State v. Turrentine, 2

• Decision Date: 15 May 1986
• Docket Number: CA-CR,No. 2,2
• Citation: 152 Ariz. 61,730 P.2d 238
• Parties: The STATE of Arizona, Appellee, v. Bobby Ray TURRENTINE, Appellant. 3876.
• Court: Arizona Court of Appeals

Page 238

730 P.2d 238

152 Ariz. 61

The STATE of Arizona, Appellee, v. Bobby Ray TURRENTINE, Appellant.

No. 2 CA-CR 3876.

Court of Appeals of Arizona Division 2, Department A.

May 15, 1986.

Review Denied Dec. 16, 1986.

[152 Ariz. 63] Robert K. Corbin, Atty. Gen. by William J. Schafer III and Gerald R. Grant, Phoenix, for appellee.

Frederic J. Dardis, Pima County Public Defender by Carla Ryan, Tucson, for appellant.

OPINION

HATHAWAY, Chief Judge.

Appellant contests his conviction on four counts of child molestation, a class 2 felony, A.R.S. § 13-1410, and one count of sexual conduct with a minor under 15, a class 2 felony, A.R.S. § 13-1405. We affirm the convictions and sentences.

The victim was born in 1970. In August 1983, he came to Tucson to live with his grandparents while his mother maintained her residence in California. The victim needed a medical examination before he could participate in athletics at school, so his grandmother took him to see appellant, who was her doctor. At the initial examination, appellant had the victim give him a urine sample. The victim went to appellant a couple of weeks later because appellant had found blood in his urine. It was at the second examination that appellant first allegedly molested the victim by masturbating him. The victim testified that he thought this was part of the medical treatment. The victim never discussed the examination with anyone. The same molestation allegedly occurred during victim's next two visits to appellant's office. On his fourth and final visit, appellant allegedly orally molested the victim. The victim at this time still had not mentioned the molestations to his grandmother. On the night of his fourth and final visit, the victim's mother telephoned him in Tucson from California. At that time, the victim told her about appellant's conduct. Appellant's mother informed the police and appellant was arrested.

On November 1, 1983, the grand jury returned an indictment charging appellant with four counts of child molestation and one count of sexual conduct with a minor under the age of 15. The prosecution filed an allegation of prior convictions. On January 9, 1984, appellant filed a motion asking the trial court to suppress statements he had made to police officers. Following evidentiary hearings, the trial court denied appellant's motion to suppress on June 1, 1984. A trial to a jury began on December 11, 1984. Appellant's defense was insanity. On December 29, 1984, the jury found appellant guilty on all five counts. The trial court sentenced appellant to prison for five concurrent prison terms of seven years on counts one and five, 10.5 years on count two, and 15.75 years on counts three and four. This appeal followed.

Appellant raises 10 issues on appeal:

1. The trial court violated appellant's rights under the Sixth Amendment to the United States Constitution by refusing to allow appellant's counsel to be present during his compelled psychiatric examination.

2. A.R.S. § 13-502 is unconstitutional because it shifts the burden of proof from the state to the defendant and the burden remains with the defendant throughout the trial.

3. If A.R.S. § 13-502 is constitutional, then the trial court acted improperly in denying the appellant's request to present surrebuttal testimony and surrebuttal closing argument.

4. The telephone conversation between the victim and his mother several hours after the offense was hearsay and should not have been admitted under the "excited utterance" exception to the hearsay rule.

5. Because the requirements of A.R.S. § 13-604 were not met, the trial court's use of counts one through three of the indictment as priors to enhance defendant's sentence on other counts was error.

6. The trial court erred when it ruled that the appellant had waived his right to assert the physician-patient privilege concerning statements made by him to his treating physicians and to his mental health expert.

7. The evidence was insufficient to find that appellant had the specific intent necessary to commit the crime of child molesting.

8. The prosecutor acted improperly when, during his closing argument, he insinuated that the victim's family did not believe the jury would do justice.

