Houston v. State

HOUSTON, Jr., Appellant, James David Alaska, Appellee.

STATE of

No. 3339.

Supreme of Alaska. Court

Nov. Burwell. now

der of Donald Houston appeal from his conviction. brings this 3, 1976, of June Hous- On the afternoon ton, sergeant the United 26-year-old a stationed at Fort Army, who was States Richardson, drinking four commenced Later, the five men acquaintances. of his store, purchased liquor drove to a a bottle rum, it their car. and consumed Club, proceeded to Montana group then or three more drinks where each had two an hour. two After pool and shot for about home, go left of Houston’s friends Houston, remaining men, Elton Fu- three trell, Moby A1Virgil and went to Dick’sbar they stayed hour Anchorage, where time, At to two hours. and a half as he began to feel uncomfortable Houston watching him. thought everyone room, after went to the men’s and Houston Virgil that load- returning, informed he had men returned pistol.1 ed his The three then Club, where Futrell and to the Montana After men’s room. Houston entered the left men’s three two or individuals room, when Futrell alone Houstоn and Houston testified Donald Burwell entered. derogatory racial that Burwell made some made a movement remarks to him and then he Houston said that pocket. toward his reaching (Burwell) was feared the victim twice. shot him gun, for so Houston a incident lasted about testified the Houston Defender, Fabe, Brian Dana Asst. Public two to testified that ten seconds. Futrell Shortell, Defender, Anchorage, for Public elapsed between the time four seconds appellant. men’s room of Burwell entered the Michalski, Gen., A. An- Atty. Peter Asst. he first when heard the Montana Club and Gross, Gen., chorage, Ju- Atty. Avrum M. he did testified that shot. Futrell further neau, appellee. any- say Houston hear the victim see Burwell with thing. Futrell did not BOOCHEVER, Before J.,C. RABIN- and first he only and shot did weapon, after OWITZ, CONNOR, BURKE, MAT- and “slumped position” observe Burwell in THEWS, JJ. if on with his “hand ... his side pocket. going . . into his he was OPINION ran Futrell then .” RABINOWITZ, Justice. Montana Club out the back door Bar, game shot they jury, After James David Houston where trial Goldie’s the two drink. As degree, mur- had guilty pool was found of the second another bought target explained he had it for purchased revolver 1. Houston had .38 caliber protection. practice At that time to his earlier He it that afternoon. showed Club, prior gun leaving was unloaded. friends for the Montana and Dr. twenty-five left Goldie’sabout minutes la- Parker was allowed to ter, police, testimony, they testify. During were arrested Dr. Parker’s searched, police jury and taken to the state made known to the station. hospital gunshot initially Burwell in the Parker had been retained died defense. wounds. Tanay, extensively Dr. a who has worked

Subsequently, grand jury indicted veterans, testified with Vietnam war degree Houston for second murder of the neurosis Houston suffered traumatic a Donald Burwell. Thereafter Houston filed by severe and complicated war which was a rely notice of his intention to on insan- Tanay Dr. noted that chronic alcoholism. time, ity the Houston defense. At same history of seizure-like blackout Houston’s filed a for a bifurcated The motion trial.2 camera, spells organic was consistent with brain motion after an in in- was denied and indicated that at the time the damage spection then available shooting place, took Houston “suffered reports. reports available the episode which from a dissociated was the at that time were those of Aron Dr. S. result of all the condi- Wolf, [above-mentioned] psychiatrist Langdon Psychiatric a at tions.” Anchorage, Clinic in and Dr. H. Par- Allen ker, psychologist, a also at the Both clinic. Tanay’s opinion Dr. was experts had examined prior Houston to trial the time when this occurred act Mr.. [at] request at the of defense Dr. Wolf counsel. type Houston acted in a reflex manner as diagnosed Houston’s the condition at time therefore, the result of mental illness killing and concluded that “did he did not have the opportunity capacity

lack the substantial at the time to capacity upon reflect his action so that appreciate wrongfulness of his conduct possibility there was not his even a or to require- conform his conduct to the appreciating wrongfulness act, ments of the law.”3 Dr. Parker’s conclu- nor did he to—to re- capacity have the sion was that Houston did not suffer from act. The committing frain from act organic damage. brain was—occurred in a reflexed automatic type of fashion an unknown vic- trial, At Dr. Wolf neither nor Dr. Parker tim to him. were by testify, called defense to but Tanay, defense did call Dr. Emanuel a commenced, After trial had the state re- psychiatrist. Dr. Parker by was called quested superior that the court order Hous- state as a rebuttal witness after ton to submit to a examination presented had its case. Dr. Parker testified by Rader, William Dr. J. who had been neurotic, that Houston was psychotic, by selected the state. Defense counsel and that at the time of the act he was not objections raised a number of to the exami- suffering permanent damage. from objection brain nation. The most relevant to this Prior to testimony, Dr. Parker’s Houston appeal was that Houston had constitu- objected introduction, contending its right present tional to have his counsel since initially Dr. Parker was retained examination. Defense coun- the defense to evaluate the of an that, likelihood requested sel also if his defense, findings denied, Dr. Parker’s came the examination examina- within attorney-client privilege. Hous- taped. tion requests Both were denied objection ton’s superi- overruled court. accompanying 12.45.083(a): The memorandum the motion 3. This test is set forth in AS asserted that Houston had a constitutional person responsible A is not for criminal right fense), jury (self-de- guilt phase to a trial on the conduct, conduct if at the time of as a statutory right non-jury and a to a trial defect, of mental result disease or he lacks phase pursuant on the to AS 12.45.- capacity appreciate substantial either to 083(d), and that since the two defenses were wrongfulness of his conduct to conform incompatible, granted. bifurcation must requirements his conduct to the of law. argument he is dispositive of Houston’s case presentation

