State v. Briand

• Decision Date: 11 July 1988
• Docket Number: No. 88-016,88-016
• Citation: 130 N.H. 650,547 A.2d 235
• Parties: The STATE of New Hampshire v. June BRIAND.
• Court: New Hampshire Supreme Court

Page 235

547 A.2d 235

130 N.H. 650

The STATE of New Hampshire v. June BRIAND.

No. 88-016.

Supreme Court of New Hampshire.

July 11, 1988.

Stephen E. Merrill, Atty. Gen. (Andrew W. Serell, Asst. Atty. Gen., on the brief and orally), for State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

PER CURIAM.

The State seeks interlocutory relief from the Superior Court's (Groff, J.) disposition of a pretrial motion. The defendant, June Briand, is charged with first degree murder in the shooting death of her husband in Hudson on February 12, 1987. The State has charged the defendant under RSA 630:1-a with purposely causing the death of her husband, James Briand, by shooting him in the head while he slept. RSA 630:1-a, II states that "purposely," for purpose of the above charge under RSA 630:1-a, I(a), means "that the actor's conscious object is the death of another, and that his act or acts in furtherance of that object were deliberate and premeditated."

In preparation for trial, Briand retained the services of a psychologist, Dr. Charles P. Ewing. The parties stipulate that Dr. Ewing has interviewed Briand and that, at trial, she may present his testimony to prove that she suffered from battered woman's syndrome. Briand states that she may use the testimony to support a potential self-defense plea or to prove provocation as it relates to the lesser-included offense of manslaughter.

At this point in the proceedings, we have no account of what the defendant means by "battered woman's syndrome," and the exact nature of the psychologist's anticipated testimony is not a matter of record before us. Suffice it to say that we have no occasion to rule on its admissibility, as the State does not challenge it at this time.

The State, rather, has responded to the defendant's notice of potential defenses and intent to call Dr. Ewing by filing pretrial motions requesting that an expert of its own choosing also evaluate Briand pursuant to RSA 135:17 (Supp.1987). In response to the defendant's objection, the superior court denied this motion, ruling: (1) that it lacked authority to order such an evaluation absent notice that Briand would plead insanity; and (2) that such an evaluation would violate Briand's privilege against self-incrimination under the United States and New Hampshire Constitutions. The State filed an appeal from this decision under RSA 606:10, II(b). We reverse and remand.

The parties ask us to determine whether the trial court may order a criminal defendant to submit to evaluation by a psychiatrist of the State's choosing when she relies on psychiatric testimony to support a defense other than insanity. They also ask that we address the circumstances in which expert testimony regarding a State evaluation would be admissible at trial. The scope of the latter issue is, however, limited by the State's representation that it seeks authority to elicit testimony from its own witness only on matters previously subject to testimony by the defense's expert, and to offer it only for the purposes for which the defense expert's testimony was offered.

As the superior court recognized, the parties thus propose a two-fold inquiry. We must decide: (1) whether, and under what circumstances, the trial court has the authority to order a defendant to submit to State evaluation; and (2) whether its doing so in this case, or admitting resulting testimony in rebuttal at trial, would violate Briand's right against self-incrimination.

Briand first argues that the trial court cannot require her to submit to psychiatric examination by the State's expert because there is no statute granting it the authority to do so. RSA 135:17, the only potentially relevant statute, provides for a court-ordered, pretrial psychiatric examination only "if a plea of insanity is made in court, or said court is notified by either party that there is a question as to the sanity of the respondent." RSA 135:17. Briand has not pleaded insanity, nor has either party alerted the trial court that there is any question as to her sanity.

Many courts faced with similar situations have recognized that they have the inherent authority to order a defendant to submit to such an examination. These courts look to their inherent authority, in the absence of a statute authorizing compelled examination, not only where the defendant pleads insanity, United States v. Reifsteck, 535 F.2d 1030, 1033 (8th Cir.1976); United States v. Malcolm, 475 F.2d 420, 424 (9th Cir.1973); United States v. Albright, 388 F.2d 719, 722 (4th Cir.1968); contra State v. Olson, 274 Minn. 225, 233, 143 N.W.2d 69, 75 (1966), but also where the defendant raises defenses recognized in other jurisdictions as distinct from insanity and typically requiring psychiatric evidence, People v. Atwood, 101 Misc.2d 291, 420 N.Y.S.2d 1002, 1005 (1979) (extreme emotional disturbance); People v. Danis, 31 Cal.App.3d 782, 786-87, 107 Cal.Rptr. 675, 678-79 (1973) (diminished capacity).

