No
No. 97-516
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 164
THOMAS ALAN PARK,
Petitioner,
v.
MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY;
HON. WM. NELS SWANDAL, Presiding Judge; and STATE OF MONTANA,
Respondents.
ORIGINAL PROCEEDING
COUNSEL OF RECORD:
For Petitioner:
Daniel P. Buckley; Berg, Lilly, Andriolo and Tollefsen;
Bozeman, Montana; and Herman A. Watson III and
Anne H. Watson (argued); Watson Law Offices; Bozeman, Montana
For Respondent
Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt (argued),
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Assistant Attorney General; Helena, Montana
Tara DePuy, Park County Attorney; Livingston, Montana
For Amici Curiae:
John P. Connor, Jr. (argued), Assistant Attorney General, County
Prosecutor Services Bureau Chief; Helena, Montana
(for Montana County Attorneys' Association)
William F. Koeppen; Koeppen Law Office; Bozeman, Montana
(for Montana Association of Criminal Defense Lawyers)
Gary E. Wilcox and L. Sanford Selvey II; Yellowstone County
Public Defender's Office; Billings, Montana
(for Yellowstone County Public Defender's Office)
Heard: April 3, 1998
Submitted: April 14, 1998
Decided: June 25, 1998
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
¶1 The defendant, Thomas Alan Park, was charged in the District Court for the
Sixth Judicial District in Park County with deliberate homicide and forgery. After he
identified mental health care providers who would testify on his behalf, the District
Court ordered Park to submit to a psychological examination by the State's expert.
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Park objected and applied to this Court for a writ of supervisory control. We assume
supervisory control, affirm in part and reverse in part the order of the District
Court, and remand this case to the District Court for proceedings consistent with this
opinion.
¶2 There are three issues before this Court:
¶3 1. Is supervisory control appropriate in this case?
¶4 2. Is the State entitled to a psychological examination of a defendant by its own
expert for the purpose of rebuttal when the defendant has asserted the affirmative
defense of mitigated deliberate homicide due to extreme mental or emotional stress?
¶5 3. If the answer to the preceding question is in the affirmative, to what extent
must the defendant answer questions regarding acts of which he is accused?
FACTUAL BACKGROUND
¶6 On July 15, 1996, Thomas Alan Park was charged in the District Court for the
Sixth Judicial District in Park County with deliberate homicide and forgery. On
August 27, 1996, the State filed its notice of intent to seek the death penalty in the
event that Park is convicted.
¶7 On July 8, 1997, Park filed his notice of affirmative defenses. He asserted that he
"acted under the influence of extreme mental or emotional stress for which there was
a reasonable explanation or excuse," and that he "acted with justifiable use of
force." Park submitted a list of potential witnesses who would testify in support of
the defenses, including Susan Sachsenmaier, Ph.D., a forensic psychologist, and Dr.
Joseph Rich, a psychiatrist. In response to Park's notice of intent to use expert
psychological testimony, the State requested an examination of Park by William
Stratford, M.D. Park's attorney originally agreed to Dr. Stratford's examination.
¶8 However, on two separate occasions, when Dr. Stratford attempted to evaluate
Park, Park refused to cooperate. He stated that he would only fill out the written
testing material that Dr. Stratford provided. Based in part on Park's refusal to
cooperate, the State moved for sanctions and an order to prohibit Park from
introducing any evidence, including expert testimony, regarding the extreme mental
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or emotional stress defense. After a hearing at which Dr. Stratford testified about his
need to interview Park, the District Court renewed its order and allowed the
examination of Park. In addition, the order was amended to permit Dr. Stratford to
question Park regarding the acts of which he was accused. The District Court then
stayed the order and allowed Park to submit a brief in opposition to the examination.
¶9 In his brief, Park withdrew his attorney's earlier consent to allow Dr. Stratford's
examination. Park contended that the State was not entitled to an examination
because his defense was not based on a mental disease or defect and, therefore, was
not the type for which a state examination is statutorily provided. In addition, Park
challenged that part of the District Court's order which compelled Park to discuss
with Dr. Stratford facts related to the charges against him on the bases that such
inquiry was not authorized by statute and violated his rights provided for by the
Fifth Amendment to the United States Constitution, and Article II, Section 25, of the
Montana Constitution.