After trial. statutorily to a bifurcated defense, entitled called rebuttal witnesses. the state Post, we held: testimony has been summa- Dr. Parker’s grants Rader testified as es- 12.45.083(d) rized above. Dr. AS right background of a unilateral sentially pleading insanity factual the same argues Post background jury waive trial. and historical incident a jury to waive trial permits statute Rader’s Tanay. had Dr. Dr. Houston as retaining insanity, while on the issue of conclusion, contrary Tanay’s, to Dr. We do not all issues. jury trial on other responsible for act. that Hоuston was only refers to waiver agree. The statute to Dr. Parker’s and Dr. Rad- In addition trial,’ interpret which we jury of ‘a rebuttal, testimony er’s on ordinarily tried to a refer to all issues Hipólito, major also called Abel basis for an inference jury. There is no and a Air Force United States intended create a legislature Hipólito Force Base. Dr. at Elmendorf Air bifurcated trial. right to a statutory opportunity he to testified that had had the omitted). (footnote Id. at while Houston had been observe Houston completely not However, foregoing is hospital for alcohol admitted to the base issue because dispositive of bifurcation Although Dr. Hipólito did detoxification. argu- additional Houston has advanced inter- formally not conduct support of his assertion that ments view, with times. he did talk Houston three denying bifurcation. superior erred court Hipólito was Dr. concluded that Houston argu- to these additional Post relevant psyсhotic, his was not memory not that ments. we said: There impaired, and that he was not delusional. there should question whether [T]he hospital Houston was released from two tri- trial was committed bifurcated days shooting. before the and be review- al court’s discretion to Prior the case to submission of only for We find appeal on abuse. able following jury, requested in- here. Post made no abuse of discretion struction: any potential trial of showing prior to no However, you if find that the defend- insanity his defense and conflict between grounds not to ant did have reasonable charged. Such a on the facts his defense danger was imminent believe that he v. United showing required. Contee and bodily of death or serious harm that States, U.S.App.D.C. 410 F.2d necessary repel force to such deadly was [D.C.Cir.1969]; Parman v. United danger, necessarily is not defendant States, F.2d U.S.App.D.C. guilty degree If the second murder. 559 [D.C.Cir.1968]. though unreasonably actually States, In Contee United Id. at 306. danger was in imminent believed that he 261, 262, 410 F.2d U.S.App.D.C. bodily harm and that death serious stated: (D.C.Cir.1969),Judge Bazelon necessary repel force to deadly was of the trial court’s sound exercise [A] danger, manslaughter. If guilty he ordinarily result in bifurca- will discretion about this you have a reasonable doubt shows that he tion whenever a defendant belief, give must the defend- you actual and a insanity defense has a substantial and find ant the benefit of that doubt merits to on the substantial defense than guilty manslaughter him rather which charge, either of element degree second murder. pre- prejudiced simultaneous would be give this re- court refused superior other. with the sentation instruction. quested defense Post, re- Thus, Houston was light appellant’s conten We first turn both a substan- quired to that he had show in deny erred substantial de- superior tion that the court defense tial entitled his a bifurcated trial. Post on merits ing motion for fense State, (Alaska is bifurcated trial. 580 P.2d 304 him, you’ll like argues Houston first that su comments have perior incorrectly determined that no to him come in here and —which meant presented. was substantial blacks, some you and then he made earlier, As noted Wolf concluded that comment, com- derogatory other racial capacity Houston “did lack the substantial ment, reached then Mr. Hous- wrongfulness time to appreciate that gun ton for his and shot him. reached of his conduct or to his conform conduct Now, very did convinc- that not sound requirements Although of the law.” me, ing to did sound not opposite, Dr. Parker’s conclusions were Q. Why not? hold its that court erred in me, persuasive and I A. finding that there no substantial insan why it. You confronted ask However, ity holding defense. not does (1) not. It me didn’t sound real end the inquiry. the material that because I knew from Houston was also to introduce I was mini- had the time interval substantial evidence of the merits of mal, Mr. Burwell entered theory. sеlf-defense Houston’s self-defense practically immediately washroom argument was on testimony based did not exited shot. ... So that I he shot Burwell because saw he Burwell transpired, have believe this could pocket make a movement for his and feared with this and I confronted Mr. Houston goin’ “he pocket in his he was reach- things and he indicated that presents in’ for somethin’.” This evidence him, very finally I said to clear theory. Thus, basis for a self-defense you maybe just why. don’t know conclude that Houston the two-prong met very thoughtful And he it about tee, test set forth in that Con his motion we, fact, and later on when in conclud- for a bifurcated trial have should been ed the door he said to interview at the granted. me, oh, all, maybe right you’re after We further denial conclude that maybe point is I know. The that don’t substantially prejudiced bifurcation motion it unlikely . most ‍​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌‌‌​​‌​​​​​​‌​​​‌‌‌​‌​​​‌​​​‍. that in presentation theory Houston of his of place kind of between interаction took trial, self-defense. At the Dr. Tanay was Mr. Houston.4 Burwell and Mr. principal sup- witness who testified in of port view, portion Tanay’s of the claim that Houston was not In our criminally responsible testimony prejudice acts. Review illustrates to Hous- of testimony Tanay discloses that Dr. ton’s merit which resulted from the defense did not believe Houston’s claim of self-de- denial of trial.5 superior court’s a bifurcated fense. particular in the We therefore hold of

