State v. Hohman

• Decision Date: 01 August 1978
• Docket Number: No. 350-76,350-76
• Citation: 392 A.2d 935,136 Vt. 341
• Parties: STATE of Vermont v. George J. HOHMAN.
• Court: Vermont Supreme Court

Page 935

392 A.2d 935

136 Vt. 341

STATE of Vermont v. George J. HOHMAN.

No. 350-76.

Supreme Court of Vermont.

Aug. 1, 1978.

M. Jerome Diamond, Atty. Gen., and Richard A. Unger, Sp. Asst. Atty. Gen., Montpelier, and Raymond Bolton, Bennington County State's Atty., Bennington, for plaintiff.

William K. Sessions, III, Addison County Public Defender, Middlebury, and Donald A. Graham, Windsor, and Orange Counties Public Defender, White River Junction, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

The defendant was charged with murder in the first degree for the killing of a young girl in the Town of Shaftsbury. As a defense to the charge he claimed to have been legally insane at the time of the offense. In a trial by jury, from which he was absent at his personal request, he was found guilty of murder in the second degree. On appeal the defendant alleges several claims of prejudicial error. We hold that two of the errors raised by the defendant so impinged upon his fundamental right to a fair trial that we are compelled to overturn the conviction and order a new trial.

The first claim involves certain highly prejudicial statements, made by the defendant and introduced into evidence upon the cross-examination of his expert psychiatric witness in violation of statutory law, 12 V.S.A. § 1612, as interpreted by this Court. The second claim relates to the defendant's admissions, obtained by the police and introduced at trial in violation of the Fifth Amendment protections set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The offense with which the defendant was charged occurred on April 8, 1976. On the following day a psychiatrist, Dr. Toolan, examined the defendant pursuant to court order and determined that the defendant was sane at the time of the offense. Four months later on August 31, 1976, the defendant interposed his defense of not guilty by reason of insanity. The State immediately thereafter on September 1, 1976, moved to have the defense disclose the name of its psychiatric expert witness. On November 2, 1976, the defendant disclosed that Dr. Payson would testify on his behalf.

At trial commencing on November 8, 1976, Dr. Toolan testified as the State's psychiatric expert and Dr. Payson appeared for the defendant in the same capacity. Before cross-examining Dr. Payson, the State moved for the opportunity to review all written materials submitted to Dr. Payson in connection with his examination of the defendant, which motion was granted. Included in these materials was a five page document entitled "Client Conference" dated April 13, 1976, which contained admissions by the defendant to an investigator from the public defender's office representing the defendant. In a pretrial motion the defendant had sought to suppress all these admissions and renewed the motion prior to the State's cross-examination of Dr. Payson. The court, however, denied the motion on both occasions and, in response to the State's questions on cross-examination, Dr. Payson testified to certain admissions contained in the client conference report which described in gruesome detail the defendant's actions and mental processes as he strangled his victim and disposed of her body.

The defendant argues that the introduction of this evidence violated his physician-patient privilege to his substantial prejudice. We agree and reverse accordingly.

The physician-patient privilege in this jurisdiction, codified under 12 V.S.A. § 1612, prohibits a physician from disclosing any information acquired while attending his patient unless there is a waiver either by the patient or by express provision of law. Based on this statute we have recently held, on facts strikingly similar to those before us now, that when a defendant consults a psychiatrist for the purpose of preparing his defense of insanity, any admissions made during that consultation which tend to prove the commission of the crime charged are privileged and cannot be introduced at a trial for that crime. State v. Lapham, 135 Vt. ---, 377 A.2d 249, 255-56 (1977).