¶10 After another hearing, the District Court issued an order which required Park to
submit to the State's examination and answer questions about events related to the
charges against him or suffer the sanction of having his own expert testimony
excluded. The District Court explained that Park, by voluntarily raising the
affirmative defense of mitigated deliberate homicide based on extreme mental or
emotional stress, had waived the right to remain silent about the acts with which he
was charged. It found that in order for Dr. Stratford to be able to discuss at trial
Park's mental state at the time of the alleged offense, he needed to examine Park
regarding the alleged offense. Finally, the order restricted the State's experts from
disclosing to the State any incriminating statements made by Park during their
examination, and stated that the experts could only testify regarding their
conclusions in rebuttal to Park's expert testimony.
¶11 On September 4, 1997, the District Court conducted another hearing at which
the record was supplemented with Sachsenmaier's testimony in anticipation of
Park's application to this Court for a writ of supervisory control. She testified that
her diagnosis of Park was that he was under extreme mental or emotional stress at
the time of the alleged offense, and that it would not be necessary to interview the
defendant in order to evaluate his mental status. The District Court's order was not
modified following that hearing, and Park's petition followed.
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ISSUE 1
¶12 Is supervisory control appropriate in this case?
¶13 We held in Plumb v. Fourth Judicial District Court (1996), 279 Mont. 363, 368-69,
927 P.2d 1011, 1014-15, that we will assume supervisory control over a district court
to control the course of litigation where the district court is proceeding based on a
mistake of law which, if uncorrected, would cause significant injustice, and where the
remedy by appeal is inadequate. Our determination of whether supervisory control is
appropriate is a case-by-case decision, based on the presence of extraordinary
circumstances and a particular need to prevent an injustice from occurring. See State
ex rel. Mazurek v. District Court (1996), 277 Mont. 349, 352-53, 922 P.2d 474, 476-77.
¶14 In this case, the District Court's order implicates Park's constitutional right not
to be a witness against himself. Once violated, the damage cannot be undone on
appeal.
¶15 It is well-recognized that a normal appeal is generally inadequate when a party's
constitutional or statutory privilege is at stake. See State ex rel. Mapes v. District
Court (1991), 250 Mont. 524, 529, 822 P.2d 91, 94; State ex rel. Burlington N. R.R. Co.
v. District Court (1989), 239 Mont. 207, 212, 779 P.2d 885, 889; see also Emergency
Care Dynamics, Ltd. v. Superior Court (Ariz. Ct. App. 1997), 932 P.2d 297; Arizona
Bd. of Med. Examiners v. Superior Court (Ariz. Ct. App. 1996), 922 P.2d 924; City of
Fresno v. Superior Court (Cal. Ct. App. 1988), 253 Cal. Rptr. 296; State ex rel.
Stephan v. O'Keefe (Kan. 1984), 686 P.2d 171; City of Alhambra v. Superior Court
(Cal. Ct. App. 1980), 168 Cal. Rptr. 49; Glade v. Superior Court (Cal. Ct. App. 1978),
143 Cal. Rptr. 119. In Mapes, for example, this Court granted supervisory control to
address a defendant's right of access to confidential communications between the
plaintiff and his psychologist. We held that "[o]nce confidential communications
have been disclosed or publicized, the damage cannot be undone on appeal." Mapes,
250 Mont. at 529, 822 P.2d at 94.
¶16 The same principle applies in this case, where the District Court's order has the
effect of compelling Park to disclose potentially privileged testimony. As soon as Park
has been made to disclose that which his constitutional privilege may allow him to
withhold, the constitutional protection can serve no purpose, certainly not a
retroactive one, and an appeal cannot restore that which has already been violated.
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¶17 Furthermore, the State's right to its own examination of the defendant under the
circumstances presented is a strictly legal issue of statewide importance which is
presented for the first time.
¶ 18Accordingly, we assume supervisory control to consider the issues raised by
Park's petition.
ISSUE 2
¶19 Is the State entitled to a psychological examination of a defendant by its own
expert for the purpose of rebuttal when the defendant has asserted the affirmative
defense of mitigated deliberate homicide due to extreme mental or emotional stress?
¶20 Park contends that the State is not entitled to a psychological examination by its
own expert. He claims that the circumstances in this case are not covered by the
language of §§ 46-14-204 and -205, MCA, because he does not claim a mental disease
or defect, and that State v. Hess (1992), 252 Mont. 205, 828 P.2d 382, is inapplicable
because it was based on the justifiable use of force defense.
