State v. Smallwood

• Citation: 548 P.2d 1346,25 Or.App. 251
• Parties: STATE of Oregon, Respondent, v. Redgie Eugene SMALLWOOD, Appellant.
• Decision Date: 26 April 1976
• Court: Court of Appeals of Oregon

Page 1346

548 P.2d 1346

25 Or.App. 251

STATE of Oregon, Respondent, v. Redgie Eugene SMALLWOOD, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Feb. 19, 1976.

Decided April 26, 1976.

Howard R. Lonergan, Portland, argued the cause and filed the brief for appellant.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

FORT, Judge.

Defendant was indicted, tried and convicted by a jury of murder. ORS 163.115. He entered a plea of not guilty by reason of mental disease or defect. ORS 161.295, 161.300, and 163.125. He appeals from the resulting judgment.

The single assignment of error asserts violation of defendant's Fifth and Sixth Amendment rights in connection with certain testimony elicited from the state's psychiatrist. In considering the validity of these contentions it is important by way of background to note certain facts: (1) the challenged evidence came in on rebuttal after all of the defendant's witnesses had testified; (2) the defendant himself had testified on direct examination that he had inflicted an injury with a knife on the victim and had then fled from the scene; (3) defendant's attorney in his opening statement to the jury had stated that the only issue was that of defendant' mental condition, ¹ and that defendant had inflicted the wounds by stabbing, from which the victim died; (4) the defense psychiatrist had already testified in detail about her examination of the defendant, and had reported statements defendant had made to her in the course of that exmination about the killing and his actions surrounding the time thereof. She had then expressed her opinion that at the time of the killing defendant was suffering from a mental condition such that he 'could not conform his conduct to the law.'

By way of rebuttal the state called as its witness a psychiatrist who at its request had also examined the defendant following his ORS 161.295 plea. ORS 161.305. The psychiatrist was permitted to testify ² over appropriate objection that the defendant 'exercised his constitutional rights,' in that he refused to proceed with the first examination without having his attorney present; and also that at the second meeting, in part on advice of his attorney, he refused to discuss anything surrounding the occasion of the homicide or his involvement in the stabbing incident leading to the victim's death. The former is claimed to violate the defendant's Sixth Amendment right to counsel, and the latter his Fifth Amendment right against self-incrimination.

Defendant places principal reliance respecting the latter on Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968). In that case the trial court, after an insanity plea, had as a preliminary matter ordered the defendant to be examined by a psychiatrist for the state. It ordered him at that examination to answer any question concerning the crime with which he was charged. In a mandamus proceeding seeking the elimination of that order, and also of an order prohibiting his attorney from avising him not to answer any question which might tend to incriminate him, the court said:

'We conclude that the only way in which the constitutional right of the defendant not to be compelled to testify against himself can be adequately preserved is to hold that the defendant cannot be required to answer the questions which the trial court's order requires him to answer, and the restrictions placed upon defense counsel by the trial court's order must be removed.

'* * *

'We are aware that in holding that the defendant cannot be compelled to answer the psychiatrist's questions we may be lessening the quality of the evidence available to the state. Psychiatrists have expressed the opinion that it is difficult, at least in some cases, to arrive at a competent opinion on the mental state of the defendant if the defendant cannot be questioned about the alleged crime. Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L.J. 905, 918 (1961). We are of the opinion that this is a price that must be paid to enforce the constitutional protection.' 250 Or. at 293--94, 442 P.2d at 240.

We conclude that that case does not set forth the answer to the question presented here: whether a psychiatrist in testifying Under the circumstances here present may state (a) that the defendant during the first examination wanted his lawyer present before proceeding, and (b) that at the second he refused to answer questions which in his or his attorney's opinion might tend to incriminate him. The psychiatrist also testified that in the second interview he was unable for that reason to elicit from the defendant any information relating to defendant's explanation or awareness of the stabbing of the victim or the circumstances leading up to or immediately following the incident. Defendant's attorney was present at that second interview and recorded it. Because of the failure, therefore, to elicit any information surrounding the homicide he explained that he was unable to express an opinion on certain questions asked by the state (see footnote 2).

