State v. Mains

• Citation: 669 P.2d 1112,295 Or. 640
• Decision Date: 27 September 1983
• Docket Number: No. 74-0191,74-0191
• Parties: STATE of Oregon, Respondent on review, v. Dennis Lee MAINS, whose true name is Dennis Lee Main, Petitioner on review. TC; CA A24630; SC 29361. . *
• Court: Oregon Supreme Court

Page 1112

669 P.2d 1112

295 Or. 640

STATE of Oregon, Respondent on review, v. Dennis Lee MAINS, whose true name is Dennis Lee Main Petitioner on review.

TC No. 74-0191; CA A24630; SC 29361.

Supreme Court of Oregon In banc. ^*

Argued and Submitted June 7, 1983.

Decided Sept. 27, 1983.

[295 Or. 641-A] Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review. On the brief were Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Robert E. Barton, Asst. Atty. Gen., Salem.

Michael E. Swaim, Salem, argued the cause and filed the petition and brief for petitioner on review.

JONES, Justice.

Defendant was convicted of murder after a jury trial in 1974 and sentenced to life imprisonment. His conviction was affirmed on appeal. He obtained post-conviction relief in April, 1982, because of the inadequate assistance of appellate counsel in failing to raise certain issues. The post-conviction court granted defendant a "delayed appeal" on the issues not raised in the initial appeal. See, Shipman v. Gladden, 253 Or. 192, 453 P.2d 921 (1969). The propriety of the delayed appeal is not before this court, because the state did not appeal from the post-conviction judgment.

Defendant argues three issues:

(1) The trial court erred in denying his motion to suppress testimony of a court-ordered psychiatrist because of a failure to advise defendant of his Miranda ¹ rights before the psychiatrist's examination.

(2) The trial court erred in giving a "weaker and less satisfactory evidence" jury instruction over defendant's objection.

(3) The trial court erred in denying a motion for a mistrial based on rulings made and questions asked of witnesses by the trial judge during the trial.

The Court of Appeals considered these three issues and correctly affirmed the trial court for the reasons which follow.

NECESSITY FOR WARNINGS

The record indicates that the victim of the murder was a 15-month-old child who died as a consequence of a brain injury inflicted by the defendant. The state charged the defendant with murder under ORS 163.115, claiming defendant "did unlawfully and intentionally cause the death [of the victim] by striking him with his hands." The defendant obtained two pre-trial psychiatric examinations at public expense. He then gave notice of his intention to introduce evidence of extreme mental or emotional disturbance, pursuant to ORS 163.135(2), and of his intention to introduce evidence of the affirmative defense of mental disease or defect, ORS 161.295, pursuant to ORS 161.309(3).

The state responded by obtaining an order, ORS 161.315, requiring the defendant to submit to a third psychiatric examination to determine if defendant was not responsible for criminal conduct because of mental disease or defect under ORS 161.295, or partially responsible under ORS 163.115(1)(a). Defendant's attorney, pursuant to the terms of the court's order, was allowed to be present during the examination if desired. Compare, Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968).

The state psychiatrist testified that (1) he told the defendant that defendant's statements could be used in court; (2) the doctor's report might be unfavorable to the defendant; (3) the defendant acknowledged that he understood the statements could be used in court; (4) the defendant was not threatened; and (5) the defendant was offered no inducements to respond to questions.

The state psychiatrist gave expert opinion testimony that at the time of the crime defendant did not suffer from mental disease or defect or from an extreme emotional disturbance, was aware of his acts and was able to conform his conduct to the law at the time the child was killed. Medical testimony established that the victim had The defendant urges this court to adopt the holding in State v. Corbin, 15 Or.App. 536, 516 P.2d 1314 (1973), rev. den. (1974), as a basis for suppression of the statements made to the psychiatrist which were admitted at trial. In Corbin, the Court of Appeals said:

numerous bruises, a burn probably caused by a cigarette, four missing front teeth, and other injuries which were not consistent with defendant's explanations. The psychiatrist also testified that defendant admitted during the psychiatric examination that he had become angry with the baby and had thrown him against a chair, injuring the child's head. He acknowledged spanking the victim often and stated that he had struck the child severely on a number of prior occasions, causing various injuries.