DR. In the factual context this case it was an abuse TANAY: washroom [Hous- Burwell, part tells me that Mr. who of discretion on the court’s ton] there, derogatory came in made deny some Houston’s motion for bifurcation.6 Tanay appellant’s 4.Dr. I further stated Houston like to believe. don’t But they frightening blackouts were so caused think that fits circumstances. him to fill in the blanks with reasonable Taylor, U.S.App.D.C. 5. See United v. (D.C.Cir.1975). 167 States explanations Tanay as self-defense. Dr. testi- Taylor, 510 F.2d 1283 In fiеd: recognized that the merit defense of conceptually self-defense an conflicts in- continuity [T]o have a in break one’s of one’s sanity defense. very terrify- awareness of what one does ing. people So organic epi- who have view, 6. We do not prej as determinative of the knowing, sodes of confusion, not of issue, udice trial counsel’s abandonment self- knowing they happening, very what’s will argument defense in jury. his final Once something often fill it in with that makes denied, bifurcation had been the conflict be good somebody sense. To shoot because tween the merit defense and the de you, he’s about good to shoot that makes fense could strategy. mandate such See Con believe, something States, sense and I that’s tee v. U.S.App.D.C. that Mr. United 133 fense, testifying now as a but next asserts that allowance of Houston Parker, witness, opinion the who examined that in his de- testimony of Dr. stated psychiatrists Both at thе defense fendant was not insane. prior to the trial prose- essentially damaging the same called testified to request counsel’s but was during witness, the defendant reversible error. admissions made cution rebuttal specification respective psychiatric lies in the their examinations. The basis for this psychiat- held that the Houston’s statements the The court in Alvarez contention that preparation examination, resulting opinion conducted ric examination attorney- respon- protected by criminal Dr. Parker as to Houston’s for trial pro- court stated: killing, privilege. are sibility at the time client attorney-client privilege and tected Kovel, F.2d States v. United right to effective as- the sixth amendment (2d 1961) that communications Cir. holds of counsel. sistance accountant, confidence, to an obtaining legal advice from purpose Alvarez, 519 F.2d In United States attorney- lawyer protected by are (3rd 1045-47 Cir. the Third has privilege. No federal case been client arguments similar under Circuit dealt with applying attention the same called to our substantially the same as the case facts expert retained to assist rule to a medical Alvarez, counsel consult- bar. preparation for trial. attorney an psychiatrist psy- ed with a who conducted have considered the Some state courts prior chiatric examination of the defendant Kociolek, See, question. g., e. State prepare trial in order (1957); N.J. San Fran- 129 A.2d Rule Crimi- defense. Pursuant Federal Court, Superior Cal.2d cisco v. 16(c),7 nal Procedure the results of the ex- P.2d no distinction We see the prosecu- over to amination turned counsel for need of defense between the report opinion tion. The revealed that accounting expert matters assistance in time was that at the psychia- of and in matters the same need alleged thе offense the defendant “did of counsel try. The effective assistance doing wrong he what was know that preparation of an respect to the capacity did not lack to and substantial recognition insanity defense demands requirements the of conform his conduct to communi- as free to that a defendant be the The law . . .” 519 F.2d 1045. expert with the as cate with particular call this defense decided to assisting. expert is is If the attorney he expert as The then a witness. behalf of the a witness on later used as psychiatrist the over defense subpoenaed defendant, obviously privi- of the cloak trial, objection. presented At the when, here, de- lege But as the ends. only psychiatrist one who testified that the expert the same does not call the fendant of insane at the time the respect to commu- privilege applies with alleged of offense. The commission the applies tо as nications from the defendant psychiatrist initially by the retained de- inspect (D.C.Cir.1969); permit government and to F.2d 249 Holmes v. United shall copy physical the States, reports 152, U.S.App.D.C. photograph of or 124 363 F.2d 281 or results (D.C.Cir.1966). sci- and of or mental examinations experiments in connec- entific tests or made 16(c), Formerly case, 7. copies Fed.R.Crim.P. particular Fed.R.Crim.P. there- or tion with the 16(b)(1)(B) provides: of, defendant, possession now within the or control Reports intends of requests If the Tests. which the defendant Examinations and or in the trial chief at defendant sion pliance under subdivi- introduce as evidence which were defendant intends to call at results or disclosure rule, (a)(1)(C) upon prepared (D) whom com- a witness this government, government, request by the trial when with such testimony. reports defendant, request to his relate on 790 truth-finding posed attorney by barring communications disclo- him- full

self. sure in court.9 Id. at 1045-46 (footnote omitted).8 contends in order points Judge Weinstein out in his scholar there to ascertain whether defense counsel Edney in United States ex rel. v. ly opinion defense, existed a valid Smith, 1038, (E.D.N.Y. F.Supp. expert assistance of 1976): assistance, opinions, specifical and attorney-client privilege The is oldest Parker, within ly opinion of Dr. comes privileges confidential commu- attorney-client privilege. We think nications. . . privilege The now of Alvarez reasoning persuasive10 and rests on the theory encouraging ap hold that Dr. Parker’s examination of clients make the fullest disclosure pellant attorney- within comes Alaska’s attorneys their enables the latter act We privilege.11 client therefore do not effectively, justly expeditious-

