State v. Mercier, 84-343

• Decision Date: 09 May 1986
• Docket Number: No. 84-343,84-343
• Parties: The STATE of New Hampshire v. David MERCIER.
• Court: New Hampshire Supreme Court

Page 1246

509 A.2d 1246

128 N.H. 57

The STATE of New Hampshire v. David MERCIER.

No. 84-343.

Supreme Court of New Hampshire.

May 9, 1986.

Stephen E. Merrill, Atty. Gen. (Gregory W. Swope, Asst. Atty. Gen., on brief and orally), for the State.

Schapira and Green P.A., Manchester (Andru H. Volinsky on brief and orally), for defendant.

SOUTER, Justice.

The Superior Court (DiClerico, J.) committed the defendant to New Hampshire Hospital under RSA 651:9 (current version at RSA 651:9-a (Supp.1985)), on the ground that it would be dangerous for him to "go at large." In this appeal, the defendant raises four claims of error: (1) that the court ordered his post-trial psychiatric evaluation without legal authority; (2) that the order violated his privilege against compulsory self-incrimination, as guaranteed by the State and National Constitutions; (3) that the procedure followed and the standards employed in determining his dangerousness denied him equal protection of the laws, as guaranteed by each Constitution; and (4) that the evidence was insufficient to justify the commitment. We find no merit in these claims and sustain the order of commitment.

On October 7, 1983, a jury found the defendant guilty of two counts of robbery, whereupon the defense of insanity was submitted to the same jury under the bifurcated trial procedure authorized by Novosel v. Helgemoe, 118 N.H. 115, 123-25, 384 A.2d 124, 128-30 (1978). On the basis of the evidence submitted at the first segment of the trial, the jury returned verdicts of not guilty by reason of insanity.

The trial court then scheduled a hearing to determine whether the defendant should be released or should be committed to New Hampshire Hospital as a person who would be dangerous if allowed to go at large. RSA 651:9 (current version at RSA 651:9-a (Supp.1985)). The defendant proposed to offer no further evidence on the issue of his future dangerousness, and he indicated that he would rely on the testimony of Dr. Sheldon Zigelbaum, who had given evidence on the issue of intent during the first segment of the trial. Dr. Zigelbaum had testified that the defendant suffered from a series of psychiatric disorders including depression, anxiety, and post-traumatic stress disorder, all of which were exacerbated by alcohol abuse and an "organic disability".

The State had offered no expert testimony on the defendant's mental condition at either segment of the trial, and had obtained no professional opinion on the defendant's future dangerousness. In order to obtain such an opinion for introduction at the commitment hearing, the prosecution sought an order requiring the defendant's examination by a doctor to be chosen by the State. The court so ordered, subject to objection, and the defendant submitted unwillingly to an examination by Dr. Albert Drukteinis. The latter did not contradict Dr. Zigelbaum's diagnosis, but supplemented it with his own opinion that the defendant suffered from an antisocial personality disorder, which combined with poor impulse control to render him dangerous even without the stimulus of specific stress.

After considering this testimony, the trial court found that the defendant would be dangerous if allowed to go at large and committed him to the New Hampshire Hospital for the maximum initial period of five years. RSA 651:9 (current version at RSA 651:9-a (Supp.1985)), RSA 651:11-a, I (Supp.1985). This appeal followed.

The defendant first claims that the court lacked any legal authority to require him to submit to an examination by Dr. Drukteinis. Although he correctly points out that the court has no express statutory authority to require a post-trial examination, cf. RSA 135:17 (Supp.1985), his challenge ignores the rule that the creation of a statutory duty carries with it the power to discharge the responsibility so imposed. 2A. Sutherland Stat. Const. § 55.04 (C. Sands 4th ed. rev. 1984); see Whitney v. Watson, 85 N.H. 238, 242, 157 A. 78, 81 (1931). In State v. Kupchun, 117 N.H. 412, 373 A.2d 1325 (1977), for example, we recognized that the superior court's responsibility to determine whether the commitment of a criminally insane defendant should be renewed and extended beyond its original term carried with it the power to obtain access to the only recent evidence bearing on the issue of dangerousness. Accordingly, we held that the court was authorized to grant access to otherwise privileged medical and psychiatric records compiled during the original commitment period.

