as to strike this limitation on the psychiatrist's inquiry. Instead, the order provided:

"(3) IT IS FURTHER ORDERED that Defendant shall answer all questions put to him by Dr. Thompson including questions concerning Defendant's acts, conduct, feelings, intentions and thoughts at or near the time of the alleged commission of the offense; ..."

Defendant petitioned for an alternative writ of mandamus, which we allowed, and the state moved to dismiss.

The new paragraph (3) of the circuit court's order concededly was contrary to the law as stated in this court's decisions cited above. The state, on behalf of the circuit judge as defendant in this mandamus proceeding, argues against the law set forth in those decisions. It asks the court to hold that a judicial order obliging a defendant to explain his acts, thoughts, and feelings during the course of events that is charged against him as a crime nevertheless does not compel him to testify against himself, contrary to Or.Const. art. I, § 12, or to be a witness against himself, contrary to the federal 5th amendment. We decline to do so.

The rule of Shepard v. Bowe, supra, has not maintained unanimous support in this court. See State ex rel. Johnson v. Richardson, 276 Or. 325, 327-329, 331, 555 P.2d 202, 205 (1976) (Howell, J., concurring); State ex rel. Johnson v. Woodrich, supra, 279 Or. at 38, 566 P.2d 562 (1977) (Linde, J., specially concurring) and id. at 41, 566 P.2d 863 (Howell, J., dissenting); State ex rel. Ott v. Cushing, supra, 289 Or. at 705, 617 P.2d at 616 (Tanzer, J., concurring). It has, however, survived as the law in this state. Modifications or alternatives that have been suggested in individual opinions have not been pursued by the Legislative Assembly. Even if we were inclined further to elaborate on or change the rule, we would not think it appropriate to do so when in the very case before us, in affirming another part of the circuit court's order, we asserted that the rule of Shepard v. Bowe "represented the proper balance between protecting a defendant from self-incrimination and ensuring that the state has sufficient information from which to properly diagnose defendant's mental condition." 289 Or. at 702, 617 P.2d at 615. This did not invite the circuit court to contravene that rule.

The state's motion to dismiss the petition for mandamus is denied; peremptory writ to issue.

TANZER, Justice, dissenting.

I dissent. The test of a rule of law is how it works. If it works well, that is, if it serves the interests of those affected by its operation, we should not try to fix it. If it works badly, it is probably an erroneous rule and we should unhesitatingly reexamine it. The rule we created in Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968) has worked badly since its inception. It serves defendant's interests beyond the needs of the Fifth Amendment and it serves the public's interest not at all. A bare majority of this court nevertheless reaffirmed it in State ex rel. Johnson v. Woodrich, 279 Or. 31, 566 P.2d 859 (1977) and we applied it once again in an earlier case of mandamus arising from the same proceeding which underlies this case, State ex rel. Ott v. Cushing, 289 Or. 695, 617 P.2d 610 (1980). I concurred, stating:

"... If the order in this case is representative, and I suspect it is, then our case law commencing with Shepard v. Bowe is utterly inappropriate. Instead of providing for an objective psychiatric or psychological examination as contemplated by ORS 161.315, we have created a deposition-like adversary proceeding which has very little to do with truth-seeking. It is time in a proper case, to reexamine this procedure in light of the defendant's rights, the nature of mental defenses, the informational requirements of the examiner and the needs of the adjudicative process, but I concur that this (mandamus proceeding) is not the case in which to do so." 289 Or. at 705, 617 P.2d 610.

The subsequent proceedings have demonstrated the obvious: our rule in Shepard v. Bowe does not function properly. The psychiatrist employed by the state has reported back that it was impossible for him to form a conclusion as to extreme emotional disturbance by a psychiatric interview conducted under the circumstances dictated by our decision. ¹ The psychiatrist's experience demonstrates that this court has gutted ORS 163.135, ² which requires a defendant to give notice of intent to offer expert evidence of extreme emotional disturbance and, thereupon, to submit to examination by a psychiatrist of the state. It would be better to invalidate the statute than to order compliance in the form of a travesty as we did in the earlier mandamus case.

The illogic of permitting the criminal defendant to present psychiatric evidence of his mental state but not permitting evidence from a similar examination by a psychiatrist for the state is obvious. The policy has been called an "analytical prison," United States v. Cohen, 530 F.2d 43, 48 (5th Cir. 1976) cert. denied 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976), and a violation of "judicial common sense." Alexander v. United States, 380 F.2d 33, 39 (8th Cir. 1967). ³ It is understandable that the defendant circuit judge, faced with the absurd result produced by obedience to our cases, ruled as he did so that we might reconsider the rule in light of events in the trial court. The majority evades dealing with the substantive problem it has created by wagging its collective finger at the defendant and reiterating the law of the case.

I dissent because the court should exercise its responsibility of fashioning a workable solution which protects a criminal defendant from compulsory self-incrimination and also serves the public interest in fair, accurate adjudication. That is not an easy judicial task, but other courts have fashioned rules which may be sound.

The United States Supreme Court has promulgated FRCrP Rule 12.2 which is similar to ORS 163.135, but expressly goes further. Subsection (c) restricts expert witnesses from testifying as to a defendant's statements regarding guilt or innocence, "whether the examination shall be with or without the consent of the accused." This rule has been applied to require a defendant to submit to psychiatric examination despite Fifth Amendment objection. See United States v. Leonard, 609 F.2d 1163 (5th Cir. 1980); United States v. Bohle, 445 F.2d 54 (7th Cir. 1971); United States v. Albright, 388 F.2d 719 (4th Cir. 1968). See also State v. Johnson, 116 Ariz. 561, 570 P.2d 503 (1977); Lee v. County Court of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452 cert. denied 404 U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 50 (1971). Some states have come to the same practice as a matter of common law. See, e. g., Presnell v. State, 241 Ga. 49, 243 S.E.2d 496 (1978); State v. Johnson, 383 A.2d 1012 (R.I.1978); State v. Hathaway, 161 Me. 255, 211 A.2d 558 (1965). But see State v. Olson, 274 Minn. 225, 143 N.W.2d 69 (1966) (court without authority to order examination absent statute).

Other courts have required defendants to submit to examination upon offering an insanity defense upon varying applications of the concept of waiver. Some have held that submission is the price of offering the defense of insanity. That theory was properly rejected in State v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318, 326 (1967), but it may be valid as to a mitigating or exceptional fact such as extreme emotional disturbance, cf. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). There is some validity to the notion that because a defendant's offer of psychiatric evidence is based on his statements made during examination he thereby waives his privilege against self-incrimination at least coextensively with the statements and conclusions therefrom. A similar waiver might arguably occur upon filing...