State v. Harris

Citation28 N.E.3d 1256,142 Ohio St.3d 211,2015 Ohio 166
Decision Date22 January 2015
Docket NumberNo. 2013–0414.,2013–0414.
Parties The STATE of Ohio, Appellant, v. HARRIS, Appellee.
CourtUnited States State Supreme Court of Ohio

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for appellant.

The Law Office of Wendy R. Calaway Co., L.P.A., and Wendy R. Calaway, Cincinnati, for appellee.

Timothy Young, Ohio Public Defender, and Kristopher A. Haines, Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public Defender.

KENNEDY, J.

{¶ 1} In this discretionary appeal from the First District Court of Appeals, we consider whether R.C. 2945.371(J) permits the state to introduce, in its case-in-chief, the testimony of the psychologist who conducted the court-ordered evaluation on the issues of competency and sanity when the defendant asserts, but then wholly abandons, the defenses. The appellant, the state of Ohio, advances the following proposition of law: "A psychologist's trial testimony regarding a defendant's feigned mental illness during a competency and sanity evaluation is admissible under R.C. 2945.371(J) when it does not include factual evidence of guilt. It is admissible during the state's case-in-chief to show the accused's intent to mislead and defraud authorities to escape prosecution."

{¶ 2} For the reasons that follow, based on these facts, we hold that when a defendant asserts a mental-capacity defense or defenses, causing the court to order a psychiatric evaluation, but then wholly abandons that defense or defenses, a psychologist's testimony regarding the defendant's feigning of mental illness during the evaluation is inadmissible in the state's case-in-chief pursuant to R.C. 2945.371(J). We further hold that the admission of a psychologist's testimony opining on the defendant's feigning of mental illness under these circumstances violates the defendant's right against self-incrimination guaranteed by Article I, Section 10 of the Ohio Constitution and the Fifth Amendment to the United States Constitution and that the violation was not harmless error. We affirm the judgment of the court of appeals.

I. Facts and Procedural History

{¶ 3} In late September 2010, Shane Gulleman contacted defendant-appellee, Joseph Harris, in order to purchase Oxycontin from Harris. On September 26, 2010, Shane drove from Indiana to the Winton Terrace neighborhood of Cincinnati, Ohio, to purchase the drugs. Shane's body was later discovered in his car. He had been shot multiple times. Two hundred ten dollars in cash was on the seat under Shane's body, and his wallet contained $20.

{¶ 4} On October 29, 2010, Harris was indicted for aggravated murder, murder, aggravated robbery, and having weapons under disability. Subsequently, Harris filed a suggestion of incompetency to stand trial ("IST") and a plea of not guilty by reason of insanity ("NGRI").

{¶ 5} The trial court appointed the Court Clinic Forensic Services to examine Harris under R.C. 2945.371. Carla Dreyer, a clinical psychologist with the Court Clinic, evaluated Harris. She determined that Harris was competent to stand trial and that he did not meet the criteria for an NGRI plea. On February 2, 2011, the trial court filed an entry finding Harris competent to stand trial. Harris never requested an independent evaluation or a competency hearing, and he never challenged the trial court's determination.

{¶ 6} On May 12, 2011, Harris filed a notice of alibi, indicating his intention to introduce evidence that he could not have perpetrated the murder. Harris asserted that he had spent the entire day of the murder with his sister, Joeisha Harris, her children, and his sister's friend, Tasha Clayton, at Joeisha's home.

{¶ 7} During the discovery phase, Harris did not formally withdraw his NGRI plea, but on June 7, 2011, in response to the state's demand for discovery, he provided the names of the witnesses that he intended to call at trial. The witness list did not include Dreyer or any other mental-health expert. While Harris reserved the right to supplement his response, he never filed a supplemental witness list.

{¶ 8} The matter proceeded to a jury trial on June 15, 2011.

{¶ 9} The state called Dreyer as a witness in its case-in-chief. Harris objected to Dreyer being allowed to testify. In response, the state pointed out that the notice of IST had been filed and that Harris's NGRI plea was before the jury, as it had not been withdrawn. The state indicated that Dreyer was going to testify that Harris was malingering. At that time, Harris's counsel represented to the court that the defense had no intention of proceeding on any mental-capacity theory and withdrew the suggestion of incompetency and the NGRI plea on the record. The trial court overruled Harris's objection.

