People v. Nelson

¶1dissenting.

¶2I must respectfully dissent from the holding of my esteemed colleagues in this case. The critical issue is whether or not a defendant’s fifth amendment right against self-incrimination is protected as to communications to a psychiatrist designated by the State to visit him while incarcerated in the county jail, without having been appointed by court order and without notice to the attorney who had just been appointed to defend him. Such communications are so protected; defendant’s right against self-incrimination was violated; and defendant accordingly should be granted a new trial.

¶3To reiterate the essential facts, the defendant was charged with the murder of each of his six children on January 7, 1978; on the morning of January 9, he was arrested in Milwaukee, returned to Rockford and placed in the Winnebago County jail; he was indicted and counsel was appointed to represent him; on the same day the personnel at the jail became concerned about defendant’s suicidal tendencies and notified the State’s Attorney of this fact; the State’s Attorney sent Dr. Carl Hamann, a psychiatrist, to the county jail to visit the defendant; Dr. Hamann visited the defendant in the jail and talked to him for at least 20 minutes, at which time the defendant’s attorney arrived and terminated the interview.

¶4On January 20,1978, when it appeared to the State that the defense in this case would be insanity at the time of commission of the acts charged, the State insisted that the court appoint Dr. Hamann as its examining psychiatrist as provided by section 115 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 115 — 6). The defendant objected to the appointment of Dr. Hamann for the reason that he had interviewed and observed the defendant on January 9 in violation of the defendant’s fifth amendment rights. The court appointed Dr. Hamann as the State’s psychiatrist over defendant’s objection; thereafter, he had several additional interviews with the defendant. At defendant’s trial, Dr. Hamann testified that, in his opinion, defendant was sane at the time of commission of the acts charged; he based this opinion in part on the January 9 interview that took place in the county jail as evidenced by the following cross-examination:

“Q: In fact, after seeing him on January 9th for, I believe, about 20 minutes, you formed your opinion at that time that he was not suffering from a major mental illness, did you not?

A. I did. I saw no evidence from that interview.”

¶5Dr. Hamann made the January 9 visit as an agent of the State’s Attorney for the purpose of making an evaluation of the defendant’s mental condition and suicidal tendencies. At that time, the defendant had the absolute right to refuse to submit to any examination as to his mental state by the State’s psychiatrist as there had been no court order for the examination as prescribed by section 115 — 6. Nothing in the record discloses that defendant was advised that Dr. Hamann came there at the request of the State, nor was he advised that he had the right to remain silent or that he voluntarily and intelligently waived that right. At that time, by reference solely to the fifth amendment, defendant could refuse to incriminate himself as to his mental state or any other element of the crime charged.

¶6A defendant gives up his fifth amendment rights during a psychiatric examination only when the examination is made according to the terms and conditions provided in section 115 — 6. In People v. Larsen (1977), 47 Ill. App. 3d 9, 361 N.E.2d 713, a court order was entered pursuant to section 115 — 6 for an examination of defendant’s competency to stand trial, and his sanity at the time of the offense; the court held that the defendant’s fifth amendment right was removed as to the State’s psychiatrist. By reason of the January 9 interview and visit, Dr. Hamann obtained information which, together with other information and interviews with the defendant, culminated in his ultimate trial testimony, namely, that defendant was sane at the time he killed his children.

¶7On January 20,1978, at the time the State sought the appointment of Dr. Hamann as its psychiatrist, it was aware of his January 9 interview with the defendant. It is only reasonable to assume that at that time the State was aware that Dr. Hamann was then of the opinion that the defendant did not suffer from a mental disease or defect (an essential ingredient in arriving at an opinion that the defendant was insane at the time of commission of the crimes). By seeking Dr. Hamann’s appointment, the State sought to exploit the advantage of the January 9 interview. Since Rockford is the second largest city in the State of Illinois, it is fair to assume that there were other psychiatrists available to the State to conduct the necessary psychiatric examinations of the defendant. In fact, the State also had Dr. James Cavanaugh appointed pursuant to section 115 — 6; he also testified for the State. Dr. Lawrence Freedman testified that in his opinion defendant was insane at the time he killed his children.

¶8In the trial of this case, the sole defense was insanity. This issue was sharply contested; expert witnesses with impressive credentials had differing opinions. The advantage gained by the State and the corresponding prejudice to the defendant by the subsequent appointment of Dr. Hamann and the importance of his January 9 interview is highlighted by the following portion of the State’s closing argument to the jury:

* ° [W]hen you judge the insanity defense, ladies and gentlemen, you don’t have to simply take what the psychiatrists say, as the psychiatrists sometimes make their examination sometimes months afterwards.

Now, the defense psychiatrist didn’t see the guy until three months after this occurred. He is trying to look back three months and determine how his mental state was for two hours three months ago.