Regardless of the proposed defense, courts have grounded their inherent authority upon their responsibilities both to promote the ascertainment of truth and to insure the orderliness of judicial proceedings. "An expert only testifies and gives an opinion where lay jurors are presumably not equipped to evaluate the specialized evidence. In such a situation the adversary system contemplates that both sides shall have access to the relevant facts." Atwood supra. Where the accused supports claimed defenses at trial by introducing expert psychiatric testimony based upon personal interviews, the finder of fact can intelligently evaluate that testimony only if the State has an opportunity to produce evidence of a similar quality in rebuttal. Concern that the trial proceed without interruption, thus minimizing inconvenience to the parties and insuring a coherent presentation of both sides of the case, further dictates that court-ordered examination by the State's expert should usually be pretrial. Atwood supra.

We find that appeal to inherent authority is consistent with our own decisions requiring that parties submit to psychiatric analysis despite the absence of explicit statutory mandate. Although these decisions involve examinations to determine competency, State v. Gagne, 129 N.H. 93, 96-97, 523 A.2d 76, 78-79 (1986), or dangerousness and the appropriateness of civil commitment, State v. Mercier, 128 N.H. 57, 60, 509 A.2d 1246, 1248 (1986), they recognize the trial court's authority to take those actions necessary to further statutory or constitutional purposes. Surely it is equally imperative that we recognize the trial court's authority to take an action necessary to advance the very purpose of a trial. We therefore hold that, absent constitutional or other overriding concerns, New Hampshire courts have the power to order a criminal defendant to submit to psychological or psychiatric examination by an expert of the State's choosing where, as here, the defendant has submitted to psychological or psychiatric examination by defense experts, and has indicated an intention to rely on that testimony at trial.

Despite its authority to do so, however, the trial court may order a psychiatric examination, and allow the State to employ the resulting expert testimony at trial, only where this is consistent with the defendant's New Hampshire and United States constitutional privilege against self-incrimination. Briand claims that compelled examination and the introduction of resulting testimony would violate her right under both constitutions. In keeping with our decision in State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983), we first consider her claim under part I, article 15 of the New Hampshire Constitution. We look to interpretations of parallel State and federal provisions to inform and guide our analysis.

There is no question that part I, article 15 of the New Hampshire Constitution protects statements a defendant may make to a court-appointed psychiatrist. Although some courts hold that these statements are akin to handwriting and voice exemplars, see, e.g., United States v. Cohen, 530 F.2d 43, 48 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976), we do not agree. They are clearly testimonial. They are statements concerning the defendant's thoughts and actions, the substance of which the State's psychiatrist must depend on at trial. They are, further, statements which the defendant is compelled to make to a State expert, and which may be incriminating. See Estelle v. Smith, 451 U.S. 454, 464-65, 101 S.Ct. 1866, 1873-74, 68 L.Ed.2d 359 (1981); United States v. Byers, 740 F.2d 1104, 1112-13 (D.C.Cir.1984).

As the State points out, however, many courts have nevertheless determined that they may constitutionally order such examinations and admit such testimony. Some of these courts hold that a defendant who voluntarily submits to psychiatric examination by defense experts and introduces resulting psychiatric testimony at trial waives the constitutional right both to refuse a similar examination by the State's expert and to prevent the introduction of the results of such an examination in rebuttal. See, e.g., United States v. Hinckley, 525 F.Supp. 1342, 1349 (D.D.C.1981), aff'd on other grounds, 672 F.2d 115 (D.C.Cir.1982); People v. Cruickshank, 105 A.D.2d 325, 329-30, 484 N.Y.S.2d 328, 333-34 (1985), aff'd on other grounds, 67 N.Y.2d 625, 490 N.E.2d 530, 499 N.Y.S.2d 663 (1986); Danis, 31 Cal.App.3d at 786, 107 Cal.Rptr. at 678.

Other courts base orders for State examination and the admission of resulting testimony at trial on a rationale closely resembling that underlying appeal to inherent authority. There is simply no way for the State to challenge the conclusions of defense experts and no way for the finder of fact to arrive at the truth if the accused may first introduce a defense dependent on psychiatric testimony based on an interview with the defendant, and...