State v. Corbin

• Decision Date: 10 December 1973
• Citation: 98 Adv.Sh. 247,516 P.2d 1314,15 Or.App. 536
• Parties: STATE of Oregon, Respondent, v. Robert Paris CORBIN, Jr., Appellant.
• Court: Oregon Court of Appeals

Page 1314

516 P.2d 1314

15 Or.App. 536

STATE of Oregon, Respondent, v. Robert Paris CORBIN, Jr., Appellant.

Court of Appeals of Oregon.

Argued and Submitted Oct. 4, 1973.

Decided Dec. 10, 1973.

Walter L. Cauble and Donald H. Coulter, Grants Pass, argued the cause and filed the briefs for appellant.

Robert M. Burrows, Dist. Atty., Grants Pass, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

Defendant was convicted of murder of his wife. ORS 163.115. His defense was based on the assertion that he was guilty only of manslaughter. ORS 163.125(1) (b). On appeal he raises two principal issues. (1) He asserts that it was error not to suppress evidece heard by a psychiatrist in an examination not obtained pursuant to prescribed statutory procedures. (2) He challenges the propriety of a jury instruction relating to emotional disturbance as an element of his manslaughter defense.

Defendant committed criminal homicide. ORS 163.005. The sole question for the jury was whether the crime was murder or manslaughter.

At 1:39 a.m. December 30, 1972 the Grants Pass Police Department received a phone call from a man who identified himself as Mr. Peck of Weed, California. Mr. Peck advised the police dispatcher that his son-in-law, the defendant, had just called him and stated that he had shot his wife and was going to kill himself.

Officers on arriving at defendant's house got no response from within though they knocked loudly and identified themselves. They broke into the house and found defendant, lying wounded and unconscious on a bed, next to the body of his dead wife. Shortly, defendant regained consciousness and began to speak to the officers, one of whom he had previously been acquainted with on a nonpolice, business level. He began to make incriminating statements to the effect that he had killed his wife and wished that he too were dead. The officer interrupted and warned him of his Miranda ¹ rights. He responded by stating, "I know my rights. You don't need to tell them to me," and continued to volunteer incriminating evidence. Defendant then attempted to stab himself with a hunting knife he had concealed underneath himself, but was thwarted by the police.

Defendant was then taken to a hospital where his wound was examined and treated. The wound was shown by evidence to be caused by a .22 caliber slug that had passed through defendant's shoulder area and had been fired from a distance of 12 to 24 inches from the point of entry. The same morning at 9 a.m. he was again questioned by police and gave a statement. That afternoon while still under guard in the hospital he made a further statement that was recorded on video tape and shown to the jury. During this statement he was again informed of his Miranda rights.

After defendant made the video tape statement, at the suggestion of the district attorney he was asked by an officer if he would be willing to see a psychiatrist. Defendant agreed. The district attorney made arrangements for Dr. Gardner, a psychiatrist, to examine defendant. Dr. Gardner conducted the examination that evening in defendant's hospital room. He did not inform defendant of his rights. The doctor submitted a written report to the district attorney, and testified. His opinion was that defendant was not suffering from an extreme emotional disturbance at the time of the homicide.

Defendant told officers and Dr. Gardner that he had come home that evening, had an argument with his wife and had slapped her. He then retreated into the bedroom and lay down to compose himself. His wife entered the bedroom and, pointing a .22 caliber rifle at defendant, told him to get out. Defendant said he grabbed for the gun and it went off, striking him in the area of his shoulder. He then took the gun and as his wife climbed across the bed he fired two shots, both producing fatal wounds. The state's evidence, while not directly contradicting this version, established several inconsistencies in it.

There was other evidence introduced to show that, for several months prior to the shooting, defendant and his wife were having marital difficulties. A witness testified that about an hour before the shooting the defendant told him he was '* * * 'tired of hassling" and was '* * * 'going to end it tonight."

