Martin Watters v. Ronald Hubbard

to turn He directed Mrs. Smith agreed. KEITH, Before KENNEDY and WELL she and alley. When refused down FORD, Judges. Circuit car, raped leave the he asked Watters to WELLFORD, her, fled. purse, took from her and Judge. money Circuit picture from Both women selected Watters’ During Martin Watters was photographic array, positively a and each Ohio, a charged County, in Summit with No challenge identified him in court. law, including seven count violation Ohio procedure. to the identification robbery aggravated two counts of and rape, at trial was only real defense raised robbery, kidnapping. and He entered Watters insanity. introduced plea guilty of not and also guilty Ramani, of Drs. and two Gunther insanity, reason of but after trial the who had ex- appointed psychiatrists, guilty found him on five of the seven prior amined him trial. Both concluded counts. The Ohio Court of re- Appeals was insane at the time of Watters conviction, kidnapping versed the but af- offenses. Each doctor testified that rape, robbery aggravated firmed the to a his conclusion had relied reaching robbery convictions. Watters thereafter considerable extent admissions sought appeal Supreme leave to to the during made Watters the course guilt Ohio, sponte court sua Court of but the examinations. The psychiatric appeal dismissed the for want of substan- to cross-examine permitted tion was question. tial constitutional Watters’ admissions psychiatrists about corpus Watters next filed for habeas re- Watters contends violated Ohio guilt. (1) lief in the federal district court alleging statutory law and his the state court violated his Fifth self-incrimination. privilege against privilege against Amendment self-incrimi- statutory language which by permitting examining nation two The Ohio psychi- effect to cites1 is similar its testify inculpatory atrists to as to state- 4244 which deals by appellant psychiatric language ments made 18 U.S.C. § examinations, of defendants (2) process rights his due examination in federal incompetence mental by allocating claiming were violated him bur- Appellant 2945.39(D) time of the commission relies O.R.C. condition § provides: against in evidence the offense shall used him No statement made in an hearing relating examination or to his mental Nevertheless, inculpatory courts. tions inherent evidence examining is based on state and mere violation of psychiatrists. admissions to See cognizable ground Zahradnick, a state statute as a (4th e.g, Gibson v. 581 F.2d 75 for federal habeas relief. Bohle, Combs Cir.1978); United States Tennessee, Cir.), (7th Cir.1971); Baird, United States denied, 954, 1731, 425 96 48 U.S. 700; (2d Cir.1969), 414 F.2d 396 (1976). 198 note We also the state 1005, 559, 90 S.Ct. 24 L.Ed.2d U.S. 497 psychiatrist’s court found (1970); Albright, v. 388 United States F.2d statements were admitted “on not the issue (4th Cir.1968). 719 we are Consequently, statute, guilt”, prohibited as by the state persuaded by appellant’s claim that he but to show psychiatrists’ the bases specific was “without the tools to make a conclusions that was insane. objection” Supreme until the Court’s deci 454, v. sion Estelle 451 U.S. 101 Appeals The Ohio Court of further 1866, (1981). 68 Engle L.Ed.2d 359 Cf. found Watters waived Fifth Isaac, (“cause” by v. not established Amendment issue by failing spe to make novelty prior since decisions could have sup objection, cific as under Ohio ported petitioner’s on argument allocation that the prosecutor’s questions violated his fact, proof). of burden of it appears that privilege against self incrimination.2 This appellant briefed his constitutional argu procedural default bars federal habeas re ment to the of Appeals prior Ohio Court view a showing absent of both “cause” to v. the decision Estelle Smith. “Cause” prejudice” excuse the default and “actual procedural for the default cannot be based Isaac, 107, petitioner. Engle v. 456 U.S. alleged in this on the novelty case of the 1558, (1982); 102 S.Ct. 71 L.Ed.2d 783 For claim. Marshall, (6th nash v. Cir. 1982); Sowders, 264, Hollin v. We also conclude that “actual preju Cir.1983). procedural dice” from the default cannot be Appellant belatedly seeks to establish appellant’s privilege against shown because “cause” for the default as- self-inerimination was not violated. The serting that his is so novel it relies, principal case on which Watters Es could not have at been foreseen the time of Smith, supra, telle v. does support his prejudice,” contends, trial. “Actual claim. The trial v. court Estelle Smith self-evident. that Assuming argument’s had ordered a examination of novelty may constitute proce- “cause” to determine competency his default, dural we that find the cases cited being to stand trial. After found compe by appellant do not support a claim. novelty tent, tried and convicted of cases, others, Those same also indicate During stage murder. the punishment appellant’s argument that on fails the mer- presented the bifurcated the state di

its; therefore, he has not demonstrated psychiatrist rect from the in or prejudice by reason of the procedural de- der describe the defendant’s act mur fault. der and to show the his lack of re morse. authority