more ly out-weighing the risks reach the sixth amendment issue. —benefits Lines, People 8. In v. Cal.3d Cal. to the Lines case in foot In addition cited 10. 225, 234-5, Rptr. (1975), Hilliker, 531 P.2d People 802-03 supra, note 8 App. see 29 Mich. v. Supreme upheld the California the exten Court (1971), State 185 N.W.2d 831 attorney-client psychiat privilege sion of ric Kociolek, 23 N.J. A.2d experts prepara consulted ‍​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌‌‌​​‌​​​​​​‌​​​‌‌‌​‌​​​‌​​​‍the defense tion for trial: commenting upon the extension City County holding We reaffirm our & physicians, privilege Judge ob Weinstein of San Francisco to there is the effect that no Smith, served, Edney in United States ex rel. client-litigant attorney-client exception to the F.Supp. (E.D.N.Y. 1047-48 where, here, privilege. pursu- Therefore that: ant psychotherapist section 1017 of the Evidence Code a Nonetheless, pragmatic perspective from a appointed by the court in Only foolhardy extension desirable. proceeding a criminal to examine defend- lawyer would determine tactical and eviden- provide ant in order to attor- defendant’s strategy tiary in a is- case with ney purposes with information for the set guidance interpretation sues without the section, fоrth amination, said the results such ex- psychiatrists including thereof, and others in this any report skilled Kovel, relating all information and thereto, field. Cf. United States v. 918, F.2d communications protected (2d 1961) (‘analogy are Cir. from disclosure of the client attorney-client privilege notwithstanding speaking foreign language’). Chief As Judge fact that the defendant Haynsworth has theretofore or reminded us: proceeding thereafter tendered in said The assistance of a is crucial of his issue mental or respects emotional condition. a number of to an effective court, however, judgment, affirmed the place, In the defense. first that, error, finding although privileged testi- psychiatric testimony absence of presentation is critical mony prejudicial “[ajfter was not in that an prac- of the defense at ‘In trial. cause, examination of the entire it does not terms, tical pert testimony a successful defense without ex- aрpear reasonably probable to us to be that a only will be so made in cases result more favorable to would have extreme, compelling sympathy or so in been reached in above the absence of the error. defendant, unlikely prosecutor the say We cannot that a miscar- there has been bring to them at all.’ justice.” 236, riage Cal.Rptr. at of Id 119 Moreover, other, expert the use of an (citations omitted). P.2d nontestimonial, equally im- functions can be prejudicial The in effect of the error Hous- portant. Consultation with attunes ton’s case will be discussed infra. lay attorney to unfamiliar central but concepts him, recognizes medical ini- attorney-client privi- and enables as an 9. Alaska matter, lege. tial 26(b)(3) provides: assess the and ad- Alaska soundness R.Crim.P. visability offering of The aid of defense. Attorney-Client Privilege. attorney An psychiatrist presen- guides a informs and shall not be examined dеfense, perhaps (1) any tation of portantly, im- most as to communication made permits lawyer him, inexpert it in the a client to nor intelligently psychiatry probe (ii) attorney’s science as to the of advice there- testimony. attorney’s profession- on in the of adverse ‘If an course of the foundations employment, insanity except al with consent accused is to raise an effective fense, de- of psychia- his client. clear it is that he will need the 503(a)(5) 503(b). See Alaska R.Evid. § trist aid in as a witness. He will need his unavailable, at equally a least until he is possibility that Anticipating privilege might be attorney-client of stand. The attor- placed claim on the witness sustained, once the state contends that ney must be to make an informed free placed responsibility criminal to the course judgment respect with best issue, any he waived homicide the inhibition of for the defense without It is attorney-client privilege the case. creating potential government witness. privi attorney-client established that government The contends that in this lege privilege, is a its qualified no harm from Dr. case resulted Sadoff’s infringement justified, be in some cir may damaging testimony about factual state- cumstances, or im by the accused’s action Martinez, made John ments plied The court dealt waiver.12 in Alvarez bifurcated. But the because trial was with a waiver contention similar to urges it waiver which broad rule has the state which been advanced in which equally applicable cases be Alvarez, said: case at bar. the court Moreover, no there was bifurcation. But for a government also contends waiving rule inhibiting effect of a urges that much waiver rule. It broader respect with attorney-client privilege re insanity the assertion of an defense in all cases of an psychiatric consultations any privi of claim of sults the waiver only with insanity operates not defense ex lege respect with but also respect to the facts of crime amination of the defendant. respect defendant’s mental with to the The issue here whether inhib- attorney The should not be state. potential involving counsel in a case consulting experts, one or more ited from risk defense of must run the views, conflicting by the possibly hires to expert whom he may assisting doing that in so he be fear respect defend- advise him with meeting of government in its burden forced to may ant’s mental condition be reject proof . . . Thus we the con- government witness. involuntary of tention that the assertion would, think, effect of such a rule of the attor- the time the offense waives depriving have the inevitable effect respect psy- ney-client privilege with defendants of the effective assistance prepara- made in chiatric consultations will counsel in such cases. A tion for trial.13 inquiry abоut the facts necessity make view, reasoning of Alvarez In our crime, alleged just as the surrounding the sound, thus conclude court is and we attorney made to the will. Disclosures rejected.14 must be argument this waiver attorney proof used to furnish cannot be subpoena government’s

