State v. Cole

• Decision Date: 16 July 1980
• Docket Number: No. 62552,62552
• Parties: STATE of Iowa, Appellee, v. Mary Kathleen COLE, Appellant.
• Court: Iowa Supreme Court

Page 29

295 N.W.2d 29

STATE of Iowa, Appellee, v. Mary Kathleen COLE, Appellant.

No. 62552.

Supreme Court of Iowa.

July 16, 1980.

Lawrence F. Scalise, John R. Sandre, and Ann Fitzgibbons, of Scalise, Scism, Gentry, Brick & Brick, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., David J. Dutton, County Atty., and Ruth R. Harkin, Sp. Asst. Polk County Atty., for appellee.

Considered en banc.

LARSON, Justice.

This defendant appeals her conviction, in a jury-waived trial, of first-degree murder in violation of section 690.2, The Code 1977. She challenges the trial court's rulings in regard to (1) psychiatric evidence secured by depositions and in-trial testimony, (2) admission of objects sized from the defendant's automobile and (3) ordering a deposition of defendant's husband. We affirm the trial court.

It is undisputed that on September 15, 1977, the defendant shot and killed Dr. Alan Tyler, her ex-husband, in his office at Wilden Clinic. Immediately after the shooting, she proceeded to the reception area and announced that she had "shot her husband." She then called the police and waited for them at the clinic. She was brought before a magistrate for an initial appearance where she was represented by Lawrence Scalise and Thomas Levis. At that time an order was signed by the magistrate to take the defendant to Iowa Lutheran Hospital "to undergo psychiatric and physical examination and evaluation." It is this order and the related evidence concerning the mental condition of the defendant which give rise to the most troublesome issues.

I. The psychiatric evidence.

A. Effect of the commitment order. Pursuant to the court's order, the defendant was first examined by Dr. Michael Taylor, a psychiatrist who had been treating her on a private basis since before the shooting. He ceased his examination of her on September 30, 1977, at which time he was replaced by Dr. Vernon Varner. The defendant filed notice, pursuant to Iowa R.Crim.P. 10(10) (b)(1), that she intended to rely upon the defense of diminished capacity. The State then sought to obtain psychiatric evidence through these doctors' depositions and in-trial testimony.

Upon application of the State, and over defendant's objections, pretrial depositions of Doctors Taylor and Varner were ordered by the court. Dr. Varner complied, and his deposition was taken. Dr. Taylor failed to appear for examination by the county attorney and apparently no pretrial statement was ever taken from him. Again over objection, the trial court permitted Dr. Taylor to testify at trial in the State's case in chief.

Defendant argues the trial court's rulings on the admissibility of the psychiatric evidence was erroneous because they violated her doctor-patient privilege, set out in section 622.10, The Code, as follows:

No practicing attorney, counselor, physician, surgeon, or the stenographer or confidential clerk of any such person, who obtains such information by reason of his employment, minister of the gospel or priest of any denomination shall be allowed, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the person in whose favor the same is made waives the rights conferred. . . .

As the following authorities established, not every doctor-patient relationship provides a basis for exclusion of the doctor's testimony. In some cases the privilege never arises; in others it exits but is held to be waived by the patient. The privilege did not exist at common law, 3 Wharton's Criminal Evidence § 563, at 86 (Torcia ed. 1973); 8 J. Wigmore, Evidence in Trials at Common Law § 2380, at 818-20 (privilege "has come to mean little but the suppression of useful truth") (McNaughton rev. 1961), and its embodiment by statute has been criticized by at least one writer. Id. § 2380(a), at 828-32. While our cases have evidenced no hostility to the rule itself, they have uniformly required three elements to be established: (1) the relationship of doctor-patient; (2) acquisition of the information or knowledge during this relationship; and (3) the necessity of the information to enable the doctor to treat the patient skillfully. See State v. Nowlin, 244 N.W.2d 596, 602 (Iowa 1976); State v. District Court of Linn County, 218 N.W.2d 641, 643 (Iowa 1974); State v. Bedel, 193 N.W.2d 121, 124 (Iowa 1971).