{¶ 10} Dreyer testified that Harris had been referred by the trial court for an evaluation of his competency to stand trial and for a determination whether he was legally insane at the time of the offense. She stated that it was her opinion that Harris was competent and that he did not meet the criteria for an NGRI plea. She also testified that when she evaluated Harris, "he was malingering both cognitive and psychiatric difficulties" and that Harris was "feigning some symptoms and probably exaggerating others." She described Harris as having antisocial personality disorder

, which is characterized by "impulsivity, aggressiveness, irresponsibility, lack of regard for the rights of others, [and] lack of remorse." The state referred to this diagnosis in its closing argument and added that a person with this disorder "commits crimes."

{¶ 11} Khristina Willis and Sherron Peoples both testified that they knew Harris prior to the murder and that they saw him at or near the location of the murder when the murder occurred. Willis heard gunshots coming from the parking lot where Shane's body was found and saw Harris and another man running away from the parking lot immediately afterwards. Peoples was sitting in a car in the parking lot when Shane drove in and parked. She saw Harris get into the front passenger side of Shane's car and then she heard gunshots. Peoples saw Harris and another man run by her with guns drawn.

{¶ 12} Four inmates from the Hamilton County Justice Center testified. They described various conversations with Harris in which he had stated that he planned to rob Shane and had shot him multiple times with a .45 caliber gun. He had talked about acting like he was crazy. Harris also had stated that because the NGRI plea did not work, he was going to deny committing the murder and pin the crime on another person.

{¶ 13} Harris testified in his own defense. He admitted that he had met Shane in order to sell him Oxycontin pills. Harris testified that when he got in Shane's car, Shane was acting shifty and seemed to be trying to distract Harris's attention from the exchange of cash for drugs. When Shane reached into the back seat, Harris believed that Shane was reaching for a gun. Harris jumped out of the car, started shooting, and ran off.

{¶ 14} On June 28, 2011, the day after the jury began deliberations, the trial court filed an entry finding that Harris had withdrawn his NGRI plea before the case was submitted to the jury. On June 29, 2011, the jury found Harris guilty as charged in the indictment. The trial court merged the counts of aggravated murder and murder before sentencing.

{¶ 15} Harris appealed his convictions to the First District Court of Appeals. He argued that the trial court had erred when it allowed Dreyer to testify as the testimony violated his Fifth Amendment privilege against self-incrimination. State v. Harris, 1st Dist. Hamilton No. C–110472, 2012-Ohio-349, 2013 WL 454904, ¶ 19. The state countered that Dreyer's testimony did not contain any statement by Harris on the issue of guilt, but was evidence of his consciousness of guilt. The First District rejected the state's argument that Dreyer's testimony was admissible as evidence of consciousness of guilt. The court cited R.C. 2945.371(J)'s prohibition on the use of statements made by a defendant in a psychiatric evaluation on the issue of guilt in a criminal action and concluded that evidence of consciousness of guilt is evidence of guilt itself. Id. at ¶ 23. The First District then applied the constitutional harmless-error standard of review and determined that the error was not harmless beyond a reasonable doubt, because Dreyer's testimony might reasonably have affected the jury's view of Harris's credibility when he testified that he had not intended to rob Shane. The court reversed Harris's convictions for aggravated murder and aggravated robbery and remanded the cause for a new trial on those charges and accompanying specifications.

II. Law and Analysis
A. Bases for Harris's Mental–Health Evaluation
1. Competency

{¶ 16} Consistent with the notions of fundamental fairness and due process, a criminal defendant who is incompetent may not be tried or convicted. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ; State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). A defendant is presumed competent to stand trial. R.C. 2945.37(G). A defendant shall be found incompetent to stand trial only if, "after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense." Id.

2. NGRI Plea

{¶ 17} A plea of NGRI must be made in writing. Crim.R. 11(A) and R.C. 2943.04. NGRI is an affirmative defense that must be proven by a preponderance of the evidence. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 35 ; R.C. 2901.05(A). While the assertion of the defense is controlled by rule and statute, there is no corresponding rule or statute governing its...

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