in the Disclosures If the state were allowed case. Parker, initial effort attorney’s expert made to should be the defense counsel’s testimony Cal.Rptr. determining ited, to be elic- 531 P.2d the kinds of Cal.3d consulted, City specialists (1975); County and the San v. to be Francisco Court, explored Superior areas opposing psychiatrists.’ on cross-examination 231 P.2d 26 37 Cal.2d (1951); Lindsay Lipson, United States 367 Mich. 1971) Taylor, (4th F.2d n.9 Cir. N.W.2d (citations omitted). unpersuasive find the state’s assertions 14.We 225, Nobles, United 95 12. States v. 422 U.S. policies underlying criminal Alaska’s 2160, (1975); United S.Ct. 45 L.Ed.2d 141 recog- discovery by rules advanced are not 1317, Woodall, (5th States v. 438 F.2d 1322-26 attorney-client privilege nition of an 1970), denied, 933, 403 91 S.Ct. Cir. cert. U.S. opinion psychiatric ex- examination and the 2262, (1971). 29 L.Ed.2d 712 view, perts responsibility on the issue. In our 1036, Alvarez, underlying purposes 13. United 519 F.2d of the States v. in the face of the (3rd following 1975). attorney-client privilege, 1046-47 See Cir. also the of rebuttal allowance upon type decisions testimony in which the relied here psychiatric courts issue of the attorney-client privilege permitting discovery poli- appear does not to advance psychiatrist in the face defendant’s to be called cies of Alaska 16. R.Crim.P. Lines, People of waiver 13 contentions: fully possibili- become informed as to the specified Houston has also as error the ty or insanity likelihood of a valid defense superior court’s refusal to allow his counsel may potential be inhibited because of the present be psychiatric at a mid-trial ex- that an opinion adverse will be by used amination which was conducted for the Furthermore, defendant, state. who is prosecution pursuant to court order. It is aware ‍​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌‌‌​​‌​​​​​​‌​​​‌‌‌​‌​​​‌​​​‍of the possibility opinion that the contended that the court’s ruling expert who is examining might deprivation constituted a Houston’s sixth adverse to his may defense and be used right amendment the effective assistance trial, him at probably will be less of per counsel and error was reversible se.16 than examination, candid at further right Houston’s claim of the to counsel at exacerbating problem. Although the the court argues psychiatric state ordered examination is, fact, that if the defense valid, Wade, the defendant should no derives have fear of from United States an adverse finding as to sanity, 218, 1926, in reali- U.S. S.Ct. L.Ed.2d 1149 ty, pressure involved to assure the cor- case, Supreme Court rect result help shape signifi- cannot but to right established the of the accused to coun- cantly the defendant’s inter- sel any stage prosecution, “at formal view.15 informal, out, in court or where counsel’s

However, might derogate absence from the accused’s state advances anoth er argument. right waiver points 226, It to a fair trial.” out that Dr. U.S. at Tanay, the psychiatrist, 1932, testified S.Ct. at 18 L.Ed.2d at 1157. Whether that he relied on Dr. Parker’s report in Houston is entitled to counsel at a mid-trial reaching preliminary opinion on Houston’s psychiatric depends examination on wheth- mental condition. The argues state er the examination is a stage critical since Dr. Tanay relied on Dr. Parker’s re proceeding. port, Tanay could be cross-examined appears It majority of the courts report, about the and that there was a which have had pass upon occasion to waiver of the attorney-client privilege with rejected issue have the claim that defend- respect to Dr. Parker’s conclusions. There ant right has a to counsel at a court-ordered fore, the state asserts that there was no People examination. In v. Lar- error in allowing the directly state to exam sen, 47 Ill.App.3d 5 Ill.Dec. ine Dr. Parker as a rebuttal witness. We (1977), N.E.2d 713 the court summarized the find the argument state’s persuasive and appellants cases in which the had conclude raised the particular that under the circum stances, issue of the sixth right there was a amendment waiver of the to coun- attorney- client privilege. Therefore, pretrial sel at a psychiatric examination, we hold that there was no error in allowing prosecu and held that such an examination was not tion to call and examine Dr. Parker. stage critical proceedings.17 may 15.The state have the defendant by examined shall not be commented on by court-appointed psychiatrist to determine at trial. issue raised the defense. See appeal 16(c)(3) Houston does not [emphasis Alaska this issue R.Crim.P. on the added] grounds provides: which the court-ordered mid-trial exami- improper nation itself was or that such an Insanity Notice of Intent to Raise Defense. examination is a violation Following of the fifth amend- compliance by substantial right against ment (b) self-incrimination. The state with section of this rule a defendant state, however, has briefed who these issues. intends to offer evidence of a defense of insanity shall inform the state of such inten- appellate 17. plea tion at the Illinois court cited the time follow- or at such other time ing authority may majority position: designated by cases as the trial court. The may order the defendant (2d to submit to a 1969), U.S. v. Baird Cir. 414 F.2d denied, examination cert. 396 U.S. S.Ct. psychologist court, 497; selected and the Trapnell (2d L.Ed.2d U.S. v. Cir. report par- shall be 22; made available to (4th 1968), both Albright 495 F.2d U.S. v. Cir. ties. Notice of 719; intent to raise a (5th 1971), defense of 388 F.2d U.S. v. Smith Cir.

