State v. Tallabas

• Decision Date: 07 July 1987
• Docket Number: No. 1,CA-CR,1
• Citation: 155 Ariz. 321,746 P.2d 491
• Parties: STATE of Arizona, Respondent, v. Joseph Felix TALLABAS, Petitioner. 10506-PR.
• Court: Arizona Court of Appeals

Page 491

746 P.2d 491

155 Ariz. 321

STATE of Arizona, Respondent, v. Joseph Felix TALLABAS, Petitioner.

No. 1 CA-CR 10506-PR.

Court of Appeals of Arizona Division 1, Department A.

July 7, 1987.

Review Denied Jan. 5, 1988.

Thomas E. Collins, Maricopa Co. Atty. by H. Allen Gerhardt, Deputy Co. Atty., Phoenix, for respondent.

J. Douglas McVay, Phoenix, for petitioner.

OPINION

FIDEL, Judge.

The defendant asserted the insanity defense; to support it he offered testimony by a psychiatrist to whose examination the trial court had ordered that he submit for determination of his competence to stand trial and investigation of his mental condition at the time of the offense. The defendant had made certain damaging statements to the psychiatrist, which, had he not called the psychiatrist as a witness, the state could not have placed in evidence. The question on appeal is whether, by calling the psychiatrist as his witness on the issue of insanity, the defendant enabled the state to properly elicit those damaging statements on cross-examination.

Joseph Felix Tallabas (defendant) was tried before a jury and convicted of one count of second degree murder, one count of second degree burglary, and two counts of aggravated assault. The charges stemmed from an incident on February 15, 1980, when Tallabas broke into a home, attacked its occupants, grabbed a two month old child from the arms of her mother, smashed the child against a cement carport, and struck the child with his fist several times. The child died of these injuries. Tallabas was sentenced by the Honorable Ed W. Hughes to consecutive terms of imprisonment totalling 27.75 years. The convictions and sentences were affirmed by this court by memorandum decision. ¹

Defendant filed a petition for post-conviction relief claiming ineffective assistance of counsel. Judge Hughes summarily dismissed the petition. The Honorable Francis P. Koopman denied defendant's motion for rehearing. Defendant filed a timely petition for review.

At trial defendant did not deny the acts alleged. He contended instead that he was rendered legally insane at the time of the offense by the involuntary consumption of LSD, a hallucinogenic drug. The jury was correctly instructed that "[t]he defense of insanity is not available to a defendant when the insanity is caused by the voluntary ingestion of intoxicants, whether they be alcohol or drugs." See A.R.S. §§ 13-502, -503; e.g., State v. Cooper, 111 Ariz. 332, 334, 529 P.2d 231, 233 (1974). The central issue at trial was whether the defendant's LSD ingestion was voluntary or involuntary.

Defendant called Thomas O'Brien, M.D., as a psychiatric expert to establish his insanity defense. Upon pretrial motion by the state pursuant to Rule 11, Arizona Rules of Criminal Procedure, the court had appointed Dr. O'Brien to evaluate defendant's competence to stand trial and his mental condition at the time of the offense. Dr. O'Brien testified on direct examination that Tallabas did not know the nature or wrongful quality of his acts. He based that opinion in part on defendant's ingestion of alcohol before the offense and his consumption of two microtabs of LSD. Asked on cross-examination the source of his knowledge that the defendant had taken two microtabs of LSD on the day of the crime, Dr. O'Brien disclosed that the defendant had told him so. The witness added upon further cross-examination that Tallabas stated that he had previously taken LSD, though never so much as two microtabs at once.

Defendant's knowledge of the quantity of LSD he had taken was inferentially harmful to his position that he had taken it involuntarily. Likewise harmful to that position was his disclosure that he had voluntarily taken the drug in the past. Defendant argues that he received ineffective assistance of counsel at trial because his lawyer, Robert L. Schwartz, failed to prevent the state from eliciting these statements from Dr. O'Brien. Although Dr. O'Brien had divulged the statements in his pre-trial report, defendant takes no exception to the decision to call him as a witness. Rather he argues that the statements were privileged under Rule 11.7(b)(1), and that his lawyer should have blocked their admission by motion in limine or timely objection. He adds that his trial counsel acknowledged his mistake in moving unsuccessfully for a mistrial the day after the harmful evidence came in.