"The key reason for requiring that the psychiatrist repeat such a [Miranda] warning is to dispel any possibility that the defendant may believe that statements made to the psychiatrist would not or could not be used in court against him. The reasons for this possible misapprehension lie in the vagueness of what is protected by the confidentiality of the doctor-patient relationship. Even more compelling is the need to dispel any belief that statements made to the psychiatrist would be for the defendant's own good. The defendant must be aware that the psychiatrist is employed by his adversary and is not primarily his healer. * * * " Id. at 546, 516 P.2d 1314.

However, in State v. Loyer, 55 Or.App. 854, 858, 640 P.2d 631 (1982), the Court of Appeals distinguished Corbin thusly:

"In the case at bar, the circumstances surrounding the state's psychiatric examination were radically different [than Corbin ]. Here, defendant had counsel, had already been examined by his own expert, Dr. Roberts, and had given formal notice of his intent to rely on a mental disease or defect defense. On the state's motion for its own examination, defense counsel was so informed and presumably could have advised his client as he saw fit. Under these circumstances, the possibility that defendant could have misunderstood the relationship between himself and the examining psychiatrist was absent. Nothing in Corbin or subsequent cases indicates that its requirements were intended to apply to such a controlled situation which was actually initiated by defendant with aid of his counsel." ²

The facts of this case are similar to those in Loyer. We take the Court of Appeals' analysis a step further.

The familiar Miranda warnings are federal law, devised by the United States Supreme Court to protect an uncounseled person against involuntary self-incrimination when questioned while in custody "or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). They inform a person of the right not to answer questions and of the possible adverse use of his answers, and they also advise him of the right to counsel as a means to protect the right against self-incrimination. The details of the Miranda warnings are regarded as a judicial means to effectuate the Fifth Amendment's guarantee against compelled self-incrimination. They were addressed to the states as a requirement of due process under the Fourteenth Amendment.

The Oregon Constitution similarly guarantees the right not to be compelled to testify against oneself in a criminal prosecution. Or. Const., Art. I, § 12. Like the When a defendant already is represented by counsel, obviously there is no need to explain that the defendant is entitled to counsel. If counsel is present at the examination, a court thereafter may presume that counsel has advised or will advise defendant as to his rights as the occasion may arise. ³ If counsel is not present at the examination, however, the defendant should be asked by the examiner whether he understands that counsel is entitled to be present and has consented to be examined in the absence of counsel. The defendant should further be informed that the examination is conducted on behalf of the prosecution and its results will be available for use against the defendant without the confidentiality of a doctor-patient relationship. See, State v. Corbin, supra. Because this defendant was represented by counsel and was advised that the results of the examination could be used adversely during his trial, we find no error in this case.

United States Supreme Court, this court is called upon from time to time to specify the procedure by which a guarantee is to be effectuated. Such specifications are not the same as interpretations of the guarantee itself, that is to say, they may not always and in all settings be the only means toward its effectuation but may be adapted or replaced from time to time by decisions of this court or by legislation in the light of experience or changing circumstances. In the absence of legislation, we believe that the following are the relevant information and warnings required in the setting of a psychiatric examination of a defendant conducted on behalf of the state to guarantee the right not to be compelled to testify against oneself in a criminal prosecution under Article I, Section 12, of the Oregon Constitution.

THE "WEAKER AND LESS SATISFACTORY EVIDENCE"

INSTRUCTION

The trial court gave the following statutory instruction ⁴ over defendant's objection:

"Evidence is to be estimated by its own intrinsic weight. Evidence is to be weighed not only by its own intrinsic weight but also in [sic] the evidence where it is in the power of one side to produce and the other side to contradict. Therefore, if weaker and less satisfactory evidence is offered when it appeared that stronger and more satisfactory evidence was within the power of the parties to produce, the evidence offered should be viewed by you with distrust."

The defendant did not testify. In State v. Betts, 235 Or. 127, 135, 384 P.2d 198, 7 A.L.R.3d 1445 (1963), we said:

"We have repeatedly held that in a criminal case the giving of the [less satisfactory evidence] instruction should be avoided unless limited to the state's case, but so instructing is not reversible error, particularly when the court also instructs, as it did here,...