Estes v. State
| Decision Date | 30 November 2006 |
| Docket Number | No. 43468.,43468. |
| Citation | 146 P.3d 1114 |
| Parties | Donald ESTES, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Philip J. Kohn, Public Defender, and Christy L. Craig and Sharon G. Dickinson, Deputy Public Defenders, Clark County, for Appellant.
George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Bill A. Berrett and James Tufteland, Chief Deputy District Attorneys, Clark County, for Respondent.
Before the Court En Banc.
In this opinion, we consider, inter alia, the admissibility of evidence gathered while a defendant is committed to a mental institution for purposes of evaluating and restoring competency to stand trial. For the reasons stated infra, we affirm all but five of the convictions entered below and remand for further proceedings.
Appellant Donald Estes sexually assaulted a minor, B.C., in a desert area near Las Vegas. The State charged Estes with six counts of sexual assault of a minor under the age of 14 years, two counts of lewdness with a child under the age of 14 years, two counts of battery with intent to commit a crime, two counts of coercion, two counts of preventing or dissuading a person from testifying or producing evidence, and one count of first-degree kidnapping. Based upon preliminary findings that Estes was not competent to stand trial, the district court twice committed him to the Lake's Crossing Center for Mentally Disordered Offenders.1 Relying upon evaluations provided by Lake's Crossing staff, the district court eventually found Estes competent to stand trial.
Estes pleaded not guilty by reason of insanity and the case proceeded to trial. He called no experts and testified as the sole defense witness. In this, he recounted all of his mental health problems beginning as a young adult and claimed that medication (lithium) prescribed for diagnosed bipolar disorder caused him to abduct and assault B.C. He further admitted much of the charged misconduct, stating that if "B.C. said he did it," he probably did.
In rebuttal, the State presented the testimony of three members of the Lake's Crossing staff: Elizabeth Neighbors, Ph.D., a forensic psychologist and facility director; Hale Henson, M.D., psychiatrist; and A.J. Coronella, a licensed clinical social worker. All three either observed or treated Estes during the evaluation process.
Dr. Neighbors testified concerning psychological testing of Estes that revealed occasional malingering, i.e., feigned mental illness. She also testified that neither she, nor members of Estes' treatment team, observed him in a psychotic state or viewed him as incompetent during his second commitment. Dr. Henson opined that Estes attempted to present a history of mental illness to avoid more severe prosecution, that Estes did not suffer from lithium poisoning, and that Estes desired to be medicated to support his claim that he had a disabling medical condition.
Doctors Neighbors and Henson also testified to a reasonable degree of medical certainty that, under the M'Naghten standard,2 Estes knew right from wrong and suffered from no mental condition that would impair his judgment during the alleged incidents with B.C. More particularly, Dr. Neighbors stated that Estes' behavior as reported seemed deliberate and thoughtful. Both derived their opinions from police reports and statements to the police made by Estes and B.C.
The social worker, A.J. Coronella, testified to Estes' interest in preparing an insanity defense, as revealed in a discussion with him during her "legal process" class at Lake's Crossing. She also recounted his comment to her, in an interview, that an affair between his wife and brother was the underlying reason for his divorce. The State elicited the latter statement in response to Estes' testimony that he and his wife divorced because of his mental illness.
The jury convicted Estes on all counts. The district court imposed a series of concurrent and consecutive sentences totaling 40 years imprisonment and ordered Estes to register as a sex offender upon his eventual release. The court further awarded Estes 898 days' credit for time served in local custody before sentencing.
On appeal, Estes assigns numerous trial errors, the most significant being the State's use in rebuttal of testimony from Lake's Crossing staff members who observed and interacted with Estes during his court-ordered commitments. He asserts additional claims of error in connection with the State's portrayal of him as a liar during closing argument based upon the Lake's Crossing evidence, the district court's denial of his proffered involuntary intoxication instructions, use of an incorrect jury instruction concerning his insanity defense, admission of hearsay evidence and a photograph of B.C., admission of video testimony given by B.C.'s deceased father, admission of an audiotape and transcript of Estes' voluntary statement to police, and the court's failure to merge a count of battery with intent to commit a crime with one of the sexual assault counts. Finally, he asserts that the State failed to provide substantial evidence supporting the following charges: dissuading a witness, battery with intent to commit a crime, and lewdness with a minor. Estes further claims that cumulative error requires reversal of all of the convictions.