¶21 Section 46-14-204, MCA, states that "[w]hen the defense . . . files a notice of the
intention to rely on a defense of mental disease or defect, the prosecution is entitled to
have the defendant examined by a qualified psychiatrist or licensed clinical
psychologist." Section 46-14-205, MCA, states:
If either the defendant or the prosecution wishes the defendant to be examined
by a qualified psychiatrist or licensed clinical psychologist selected by the one
proposing the examination in order to determine the defendant's fitness to
proceed or whether the defendant had, at the time the offense was committed,
a particular state of mind that is an essential element of the offense, the
examiner shall be permitted to have reasonable access to the defendant for the
purpose of the examination.
Hess is the only case in which we have interpreted the State's right to evaluate a defendant
pursuant to these statutes.
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¶22 The defendant in Hess raised the affirmative defense of justifiable use of force
based on battered woman syndrome in response to the charge of deliberate homicide.
She offered notice of her intent to be examined by and to call a psychiatric expert on
battered woman syndrome. In response, the State gave notice of intent to have two of
its own experts on battered woman syndrome rebut the defendant's expert testimony,
and received an order from the District Court that required the defendant to submit
to an examination by the State's experts. After her conviction for mitigated
deliberate homicide, the defendant appealed to this Court and asserted, among other
things, that she had not raised a mental disease or defect defense, and that the statute
does not authorize an examination by the State for a justified use of force defense
based on battered woman syndrome. Accordingly, she contended that the district
court had no authority to order the State's examination.
¶23 We rejected the defendant's position and held that the statute, § 46-14-212, MCA
(1989) (renumbered § 46-14-205, MCA (1991)), "authorizes the State to request a
mental evaluation once the defendant's mental state is at issue." Hess, 252 Mont. at
213, 828 P.2d at 388. Furthermore, we held that the defendant's reliance on the
defense of justifiable use of force based on battered woman syndrome and her
reliance on expert psychological testimony to support her defense put her mental
state at issue. Therefore, we concluded that the district court had authority to order
the examination despite the lack of a specific reference in the statute to the defense of
justifiable use of force based on battered woman syndrome. See Hess, 252 Mont. at
213, 828 P.2d at 388. In other words, we held that the statute permits the State to
evaluate a defendant whenever he or she has raised mental state as an issue and
notified the State of an intention to introduce expert opinion testimony regarding
that issue.
¶24 We conclude that based on the Hess decision, the State is also entitled to its own
examination in this case.
¶25 Section 45-5-103(1), MCA, defines mitigated deliberate homicide as follows:
A person commits the offense of mitigated deliberate homicide when the
person purposely or knowingly causes the death of another human being but
does so under the influence of extreme mental or emotional stress for which
there is reasonable explanation or excuse. The reasonableness of the
explanation or excuse must be determined from the viewpoint of a reasonable
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person in the actor's situation.
¶26 Mitigated deliberate homicide is an affirmative defense which clearly depends on
proof of Park's mental state at the time of the acts alleged, and he has notified the
State that he intends to prove his mental condition through use of expert
psychological or psychiatric testimony. Fairness requires no less than that the State
be allowed the opportunity to meet and test that proof.
¶27 However, we do not here hold that the State is entitled to examine the defendant
in every case in which mitigated deliberate homicide is raised--only in those cases
where a defendant expresses an intention to prove his mental condition with expert
testimony.
¶28 Park has suggested that the State be allowed an examination only if and when
Park actually offers psychological testimony at trial. He contends that his notice of
intent to make the affirmative defense of mitigated deliberate homicide based on
extreme mental or emotional stress and to present expert psychological testimony in
support of the defense does not bind him to the defense, and that if he opts not to
present psychological evidence at trial, he will have been forced to offer privileged
evidence to the State which could be used to incriminate him regardless of the nature
of his defense.
¶29 We note first that the State's right to a psychological examination exists for the
limited purpose of rebuttal, and as the District Court did here, the order for an
examination can be narrowly tailored and place restrictions on the State's use of its
expert's examination. Second, Park's concerns about incriminating himself during
parts of his examination are addressed in the next part of this opinion. Finally, the
statute relates the State's right to an examination to the defendant's notice of his
defense and does not make it contingent upon the actual presentation of expert
psychological testimony at trial. To postpone the State's examination until mid-trial
would delay the District Court proceedings and deprive the State of an adequate
opportunity to prepare its rebuttal. Accordingly, we conclude there is no basis to
postpone the State's evaluation until Park actually presents his defense.