In Lapham, the defendant was charged with first degree murder and had raised an insanity defense. The psychiatric expert for the defense testified to admissions made to him by the defendant that went to the issues of malice and premeditation, essential elements of the crime charged. Although Lapham is distinguishable from the case at bar by virtue of the fact that the present defendant did not make the disputed admissions directly to the psychiatrist but to an investigator employed by his defense counsel, this distinction does not limit in any way the present applicability of Lapham. In that decision we recognized the need to insure that a psychiatric examination be conducted in an atmosphere of candor conducive to the full disclosure necessary if the physician is to form an objective and independent judgment on the issue of sanity. The full disclosure contemplated certainly encompasses all statements made by the defendant and acquired by the physician while attending the defendant that might bear upon his sanity regardless of when or to whom those statements were made. The statutory privilege, by its terms, prohibits the physician from disclosing any information, not just admissions made directly to him. As interpreted by Lapham the statute squarely controls the instant case to the extent of requiring the exclusion of any admissions relating to the elements of the crime. By so holding we find it unnecessary to reach defendant's further claim that the failure to suppress the admissions testified to by Dr. Payson violated defendant's right to due process under the United States Constitution.

The State, however, would have us hold the error to be harmless. Quite to the contrary, from our reading of the record, these statements bore directly upon the issue of premeditation and malice, the essential elements of the crime charged, and as such constituted the most direct and devastating evidence in the State's case. Compare, State v. Lapham, supra, 135 Vt. at ---, 377 A.2d at 255-56. We therefore hold that they prejudicially affected the substantial rights of the defendant. See V.R.Cr.P. 52.

We consider next the admissions made by the defendant to the police on April 9, 1976. These statements the defendant claims were improperly admitted at trial in violation of his right against self-incrimination under the Fifth Amendment to the United States Constitution and Chapter I, Article 10 of the Vermont Constitution. Before stating the applicable law, it will be helpful to first set out the statements and the context in which they occurred, as indicated by the record.

At 3:40 A.M. on April 9, 1976, the defendant flagged down a Bennington police officer and asked to be taken to the police station. En route the defendant recounted that he had killed a girl the day before and that the killing had occurred in Shaftsbury, Vermont. He then told the officer, "I strangled her. I don't know why. I just did it." The officer advised the defendant to keep silent until he could be informed of his constitutional rights.

Upon arrival at the police station the defendant was led upstairs into a room used both for interrogation and classroom purposes. There were two officers present while the defendant was read his rights from the State's Attorney Miranda Warning and Public Defender Rights Form. At about this time the state police were notified of the incident which had occurred in their jurisdiction. The defendant read and claimed to understand his rights, and then acknowledged the receipt of his rights with his signature. He nevertheless refused to sign the "Waiver of Rights" provisions at the bottom of the form without his lawyer being present.

Despite this refusal, the officer persisted and asked whether the defendant was willing to make a statement anyway. Defendant agreed to do so "up to a point," and recorded the following on tape:

You go up the East Road and turn off into South Shaftsbury, and there you will find a dirt road on the right. In there you will find the body of the young girl. End of statement.

When questioned further as to whether he would be willing to tell the police about the body, the defendant declined for the second time to proceed further without a lawyer.

While one officer attempted without success to reach the public defender, the other officer continued in his questioning of the defendant who responded with statements concerning the time and location of the event and the identity of the victim. In addition, the information needed to complete the arrest sheet was obtained. When advised by Officer Martin that the public defender could not be reached, the defendant declined to have another attorney contacted in the interim stating, "No, I'll wait until he's present." This statement ended the taped recording and marked the third time the defendant expressed his desire to await the presence of his attorney before proceeding. When advised further that the state police wanted to speak with him the defendant responded, "I'll play it by ear."

Upon arrival, the state trooper proceeded to elicit various statements from the defendant including a description of the victim and a detailed accounting of the events leading up to the strangulation. In response to questioning, the defendant agreed to show the police where he had left the body. In the process of leading the way to the victim's body and to her clothes found some distance from the body, he made several statements describing the exact location of the evidence. Once the body was discovered the state trooper arrested the defendant and handcuffed him. In response to further questioning the defendant stated that he had left a note for his wife "explaining everything that I've done." When asked if he had planned to bury the victim in the box which was found lying over the upper...