State v. Hutchinson
| Decision Date | 13 January 1989 |
| Docket Number | No. 55068-9,55068-9 |
| Parties | STATE of Washington, Respondent, v. Darrin Rand HUTCHINSON, Sr., Appellant. |
| Court | Washington Supreme Court |
Jones, Ross, Luke & Casteel, P.S.,
Kathryn E. Ross, Lynnwood, for appellant.
David F. Thiele, Pros. Atty., William H. Hawkins, Deputy Pros. Atty., Coupeville, Kenneth Eikenberry, Atty. Gen., Gregory P. Canova, Asst. Atty. Gen., Seattle, for respondent.
The defendant, Darrin Hutchinson, is facing trial for aggravated first degree murder. He was granted discretionary review of the trial court's order of April 19, 1988, which reads in part:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the expert witnesses which the defendant intends to call at trial, or at pretrial hearings, on the issues of diminished capacity and/or intoxication, including but not limited to [four medical experts in psychiatry and psychology], shall prepare and submit to [defense counsel] prior to April 28, 1988, and defense counsel shall in turn submit to counsel for plaintiff by no later than April 28, 1988, full written reports specifying the materials, tests and experiments which they conducted in arriving at their conclusions, opinions and diagnoses of the defendant, as well as the analysis that they employed in arriving at such opinions, conclusions and diagnoses, as well as all of the opinions, conclusions and diagnoses themselves. At the request of defense counsel, the court will review any or all such reports in camera to restrict the use of the defendant's incriminating statements to safeguard the defendant's fifth amendment rights.
Following oral argument before this court an order was entered which stated inter alia:
(1) The trial court's April 19, 1988 discovery order is reversed insofar as it requires Mr. Hutchinson's experts to prepare written reports. If any such reports are prepared, however, they shall be provided to the State forthwith pursuant to CrR 4.7(b) and (g);
(2) The trial court's May 25, 1988 order requiring that Mr. Hutchinson submit to an examination by a State's expert is affirmed, but neither the interposing of a diminished capacity defense by Mr. Hutchinson nor his submission to this examination shall be deemed to waive his constitutional right against self-incrimination;
(3) The trial court is authorized to resume all proceedings in this matter and to conduct and regulate discovery pursuant to CrR 4.7 as the court deems appropriate ...
The issues presented are:
1. Whether CrR 4.7 authorizes a trial court to compel mental health experts employed by a defendant to prepare written reports at the behest of the State when the defendant does not want written reports prepared by his experts?
2. Does the trial court's order infringe upon the defendant's constitutional rights and the attorney-client privilege?
3. May a defendant who has not asserted the defense of insanity, but who has indicated that he will rely upon "diminished capacity" as a defense, be compelled to submit to a psychiatric and/or psychological examination by an agent of the prosecuting attorney?
4. Does a criminal defendant by indicating that he may present at trial expert testimony to raise the defense of "diminished capacity", thereby waive his right against self-incrimination?
We hold the trial court cannot require the expert psychiatric witnesses of the defense to prepare reports for the prosecution under CrR 4.7. Therefore, we modify the order of the trial court. However, the defendant must submit to psychiatric examination.
On November 14, 1987, two Island County Sheriff's Deputies were shot to death in a room in which they were preparing to administer a breathalyzer test to the defendant following his arrest for a driving infraction. The defendant has been charged with two counts of aggravated murder in the first degree. The State has filed notice of intent to seek the death penalty.
On February 9, 1988, the trial court ordered the defendant to file written notice of an intent to rely on the defense of insanity no later than February 19. It was further ordered that both parties should inform each other in writing of the witnesses to be called and provide a written summary of the substance of testimony no later than February 26, 1988. The parties have been engaging in discovery proceedings pursuant to CrR 4.7.
On March 18, the court ordered the defendant to disclose to the State whether the defendant would rely on a defense of diminished capacity or of intoxication at the time of the offense.