793 observer, If, not participant.) an active adopt majority view We choose to the such a non- presence examination is view pretrial psychiatric that a their stage. professional operate hinder or not critical examination would suspect not conducted under circumstanc- of their exami- reduce effectiveness high degree sugges- nation, es of inherent they with a if assert cannot ex- they the accused. may tiveness or unfairness the court presence, amine in pres- Unquestionably, defense counsel’s exclude the exercise of its discretion might ence aid a cross-examination In this counsel from the examination. examining trial. How- psychiatrist at event, requests, if considera- defendant ever, presence may of counsel’s effect may feasibility be tion the examina- destroy the usefulness of permitting recording such devices as in- requires do believe tion. We not Wade struments or the like be utilized at the psychia- privacy invasion interview. In case thе psychiatric relationship, psy- even if trist-patient court should allow defense court-appointed upon chiatrist examination, if such a de- attend the State’s motion. is made.18 mand Id., 402, 361 at 5 Ill.Dec. at N.E.2d 725. his assertion that de- supports present to be at fense counsel Whitlow, 3, In 45 210 v. N.J. A.2d State conducted examination court, (1965), discussing 763 although Shepard Bowe, v. 250 by relying upon state violation, alleged fifth ob- amendment 288, (1968), 442 238 and State v. Or. P.2d served: 536, Corbin, 516 P.2d 1314 Or.App. 13 Having psychiat- in mind the nature of Corbin, Oregon Court of (1973). In examinations, ric necessity usual Appeals Shepard, stating: discussed an extensive doc- interview between Bowe, 288, Shepard 250 Or. 442 v. defendant, safeguards tors and (1968), held that a P.2d 238 the court possible now use of established defendant, pursuant being examined inculpatory statements of the accused as issue raising the of in- court order after we guilt, substantive evidence of see no to answer sanity, could not be ordered duty permit on the trial court to absolute of which be questions, the answers attorney present the defense be incriminating, nor could the order client; in the the matter rests court’s present attorney defendant’s upon application discretion. If This rele- decision is the examination. examine, State leave to coun- psy- here for the conclusion vant present requests permission sel examining the chiatrist examination, require the court should purposes an officer of the state is for all showing prosecutor as some any police different than state no psychiatrists about attitude course, a defendant. questioning officer when presence of Of if there is counsel. Therefore, grant- consent to a objection, no should be valid permission case, not be without (In may should obtained ed. realize examination knowingly and voluntari- capacity is in the of an the defendant’s his attendance 787; 535, (N.D. v. Pate 828. . . U.S. F.2d ex rel. v. Pa. 257 A.2d 436 U.S. Wax 164, (7th Ill.1967), F.Supp. (D.D.C.1971), F.Supp. 298 affirmed Cir. Fletcher denied, 390, 1969), 498, 9, Larsen, Ill.App.3d People 409 F.2d 396 U.S. cert. 5 Ill.Dec. v. 830, 83, 81; 713, 402, U.S. v. Matt 90 S.Ct. L.Ed.2d 361 N.E.2d 1234, (9th son nied, Cir. cert. de F.2d 1513, 986, purposes of re- 410 U.S. 93 S.Ct. 36 L.Ed.2d view that for 18. We note our 183; Martin, People (1971), solving v. 386 Mich. issue in the of counsel denied, N.W.2d cert. U.S. no between case draw distinction instant 342; prior 92 S.Ct. 33 L.Ed.2d State Wil tri- examination conducted (1971), App.2d son 268 N.E.2d occurring during Ohio trial. al and those 814; (1969), Commonwealth Stukes 794