"In order to perform [its] mandated duties, it is essential that the superior court be presented with the best information available which has a bearing on defendant's dangerousness or mental condition. Without access to the evidence ordered by the trial court in this case, the state would be virtually deprived of the opportunity to present to the superior court the evidence it must have to properly decide whether the defendant's stay in the hopsital should be continued."

Id. at 415-16, 373 A.2d at 1327. The principle on which we limited the scope of the physician-patient and psychologist-client privileges in Kupchun entails the conclusion that the superior court has the authority to order the examination at issue here.

The defendant's second challenge to the examination order characterizes it as a violation of his privilege against compulsory self-incrimination, as guaranteed both by part I, article 15 of the Constitution of New Hampshire and by the fifth amendment of the National Constitution made applicable to the States by the fourteenth amendment. As is our custom, we consider the claim under the State Constitution first, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), relying on interpretations of the federal counterpart only for guidance in making an independent State analysis. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3475-76, 77 L.Ed.2d 1201 (1983).

The defendant raised this claim without reference to any particular questions that might be asked or to any specific subjects that might be covered by the doctor's examination, and we therefore understand his position to be that the examination order was a per se violation of the privilege claimed. In considering this position, it is essential to recognize that the court issued the examination order in the course of a dispositional proceeding, following a verdict of not guilty by reason of insanity. The insanity verdict had precluded any possibility of imposing criminal liability for the acts charged in the indictment, Novosel v. Helgemoe, 118 N.H. at 122-24, 384 A.2d at 128-29, and the only issue in the pending proceeding that could then have been affected by the defendant's statements was the appropriateness of either releasing him or committing him on grounds of dangerousness. That same issue is raised in a civil proceeding for commitment initiated under RSA 135-B:28, on the ground that the respondent's mental illness creates a likelihood of danger within the meaning of RSA 135-B:26. See State v. Paradis, 123 N.H. 68, 70, 455 A.2d 1070, 1072 (1983). The issue in either case is the need for protection, not the appropriateness of punishment. See RSA 135-B:26; see also State v. Ballou, 125 N.H. 304, 317-18, 481 A.2d 260, 267-68 (1984) (Souter, J., dissenting in part).

This procedural analysis indicates that the purpose of such an examination order is not to elicit statements for the purposes of convicting or punishing a defendant. There is, therefore, no incriminating objective or consequence necessarily inherent in such an order, and compelling an examination cannot be regarded as somehow the equivalent of compelling self-incrimination. See In re Field, 120 N.H. 206, 210-11, 412 A.2d 1032, 1035 (1980). Hence, an order such as the one in question is not a per se violation of article 15, and the defendant's objection was properly overruled.

It does not follow, of course, that the nature of the proceeding necessarily precludes the assertion of the privilege. The privilege depends upon the incriminating tendency of a compelled testimonial statement, not upon the forum or proceeding in which the statement may be elicited. In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967); See In re Field supra. An examination of the sort in question here could not, therefore, be required merely as a subterfuge to obtain evidence of criminal conduct as the basis for other charges. See In re Field supra. Even in the absence of any such subterfuge, we must take care to recognize that a particular question in the course of a required examination could call for an answer incriminating the defendant in another offense.

The defendant does not claim that any such question or answer occurred during his examination, and thus it is sufficient to note that in such circumstances a defendant who has not waived his article 15 rights will be entitled to protection. See In re Fay G, 120 N.H. 153, 155, 412 A.2d 1012, 1015 (1980). In the first instance, a defendant may invoke the privilege against answering a question that calls for an incriminating response, see Sevigny v. Burns, 108 N.H. 95, 97, 227 A.2d 775, 777 (1967), although this opportunity will usually be more theoretical than practical in the absence of counsel. See In re Field, supra at 209-10, 412 A.2d at 1034. More practically, in any later criminal proceeding a court may exclude evidence if its use would violate the article 15 privilege. Id. at 211, 412 A.2d at 1035.

When we apply the fifth and fourteenth amendments to the order in question, the result is the same. Although the defendant relies upon Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), that case does not support his position. In the absence of a fifth amendment waiver, Estelle required the exclusion of testimonial evidence elicited from a homicide defendant during a pretrial psychological examination, when the prosecution offered that evidence for...