The state responds that defendant has failed to raise a colorable issue for post-conviction relief. It reads our prior decision in this case as a determination that the testimony in question was admissible; from this it argues that the absence of objection by counsel is insignificant and cannot support a claim of ineffective assistance of counsel.

The state misinterprets our past decision. Tallabas indeed argued in his prior appeal that the trial court erred by allowing the jury to consider the statements of Dr. O'Brien. In our memorandum decision however, we stated, "We need not reach the defendant's contention on the merits, because we find that defense counsel opened the door to the limited cross-examination." State v. Tallabas, 1 CA-CR 7792 (Ariz.App. mem. decision at 9, Apr. 25, 1985). We did not then decide whether, had there been a timely objection, it should have been sustained. We did not decide, that is, whether the defendant's statements to Dr. O'Brien were privileged beyond the reach of cross-examination. That issue is before us now.

The Rule 11.7(b)(1) Privilege

We note initially that defendant claims that his statements to Dr. O'Brien were privileged under Rule 11.7(b)(1), and not under the general physician-patient privilege. A.R.S. § 13-4062(4). The general physician-patient privilege does not exist "where a doctor has been ordered to examine the defendant in order to testify in court about the defendant's condition." State v. Ortiz, 144 Ariz. 582, 584, 698 P.2d 1301, 1303 (App.1985). Thus we concentrate our inquiry on Rule 11.7(b)(1) and its constitutional underpinnings.

Rule 11.2, Arizona Rules of Criminal Procedure, provides:

At any time after an information is filed or indictment returned, any party may move for an examination to determine whether a defendant is competent to stand trial, or to investigate his mental condition at the time of the offense. The motion shall state the facts upon which the mental examination is sought.

Rule 11.7(b)(1) provides:

No statement of the defendant obtained under these provisions, or evidence resulting therefrom, concerning the events which form the basis of the charges against him shall be admissible at the trial of guilt or innocence, or at any subsequent proceeding to determine guilt or innocence, without his consent.

Rule 11.7(b)(1) codifies the holding that it is fundamentally unfair for a court-appointed psychiatrist after compulsory examination to transmit a defendant's incriminating statements to the jury. See State v. Evans, 104 Ariz. 434, 436, 454 P.2d 976, 978 (1969). The rule is grounded in the fifth amendment to the United States Constitution; fifth amendment rights are violated where such statements are introduced at trial to prove the guilt or enhance the sentence of a criminal defendant who neither initiated psychiatric evaluation nor attempted to introduce psychiatric evidence of his own. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).

The Arizona Supreme Court has recently stated that

the use of any statements made by a defendant during ... [Rule 11] examination should be strictly avoided. If the exact statement is so important that the prosecution would like to use it during trial, then it is apparently incriminating. Since this rule is to overcome the problem of forced self-incrimination, no statements made during the evaluation should be admitted.

State v. Mauro, 149 Ariz. 24, 34, 716 P.2d 393, 403 (1986). Rev'd on other grounds, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).

Rule 11.7(b)(1) makes it clear, as do Evans, Estelle, and Mauro, that, in the absence of defendant's consent, the state could not have called Dr. O'Brien as a witness to place defendant's statements before the jury without violating the defendant's fundamental rights. Here, however, the state did not call the doctor as a witness. The defendant chose to do so to prove insanity. And in so choosing, we hold, he consented to a thorough cross-examination of the doctor by the state, a cross-examination that probed and tested the bases of the doctor's opinion of insanity and exposed any statements by defendant to the doctor insofar as they underlay or related to that opinion.

To explain our holding we examine the rationale in several lines of related cases.

Implied Waiver of the Physician-Patient Privilege

We first consider the doctrine of implied waiver of the physician-patient privilege as applied to a party who places a particular medical condition in issue in civil negligence litigation. In Throop v. F.E. Young & Co., 94 Ariz. 146, 382 P.2d 560 (1963), the Supreme Court of Arizona held that a person who defended against claims of negligence by asserting that he had suffered a sudden heart attack thereby waived the physician-patient privilege as to previous heart-related treatment. Waiver was implied, the court explained, despite the absence of intentional abandonment of the privilege:

A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield....

94 Ariz. at 158, 382 P.2d at 568, quoting 8 J. Wigmore, Evidence in Trials at Common Law § 2388 at 855 (McNaughton 1961). See also Bain v. Superior Ct., 148 Ariz. 331, 714 P.2d 824 (1986), where, as it extended Throop's holding to the...