State v. Devine

• Decision Date: 31 July 1985
• Docket Number: No. 14640-,14640-
• Citation: 372 N.W.2d 132
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James L. DEVINE, Defendant and Appellant. a-JF.
• Court: South Dakota Supreme Court

Page 132

372 N.W.2d 132

STATE of South Dakota, Plaintiff and Appellee, v. James L. DEVINE, Defendant and Appellant.

No. 14640-a-JF.

Supreme Court of South Dakota.

Argued Feb. 5, 1985.

Decided July 31, 1985.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard L. Bode of Maher, Carter & Bode, Pierre, for defendant and appellant.

FOSHEIM, Chief Justice.

James Devine (Devine) appeals from a jury conviction for second degree burglary, SDCL 22-32-3, and habitual offender, SDCL 22-7-8. We affirm.

Phoebe Bordeaux, Devine's aunt, lived in an apartment at the St. Charles Hotel in Pierre, South Dakota. Michel Delon, the owner and manager of the hotel, occupied an adjoining apartment. Both dwellings overlook the roof of another building. At approximately 1:15 p.m., on November 6, 1983, Mr. Delon observed broken glass and other items on the roof of the adjacent building, which he concluded came from the Bordeaux apartment. He heard noises indicating items were being broken. He went to the Bordeaux apartment and observed the door was open and the interior was in a shambles. Devine was standing in the apartment. After summoning the police, Mr. Delon continued to observe Devine, who remained in the apartment. A police officer and Mr. Delon testified that Devine responded slowly to their questions and that he appeared intoxicated.

Devine entered pleas of not guilty and not guilty by reason of mental illness to the burglary charge. At the request of Devine's counsel, the trial court ordered a psychiatric evaluation. Devine remained at the Yankton, South Dakota Human Services Center for examination from December 1, 1983, to December 23, 1983. Dr. Ulises Pesce interviewed Devine ten times. Devine told Dr. Pesce that he was attempting to find some alternative that would keep him from going to prison. Dr. Pesce found Devine sane and competent to stand trial. Devine then requested an alternative evaluation, which was granted.

Devine was also examined by Dr. Charles Warrender in Pierre, South Dakota. During this interview, Devine related that he had previously made up symptoms of mental illness so that he could be transferred from the Sandstone Federal Penitentiary in Minnesota to the United States Medical Center for federal prisoners in Springfield, Missouri. Dr. Warrender found Devine sane and competent to stand trial, and testified that he possessed an antisocial personality disorder characterized by repeated acts of vandalism, theft and incarceration. Both Drs. Pesce and Warrender were called as state's witnesses and allowed to reveal Devine's statements. The State also called Mr. Lynn Goehring, a psychologist who administered certain tests ordered and considered by Dr. Warrender in his evaluation.

Dr. Aris K. Kargas was called as a defense witness. He had interviewed and frequently observed Devine at the United States Medical Center from August 12, 1982, until March 14, 1983. Devine's treatment at the Center included a psychotic medication and an antidepressant drug. In his discharge recommendation, Dr. Kargas specified that Devine should continue psychiatric hospitalization with the prescribed medication for an indefinite period, and that the medication should be forcibly injected, if necessary; otherwise, a relapse of Devine's psyschotic condition would occur.

Dr. Kargas stated that, in his opinion, Devine was not making up symptoms during his stay at the United States Medical Center. Dr. Kargas again interviewed Devine in Pierre the evening before trial to update his conclusions. Dr. Kargas testified that in this interview, Devine said that he "intentionally" got into trouble. Dr. Kargas testified that in his opinion Devine was sane and competent to stand trial, and that Devine was in remission from a schizoaffective disorder when discharged from his care, but was suffering from an anti-social personality disorder.

Devine challenges the admissibility of the statements he made to the psychiatrists during the course of their examinations. He argues that SDCL 23A-10-2 and 23A-10-4, when read in connection with SDCL 19-13-7, 19-13-10, and 19-13-11, impermissibly compel him to choose between exercising his Fifth Amendment constitutional right not to incriminate himself and his due process right to seek out available defenses. See Collins v. Auger, 428 F.Supp. 1079, 1083 (S.D.Iowa 1977), reasoning approved, 577 F.2d 1107 (8th Cir.1978).

