In Re Morrow

NEBEKER, Associate Judge:

Pursuant to D.C.Code §§ 21-541,-551 (1981), on November 21, 1979, a jury found appellant mentally ill and likely to injure herself or others as a result of her mental illness. On December 17, 1979, she was committed indefinitely to St. Elizabeths Hospital. On appeal she raises two issues: (1) whether the trial court abused its discretion and prejudiced appellant’s defense when it denied, pretrial,1 appellant’s request for a second psychiatric expert; and (2) whether the trial court should have declared a mistrial when a member of the Commission on Mental Health testified as to reexaminations of appellant conducted after the statutorily prescribed examination (D.C.Code § 21-542(a) (1981)) and without notice to appellant’s counsel. Finding no error, we affirm.

*691I

The facts pertinent to this appeal are that the trial court2 found appellant incompetent to stand trial on charges of petit larceny and a violation of the bail laws (for failure to appear on the petit larceny charge). It was therefore ordered that the government initiate civil commitment proceedings. D.C.Code § 21-541 (1981). On June 20, 1979, a petition was filed with the court. Pursuant thereto, the Mental Health Commission3 conducted a hearing, taking the testimony of appellant’s treating psychiatrist and appellant herself. Thereafter, the Commission found that appellant was mentally ill and likely to pose a danger to herself or others. D.C.Code § 21-545(b) (1981). On August 8, 1979, a report containing the Commission’s findings and the recommendation that appellant be committed for an indeterminate period to St. Eliza-beths Hospital was submitted to the court.

On August 28, 1979, in an ex parte hearing, appellant’s attorney asked the trial court to authorize payment for two psychiatric experts.4 The court granted the motion with respect to a Dr. Ratner. However, the court denied authorization for the services of a Dr. Rappaport. As reasons, the court stated, inter alia, that one expert was adequate, that the cost of Dr. Rappa-port’s services was excessive, and that counsel could submit a written statement of the doctor’s anticipated testimony, in the form of a stipulation, for the jury.

On October 31, 1979, the day before the trial, appellant’s counsel again sought authorization for payment for Dr. Rappaport’s services. The trial court denied counsel’s request,5 noting that counsel sought only to introduce the doctor’s theory of dangerousness,6 and not testimony based upon a personal examination of appellant. The court did however propose several alternative methods for getting the doctor’s theory before the jury.7 Appellant’s counsel made no objection.

II

At trial, Dr. Legler, one of the psychiatric experts for the Mental Health Commission, testified for the petitioner as to his own diagnosis of appellant. In addition to his observation of appellant during the statutorily prescribed Commission examination, Dr. Legler related that he had visited appellant on two other occasions prior to trial. He testified that he had also spoken with appellant’s mother and examined appellant’s complete hospital records.

At the conclusion of Dr. Legler’s testimony on direct examination, appellant’s counsel moved for a mistrial urging that Dr. Legler, by interviewing appellant after the Commission hearing, had exceeded his statutory authority and violated appellant’s statutory and constitutional right to the effective assistance of counsel.8 The trial *692court took the matter under advisement, and invited counsel to submit a memorandum in support of his argument. Counsel chose instead to first cross-examine the doctor and then voir dire him on the follow-up examinations. Based on this testimony, counsel again moved for a mistrial. The motion was denied.

Ill

Appellant claims that the trial court’s failure to authorize payment for a second psychiatric expert, until the day of trial, was an abuse of discretion and unfairly prejudiced appellant’s defense at trial. We disagree.

A respondent in a civil commitment case is certainly entitled to the services of a psychiatric expert upon a showing of financial inability to obtain the expert and a demonstration that the service is “necessary to an adequate defense.” See D.C.Code § ll-2605(a) (1981). Deference must be given to the judgment of counsel, but this does not prevent the trial court from exercising its discretion. Moreover, the court appropriately denies a request for expert services when the respondent has received adequate psychiatric assistance from other sources. See Dobson v. United States, 426 A.2d 361, 368 (D.C.1981).

Here, during the requisite pretrial hearing, counsel for respondent sought authorization for two psychiatric experts. After some discussion on the motion, the trial court authorized payment for one expert, but refused to authorize payment for Dr. Rappaport whom counsel acknowledged would cost more than the $300 statutory ceiling. D.C.Code § ll-2605(c) (1981). Neither counsel’s oral argument nor his memorandum in support thereof provided compelling justification for the second expert. Further, counsel sought to introduce Dr. Rappaport’s theory of dangerousness and not his personal observation of appellant. Therefore, the trial court’s suggested alternative of presenting the doctor’s anticipated testimony in the form of a stipulation at trial protected appellant’s interest. In any event, the trial court ultimately granted appellant’s mid-trial motion to authorize payment for expert testimony on Dr. Rap-paport’s theory. Appellant chose not to avail herself of this opportunity. We can find no abuse of discretion or prejudicial impairment of appellant’s defense in the trial court’s treatment of appellant’s request.9

Appellant’s second assertion is that the trial court erred in denying her motion for mistrial. She argues that permitting Dr. Legler to testify as to his post hearing examinations of appellant violated her rights under the Ervin Act.10 See D.C.Code §§ 21-501 et seq. (1981). Further, she asserts that the lack of notice to her counsel about the reexaminations deprived her of the effective assistance of counsel and her Fifth Amendment protection against self-incrimination.11

Appellant urges that Dr. Legler exceeded his statutory authority as a Commission psychiatrist by conducting the post-hearing examinations. We disagree. The central issue in a civil commitment trial is whether the respondent is presently dangerous to herself or others. To limit Commission psychiatrists, upon whom in part this determination rests, to the brief and insubstantial observation presented in the formal Commission hearing would be to prohibit *693them from fulfilling their statutory duty. See D.C.Code § 21-503(a) (1981). In fact, we do not believe that Dr. Legler violated respondent’s rights, but rather he sought to assure their fulfillment.

Affirmed.

. As noted infra, at trial, the court finally acceded to counsel’s motion for the services of the second psychiatric expert and authorized payment.

. The Honorable Joseph M. Hannon presided over the criminal proceedings.

. See D.C.Code § 21-502 (1981).

. See D.C.Code § ll-2605(a) (1981), which states:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court shall authorize counsel to obtain the services.

. The Honorable James A. Washington heard this motion and held that Judge Nunzio’s ruling upon the earlier ex parte motion was the law of the case. Nevertheless, Judge Washington chose to review the matter on the merits.

. Dr. Rappaport’s theory is that psychiatrists are not especially qualified to predict dangerousness.

. The court suggested that it would instruct the jury as to the controversy surrounding a psychiatrist’s capacity to predict dangerousness; that appellant could introduce Dr. Rappaport’s written work; and/or that the parties could stipulate to the written work of the doctor and that of a third expert, Dr. Russell Monroe.

. Appellant also argued that she had thereby ' been forced to testify against herself violating her Fifth Amendment protection against self-incrimination.

. It is to be noted that appellant, nevertheless, through counsel’s argument and the reading into the record of Dr. Rappaport’s work on the subject, did put her theory before the jury.

. The Ervin Act is the District of Columbia’s civil commitment statute.

. We think that White v. United States, 451 A.2d 848 (D.C.1982), is dispositive of the notice argument. First, “a defendant [respondent] has no Sixth Amendment right to the presence of counsel at a pretrial psychiatric examination.” Id. at 854. Second, the protection of the Fifth Amendment does not extend to the sanity determination in a civil commitment trial. Id. at 852. Cf. United States v. Whitlock, 214 U.S.App.D.C. 151, 164, 663 F.2d 1094, 1107 (1980).