State v. Loyer

• Decision Date: 08 February 1982
• Docket Number: No. 7,7
• Citation: 640 P.2d 631,55 Or.App. 854
• Parties: Page 631 640 P.2d 631 55 Or.App. 854 STATE of Oregon, Respondent, v. Steve Shuravloff LOYER, Appellant
• Court: Oregon Court of Appeals

Page 631

640 P.2d 631

55 Or.App. 854

STATE of Oregon, Respondent v Steve Shuravloff LOYER, Appellant.

No. 79-11-22; CA A20090.

Court of Appeals of Oregon.

Argued and Submitted July 27, 1981.

Decided Feb. 8, 1982.

Howard Clyman, West Linn, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

THORNTON, Judge.

Defendant appeals from his conviction of kidnapping, sodomy and two counts of rape in the first degree. His sole assignment of error is that the court erred in admitting testimony by the state's psychiatrist offered to rebut defendant's proffered defenses of mental disease or defect excluding or diminishing defendant's responsibility for the crimes charged. Defendant's contention is grounded on the failure of the state's psychiatrist to inform defendant of his rights against self incrimination prior to the interview.

The essential facts so far as material here may be summarized as follows:

Following his arraignment on the above charges, defendant gave written notice of his intent to rely on the defense of mental disease or defect excluding responsibility and on the partial defense of mental disease or defect which diminishes responsibility. The state filed a notice to have defendant examined by a state psychiatrist and moved that defendant make himself available for an examination by Dr. Harold Cloyd at the doctor's office at the Oregon State Hospital in Salem. ORS 161.315. In response, defendant informed the court that he would make himself available for such an examination, with the understanding, as agreed between counsel, that defendant would not be required to stay overnight at the hospital and would provide his own transportation to and from the hospital.

On trial to the court, defendant called as an expert witness Dr. Roberts, defendant's treating psychiatrist, who testified, based on approximately 18 sessions with defendant, that defendant suffered from schizophrenia, chronic undifferentiated type, as a result of which defendant lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the crime alleged. The state, seeking to rebut Dr. Roberts' testimony, called state psychiatrist Dr. Cloyd. Defense counsel objected to Dr. Cloyd's testimony, based on the failure of the doctor to warn defendant, at the start of their interview, of defendant's right against self-incrimination. The defense objection extended to any evidence, including opinions and conclusions, offered by Dr. Cloyd based on the interview, absent a knowing and voluntary waiver of rights by defendant.

The trial judge held that, although no competent evidence was offered to show that defendant had been warned of his constitutional rights, the state could introduce evidence of Dr. Cloyd's interview and his conclusion based on the interview. Because Dr. Cloyd became ill and was unavailable to testify until an uncertain future date, the state asked for a continuance, which was opposed by defendant, but granted by the court. Thereupon, to avoid delay, counsel agreed that, in lieu of requiring Dr. Cloyd to appear, the state could offer his report in place of his testimony, though defendant's objection to any evidence based on Dr. Cloyd's interview was preserved. The report was admitted into evidence. In it, Dr. Cloyd outlined defendant's "story of the incident" and concluded that defendant did not lack substantial capacity to understand the criminality of his act, or to conform his conduct to the requirements of the law. This was the only expert evidence offered by the state to rebut defense evidence of mental disease or defect excluding or diminishing responsibility.

In State v. Phillips, 245 Or. 466, 475, 422 P.2d 670 (1967), the court held that when a defendant pleads not guilty by reason of insanity the state is entitled to a mental examination. The legislature codified that rule and adapted it to the newly enacted defense of mental defect. See ORS 161.315. In State v. Corbin, 15 Or.App. 536, 516 P.2d 1314, rev den (1974), this court rev...