(1). Defendant challenges the trial court's refusal to suppress the evidence obtained by Dr. Gardner's psychiatric examination. Defendant argues that the only way the state may obtain a psychiatric examination is by obtaining a court order pursuant to ORS 161.315. The state counters that, since the defendant voluntarily agreed to talk to the psychiatrist several hours after knowingly waiving his Miranda rights, there was no basis for suppressing the results of the examination, relying on State v. Ruiz, 251 Or. 193, 444 P.2d 32 (1968), and State v. Nelson, 162 Or. 430, 92 P.2d 182 (1939).

ORS 163.125 provides:

'(1) Criminal homicide constitutes manslaughter when:

'* * *

'(b) A homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation; or

'* * *

'(2) For the purposes of paragraph (b) of subsecton (1) of this section, the reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be.

'* * *.'

ORS 163.135 provides:

'(1) The defendant shall not introduce in his case in chief expert testimony regarding extreme mental or emotional disturbance under ORS 163.125 unless he gives notice of his intent to do so.

'* * *

'(4) After the defendant filed notice as provided in this section, the state shall have the right to have at least one psychiatrist of its selection examine the defendant in the same manner and subject to the same provisions as provided in ORS 161.315.'

ORS 161.315 provides:

'Upon filing of notice or the introduction of evidence by the defendant as provided in subsection (3) of ORS 161.309, the state shall have the right to have at least one psychiatrist is its selection examine the defendant. The state shall file notice with the court of its intention to have the defendant examined * * *.'

For our discussion of this issue, ORS 161.315 is the key statute; the others provide a frame of reference. ORS 161.315 was enacted in 1971 as part of the revision of the criminal code. Oregon Laws 1971, ch. 743, § 42. The commentary to the proposed code indicates that this section is basically a codification of the holding of State v. Phillips, 245 Or. 466, 422 P.2d 670 (1967). In addition, the statute gives the defendant the right to object to the psychiatrist chosen by the state.

State v. Phillips, supra, dealt with this subject succinctly:

'This court has never decided whether the state has a right to a mental examination of a defendant who pleads not guilty by reason of insanity where defendant has refused to consent to such an examination. In State v. Nelson, 162 Or. 430, 451--452, 92 P.2d 182, 190 (1939), this question was raised but the court ruled that defendant had consented to the examination. The court said in what clearly was dicta:

"* * * Nevertheless, it is held that no constitutional right of the defendant is violated even if the examination is against the will and without the consent of the defendant.'

The great weight of authority is that the state is entitled to such an examination where a plea of insanity has been made. State v. Mulrine, 183 A.2d 831 (Del.Super.1962); People v. Carpenter, 13 Ill.2d 470, 150 N.E.2d 100, 104--105 (1958); State v. Grayson, 239 N.C. 453, 80 S.E.2d 387, 390 (1954). In the Grayson case the court stated as follows:

"* * * The constitutional privilege against self-crimination in history and principle seems to relate to protecting the accused from the process of extracting from his own lips against his will an admission of guilt, and in better reasoned cases it does not extend to the exclusion of his body or of his mental condition as evidence when such evidence is relevant and material, even when such evidence is obtained by compulsion. * * *'

If the rule were otherwise there would be no way for the state to rebut a plea of insanity after the defendant had put his mental condition in question by such a plea. No error was committed in allowing the defendant to be examined by the state's psychiatrist nor in permitting him to testify as to his opinion of defendant's mental condition at the time of the crime.

'The judgment of the trial court is affirmed.' 245 Or. at 475--476, 422 P.2d at 674.

State v. Nelson, 162 Or. 430, 92 P.2d 182 (1939), involved testimony of a psychiatrist who examined the defendant on behalf of the state. The court held that the testimony did not violate the defendant's right against self-incrimination because he had consented to the examination. Prior to the examination defendant Nelson had told the doctor that his attorneys had instructed him not to talk to anyone without their being present. However, he had then voluntarily and without coercion talked freely with the doctor and permitted the examination.

The facts of Nelson might not today support the conculsion that the defendant had voluntarily waived his Fifth Amendment privilege. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). But the case stands for the proposition that a defendant can waive those rights and consent to a psychiatric examination.

Defendant asserts that Nelson predates the enactment of ORS 161.315, hence, it is not controlling. He argues that, the legislature's having established a procedure by which the state may obtain a psychiatric examination, this procedure is now the sole means therefor.

No such...