State v. Pawlyk

Decision Date25 October 1990
Docket NumberNo. 56929-1,56929-1
Citation800 P.2d 338,115 Wn.2d 457
PartiesSTATE of Washington, Respondent, v. William J. PAWLYK, Petitioner. En Banc
CourtWashington Supreme Court

Seattle-King County Public Defender Ass'n, Miriam Schwartz, Michael Filipovic, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Lee Yates, Sr. Deputy, John Bell, Deputy, Seattle, for respondent.

Robert H. Whaley Bryan P. Harnetiaux, Spokane, amici curiae on behalf of Washington State Trial Lawyers Ass'n.

Carney, Stephenson, Badley, Smith & Spellman, P.S., James E. Lobsenz, Seattle, amici curiae on behalf of Washington Ass'n of Crim. Defense Lawyers.

BRACHTENBACH, Justice.

This case involves discovery of the findings and conclusions of a defense-retained psychiatrist who examined the defendant, where the defendant asserts an insanity defense but does not intend to call that psychiatrist as a witness. The trial court ordered disclosure. We affirm the trial court's discovery order, with one modification.

We are asked to reconsider our holdings in State v. Bonds, 98 Wash.2d 1, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983), that, when the issue of insanity is raised by the defense, the attorney-client privilege does not extend to the testimony of a psychiatrist, and the defendant waives his Fifth Amendment right against self-incrimination. We adhere to those holdings. In addition, we conclude that, regardless of whether the defense intends to call a defense-retained psychiatrist as an expert witness, neither this state's criminal discovery rules nor the work product doctrine preclude the State's discovery of that psychiatrist's written reports, or his testimony relating thereto, which are based on the psychiatrist's examination of a defendant who intends to rely upon an insanity defense. We further hold that the State may call that psychiatrist as a witness. We reject defendant's right to counsel and due process claims. 1

On July 31, 1989, Larry Sturholm and Debra Sweiger were stabbed to death. The King County Prosecutor charged William J. Pawlyk with two counts of aggravated first degree murder, but did not file notice of intent to seek the death penalty. At defense counsel's request, defendant was interviewed by psychiatrists Dr. G. Christian Harris and Dr. Emanuel Tanay. Pursuant to RCW 10.77.030 and CrR 4.2(c), the defense gave notice that defendant would rely on an insanity defense, and indicated that Dr. Tanay would be called to testify in support of that defense. The defense states that it will not call Dr. Harris.

When the State was informed of the insanity defense, it contacted Dr. Harris as a prospective witness and learned that he had interviewed defendant. The State moved to discover Dr. Harris' written reports of his interview of defendant and to interview Dr. Harris concerning his findings and the basis for his conclusions. The State also moved to discover the results of "any and all psychological testing that may have been performed on the defendant by anyone" and for copies of all court orders appointing experts to examine defendant at public expense. Clerk's Papers, at 4. Further, the State moved for copies of reports by any other psychiatrist, psychologist, or expert in the field of forensic medicine who examined defendant either before or after Dr. Tanay examined him. The State served Dr. Harris with a subpoena to testify and a subpoena duces tecum for his reports. The State maintained that it wants Dr. Harris as its expert witness, perhaps its only expert witness. The defense moved to quash the subpoenas.

On January 24, 1990, the trial court granted the discovery requests set out above, but did not allow discovery as to "any written letters between defense counsel and Dr. Harris, and Dr. Harris shall not be interviewed concerning any communications between Dr. Harris and defense counsel." Clerk's Papers, at 66. The order directs that the "State shall have access to the discovery materials ... [Dr. Harris] used in order to form the basis for his opinion." Clerk's Papers, at 66. The trial court ordered that "all information provided to the State pursuant to this order be utilized at trial only in the event that expert testimony of a psychiatrist is admitted before the jury in support of the insanity defense at trial." Clerk's Papers, at 66. The court denied the defense motion to quash the subpoenas of Dr. Harris.

The State's request for discovery as to Dr. Tanay's examination of defendant was granted and is not at issue.

Defendant's motion for interlocutory discretionary review of the discovery order was granted by the Court of Appeals, and the matter was transferred here by this court. Proceedings at the trial court are stayed pending this decision.