9. The appellant's statement to the police was not voluntary and therefore should not have been admitted to the jury.

10. The trial court erred in instructing the jury.

I. COUNSEL'S PRESENCE DURING PSYCHIATRIC EXAMINATION

Pursuant to appellant's plea of insanity, the court ordered appellant to be examined by Dr. Gelardin, a psychiatrist for the state. At the time of the scheduled appointment, appellant's counsel appeared with him at the doctor's office. The state objected to counsel's presence during the examination on the grounds that it would interfere with the doctor's ability to properly examine appellant. Appellant argued that he had a constitutional right to have his counsel present. The court ruled that appellant could not have his counsel present with him during the examination and, further, that appellant could not tape record the interview.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the assistance of counsel in his defense. The right of an accused to assistance of counsel at various stages of the criminal proceedings has frequently been considered by courts. The general rule is that the accused has the right of counsel at all "critical stages" of the prosecution. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

It is disputed, however, whether a psychiatric examination is such a critical stage. Other jurisdictions have split on this issue. See e.g., Lee v. County Court of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452, cert. den. 404 U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 39 (1971); but see contra, U.S. v. Byers, 740 F.2d 1104 (D.C.Cir.1984). We note that the United States Supreme Court has never directly addressed this issue.

Fortunately, the Arizona Supreme Court has recently addressed this issue and has held that, while the psychiatric evaluation is a critical stage of the proceeding, the appellant's right to counsel extends only to the formulation of his approach to the examination. The court held further that there is no constitutional right to have an attorney present during the court-ordered psychiatric examination itself and that the decision whether to permit counsel's presence is within the trial court's discretion. State v. Mauro, 149 Ariz. 24, 716 P.2d 393 (1986). Accordingly, appellant's Sixth Amendment rights were not violated.

II. BURDEN OF PROOF IN INSANITY DEFENSE

A.R.S. § 13-502 requires that the defendant prove his assertion of insanity by clear and convincing evidence. The defendant carries the burden of proof throughout the trial and the state is not required to prove the defendant sane beyond a reasonable doubt.

Appellant argues that this statute constitutes an improper and unconstitutional shift of the burden of proof. The United States Supreme Court has held, however, that statutes such as A.R.S. § 13-502(B) do not violate the federal constitution. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed.2d 1302 (1952). See State v. Fletcher, 149 Ariz. 187, 717 P.2d 866 (1986). See also, Price v. State, 274 Ind. 479, 412 N.E.2d 783 (1980); State v. Capalbo, 433 A.2d 242 (R.I.1981). But see, People ex rel. Juhan v. District Court for Jefferson County, 165 Colo. 253, 439 P.2d 741 (1968).

We find no compelling reason to hold that the Due Process Clause of the Arizona Constitution, Art. 2, § 4, provides greater rights than those of the federal constitution under these facts. See State v. Fletcher, supra. Although it is the prosecution's burden to prove each element of the crime beyond a reasonable doubt, see U.S. v. Robinson, 545 F.2d 301 (2d Cir.1976); Cohen v. United States, 378 F.2d 751 (9th Cir.1967), cert. den. 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215. Sanity is not an element of the crime. See State v. Fletcher, supra. Rather, the insanity defense represents a public policy adopted by this state which exonerates the defendant from guilt. If the defendant cannot distinguish right from wrong, then under the M'Naghten test, the defendant is held not guilty by reason of insanity. That, however, does not relate to the elements of the crime, which include the mens rea and the actus reus. Therefore, it is not unconstitutional to shift the burden to defendant.

III. SURREBUTTAL TESTIMONY AND SURREBUTTAL CLOSING ARGUMENT

Appellant argues that A.R.S. § 13-502 changes the order of opening and closing the trial. Appellant notes that, since the burden is usually on the prosecution to convince a jury beyond a reasonable doubt that a defendant is guilty, it has the right to open and close. However, since the burden shifts to defendant on the issue of insanity under § 13-502, the defendant should have the right to close on that issue.

Courts in other jurisdictions have permitted the trial court in its discretion to allow such surrebuttal testimony and closing argument. See People v. Cotter, 63 Cal.2d 386, 46 Cal.Rptr. 622, 405 P.2d 862 (1965), vac. in part sub nom Cotter v. California, 386 U.S. 274, 87 S.Ct. 1035, 18 L.Ed.2d 43 (1967); State v. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983). Rule 19.1(a), Rules of Criminal Procedure, 17 A.R.S., accords the trial court similar discretion. In this case the trial court exercised its discretion to deny surrebuttal testimony and closing argument and we cannot say that the trial court abused its discretion.

IV. TELEPHONE CONVERSATION BETWEEN VICTIM AND MOTHER

Two to three hours after the final molestation, the victim told his mother on the phone of the events that had transpired over the preceding weeks. The trial court permitted the mother's testimony in court under the "excited utterance" exception to the hearsay rule. Rule 801(c), Rules of Evidence, 17A A.R.S.. Hearsay is not...