State v. Carter, No. 63653

CourtUnited States State Supreme Court of Missouri
Writing for the CourtNORWIN D. HOUSER; Defendant was not deprived of his constitutional right to effective assistance of counsel by the court's ruling. The fact that counsel in preparing the defense for his client could possibly choose a psychiatrist who might make a rep
Citation641 S.W.2d 54
PartiesSTATE of Missouri, Respondent, v. Michael Ray CARTER, Appellant.
Docket NumberNo. 63653
Decision Date31 August 1982

Page 54

641 S.W.2d 54
STATE of Missouri, Respondent,
Michael Ray CARTER, Appellant.
No. 63653.
Supreme Court of Missouri,
En Banc.
Aug. 31, 1982.
Rehearing Denied Nov. 23, 1982.

Page 56

David Robards, Public Defender, Charles Buchanan, Asst. Public Defender, Joplin, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

NORWIN D. HOUSER, Senior Judge.

Michael Ray Carter, convicted of murder in the second degree and sentenced to 30 years' imprisonment, appealed to the Missouri Court of Appeals, Southern District. The appeal was transferred to this Court before opinion for the assigned reason that the issues raised with respect to the interpretation of the Rules of the Supreme Court relating to discovery are matters of first impression in this State and of general interest and importance requiring a conclusive determination by this Court.

The homicide, which occurred in the juvenile dormitory of the Jasper County Jail, was witnessed by several inmates of the jail, jail employees and a probation officer. The State introduced strong and uncontradicted evidence that defendant, a jail inmate, made an unprovoked attack on a fellow inmate, Billy Joe Kralicek, striking him 15 to 25 times with a 30-pound metal mop wringer, and killing him.

Defendant pleaded not guilty by reason of mental disease or defect. § 552.030, RSMo 1969. Prior to trial defendant employed and was examined by two psychiatrists for the purpose of obtaining expert testimony in support of his defense: Dr. Turfboer, who concluded that defendant suffered from a toxic psychosis excluding criminal responsibility, and Dr. Roy Wilson, who, contrary to defendant's expectations, concluded that defendant was not suffering from a mental disease or defect excluding criminal responsibility. Counsel for defendant decided not to call Dr. Wilson as a defense witness. The State moved for a court order to compel defendant to disclose Dr. Wilson's report. Following a contested hearing, the State's motion was sustained and defendant's motion to suppress Dr. Wilson's testimony was overruled. Pursuant to the court order Dr. Wilson disclosed his report to the State. At the trial, following direct testimony pro and con on the question of defendant's mental condition, the State called Dr. Wilson as a witness in rebuttal. He testified over objection that in his opinion defendant was not suffering from a mental disease or defect excluding mental responsibility.

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First, defendant contends that the disclosure should not have been ordered and the State should not have been allowed to use Dr. Wilson's testimony in rebuttal because this (1) deprived defendant of the right to remain silent, thereby invading the Fifth Amendment prohibition against compulsory self-incrimination; (2) deprived defendant of due process of law because Dr. Wilson's report constituted the work product of the defense attorney who actually employed Dr. Wilson--that under the work product doctrine material prepared by agents for the defense attorney as well as material prepared by the attorney himself is protected; (3) deprived defendant of his Sixth Amendment right to the effective assistance of counsel, and (4) violated the attorney-client privilege.

The attorney-client privilege is created by statute. Section 491.060(3), RSMo 1978, makes an attorney incompetent to testify "concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client." The privilege is the client's to claim and runs from the client to the attorney. Ehrhardt v. Stevenson, 128 Mo.App. 476, 106 S.W. 1118 (1907). The privilege is limited to communications between the attorney and the client. State v. Hardin, 558 S.W.2d 804, 807 (Mo.App.1977). It operates only to render the attorney incompetent to testify to confidential communications made to him by a client. It does not extend to communications between the client and a psychiatrist employed by the client through his attorney in an effort to obtain an opinion in support of his defense of mental disease or defect excluding criminal responsibility. The testimony under challenge is not within the attorney-client privilege. People v. Sorna, 88 Mich.App. 351, 276 N.W.2d 892 (1979); People v. Edney, 39 N.Y.2d 620, 350 N.E.2d 400, 385 N.Y.S.2d 23 (N.Y.App.1976); United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976); Annot. 14 A.L.R. 4 th 594 (1982).

