State v. Shaw

• Decision Date: 18 June 1970
• Docket Number: No. 2088,2088
• Citation: 106 Ariz. 103,471 P.2d 715
• Parties: STATE of Arizona, Appellee, v. Robert SHAW, Appellant.
• Court: Arizona Supreme Court

Page 715

471 P.2d 715

106 Ariz. 103

STATE of Arizona, Appellee, v.Robert SHAW, Appellant.

No. 2088.

Supreme Court of Arizona, In Banc.

June 18, 1970.

Rehearing Denied July 14, 1970.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.

Waterfall, Economidis, Falk & Caldwell, by Peter Economidis, Tucson, for appellant.

McFARLAND, Justice.

AppellantRobert Henry Shaw--hereinafter called the defendant--was found guilty of the crime of robbery and sentenced to not less than six nor more than ten years in the Arizona State Prison.From this judgment and sentence he appeals.

Defendant was charged with the robbery on January 2, 1969, of the Community Finance Company, located at 3950 East Speedway, Tucson, Arizona.On January 3, 1969, defendant was arrested, a criminal complaint filed against him, and a preliminary hearing set for January 14, 1969.At the date set for the hearing defendant was confined in the psychiatric section of the Pima County Hospital following an attempt by him to take his own life by slashing his wrists.

A Pima County welfare worker filed a petition for civil commitment, and a hearing determined that the defendant should be hospitalized.

On January 17, 1969, a motion for mental examination and for immediate hearing was filed, pursuant to the provisions of § 13--1621, A.R.S., and two doctors testified that the defendant was suffering from a mental illness which rendered him unable to understand the nature of the proceedings against him or to assist counsel in his defense.Defendant was accordingly committed to the Arizona State Hospital until such time as it was found that he was capable of understanding and could assist with his own defense.

On April 18, 1969, the defendant was returned to the Superior Court of Pima County to stand trial on the offense.On April 23, 1969, a second motion for mental examination was filed on behalf of the defendant, and a hearing was held May 14, 1969.At this hearing, Doctor Treptow and Doctor Van Antwerp testified that Robert Shaw was able to understand the nature of the proceedings against him and to assist counsel in his defense, and the court ordered that a preliminary hearing be held immediately.The defendant was bound over at the preliminary hearing and arraigned on June 10, 1969, at which time a plea of not guilty was entered.

On July 17, 1969, notice was filed by defendant that he intended to establish at his trial that he was insane or mentally defective at the time the alleged robbery was committed.Pursuant to the procedures set out in § 13--1621.01, A.R.S., separate trials were held--first on the issue of guilt or innocence, and the second on the question of the defendant's sanity.The defendant was found guilty at the first trial, and at the second he was found to be sane at the time the act was committed.

Defendant contends that five errors were made during course of his trial.He first contends that the trial court committed error in admitting--over objection of the defense--certain statements made to Dr. Carl S. Wellish, staff psychiatrist at the Arizona State Hospital, who interviewed defendant during the time defendant was confined in the State Hospital.

Defendant asserts that these statements were privileged and not admissible under § 13--1802, A.R.S., which states:

'A person shall not be examined as a witness in the following cases:

'4.A physician or surgeon, without consent of his patient, as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.As amended Laws 1961, Ch. 36, § 1.'

We feel that we must agree with defendant's position that the admission of the testimony of Dr. Wellish, with regard to certain acts related to him by the defendant while Dr. Wellish examined him, was prejudicial error by the court.

In State v. Evans, 104 Ariz. 434, 454 P.2d 976, tried before the adoption of § 13--1621.01, A.R.S., we held:

'The general rule is that a physician-patient privilege does not arise when the defendant is being examined at the instance of the court or the prosecutor for the purpose of determining his mental or physical condition.People v. English, 31 Ill.2d 301, 201 N.E.2d 455(1964);State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 300 P.2d 567(1956);Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398(1955).Defendant was ordered to the State Hospital as a result of a Rule 250 hearing to determine his ability to understand the proceedings and assist his counsel at the pending trial.Although there is some evidence in the record that Dr. Baker prescribed tranquilizers to alleviate defendant's nervousness and anxiety, we believe the evidence indicates that Dr. Baker functioned primarily as an examiner and not a therapist.While such facts would generally lead to a conclusion that no physician-patient privilege existed, we are, nevertheless, reluctant to hold that Dr. Baker should have been allowed to testify to certain statements made to him by the defendant in the course of the examination concerning the alleged criminal act.* * *