The prosecution psychiatrist was in a little better shape. Dr. Hamann saw him a couple days after he committed the crime.” Later, the State’s Attorney again emphasized:

“It is important that Dr. Freedman, I think, didn’t see the defendant until some three months after the crime. Dr. Hamann, the prosecutor’s psychiatrist who testified last, saw him right after the crime, I think, two days later.”

¶9Under the circumstances of this case, this argument afforded great weight and credibility to Dr. Hamann’s opinion; on this basis, the prejudice to the defense in this case can hardly be questioned.

¶10As previously stated, the issue here is whether a psychiatrist designated by the State may interview an incarcerated defendant, without Miranda warnings and without a court order, and use the information so obtained in testifying at trial as to the defendant’s mental state at the time of the offense charged. In my view the majority completely ignore the necessity of Miranda warnings and sidestep the requirements prescribed by statute for a mental examination by a State-designated psychiatrist. In all Federal cases1 cited by the majority, namely Cohen, Albright and Pope, the court ordered the psychiatric examination of the defendant after it was disclosed that insanity was the defense. In People v. Williams and People v. Ehrler, the psychiatric examination of the defendant was ordered by the court for the purpose of determining the defendant’s competence to stand trial (Ill. Rev. Stat. 1967, ch. 38, par. 104 — 2(d)), and the psychiatrist making the examination was thereafter permitted to testify at the criminal trial. In People v. Larsen, the defendant disclosed his insanity defense; the court required the defendant to undergo a psychiatric examination by a State-designated psychiatrist. The defendant contended he was entitled to the presence of counsel at the examination in order to protect his fifth amendment right against self-incrimination. The psychiatrist testifying for the State examined the defendant first for the purpose of ascertaining his fitness to stand trial; later, he examined defendant to ascertain his sanity on the date of the crime charged. In a scholarly opinion, Justice Downing examined most of the cases dealing with the relationship of compelled psychiatric examinations and the privilege against self-incrimination. He discussed the cases cited above and concluded that most State and Federal courts, while holding either explicitly or implicitly that the fifth amendment right does attach, have nevertheless required the defendant to submit to a State psychiatric examination on the principle of estoppel or waiver after raising the' defense of insanity. Applying this rationale to the facts of the instant case, there could have been no waiver or estoppel on January 9 when Dr. Hamann interviewed the defendant as he had not been arraigned on the charge of murder; the State in its brief concedes that the defendant’s right against self-incrimination was in full force and effect when Dr. Hamann visited him at the jail; accordingly, he could refuse to incriminate himself as to his mental state as well as any other element of the crime charged.

¶11The majority also reasons that a psychiatric examination does not violate the right against self-incrimination on the theory that it does not determine guilt but only the capacity to be guilty. This is difficult to accept, as the intent or knowledge of the defendant is an essential ingredient to be proved when the charge is murder; the defendant’s mental state is a necessary element of the crime.2 (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1; IPI Criminal No. 7.02.) Furthermore, defendant’s words and acts on January 9, which led to Dr. Hamann’s opinion that defendant was sane at the time he killed his children, certainly were inculpatory, as that opinion negated his only defense and resulted in a sentence of 100 to 200 years’ imprisonment.

¶12Another rationale used to avoid the recognition of the fifth amendment right is the so-called lack of “testimonial compulsion” in statements made to a State-designated psychiatrist attempting to ascertain defendant’s sanity. The facts in the case of People v. Wax (1966), 75 Ill. App. 2d 163, 220 N.E.2d 600, shed some light on what might be considered “testimonial compulsion.” There, a psychiatrist at the State’s Attorney’s request went to the jail to examine the defendant; he saw the defendant and asked his name; he identified himself as the State’s Attorney’s examiner; they looked at each other; there was no conversation for 20 minutes; the doctor asked the defendant if he had been in Army, Navy or Marine Corps; defendant shook his head to signify no; there was another interval of silence and then defendant asked the sheriff to get his attorney; the attorney arrived and there was no further examination. On appeal, the court stated that the presence or absence of the element of self-incrimination was a key factor; it concluded that the mutual observation by the doctor and defendant was, in fact, not testimonial compulsion as to inculpating matters. When the facts of People v. Wax are compared to Dr. Hamann’s 20-minute visit with defendant on January 9, purportedly to render assistance and solace, it becomes apparent that the words and actions of the defendant were inculpatory, as Dr. Hamann then formed an opinion that defendant was not suffering from a major mental illness.

¶13The majority indicates that the January 9 visit of Dr. Hamann is not reversible error because demeanor is not within the fifth amendment right, and further, because the defendant told essentially the same facts in later interviews which were properly authorized. This approach ignores the very nature of a psychiatric examination, which concerns the subject’s words, expressions, tone of voice, nervousness and many other observable features. As stated in Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, 699:

“Unlike the realm of fingerprints and blood samples, there is at best small agreement among experts concerning either the theory or technique appropriate to the diagnosis of mental illness. The ‘variable factors’ are legion.”