On April 7, the trial court issued an order denying the defendant's motion to extend the discovery deadline past April 11. The new order expanded the March 18 order by requiring the defendant to:
[S]upply the names, addresses and telephone numbers of his witnesses on the issue, both lay and professional, together with any written or recorded statements and the substance of any oral statements of such witnesses, as well as any reports or results, or testimony relative thereto, of physical or mental examinations or of scientific tests, experiments or comparisons or any other reports or statements of experts which the defendant intends to use at a hearing or trial. If the expert witnesses which the defendant intends to call at trial have not prepared written reports, then the defendant shall provide a summary of the anticipated testimony of said witnesses. The defendant shall also permit the prosecution to inspect and copy all related medical reports under his control or the control of his attorney.
(Italics ours.)
Upon receipt of this order, counsel for defendant provided the State with a 2-page letter containing three short paragraphs concerning testimony from a psychologist, a psychiatrist, and a neurologist. On April 11, the State filed a motion to compel discovery seeking a meaningful summary of the anticipated testimony and seeking copies of all related medical reports under the defendant's control.
On April 19, the trial court issued the order heretofore quoted and the prosecution wrote directly to all of the defense experts, enclosing a copy of the order and suggesting that this was being done to expedite the report writing process. Upon learning that the prosecution had contacted defendant's witnesses and informed them of the court order, defense counsel instructed the expert witnesses not to comply. The defendant then filed this motion for discretionary review.
Criminal discovery is governed by CrR 4.7. CrR 4.7 obliges the defendant is to disclose to the prosecuting attorney the persons whom the defendant intends to call as witnesses at the trial, together with any written or recorded statements of such witnesses. Subject to constitutional limitations, the court may require the defendant to "disclose any reports or results, or testimony relative thereto, of physical or mental examinations or of scientific tests, experiments or comparisons, or any other reports or statements of experts which the defendant intends to use at a hearing or trial." CrR 4.7(g). The rule requires the disclosure of any reports of mental examinations but does not require the preparation of such reports. Defense experts need not make any written record of their examinations but, if they do prepare reports, they can be compelled to surrender such documents to the prosecution.
The defendant does not challenge the constitutionality of CrR 4.7 itself, but only that the rule is being applied in an unconstitutional manner. Therefore, we need only apply the rule as written to the problem presented to ascertain if there has been an unconstitutional application. The construction of court rules is governed by the principles of statutory construction. State v. Baxter, 45 Wash.App. 533, 540, 726 P.2d 1247 (1986). In applying and interpreting rules adopted by this court we approach them as though they were drafted by the Legislature. State v. McIntyre, 92 Wash.2d 620, 622, 600 P.2d 1009 (1979), citing State ex rel. Schillberg v. Everett Dist. Justice Ct., 90 Wash.2d 794, 585 P.2d 1177 (1978). Language which is clear does not require or permit any construction. McIntyre, 92 Wash.2d at 622, 600 P.2d 1009. Further, where there is no ambiguity in a rule there is nothing for this court to interpret. See Rhoad v. McLean Trucking Co., 102 Wash.2d 422, 426, 686 P.2d 483 (1984); McIntyre, 92 Wash.2d at 622, 600 P.2d 1009; State v. Roth, 78 Wash.2d 711, 714, 479 P.2d 55 (1971).
The trial court's order of April 19 exceeds the authority given in rule CrR 4.7. It is undisputed that the defendant may be required to disclose any existing expert's report he intends to use at trial. However, the rule does not say that an expert can be required to make a report at the request of the opposing party. Defense counsel claims that no written reports have been requested, received or written. The clear language of the rule does not authorize the trial court to require the defendant's experts to prepare written reports for the State when they have not been prepared for the defendant.
The State contends that the trial court's order was necessary because the defendant had not adequately complied with the court's previous discovery orders. Certainly the prosecution is entitled to a full and complete report from defense counsel as to the substance of the testimony defense counsel could expect from any of the medical experts who have examined the defendant at defense counsels' request. CrR 4.7 is procedural rather than substantive. It provides for the accelerated disclosure of information which ultimately must be revealed at trial and its purpose is to prevent last-minute surprise, trial disruption and continuances. State v. Wilson, 29 Wash.App. 895, 901, 626 P.2d 998, review denied 96 Wash.2d 1022 (1981); State v. Nelson, 14 Wash.App. 658, 545 P.2d 36 (1975). As stated in State v. Boehme, 71 Wash.2d 621, 632, 430 P.2d 527 (1967), cert....
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