¶30 Accordingly, we affirm that part of the District Court's order which required
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that Park submit to a psychological examination by the State's expert.
ISSUE 3
¶31 If the answer to the preceding question is in the affirmative, to what extent must
the defendant answer questions regarding acts of which he is accused?
¶32 In Hess, we considered the issue discussed in Issue 2 of this opinion. However,
the order reviewed in that case stated in relevant part "[t]hat such evaluation shall
be made subject to defendant's constitutional and statutory rights not to make
statements or produce documents that may incriminate her." Hess, 252 Mont. at 212,
828 P.2d at 387. Therefore, Hess is not authority for that part of the District Court's
order which requires that Park discuss the day in question with the State's expert.
Park has challenged separately that aspect of the District Court's order on state
constitutional and Fifth Amendment grounds.
¶33 Article II, Section 25, of the Montana Constitution, and the Fifth Amendment of
the United States Constitution, prohibit the State from compelling self-incriminating
statements from a defendant. See also State v. Fuller (1996), 276 Mont. 155, 160, 915
P.2d 809, 812. The issue presented is whether a defendant may refuse to discuss with
the State's expert the events surrounding the charges against him on the basis that it
would be self-incriminating and, if so, whether his refusal should limit the proof he
might otherwise offer.
¶34 The State contends that the U.S. Supreme Court's decision in Buchanan v.
Kentucky (1987), 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, stands for the
proposition that a defendant who has raised his mental state as an issue waives his
Fifth Amendment privilege for all purposes. We disagree. Buchanan relied, at least
in part, on the facts that the expert testimony was requested by the defendant's own
attorney and did not describe "any statements by [the defendant] dealing with the
crimes for which he was charged." Buchanan, 483 U.S. at 423, 107 S. Ct. at 2918, 97
L. Ed. 2d at 356. Accordingly, Buchanan is distinguishable from this case, and does
not support the State's contention that a defendant waives entirely his right to
remain silent when he raises his mental state as a defense and offers psychological
testimony.
¶35 First and foremost, we recognize that if a defendant's privilege not to incriminate
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himself is to have any force, it must mean that he can decide with whom and in what
terms he discusses such potentially incriminating matters as the events surrounding
the charges against him. Further, a defendant's right to remain silent applies at all
stages of a criminal proceeding. See Minnesota v. Murphy (1984), 465 U.S. 420, 426,
104 S. Ct. 1136, 1141-42, 79 L. Ed. 2d 409, 418; Fuller, 276 Mont. at 160, 915 P.2d at
812. Therefore, a defendant clearly carries the privilege with him into a psychological
examination with the State's expert. See, e.g., Estelle v. Smith (1981), 451 U.S. 454,
101 S. Ct. 1866, 68 L. Ed. 2d 359.
¶36 The State implies throughout its argument that Park has waived his right to
remain silent with his voluntary introduction of a mental status defense and his use
of expert psychological testimony in support of that defense. It is well-established,
however, that a defendant's waiver of his constitutional rights must be made
specifically, voluntarily, and knowingly, and we will not engage in presumptions of
waiver. See Johnson v. Zerbst (1938), 304 U.S. 453, 464, 58 S. Ct. 1019, 1023, 82 L. Ed.
1461, 1466; State v. Lucero (1968), 151 Mont. 531, 538, 445 P.2d 731, 735; see also
State v. Okland (1997), 283 Mont. 10, 14-15, 941 P.2d 431, 433-34 (discussing the right
to counsel); State v. Dawson (1988), 233 Mont. 345, 351-52, 761 P.2d 352, 356
(discussing the right to prohibit warrantless searches and seizures); Welsh v. City of
Great Falls (1984), 212 Mont. 403, 411, 690 P.2d 406, 411 (discussing the due process
right to a hearing); State v. Carlson (1982), 198 Mont. 113, 120-21, 644 P.2d 498, 502
(discussing the right to prohibit warrantless searches and seizures); State v. Blakney
(1982), 197 Mont. 131, 134, 641 P.2d 1045, 1047-48 (discussing the right to counsel).