ly waiving rights those enumerated in Counsel at the Pretrial Mental Examina 448; tion, Miranda.19 118 State v. Whit U.Pa.L.Rev. low, 3, 26-28, supra, pp. at 45 N.J. 210 York, Appeals The Court of of New 763). A.2d as defense counsel Inasmuch Court, 432, Lee v. 27 County N.Y.2d 318 present, right only is it is 705, 452, denied, cert. N.Y.S.2d 267 N.E.2d Attorney fair to allow the District 823, 46, 404 30 U.S. 92 L.Ed.2d 50 S.Ct. right. same (1971), pre-trial psychiatric held that exami argument We see no merit to stage” nations are a pro “critical permitted defense counsel should to ceedings, defendant and that was enti examination, take an active role at the or present tled to have in the counsel role of that he should be allowed to advise his .an more observer “to make effective his client not questions put to to him answer right basic of cross-examination.” Id. 318 by an or examining psychiatrist make 715, N.Y.S.2d at N.E.2d 267 at 459. The objections. situations, As in Wade Lee court stated: function of counsel is limited to that of Wade, 218, In United States 388 U.S. defense attorney observer. Both the 1926, 87 1149, S.Ct. 18 L.Ed.2d the Su- prosecutor may and the take notes and preme Court held that the Sixth Amend- objections or save their comments ment to the Federal Constitution man- trial and of the exam- cross-examination presence dates the of counsel at critical ining psychiatrist. stages prosecution of the preserve to right to a stage” State, 636, fair trial. A “critical (Alaska Blue v. 558 P.2d “any stage prosecu- State, defined 1977), 340, Roberts v. P.2d tion, informal, out, formal (Alaska 1969), or court or established the accused’s where” presence right “thе of his counsel is to pre-indictment line-ups counsel at necessary to preserve defendant’s ba- and when handwriting exemplar is taken sic right to a trial as by fair affected pre-trial his while the accused is in confine- right meaningfully cross-examine the ment. are Blue and Roberts in accord with against Lee, witnesses him and to have effec- right an accused’s confirm that tive assistance counsel at the trial it- counsel includes “the need counsel to be (Wade, self” pp. 226-227, supra, present in order to evaluate the circum- p. 1932). pre-trial S.Ct. at psychiat- argument Since prepare stances and his at trial ric examinations are a stage critical sufficiently provide the defendant with one accused of rights a crime his Sixth Amendment confront rationale, under the Wade identifying witnesses.”20 In Roberts v. present State, entitled to have counsel (Alaska 458 P.2d the de- make fendant, more effective his right basic аrraignment, after indictment (See Note, Right cross-examination. to was police apparent- interviewed Corbin, Or.App. might 19. State v. 516 P.2d the answer to which tend to incrimi- significant him; and, The most issue nate Shepard Bowe, 250 Or. 442 P.2d 238 (1968), was whether trial court erred in Shepard Both the and Corbin courts deter- issuing following order: right psychiat- mined that the to counsel at the IT IS necessary ORDERED: protect THEREFORE ric examination was questions 1. right against That answer Defendant con- self-incrimination. As cerning supra, accident conduct at or immedi- indicated in note Houston does not ately near the presence attorney time commission of the contend that the of his alleged crime; ‍​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌‌‌​​‌​​​​​​‌​​​‌‌‌​‌​​​‌​​​‍required reasons, 2. Counsel for the Defendant for fifth but rath- amendment ordered not advise the Defendant er that provide counsel questions concerning cross-examination, or, refuse to answer effective effec- immediately accident or guarantеed conduct tive near assistance of the crime; alleged time of the commission of the sixth amendment. State, (Alaska 20. Blue v. P.2d Counsel is ordered not to interfere 1977). advising questions Defendant not to answer exemplars present without counsel violates providing handwriting ly was coerced into that at- exemplars. requested rights his amendment are Roberts the sixth defendant’s bar; by was told the torney specifically, contacted. He germane the to case give not the police he did have that might noticed that the defense counsel have not, a writing but if he did court exemplars, examina- improprieties psychiatric at the and failure com- order would be obtained not notice and that tion that Houston would contempt ply with would result the order of Dr. Rader effective cross-examination proceedings po- him. The of court have been enhanced. then interview without the lice conducted the proper resolution recognize We the that presence consent of Robert’s of counsel should question of the whether We held: counsel. Id. at 343. psychiatric examinations allowed at prejudice appellant from the viola- not free from doubt. highly debatable this tion of to counsel at critical right his Nonetheless, pre-tri- any we must scrutinize may be stage summa- proceedings of the of the accused al or mid-trial confrontation rized as follows: presence of his to determine whether the (1) attorney might have noticed im- his preserve the de- necessary counsel is proprieties which court not of this right to a fair trial as fendant’s basic aware, accused, the a layman because by right meaningfully his affected investigation, probably frightened by the against him the witnesses cross-examine may perceive impro- failed to some have of coun- have effective assistаnce prieties; upon sel It calls us to at the trial itself. (2) present, had his attorney been substantial potential whether analyze investigators of cross-examination the rights inheres prejudice to defendant’s exemp- to the circumstances in which and the abili- particular confrontation taken, possible including lars coer- preju- ty help avoid of counsel produce inaccu- tending cion or factors dice.21 person- racy, grounded could have been knowledge; al have concluded On balance we (3) attorney, had he Roberts’ been its refusal to court erred superior le- present, could have bolstered Roberts’ present allow counsel to be Houston’s gal understanding so he could make We examination. psychiatric court-ordered intelligent an decision about whether to guarantee of effective as that the believe stage; yield exemplars at that by Alaska’s of counsel afforded sistance (4) might pros- have forced counsel Hous presence of constitution order, thereby court ecutor to seek a test- attorney throughout ton’s ing questions raised under Criminal by conducted which was interview 26(b)(3) Rule and Alaska Constitution ar- In so hold government’s expert witness. I, yielding exemplars. ticle 9 before § by reasoning of ing, persuaded we are Id. at 343-44. Corbin, Lee, Shepard cases which spirit actual are close to the first two rea- find Houston contends Roberts, rulings of this court in Blue and sons this in Roberts for by court rights implicated22 are best finding giving handwriting and that of 12.2(c) pro- 218, 227, Wade, But see which 388 U.S. sion. Fed.R.Crim.P. United States 1926, 1932, S.Ct. L.Ed.2d vides: appropri- Psychiatric In an examination. earlier, 22. As mentioned Houston does not base may, upon of the motion ate case attorney presence counsel claim to the of on the government, de- order Therefore, privilege against self-incrimination. psychiatric examina- fendant to submit to a case we have concluded that present this does pur- psychiatrist designated by this for tion pose appropriate occasion discussion court. No statement in the order of the impact privilege against of the self-in- in the course made the accused during upon the counsel crimination psychiatric privilege’s significance need for rule, provided wheth- examination interview for discussion without be with or er the examination shall deci- in the bifurcation deadly protected necessary repel force was by recognition need for the counsel at exami- If danger, manslaughter. guilty he nation which is conducted state wit- you doubt about this have a reasonable We ness.23 thus conclude that the belief, give must you actual defend- to allow court erred in its refusal Houston’s of that doubt ant the benefit and find during present to be manslaughter guilty rather than interview which Dr. Rad- was conducted degree second murder. er. Basically, asserts that in- We deem appropriate point it at this jury structions that were were psychiatric to allude to another facet they did not inadequate in that inform the presented appeal. interview issues in this self-defense, jury that his of if claim even We think future all such imperfect, e., i. based on unreasonable be- tape interviews should be recorded in their lief, charge manslaugh- reduce the entirety. This requirement will aid in at is, argues ter. That he his unreasonable taining goal accuracy and, of in the trial reaching belief was that Burwell for in the discretion of the defendant and his counsel, weapon and that he acted in self-defense potentially adequate offers a alter native to the physical negates defense of malice element during the psychiatric interview. degree a conviction of murder. second еrror, In his specification final Hous- of the court’s Our review instruc ton contends that the court erred persuades tions us that the essential ele refusing in give following instruc- degree ments of murder second and man tion: slaughter appropriately were delineated for However, you if that the find defend- jury. Thus, existing the basis of on ant grounds did not have reasonable law, believe that he in criminal our danger imminent statutes and own case bodily of death or serious harm and that find no error in the court’s give refusal to deadly necessary force to repel such this instruction.24 danger, the is defendant not necessarily Reversed and remanded a new in trial guilty of degree second murder. If the conformity opinion. with this though actually unreasonably believed that in danger he was imminent bodily