In United States v. Baird, 414 F.2d 700 (2d Cir. 1969), Cert. denied 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970), the court considered at length a case similar in certain respects to the case at bar. There the defense introduced in its case-in-chief the testimony of two psychiatrists to support the defendant's contention that the defendant was suffering from mental disease or defect at the time of the crime charged. This testimony included statements the defendant had made to them explaining what he did and why he was not responsible. The defendant himself did not testify. The court then allowed the government to have the defendant examined by a psychiatrist of its own choosing and permitted him to relate at trial over appropriate objection based on the Fifth and Sixth Amendments what the defendant had told him concerning the offense charged and his reasons for his acts in connection with it. On appeal the court said:

'* * * To rule that the Government's alienist may examine the accused and give his opinion testimony of the accused's mental condition does not rest upon or involve a waiver by the defendant of some known right of his, although it may be argued that this is just another way of saying the same thing. It is more accurate to say that a defendant who raises a defense based on criminal responsibility is estopped from making an effective objection to the Government's proceeding in this fashion when he, himself, has relied upon the same evidence--admissibility theory under circumstances such as those in the present case.

'The same reasoning applies to the use of the testimony of experts in relation to the insanity defense as it bears on the issue of wilfulness and the defendant is faced with the same estoppel. * * *' 414 F.2d at 709.

We recognize that portions ³ of the holding in Baird cannot be reconciled with that reached by our Supreme Court in Shepard v. Bowe, supra, by which we are bound.

The defendant here was not denied the right to claim the privilege against self-incrimination, nor was he denied the right to have his counsel present. He was in fact accorded all the rights he was assured under Shepard v. Bowe, supra.

The state contends that the doctor was entitled to explain the nature, circumstances and content of his examinations of the defendant in order that the jury could evaluate the weight to be accorded his testimony.

In State v. Simonis, 39 Or. 111, 65 P. 595 (1901), the Supreme Court, speaking through Mr. Chief Justice Robert S. Bean, said:

'Again, it is an elementary rule in the law of expert testimony that in a case of this character, a physician, although thoroughly qualified, cannot be permitted to give an opinion upon facts known to him, and not communicated to the jury. He is first required to detail the symptoms; then if qualified, may be allowed to express an opinion based thereon. 'This is necessary,' says Mr. Rogers, 'to enable the correctness of the opinion expressed to be tested by calling other experts and obtaining their opinion upon the same state of facts. It is equally necessary to enable the jury to have the means of determining whether the facts upon which the opinion is predicated were correct or not': Rogers, Exp. Tes. (2 ed.), § 36. * * *' 39 Or. at 116, 65 P. at 596.

In State v. Willson, 116 Or. 615, 241 P. 843 (1925), the court said;

'In State v. Simonis, 39 Or. 111, 65 P. 595, it is laid down as a rule by Mr. Chief Justice Bean, that an expert, though thoroughly qualified as a witness, cannot be permitted to give an opinion upon facts known to him and not communicated to the jury. He must first detail to the jury the facts on which he bases his opinion. * * *' 116 Or. at 619, 241 P. at 844.

Here the defense psychiatrist had in giving her opinion already testified concerning statements made to her by the defendant relating to his awareness of his own activities at and the circumstances surrounding the stabbing. We think the jury was entitled to know the limitations imposed by the defendant upon the information available to the state's rebuttal psychiatrist through his refusal to answer any questions surrounding the crime based upon his privilege against self-incrimination. The jury is as entitled to know what relevant information was not available to or considered by an expert in arriving at his opinion as it is to know what the expert did consider. It is relevant in determining his competency as an expert and also the weight to be accorded his opinion. This seems particularly true when as here the defense expert had and related information not available to the rebuttal expert. We think it also relevant to assist the jury in evaluating the credibility of the defendant's own evidence previously given...