A defendant in a criminal case raising the insanity defense must, at his arraignment, specially plead "not guilty and not guilty by reason of insanity." SDCL 23A-10-2. ¹ SDCL 23A-10-4 provides for court-appointed medical experts and requires that the defendant submit himself for examination by the experts. SDCL 23A-10-4 further states that "[n]o statement made by an accused in the course of any examination provided for by this section, whether the examination was with or without the consent of the accused, shall be admitted in evidence against him on the issue of guilt in any criminal proceeding except for the purpose of impeaching the defendant." SDCL 23A-10-4.

Pursuant to SDCL 19-13-7, "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his ... mental or emotional condition ... among himself, ... or psychotherapist...." ²

SDCL 19-13-10 creates an exception to this privilege: "If the court orders an examination of the ... mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under Sec. 19-13-7 with respect to the particular purpose for which the examination is ordered unless the court orders otherwise."

A further limitation on the SDCL 19-13-7 privilege appears in SDCL 19-13-11: "There is no privilege under Sec. 19-13-7 as to a communication relevant to an issue of the ... mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense...."

SDCL 23A-10-4 prohibits the use of psychiatric testimony against a defendant on the issue of guilt. Psychiatric examinations are ordered for the purpose of determining sanity or competency. SDCL 19-13-10 only excepts from the physician-patient privilege those communications made in connection with the particular purpose for which an examination is ordered--i.e., to determine sanity or competency, not guilt. Likewise, SDCL 19-13-11 excepts from the physician-patient privilege those communications relevant to the defendant's defense. In light of SDCL 23A-10-4, we read SDCL 19-13-11 to mean that the exception to the SDCL 19-13-7 privilege is limited to communications that are relevant to establish mental illness or competency, rather than guilt.

In Collins v. Auger, 577 F.2d 1107 (8th Cir.1978), the Eighth Circuit Court of Appeals prohibited a State from admitting psychiatric testimony evidencing incriminating statements by a defendant elicited during a mental illness defense examination. As noted our statutes compel the same conclusion.

The Fifth Amendment privilege bars the use of an incriminating statement made to a psychiatrist for the purpose of proving a defendant's guilt. See United States v. Bennett, 460 F.2d 872, 878-80 (1972); Thornton v. Corcoran, 407 F.2d 695, 699-701 (D.C.Cir.1969); United States ex rel. Smith v. Yeager, 451 F.2d 164, 165 (3d Cir.), cert. denied, 404 U.S. 859, 92 S.Ct. 112, 30 L.Ed.2d 101 (1971); United States v. Williams, 456 F.2d 217, 218 (5th Cir.1972); United States v. Reifsteck, 535 F.2d 1030 n. 1 (8th Cir.1976); United States v. Julian, 469 F.2d 371, 375-76 (10th Cir.1972). The same rule applies in the state courts by force of the Fourteenth Amendment. Gibson v. Zahradnick, 581 F.2d 75 (4th Cir.1978) cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1978).

The question remains whether such incriminating statements are admissible to establish mental condition in a unitary trial which involves both sanity and guilt issues, without prejudicing the defendant's due process rights. Id. See also Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941).

The lower court in Collins v. Auger stated:

[I]t is fundamentally unfair to use defendant's incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution's case to establish his guilt. It is immaterial in this regard whether the Court ordered examination was at the request of Defendant or the prosecution or whether it was to determine his capacity to aid in his own defense or his mental condition at the time of the crime. The fundamental unfairness of the introduction of such evidence violates Defendant's right to due process under the 14th Amendment to the Constitution of the United States.

The Defendant is entitled to raise his mental condition at the time of the offense as a defense. He is also entitled under proper circumstances, to an examination to determine his competency to stand trial. Psychiatric examinations are essential to and proof of his mental condition....

If a Defendant cooperated with the psychiatrist and made a full disclosure of his thinking processes and his background, including incriminating statements and if he failed to establish his lack of mental capacity, he would be faced with these admissions on trial. If a Defendant exercised his right to remain silent and refused to cooperate with the psychiatrist, the likelihood of a meaningful and reliable examination would be considerably decreased and his opportunity to urge a possible defense forfeited. A Defendant must not be compelled to choose between exercising his 5th Amendment right not to incriminate himself and his due process right to seek out available defenses.

Collins v. Auger, 428 F.Supp. 1079. 1082-83 (S.D.Iowa 1977) (quoted in large part by Collins...