The case cited Watters Grigson beyond shows that the time of his trial Dr. went simply several [When] reporting federal circuit courts years had for some court on issue of recognized implica- the Fifth Amendment competence and testified for 2. This court must accord a presumption non-specific of cor Defense counsel made several finding rectness jections during factual the Ohio both cross-examinations. At Appeals specific objec Court to which time, suggest even did counsel 2254(d); tions were not made. 28 U.S.C. § prosecutor’s questions infringed Mata, Sumner v. 101 S.Ct. rights. petitioner’s con- Rose, L.Ed.2d 722 LaVallee v. Delle object- that defense counsel was text indicates U.S. 93 S.Ct. hearsay grounds such presumption. The record does not rebut Gibson, trial. prior crucial made Gibson penalty phase tion at the Indeed, added). dangerous- (emphasis respondent’s future significant ness, recognized the and became essen- court in Gibson changed his role prosecution between the submit- tially agent like that difference made in “indicative of the defendant’s recounting ting unwarned evidence setting. postarrest directly custodial evidence relat- rather than sanity” purpose submitted for the sole to and ed Smith, 451 Estelle Id.; establishing see also United Supreme at 1875. The Court held supra. Albright, States psychiatrist’s was introduced bring even to punishment, order enhance position on this issue Finally, appellant’s compa- about a which was capital penalty, in the recent deci rejected very introducing rable to it for sion of of proving The Court held admission denied, — Cir.1983), F.2d 1408 a viola- the for this purpose —, 78 L.Ed.2d tion of the Fifth Amendment. The Court habeas (1983). Noggle involved a the indicated, psychiatrist’s that if claimed, alia, that the inter petitioner who the exploring had been limited his Fifth had violated Ohio have competency, defendant’s there would Amendment rebuttal tes rights by allowing violation. Id. at examining psychiatrist. from an timony 101 S.Ct. at 1874. petition district court denied the The Smith, the situation in Estelle v. Unlike sequence The specific affirmed. this court undergo was not compelled fully in this court’s events set out of He the is psychiatric examination. raised opinion: sue of Drs. Gunther and insanity himself. used two of the medical defense [T]he acting agents Ramani were not as Noggle interviewed be- experts who had fact, they appeared state. witnesses witnesses, Weitman, trial as Doctor fore for the appellant’s defense substantiate Vincencio, a psy- and Doctor psychologist, compul claim The elements of insanity. of on reported The two doctors chiatrist. the setting, sion and custodial led to of Noggle, result of their evaluation the are not simply decision in Estelle his detailing family history and “dis- the present in this case. subjected state” mental that associative Estelle, Also evi- challenged high-stress unlike the situa- spells him blank dence in this case not admitted for the Noggle testified that experts tions. Both guilt en- purpose proving of the defense’s response insane in the hancing punishment. assumed, his As found question that hypothetical state court and the district court determination, purpose sanity of below, brought admissions were Watters’ been a in the Noggle participant that during psy- out cross-examinations of the inquire defense did not stabbing. The of probe chiatrists in order to bases any Noggle had made to into their conclusions that he was insane at concerning two the crime. doctors Having the de- time the crimes. raised cross-examination, and over On insanity, fense reason guilty by of not unspecified jection by defense counsel when the state complain Watters cannot the two doctors narrated “privilege,” tests validity expert opinions had related to each them Noggle what which he relies. killing his in the participation about that Grauer, including his statement Mr. Zahrad- Appellant also relies on Gibson v. the victim at least once. he had stabbed nich, again but the case does once rebuttal, called third support position. psychiatrist his On defense, Dr. Res- consulted expert who was called had examined Gibson objection to Dr. Res- solely state and “offered nick. defense testimony, precluded by phy- proving statement” nick’s [the] sician-patient privilege provided under such evidence should be permitted Ohio was overruled. Dr. Resnick affect the jury’s determination that testified that “defendant’s own issue to any greater extent than is inher- words, actions, description his his his ent in an insanity plea which unavoidably behavior is the single important most may contain an admission that defendant formation in addition to the background did the act under but circumstances for material on which my base conclu- [to] which he is not responsible. sion.” He narrated in detail statements Thus it was permissible for the made to by Noggle him during the course tion to have cross-examined the defense- interview, including his Noggle’s state- called psychiatrist respect to incul- ment had stabbed the victim. patory statements The prosecution brought out upon by expert relied in formu- testimony of this witness that a psychia- lating his opinion on the issue of the trist cannot tell the truth of such state- defendant’s insanity. Those statements ments, Dr. Resnick stating: “There is no should have been disclosed on direct-ex- certain way that the psychiatrist can tell amination eliciting before the veracity of the statements. There 9Additionally, in contrast to Fed.R.Evid. are possibilities, two one is patient requires expert witness to disclose the consciously lying or distorting, and the underlying facts which an is based other is that his own memory is impaired giving opinion: before by, case, in drugs alcohol, or so he RULE 705. Disclosure facts or Data Un- derlying Expert Opinion. does not have a clear recollection.” On expert may testify in terms of or cross-examination defendant’s counsel give inference and his reasons therefore after had repeat Dr. Resnick the defend- underlying disclosure of the facts or data. ant him he told had no intention of may response disclosure to hypothetical question [Empha- or otherwise. Grauer, killing Mr. to and restate that sis added.] way there no absolutely to tell whether (emphasis added). We Noggle, any patient, telling was it find difficult distinguish this case from truth or lying about the events. Noggle and its rationale. The state is enti- (footnote 706 F.2d at 1411 omitted). In tled to delve into a expert’s defense basis considering alleged Fifth Amendment for concluding that the defendant is insane violation, Judge Nies discussed Gibson v. not thus accountable for the conse- Zahradnick, supra, and Estelle v. quences of his conduct. an Such examina- cases, as well as other and concluded: tion into the a psychiatric opinion basis of We do precedent, not draw from this necessarily must cover the factors or ele- however, a conclusion that the scope of ments that comprise the foundation of that cross-examination of defense-called medi- case, In this Noggle, it is experts cal is constitutionally proscribed clear that what the defendant said about per respect se with to inculpatory state- his criminal acts and the in- circumstances ments. The State is entitled test the volved were important factors in the con- validity of an expert’s opinion.9 Never- clusions of insanity by reached Drs. Gun- theless, contrary the District Court’s ther and Ramani. view, we conclude that Fifth Amendment Watters also asserts as error

