State v. Berry

• Decision Date: 08 December 1975
• Docket Number: No. 56734,56734
• Citation: 324 So.2d 822
• Parties: STATE of Louisiana, Appellee, v. Stephen BERRY, Appellant.
• Court: Louisiana Supreme Court

Page 822

324 So.2d 822

STATE of Louisiana, Appellee, v. Stephen BERRY, Appellant.

No. 56734.

Supreme Court of Louisiana.

Dec. 8, 1975.

Rehearing Denied Jan. 16, 1976.

James J. Gleason, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

TATE, Justice.

The defendant Berry was convicted of the April, 1973 murder of Jo Ellen Smith, La.R.S. 14:30 (1950), and sentenced to life imprisonment at hard labor.

On his appeal, he presents fourteen assignments of error. The most substantial issues relate to the defendant's plea of insanity at the time of the offense (Assignment 14), to the admission of evidence in connection therewith in alleged violations of the defendant's physician-patient privilege (Assignments 11--13), and to the admission of evidence in alleged violation of the defendant's clergyman-penitent privilege (Assignment 7).

Plea of Insanity (Assignment No. 14)

The defendant pleaded not guilty and not guilty by reason of insanity. La.C.Cr.P. art. 552. This plea tendered for the jury's determination the accused's defense of insanity at the time of the offense. La.C.Cr.P. art. 816.

The present assignment of error was raised by the defendant's objection to the trial court's charge to the jury.

In accordance with La.R.S. 14:14 and La.C.Cr.P. art. 652, the trial court instructed the jury that the defendant had the burden of proving his insanity and that an individual is not relieved of responsibility for his acts unless he is determined to be incapable of distinguishing between right and wrong.

The defense contends (a) that the jury should have been instructed that a mental defect resulting in an irresistible impulse also constitutes insanity as a matter of law and (b) that the prosecutor should have the burden of proving sanity in a case in which insanity is urged as a defense.

(a)

As to the first contention, La.R.S. 14:14 provides that, if the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. This is a codification of the well known test in M'Naughten's Case, 1 Car. & K. 130, 10 Clark & F 200, 8 Eng. Repring. 178 (1843). See Reporter's Comment, Article 14 of the Louisiana Criminal Code, originally enacted by Act 43 of 1942.

In State v. Plaisance, 252 La. 212, 210 So.2d 323 (1968), the accused likewise contended that the M'Naughten rule is scientifically and legally inadequate. In rejecting this contention, we stated, 210 So.2d 326--27:

'The trial judge under the express provisions of the Code of Criminal Procedure must charge the jury with the applicable law of the case, i.e., 'If the circumstances indicated that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.' R.S. 14:14. Counsel for defendant's contention that this law is outmoded and archaic and should be changed to the test of legal sanity prevailing in other jurisdictions referred to as the Durham Rule or that of irresistible impulse, is a matter that addresses itself to the legislature.'

At 21 Am.Jur.2d, Criminal Law, Section 33, pp. 118--18, it is noted:

'The M'Naughten test has long been under attack on the ground that it adopts and enforces as a matter of law outmoded and erroneous psychological theories, and that it tends ot limit or distort expert psychiatric testimony. The test, however, is not without its defenders. And so far no alternative to its has achieved general acceptance. Some courts which have indicated dissatisfaction or doubt with regard to M'Naughten have nevertheless refused to discard it, because of their dissatisfaction with suggested alternatives, or because they have felt that if such a change were to be made, it should be made by the legislature.'

Out legislature has by La.R.S. 14:14 expressly adopted the M'Naughten test of insanity. We are cited to no authority by reason of which such adoption is beyond its power or offends constitutional guarantees. Whether wise or unwise, this legislative choice does not admit of judicial substitution of another test allegedly more scientifically based on modern psychiatric knowledge.

(b)

The second contention made by the defendant is that, although in accordance with La.C.Cr.P. art. 652, the trial court erred in instructing the jury that the accused bore the burden of proving his insanity.