of death MATTHEWS, J., or serious harm part. and that dissents in accused, the consent of the in evidence shall be admitted whether or similar not a rule to Fed.R.Crim.P. accused 12.2(c) on the issue adopted, whether intimidation guilt proceeding. in criminal present, coercion is the role of defense counsel Edney Smith, In United States ex rel. at the interview could well be al- F.Supp. (E.D.N.Y.1976), the court tered. observed: Provisions such as Rule 12.2 of the Federal legislature In 1978 Alaska’s enacted a new Rules of Criminal Procedure are common in Criminal Code which to become effective on Note, state law. See Miranda on the January 1, 11.41.115(d) 1980. Section Approach Couch—An crimination, to Problems of Self-In- provides: new code Counsel, Right to and Miranda 100(a)(1) In a under § Warnings Psychiatric in Pre-Trial Examina- 110(a)(1) chapter, of this it is an affirmative Defendants, tions of Criminal 11 Colum. that, act, at the time of the homicidal J.Law & Soc.Probs. n.18 honestly unreasonably the defendant but be- 23. The context in which issue has been that, lieved circumstances unnecessary raised has made it for us to at- be, they they had been believed them as he tempt to sketch the contours of the role de- justification would have constituted play fense counsel will view. For the inter- killing under AS 11.81.300—11.81.430. present, we deem it sufficient to specifies Section 11.81.335 the circumstances that, part, observe for the most we believe the deadly under which the force in self-de- use passive defense counsel’s role will be in nature. appropriate. fense is recognized, It though, depending on bifurcated, such factors as the trial is whether Justice, dissenting part. MATTHEWS, juror could view no reasonable my that he was belief

conclude that Houston’s physical in- danger serious immediate belief. Therefore

jury was a reasonable de-

my there was no substantial opinion com- and no error was

fense on the merits all bifurcating the trial. On

mitted agreement with the

other issues I am for a

majority opinion. I would remand insanity.

new the issue of solely trial on ‍​‌​​​​​‌‌​​‌‌‌‌​‌‌​​‌‌‌​​‌​​​​​​‌​​​‌‌‌​‌​​​‌​​​‍Defender, Public Fair- Hagey,

John Asst. Shortell, Defender, banks, Public and Brian appellant. Anchorage, for Fairbanks, Davis, Atty., Harry Dist. L. Gross, Gen., Juneau, Atty. M. and Avrum appellee. RABINOWITZ, J.,C. Before CON- NOR, BOOCHEVER, BURKE and MAT- THEWS, JJ. BAKER, Appellant, Ishmael OPINION Alaska, Appellee. PER CURIAM. STATE of man, Ishmael twenty-four year A old No. 4631. Baker, sitting phonograph booth in at a Fairbanks, A library Alaska.1 public Supreme Alaska. Court of up to him and asked year boy six old came 16, 1979. Nov. boy’s paper cut-out him if he had seen the cat, which was mislaid. cat. He not seen the

Baker said he had set him down on a boy up and picked the began tickling him booth and shelf of the boy’s pulled He shirt about the midriff. penis. fly, tickled up, unzipped by, looking for mother came boy’s head above the side boy’s him. She saw When he and called him. booth her, ap- she immediately come to did put boy and she Baker down proached; fly un- her mussed and saw child’s clothes zipped. wrongdoing. He

Baker denied committing and lascivi- lewd indicted for child, of AS 11.15.- violation ous act on a by jury He was tried and convicted 134.2 11.15.134(a) breathalyzer provides: within 2. AS 1. Baker was test approximately hour the occurrence. one yielded percent The test a result .21 blood person A who lewd or lascivious commits act, constituting alcohol. including act another

Case Details

Case Name: Houston v. State

Court Name: Alaska Supreme Court

Date Published: Nov 16, 1979

Citation: 602 P.2d 784

Docket Number: 3339

Court Abbreviation: Alaska