rights are relevant even after a defend- court’s failure to give precautionary ant calls his own medical experts structions, sponte, psychia- sua after stand, with respect to the issue of his trists’ testimony was admitted. That same commission of the acts. Evidence of a rejected this court by defendant’s inculpatory statements dur- Noggle: examination cannot be prove admitted hold To other- Such an instruction is of debatable effec- wise tiveness, would make the privilege against the de- always by desired illusory. Moreover, self-incrimination fendant, entirely cannot erase clearly situation, it is in this instruction desirable jur- the minds of the from Thus, in the constitutionally mandated. balancing best a device ors. It is at for such a request specific and the defendant. absence interests instruction, there has been event, an where limiting while such instruction any cases, essentially some we do Watters’ contention necessary in fair may be appellant the failure of the trial estab- prevail. not conclude that cannot Since instruction, preju- “actual sponte, sua neither for nor judge give lished “cause” default, testi- following expert’s federal immediately from his dice” guarantee un- denied on mony properly relief was habeas against self-in- der the Fifth Amendment claim. an instruction crimination. Whether that the raises the claim Appellant also test- given appropriately is more must be by reason of proving insanity burden is, process, ed due standards of impermissibly impulse” “irresistable general test of fair- more nebulous context of a In the upon cast him.3 whole. ness of the trial as a defense, the alloca- McNaughten insanity F.2d at forward with going tion of burden of request special no for a has been

There was the evidence Oregon, made limiting Leland upheld as constitutional. Drs. time of the cross-examination of 96 L.Ed. 1302 Perini, agree We with the Gunther and Ramani. Krzeminski v. See also Zahradnick, supra, (6th Cir.1980). Court Gibson instructions should be prompt precautionary Here, counsel again, given when evidence of admissions to a objection at trial to the instruc are admitted so that testifying psychiatrist regard, given jury in this tions pur be alerted to limited court: noted pose testimony. Noggle, of such As how ever, the failure of the trial court sua jury, follow- charged The trial court sponte such an not a give instruction is 2901.05(A),that language the of R.C. violation, if we are satisfied of proving the had the burden about the fairness of the taken as a insanity aby his affirmative defense whole. the evidence. No preponderance of jection made to this instruction and was then, In summary we find that there was is, therefore, it waived. impediment no federal constitutional to the addition, previously court has de- appellant’s of the In this psychiatrists permissi- constitutionally admitted cided that it is Watters had the offenses charged, place proving ble to the burden insani- which he was where the evi- Howze, v. upon not for the the defendant. State ty dence was admitted 41, 420 N.E.2d (1979), App.2d test 66 showing guilt, but cross-examine and Ohio reject as to bases for their We adhere to psychiatrists Further, expert assignment error. opinions. limiting appellant’s while a seventh “proof provides perti- tions of doubt” and be- 3. Ohio 2901.05 “reasonable § Rev.Code doubt,” part: yond nent contained in divi- a reasonable (D) (A) Every person sion of this section. accused of an offense section, presumed proven guilty (C) until be- an “affirmative innocent As used in this n doubt, yond following: a reasonable the burden of of the defense” is either proof upon for all elements of offense is (1) expressly designated as affirm- A defense prosecution. going burden The for- ative; ward with the evidence fense, an affirmative de- involving justifi- (2) an excuse or A defense proof, by prepon- and the burden of knowledge peculiarly cation within evidence, derance an affirmative accused, fairly required he can on which defense, the accused. supporting to adduce evidence. (B) part charge As of its in a case, the court shall criminal read the defini-