¶14The necessity for a court order prior to a psychiatric examination pursuant to section 115 — 6 is inherent in the holding of People v. Larsen. In that case the order provided for a State-designated psychiatric examination and in addition thereto the defendant was given an electroencephalogram test which was not included in the court order. On appeal, the court stated that the results of the electroencephalogram test were improper and stated at page 28 as follows:

“The electroencephalogram test conducted by Miss Twiggs and Dr. Gibbs was beyond the scope of the order. Thus, the statute regulating appointment of an electroencephalographer (Ill. Rev. Stat., 1971, ch. 38, par. 115 — 6) was not complied with.”

¶15As stated in the majority opinion, the Illinois Supreme Court has held that the defendant has no right to the presence of his attorney at a pretrial psychiatric examination. However, it is interesting to note that the defendant in People v. Larsen contended that his constitutional rights were violated because of the failure to give his attorney notice of the psychiatric examination; the court concluded that adequate notice had been given and therefore the examination was proper. In discussing the notice question, the court made the following observation:

“Several courts have held that an accused and his counsel are entitled to adequate notice, either on the basis of the sixth amendment or principles of basic fairness. [Citations.] We agree. Notice gives a defendant an opportunity to consult with his lawyer before the examination, and thereafter intelligently and informedly respond to a psychiatrist’s questions. At the very least, a prior consultation with counsel will help ease the fears of an understandably apprehensive defendant. Also, counsel may be able to advise defendant of certain procedural alternatives. For example, in Illinois a defendant who intends to raise the affirmative defense of insanity may refuse to cooperate in a court-ordered psychiatric examination. However, he is then precluded from offering expert evidence or testimony tending to support the insanity defense if the expert’s evidence or testimony is based upon the expert’s examination of the defendant. Ill. Rev. Stat., 1971, ch. 38, par. 115 — 6.” (47 Ill. App. 3d 9, 28-29, 361 N.E.2d 713, 727.)

¶16-The foregoing statement would appear to be particularly applicable to the defendant’s situation in this case as an attorney had been appointed to represent the defendant shortly before Dr. Hamann made his visit. In United States ex rel. Wax v. Pate (7th Cir. 1969), 409 F.2d 498, 499, the court stated:

“[I]t is better practice to give notice to counsel. Absent a showing of actual prejudice which is missing here, we conclude that failure to give notice did not render the trial constitutionally defective.”

¶17In this case the defendant has not claimed error for failure to give notice to his attorney of Dr. Hamann’s proposed visit. As pointed out in the above quote from People v. Larsen, the importance of adequate notice to defendant’s counsel, particularly in a case where the defendant is charged with six murders, must be considered mandatory on principles of basic fairness; as previously pointed out, it is believed that there is no question that defendant was prejudiced by the failure to give notice to counsel. Accordingly, this omission and the violation of the defendant’s right against self-incriminatión combined to create reversible error in this case.

¶18It is my belief that if this court approves the appointment of Dr. Hamann as the State-designated psychiatrist on the issue of defendant’s sanity, it will approve a practice with an unlimited potential for abuse. (See Schantz v. Eyman (9th Cir. 1969), 418 F.2d 11 (facts different but an example of the type of action that might be encouraged).) On the theory that a person charged with a serious felony has suicidal tendencies or other mental difficulties, the State will be encouraged to seek an immediate psychiatric examination of the defendant without notice to his attorney; this expert will be more creditable because of the proximity of this examination to the crime charged. The weight given this argument is conceded by the State in this case as they state in their brief:

“The People submit that closeness of the examination to the time of the crime was a legitimate factor to be considered by the jury and a proper subject for comment by the State.”

¶19The majority also find that the State should have disclosed to defense counsel its intent to use in rebuttal the testimony given by Ann Nelson about the defendant reading Anatomy of a Murder. The record reveals that defendant was cross-examined regarding Anatomy of a Murder as part of the defense’s case in chief. Thereafter, three additional witnesses testified for the defendant, and then the State called in rebuttal its two psychiatric doctors and a psychologist before calling Ann Nelson to impeach the defendant’s testimony regarding his reading of Anatomy of a Murder. The majority conclude that this failure of disclosure was error, but that it was not reversible error in that the defendant failed to seek a continuance and thereby waived any claim of surprise. At the time Ann Nelson was called in rebuttal, there was no indication as to what her testimony would be as there had been no disclosure to the defendant. To object after the question was asked would only have highlighted the importance of the book to the defendant’s further disadvantage. For this reason a request by the defendant for a continuance would have been useless.

¶20The majority finally dispose of the point relating to the failure to make the disclosure by stating: “The case was not close and the error, in context, not critical.” As previously stated the insanity defense was sharply contested; this admitted error together with the issues previously discussed in this dissent are valid grounds for a new trial. The defendant in this case, who has admittedly committed the most heinous acts imaginable, is still entitled to the fundamental rights guaranteed by the laws of our State and the United States Constitution. I would reverse and remand for a new trial.