The order signed by the magistrate was as follows:

ORDER FOR PSYCHIATRIC EVALUATION AND REPORT

NOW, on this 15th day of September, 1977, this matter having been brought to the attention of the court, and the court being fully advised of the charges against the defendant in the above captioned cause, and the present condition of the defendant; it is the considered opinion of this court that before further proceedings may be had an evaluation of the above-named defendant's physical and psychological state should be made by competent professionals in the fields of medicine and psychology in order that the court may be more fully advised and that the best interests of the parties and of justice may be realized.

IT IS ORDERED, ADJUDGED AND DECREED that the above-named defendant, now in legal custody, be transported to 2 East, North Ward, Iowa Lutheran Hospital, there to undergo psychiatric and physical examination and evaluation by such doctors and staff of said hospital as may be appointed by the director of the Psychiatric Unit of said hospital and Dr. Michael Taylor and FURTHER, that a report of such examinations and evaluations, along with any conclusions of the examining physicians shall be made in writing to this court as soon as completed, at Defendant's expense with guard only if necessary.

IT IS FURTHER ORDERED that the defendant at all times pertinent hereto is to remain under the custody of this court and that upon completion of said evaluations and examinations by the Psychiatric Unit of Lutheran Hospital the defendant shall be transported back to the immediate custody of the agency formerly charged with his or her custody and that this court shall be so notified in order that it may proceed with such further action as the laws of this state and the interests of justice might dictate.

Later, when it appeared that Cole could not be admitted immediately to Iowa Lutheran, the following was added to the order: "The defendant to be taken to Broadlawns (hospital) until a room at Lutheran Hospital is available."

The effect of this order, and of the medical relationship which followed it, are determinative on the issue of whether or not the defendant could assert the doctor-patient privilege. In court-ordered evaluations, the third requirement of the privilege is lacking; the communication is not for the purpose of treatment but to determine the existence of a fact or condition for the benefit of the court. See State v. District Court of Linn County, 218 N.W.2d at 643; State v. Bedel, 193 N.W.2d 121, 124 (Iowa 1971); State v. Mayhew, 170 N.W.2d 608, 615-16 (Iowa 1969). Therefore, "(t)he physician-patient privilege does not arise where on order of the court a defendant is examined to determine his mental or physical condition." Mayhew, 170 N.W.2d at 615. Accord, McCormick's Handbook of the Law of Evidence § 99, at 214 (2d ed. 1972). ¹

An examination of the order itself sheds considerable light on the subsequent relationship of Cole with Doctors Taylor and Varner. The order is entitled "Order for Psychiatric Evaluation and Report," and in the body of the order it provides that "before further proceedings may be had an evaluation of the above-named defendant's physical and psychological state should be made . . . in order that the court may be more fully advised and that the best interests of the parties and of justice may be realized." (Emphasis added.) The order clearly provided for evaluation and report to the court and made no provision for diagnosis or treatment.

The defendant, while acknowledging that the order appears to be for evaluation and report, argues it was really only intended to provide for her safekeeping in order to avoid a possible suicide. We do not believe the intentions of the parties can be properly used to countermand the unambiguous provisions of a court order. 9 J. Wigmore, supra, § 2450, at 157; ("(T)he (judicial) record being the sole embodiment of the judicial proceedings, no other materials or utterances, oral or written, can be set up in competition with it. In other words, but less correctly, the record is conclusive.") (Emphasis in original.). ² Cf. State v. Rouse, 290 N.W.2d 911, 916 (Iowa 1980) (impeachment of jury verdict proscribed by parol evidence rule). Nevertheless, we have examined the evidence which defendant says establishes that the order was for treatment and not for evaluation.

At a hearing on the issuance of a subpoena to force Dr. Taylor to submit to a deposition, the magistrate who signed the order, an assistant county attorney, and defense attorneys all testified about the circumstances surrounding the entry of the order. Mr. Scalise testified that the reason for entering the order for hospitalization was to avoid a possible suicide by Cole if she went to jail and that the "examination and evaluation" provisions were in the order only because they were incorporated in a form order that "we got out of somebody's desk." He testified "(t)here was never any discussion or mention of the word evaluation, that's my recollection of it. There never was anything at all with respect to evaluation." Thomas Levis, an associate of Mr. Scalise, testified in about the same way, that the parties were preoccupied with Cole's safety and that there was no actual discussion of examination or evaluation of her. An assistant county attorney, Rod Ryan, was present...