387 prove guilt, We find that failure of but rather to show basis objec a contemporaneous psychiatrists’ opinion counsel make that Watters was unpersuaded argu- tion at trial the instructions now com I am insane. this plained about on was a appeal to the psychiatrists’ ment. default under Ohio and that the Ohio jury prejudicial were and incrimina- highly appellate court’s affirmance of Watters’ fact, ting. these statements amounted substantially conviction was on this based other Certainly to a confession. there were procedural deficiency. Wainwright See v. show a ways psychiatrists’ basis for the 72, 2497, 53 Sykes, 433 97 U.S. sanity. conclusions (1977); Sowders, Hockenbury 594 v. 620 concerning statement 111, (6th Cir.1980); F.2d 115 Hollin Sow the commission the crime should have ders, supra. testi psychiatrists’ been omitted from furthermore, given, The instruction It mony. possible would have been have has not been have demonstrated to shown basis for the psychiatrists’ conclu erroneous under Ohio law at the time. See confession, including sions without “I Seliskar, 95, State v. Ohio St.2d 298 raped the woman.” As the stated in Poole, N.E.2d 582 Cohen, United States v. 47-48 294 N.E.2d St.2d Indeed an (5th Cir.), identical challenge to Ohio conviction (1976): rejected on the merits this Court We choose to permit compelled psy- ... Marshall, the recent case of Howze v. chiatric examinations when a defendant Cir.1983). Accordingly, we raised insanity defense. Since issue, find no merit in appellant’s second any statement about itself offense challenge to the given instructions be suppressed, forbidding could a rule insanity Watters’ claim of because al compelled examinations would prevent legedly acted impulse.” “irresistible (emphasis added). threatened evil Appellant’s petition properly denied. least, the very At fundamental fairness We therefore judgment AFFIRM the special cautionary af- respects. the trial court in all ter psychiatrists’ sub- into disagree mitted evidence. I with the KEITH, Judge, dissenting. Circuit Court’s statement Because I believe that the defendant’s which was relied upon panel, privilege fifth amendment against self-in- cautionary and in effect said that such crimination was violated when state questionable structions are of effectiveness. court admitted the psychiatrists’ testimony The importance 706 F.2d 1417. of giving inculpatory recited cautionary jury instruction to a cannot be guilt, went the issue of I respectfully overemphasized. As the Fifth Circuit stat- dissent. Zahradnick, ed in supra: Gibson It is rudimentary that a psychiatrist’s necessary in some cases for [i]t against is inadmissible defend psychiatrist, testifying on the issue ant on the issue guilt. Estelle v. sanity, to disclose activity the criminal 454, 101 68 L.Ed.2d 359 defendant, but, related him the (1981); Noggle v. event, prompt strong cautionary (6th Cir.1983), denied, — U.S. —, cert. instructions are that such testi- Gib must not be mony considered Zahradnick, son 581 F.2d Cir.), 79. psychiatrists Both tes raped tified told them “I The trial court’s to give failure such an majority holds, light woman.” na- psychiatrists’ testimony, was admitted ture of anwas magnitude vio- error privi- fifth amendment

lated defendant’s against

lege self-incrimination. the district I would reverse

Accordingly, new for a trial.

court’s decision and remand

Deogracias RUIZ, Plaintiff-Appellant, DE-

SHELBY COUNTY SHERIFF’S

PARTMENT, Defendant-Appellee.

No. 82-5456. Appeals, Court of

United States Circuit.

Sixth 15, 1983. Nov.

Submitted

Decided Jan.

Case Details

Case Name: Martin Watters v. Ronald Hubbard

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 16, 1984

Citation: 725 F.2d 381

Docket Number: 83-3044

Court Abbreviation: 6th Cir.