The defendant essentially contends that this statutorily-based charge violates the constitutional presumption of innocence to which those accused of a crime before our courts are entitled. La.Const. of 1974, Article I, Section 16. He further contends it violates federal due process requirements that the state must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

As the concurring opinion to Mullaney notes, 95 S.Ct. 1892--93, the same constitutional and historical reasons do not necessarily apply to a requirement that an accused bear the burden of proving his insanity at the time of the offense. Thus, where the jury is also instructed that the state must prove every element of the crime beyond a reasonable doubt, including (in this case) premeditation, a statute requiring an accused to bear the burden of disproving his sanity (presumed in all humans) does not violate due process. See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).

Despite scholarly criticism that the requirement does infringe upon the presumption of innocence, see Comment, 30 La.L.Rev. 117 (1969) for summary, the contention has not been accepted by the United States Supreme Court, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), nor in most jurisdictions in which it has been raised. See Annotation, Insanity--Proof, 17 A.L.R.3d 146 (1968).

The Louisiana decisions likewise have consistently upheld the defendant's burden of proving insanity, despite the burden of the state to prove every essential element of the crime charged. They are essentially based upon a perceived distinction between: on the one hand, criminal intent (the perception that certain consequences would flow from the accused's act), which is an essential element of the crime; and, on the other hand, mental incapacity (the appreciation of the wrongness of the conduct), which is a limited affirmative defense permitted to exculpate an accused from criminal liability for his wrongful acts committed with criminal intent. See analysis in Note, 20 La.L.Rev. 749 (1960). The defense is so limited and required to be affirmatively proved becuase of the presumption of sanity of human beings, a presumption based on part on the permissible societal value of imposing usual personal responsibility on individuals for their acts.

We are unwilling to accept the defendant's contention and therefore find no reversible merit in this assignment.

Alleged Violation of the Defendant's Physician-Patient Privilege (Assignments 11--13)

In rubuttal to the defendant's expert testimony as to his insanity (tending to show he was a schizophrenic who could not distinguish between right and wrong), the state tendered certain medical evidence. It consisted of the testimony of two psychiatrists, who had been appointed to a lunacy commission, and also of the testimony of a parish prison psychiatrist who had briefly examined the defendant before and after the present offense.

The defendant objected to the testimony of one of the court-appointed psychiatrists, insofar as (in making his diagnosis) he had without the consent of the accused referred to the accused's parish prison medical records and to Charity Hospital records. Assignment 11. The defendant also objected to the testimony of the parish prison psychiatrist (whose examination notes were the basis of the parish prison medical reports), on the ground that he had examined the accused without a court order and, consequently it is urged, the medical information he had obtained could not be divulged without the consent of the accused. Assignment 12.

The defendant primarily relies upon the doctor-patient privilege recognized by La.R.S. 15:476, which provides that (Except where '(the) physician, . . . under the appointment of the court, and not by a selection of the patient, has made investigation into the patient's physical or mental condition') 'no' physician is permitted, 'unless with his patient's express consent, to disclose any communication made to him as such physician by or on behalf of his patient, or the result of any investigation made into the patient's physical or mental condition, or any opinion based upon such investigation, or any information that he may have gotten by reason of his being such physician * * *.' ¹

This privilege, however, may be waived.

La.R.S. 15:478 provides: 'The right to exclude the testimony . . . is purely personal, and can be set up only by the person in whose favor the right exists. If the right is waived, . . . the physician . . . may be examined and cross-examined to the same extent as any other witness.'

This waiver may be by the express consent of the patient. See La.R.S. 15:476, quoted above. However, the waiver may also result from other circumstances by which the patient impliedly waives his right to claim the privilege. 8 Wigmore on Evidence, Sections 2388--90 (McNaughton Rev. 1961); McCormick on Evidence, Section 103 (2d ed., 1972).

The Legislature has not specified the circumstances in which such implied waiver occurs under La.R.S. 15:476, 478, which are applicable to criminal proceedings.

However, in...