Defendant raises a number of issues concerning the trial court's order, involving the attorney-client privilege, the privilege against self-incrimination, the right to counsel, the criminal court discovery rules and RCW 10.77, the work product doctrine, and due process. Each is addressed below.

Attorney-Client Privilege

Defendant argues that the trial court's order violates the attorney-client privilege both as to the ordered disclosures, and as to the State's use of Dr. Harris as a witness. Defendant maintains that language to the contrary in State v. Bonds, 98 Wash.2d 1, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983), is dicta. The State contends that Bonds controls.

In Bonds, a psychiatrist was appointed to assist the defendant in a juvenile decline hearing and was called by the defense to testify at the decline hearing. The juvenile court declined jurisdiction. Defendant pleaded not guilty and not guilty by reason of insanity. Defendant moved in limine that the State not be allowed to use the psychiatrist as a rebuttal witness at trial. His motion was denied, and the doctor was called to testify for the State. On appeal, defendant claimed that the psychiatrist's testimony was protected under the attorney-client privilege, since the doctor had been part of the defense team at the juvenile proceedings. This court rejected this contention on the basis that the public interest in full disclosure outweighs the privilege. A majority of this court found persuasive the reasoning in Saltzburg, Privileges and Professionals: Lawyers and Psychiatrists, 66 Va.L.Rev. 597, 635-42 (1980), where the author

argues that the defense psychiatrist's examination of defendant is likely to be more accurate on the issue of insanity than that of the prosecution's. The defense psychiatrist will generally examine defendant earlier than the prosecution. The examination will thus be closer to the time of the offense, when defendant's recollections are clearer and there is less likelihood that defendant's mental condition has changed. Moreover, a defendant might benefit by undergoing several psychiatric examinations, examining reports of psychiatrists unfavorable to his insanity defense, and tailoring his responses in subsequent examinations more favorably to his defense. Defendant is also likely to be more cooperative with his own psychiatrist and give a more accurate impression of his mental condition. Saltzburg argues, and we agree, that for these reasons all available evidence of defendant's mental condition should be put before the jury.

Bonds, 98 Wash.2d at 21, 653 P.2d 1024. This argument is consistent with previous decisions founded on the principle that when a defendant pleads mental irresponsibility, every act of his life is admissible. Bonds, at 22, 653 P.2d 1024; State v. Music, 79 Wash.2d 699, 711-12, 489 P.2d 159 (1971), judgment vacated on other grounds, 408 U.S. 940, 92 S.Ct. 2877, 33 L.Ed.2d 764 (1972); State v. Huson, 73 Wash.2d 660, 666-67, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969). The court held that "the attorney-client privilege should not extend to the testimony of a psychiatrist when the issue of insanity is raised by the defense." Bonds, 98 Wash.2d at 22, 653 P.2d 1024.

Defendant argues that our conclusion in Bonds is dicta, and that the attorney client privilege set out in RCW 5.60.060(2) should extend to communications between a defendant and a psychiatric expert retained by defense counsel for the purpose of assisting counsel in preparing for trial. He reasons that unlike a treating psychiatrist, a psychiatrist retained by counsel to assist in the preparation of the defense is an agent of counsel for purposes of the attorney-client privilege. Defendant contends that he has not waived the privilege by offering testimony which opens the door or by using otherwise privileged information as the basis of opinion testimony.

Defendant mistakenly characterizes our holding in Bonds as dicta. He reasons that the holding is limited to cases where defense waives the attorney-client privilege by presenting testimony of the psychiatrist because in Bonds the defense presented the psychiatrist's testimony at the decline hearing. Defendant fails to recognize that a majority of the court refused to limit its holding in that fashion, as demonstrated by the fact that a dissent in Bonds expressly argued for such a limited holding. See Bonds, at 29, 653 P.2d 1024 (Utter, J., dissenting). Instead, the majority's reasoning and its holding demonstrate that the attorney-client privilege does not extend to the testimony of the psychiatrist regardless of whether the defendant first calls the psychiatrist to the stand or otherwise uses the psychiatrist's written reports or the findings and conclusions resulting from the psychiatrist's examination of defendant as to the insanity question.

We are aware that other courts have split on this question. Some courts hold that when a defendant asserts an insanity defense, the attorney-client privilege is waived or otherwise does not apply as to a nontestifying defense-retained examining psychiatrist. E...

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