The mere fact that a defendant wishes to introduce psychological testimony and
therefore must cooperate during an examination so that the State has the
opportunity to rebut his expert testimony is insufficient to constitute a complete
waiver of his right to remain silent. Accordingly, we conclude that a defendant has a
constitutional right to remain silent when asked by the State's psychological expert
about the events surrounding the alleged offense.
¶37 It does not follow, however, that a defendant's right to remain silent when
questioned by the State's expert about the alleged offense should afford an
opportunity to place unrebuttable testimony before the jury. See also Estelle, 451 U.
S. at 465, 101 S. Ct. at 1874, 68 L. Ed. 2d at 370 (recognizing that despite a
defendant's Fifth Amendment protection, he can be required to submit to an
examination by the State's expert when he introduces psychiatric testimony and his
silence would deprive the State of its only effective means of rebutting that testimony
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which he introduced).
¶38 We agree with the position of the County Attorneys' Association, as expressed in
its amicus brief to this Court, that if Park refuses to discuss the events related to the
charges against him with the State's expert, and then also exercises his right to
remain silent at trial, his own expert should be not allowed to serve as a conduit for
his version of events surrounding and related to the alleged offense by relating to the
jury what Park told him or her. Such a situation would be analogous to a defendant
taking the stand, but refusing to submit to cross-examination. We held in State v.
Wilson (1981), 193 Mont. 318, 325, 631 P.2d 1273, 1277, that a defendant "could not
take the stand to testify in her own behalf and also claim the [Fifth Amendment]
right to be free from cross-examination on matters raised by her own testimony on
direct examination." The same principle applies here. A defendant cannot put before
the jury his version of events through expert psychological testimony and refuse to
answer questions from the State's expert regarding those same events.
¶39 We further hold that if Park declines to discuss with the State's expert the facts
related to the crime with which he is charged, and then waives his right to remain
silent by testifying at trial, the State's expert should be allowed to listen to that part
of his testimony which relates to those events, as well as the defense expert's
testimony about what he or she was told about those events, and respond where he or
she deems it appropriate.
¶40 We affirm that part of the District Court's order that compels Park to submit to
an examination by the State's expert. We reverse that part of the District Court's
order that compels Park to answer questions during the examination regarding the
alleged offense, but hold that if he refuses to answer those inquiries by the State's
expert, and also remains silent at trial, he may not offer that evidence through his
expert. We remand this case to the District Court for further proceedings consistent
with this opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
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/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
Justice W. William Leaphart, specially concurring.
¶41 I concur in the opinion of the Court and write separately to elaborate on one
particular point. The Court holds, and I agree that, "the State's right to a
psychological examination exists for the limited purpose of rebuttal, and as the
District Court did here, the order for an examination can be narrowly tailored and
place restrictions on the State's use of its expert's examination."
¶42 The defendant in this case has raised the "defense" of mitigated deliberate
homicide. That is, he contends that he acted under "extreme mental or emotional
stress for which there is reasonable explanation or excuse." Section 45-5-103(1),
MCA. It is important to distinguish this defense from self-defense or justifiable use of
force that was raised in State v. Hess (1992), 252 Mont. 205, 828 P.2d 382. Justifiable
use of force, if proven, is a complete defense resulting in an acquittal. Extreme
mental or emotional stress, on the other hand, results not in an acquittal, but in a
conviction of the lesser offense of mitigated deliberate homicide. Thus, a defendant
who raises mitigated deliberate homicide as a defense and who submits to an
examination by a State psychologist is, in effect, convicting himself of a crime.
Accordingly, the trial court can, and should, impose restrictions upon the State's use
of such evidence. However, independently of any restrictions imposed by the trial
court, there are constitutional limitations that pertain under the Fifth Amendment to
the United States Constitution and Article II, Section 25 of the Montana
Constitution. As the Court points out, when the defendant proposes to prove the
defense of extreme emotional stress through use of an expert, the State is entitled to
have the defendant examined by its own expert so, in fairness, it will have an
opportunity to rebut the defendant's expert testimony. The fruits of the State's
examination can only be used to rebut the defendant's defense. The State, having
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obtained the defendant's testimony concerning mental stress, cannot, for example,
drop the deliberate homicide charge and file new charges for mitigated deliberate
homicide. Such use of the evidence would obviously be beyond what the defendant
would reasonably be expected to anticipate and would offend the constitutional
prohibitions against self-incrimination.
/S/ W. WILLIAM LEAPHART
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