Use of evidence from court-ordered commitments
Estes claims that the State's presentation of the three Lake's Crossing witnesses requires reversal based upon due process, Fifth Amendment and public policy considerations; improper admission of opinion evidence regarding Estes' sanity at the time of the incident; privilege; failure to properly qualify the experts; and failure to provide notice of psychiatric examinations to his counsel in violation of the Sixth Amendment. Estes also argues that use of confidential information generated from his commitments during the State's closing argument constituted prejudicial error because it addressed the ultimate issue in the case. As a preliminary matter, we note that Estes failed to object on any of these grounds below; therefore, we will assess his claims under plain error review.3
In resolving these claims, we must first clarify our jurisprudence concerning the use of such evidence as stated in Esquivel v. State,4 McKenna v. State,5 Brown v. State,6 Winiarz v. State7 and DePasquale v. State.8
In Esquivel, we reversed a conviction based upon the State's use of statements made during a court-ordered mental examination to impeach a defendant's denial of the charges against him.9 In this, we reasoned that a defendant who is subject to an examination by a court-appointed physician "should feel free in such a clinical climate to discuss all the facts relevant to the examination without the guarded fear that the statements may be later used against him."10 In McKenna, this court again determined that due process and fair play prohibit the use of the confidential content of a court-ordered psychiatric evaluation to secure a conviction.11 We noted that the purpose of obtaining such an evaluation would be defeated if the defendant knew that his statements could be used against him.12 Going further, we embraced the federal court's statement in Collins v. Auger13 that
it is fundamentally unfair to use [a] defendant's incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution's case to establish his guilt. It is immaterial in this regard whether the court ordered examination was at the request of defendant or the prosecution or whether it was to determine his capacity to aid in his own defense or his mental condition at the time of the crime.14
Applying Esquivel and Collins, we reversed McKenna's conviction because the admission of his statements made during a court-ordered psychiatric examination constituted the heart of the prosecution's case-in-chief.15 Finally, in Brown, we held that use at a sentencing hearing of a defendant's unwarned statements16 in connection with a court-ordered examination, along with the use of the report based upon the statements, violated the Fifth Amendment.17
In Winiarz, we reversed a first-degree murder conviction based upon testimony elicited from a court-appointed psychiatrist retained to assess the defendant's "sanity" at the time of the alleged criminal misconduct and her competency to stand trial.18 Although the defendant in Winiarz ultimately claimed that the homicide in question was accidental and never asserted that she lacked cognitive ability at any relevant time, defense counsel at trial inadvertently raised the question of her capability to premeditate when examining a defense expert. In rebuttal, the State called the psychiatrist who essentially testified that the defendant was a "cold-blooded" murderer, describing her in such terms as "lying," "faking" and "feigning," and as possessing a histrionic and "dis-social" personality.19 We held that "[s]uch a usurpation of the jury function" to assess credibility mandated reversal.20 Although we cited Esquivel and McKenna in Winiarz, we did not reverse on Fifth Amendment grounds. Rather, we concluded that the evaluator's testimony severely transcended the boundaries of permissible expert testimony.21
Of critical importance in Esquivel, McKenna and Winiarz is the common fact that none of the defendants in those matters placed their sanity at the time of the alleged criminal misconduct at issue. We did, however, address that situation by way of obiter dictum in DePasquale. In that case, we noted that use of a psychiatric examination for the limited purpose of rebutting an insanity defense does not implicate the Fifth Amendment.22 In this, we relied upon Buchanan v. Kentucky, in which the United States Supreme Court permitted the State's use of a psychiatric...
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