'The obvious policy underlying the physician-patient privilege is that patients should be encouraged to make full and frank disclosures to those who are attending them.While we do not believe that allowing Dr. Baker to testify about his conclusions concerning defendant's sanity derogates from this policy, we do think that to permit even a psychiatrist acting for the court to transmit a defendant's incriminating statements to a jury is fundamentally unfair.* * *

'This view of the law finds support in A.R.S. § 13--1621 which sets out the procedures to be followed when defendant raises the issue of insanity and provides in pertinent part:

"In any of these proceedings, both the defendant and the state shall have the right to have the defendant examined by psychiatrists appointed by the court for the purpose of presenting testimony at any appropriate hearing.Information obtained from defendant under these provisions shall not be used against him at any trial in which his guilt or innocence is to be determined unless the defendant consents.'(Emphasis added.)

'Although this statute was not in effect at the time of defendant's trial, we cite it to show present legislative intent to construct a limited physician-patient privilege in a situation where, for the most part, none had previously existed.We believe that insulating a defendant from the possibility that an examining psychiatrist will repeat on the stand defendant's 'confession' to him to other damaging admissions will promote the free interplay between patient and physician which is essential to obtaining a clear picture of defendant's mental health.We therefore hold that the above quoted testimony of Dr. Baker falls within the limited physician-patient privilege which is the present policy of this state as embodied in A.R.S. § 13--1621, and its admission constituted reversible error.'

The statute itself as it presently exists and interpreted by State v. Evans, supra, would prevent the use of statements made by defendant to Dr. Wellish in the trial against him for the determination of his guilt or innocence.Should there be any distinction in the second trial in which he has pled not guilty by reason of insanity as to the admission of testimony of the doctor as to statements made by the defendant to him which would tend to show that he remembered the commission of the act?The test of legal insanity, as held by this Court, has two elements--

'(1) Such a defect of reason as not to know the nature and quality of the act, or

'(2) If he did know, that he did not know he was doing what was wrong.'State v. Schantz, 98 Ariz. 200, 207, 403 P.2d 521, 525, cert. den., 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530.

The doctor's testimony in regard to the acts related by the defendant to him would have a bearing upon the guilt by reason of insanity under this test just as it did upon the commission of the act itself, for the reason that it would tend to show that he understood the nature and quality of the act at the time of its commission.A defendant--if he knew this--would have a tendency not to confide in the physician, and a psychiatrist would be handicapped in the treatment of the patient.The purpose of the privilege would thereby be defeated.

A patient committed to the Arizona State Hospital under the circumstances of the instant case should have the same privilege as a patient under treatment by a physician in a private hospital.The act does not recognize any distinction.The test is whether a physician-patient relationship exists.State v. Sullivan, 60 Wash.2d 214, 373 P.2d 474.If a patient is examined believing that the purpose of the examination is for treatment then the patient has a right to rely upon the confidence imposed in the physician.Any other holding would permit the privilege accorded the patient to be taken from him by trick or fraud.

It is clear in the instant case that treatment, not observation alone, was included in the purposes for which defendant was held in the State Hospital.This is clearly indicated by the nature of Dr. Wellish's testimony, as follows:

'Q Doctor Wellish, Mr. Wilkes asked you a question the purpose of this examination.Was one of the purposes of your examination on March 26, 1969 the treatment of the patient, Robert Shaw?

'A If treatment was indicated, yes.

'Q Whatever occurred and the information obtained at that time ultimately would be used in any treatment he received while a patient at the Arizona State Hospital?

'A That is correct.'

In Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398, the court held:

"In the courts of the District of Columbia no physician or surgeon shall be permitted, without the consent of the person afflicted, or of his legal representative, to disclose any information, confidential in its nature, which he shall have acquired in attending a patient in a...