Had the testimony of Dr. Wilson been within the privilege, it still would not have been available to defendant because defendant waived the privilege. By interposing the defense of insanity, defendant effectively waived any right to assert any claim of privilege, including the attorney-client privilege. When defendant filed his notice of intention to rely upon the defense of mental disease or defect excluding criminal responsibility, he thereby opened up the inquiry into his mental condition and entitled the State to move for disclosure of the underlying factual basis of his insanity plea and the result of the examinations by defendant's psychiatrists. It is well settled that when a party once places the question of his mental condition in issue he thereby waives the physician-patient privilege to exclude testimony of any doctors who have examined him for that purpose. State v. Sapp, 356 Mo. 705, 203 S.W.2d 425, 429 (1947); State v. Cochran, 356 Mo. 778, 203 S.W.2d 707, 711 (banc 1947); State v. Swinburne, 324 S.W.2d 746, 750-751 (Mo. banc 1959); State v. Speedy, 543 S.W.2d 251, 256 (Mo.App.1976); State ex rel. Husgen v. Stussie, 617 S.W.2d 414, 416 (Mo.App.1981); State v. Long, 257 Mo. 199, 165 S.W. 748, 753 (banc 1914); State v. Lewisohn, 379 A.2d 1192, 1211 (Me.1977). "Appellant could not be permitted to call as witnesses only those doctors whom he desired to call, and then claim the right to object as to other doctors who treated and examined him for the same condition (citing three Missouri cases)." State v. Sapp, supra, 203 S.W.2d at 429.

By the same token and for the same reasons a defendant who pleads insanity waives all other privileges, including the attorney-client privilege, People v. Edney, supra, and the privilege against self-incrimination. State v. Cochran, supra; State v. Swinburne, supra; State v. Speedy, supra.

There is another fundamental reason why the privileges sought to be invoked by defendant are not grounds for reversal of this judgment of conviction, namely, the profound impact the promulgation by the Supreme Court of reciprocal rules of discovery has had upon the exclusionary rules of privilege.

Page 58

Under Rule 25.05(A)(1) a defendant is required to disclose to the State, without court order, results of mental examinations which the defense intends to introduce in evidence at the trial. Under Rule 25.06(A), subject to constitutional limitations, a defendant may be required, by court order on motion, to disclose to the State material and information not covered by Rule 25.05, upon a finding by the court that the State's request is reasonable, and that the material and information sought is relevant and material to the State's case.

If and when a request is made by the State for material and information which would ordinarily be shielded and protected from disclosure by the attorney-client privilege, the rule calls upon the court to determine the reasonableness of the request and the materiality to the State's case of the material and information sought. In making this determination the court must exercise a sound judicial discretion, balancing the respective interests of the State and the defendant in disclosure or nondisclosure.

The prescribed procedure was complied with. The State filed a motion under the rule. The court made the requisite findings and ordered the disclosure. There is nothing to indicate an abuse of discretion on the part of the court. On the contrary, the court appears to have exercised its discretion properly, under the record. Unquestionably the material disclosed and information sought was relevant and material to the State's case. Dr. Wilson's report and testimony bore directly upon the central issue in the case: whether defendant at the time of the homicide was mentally responsible for his acts. It has not been shown or suggested that the ruling was not reasonable. Every consideration supports the reasonableness of the order. Essential fairness would seem to require such a ruling. Let us assume a homicide case where the defense is insanity. The prosecutor causes a psychiatrist to be employed by the State to examine the defendant in the hope of bolstering the State's position that defendant was sane at the time of the homicide. To the surprise and dismay of the prosecutor the doctor reports that his examination discloses, and he concludes, that defendant was insane at the time in question and was mentally irresponsible for his homicidal act. The prosecutor does not intend to call the psychiatrist to testify at the trial. Is there any doubt that defendant could compel disclosure of this evidence and be entitled to use it at the trial? Would it be fair to deprive defendant of the benefit of this evidence on the vital issue? Would it be fair or wise to deprive the trier of the fact of this evidence? Just as the evidence would be available to the defendant in that case, so the evidence is available to the State in this. It is a poor rule that does not work both ways.

Public policy considerations weigh heavily in favor of disclosure under the circumstances of this case. There is no question that defendant committed a brutal homicide under highly incriminating circumstances. The only live and vital question for decision by the jury was whether defendant was mentally responsible for his acts. The fundamental purpose of a criminal trial is the fair ascertainment of the truth. People v. Sorna, 276 N.W.2d 892, 895 (Mich.App.1979). The jury...

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