*1 (No. 49515 . ILLINOIS, OF OF THE STATE Appellee, PEOPLE
THE LARSEN, SCOTT Appellant. RAYMOND January 1979. Opinion filed KLUCZYNSKI, J., part. took no *2 GOLDENHERSH,
CLARK, J., C.J., and dissenting. Defender, Public and D. Doherty, Richard James J. Kharas, Defender, Assistant Public of for appel- Chicago, lant. Scott, General,
William of and Attorney Springfield, J. Bernard State’s of Carey, Attorney, B. Chicago (Donald General, Assistant Mackay, Lee Attorney and Chicago, Madden, T. Michael and Patrick T. Hettinger, John Driscoll, Assistant State’s Jr., Attorneys, counsel), the People.
MR. WARD the the delivered opinion JUSTICE court: Scott convicted of murder Larsen was
Raymond (Ill. Rev. Stat. ch. trial bench par. 1) following 9 — in the circuit court of and to a Cook sentenced County, term to 300 of 100 years’ imprisonment. appellate court affirmed Ill. and we the App. granted defendant’s for leave to Ill. R. petition appeal (58 315).
The facts of the are case set out in the fuUy appellate and will be restated to the extent opinion, only on this The defendant necessary admitted appeal. having the committed but homicide relied affirmative upon defense of time of insanity slaying. (The earlier defendant had examined been Dr. Robert Reifman and found fit stand to filed a trial.) People to submit
written motion defendant pretrial require to examination Rev. psychiatrist State-designated (Ill. Stat. ch. There was one day’s delay par. 6). 115 — on between the motion and entry hearing People’s it, order allowing permit designation the date At the and examination. psychiatrist place intention an order the court indicated its to enter hearing, the motion furnished the upon granting being pertinent assistant State’s information prosecution, name, “I stated: will inform counsel of the Attorney time, likes, if he examina location and tion. At this time I have not set it The order was up.” entered following August (the day), appointing Reifman, Dr. Robert director of the assistant Psychiatric conduct Institute of the Circuit Court of Cook County, “on on date an examination any August such examination.” The necessary subsequent, complete notice defendant’s counsel did receive of the location time, or of name of psychiatrist prior *3 examination, was on which conducted 1973. August trial, the of his At the defendant offered testimony Dr. Marvin who was the opinion psychiatrist, Ziporyn, that defendant suffered from brain syndrome organic Dr. with cerebral trauma. associated Ziporyn’s response the defendant’s life a hypothetical question incorporating was had behavior that and history hypothetical person defect, a mental that he had the appreciate capacity conduct, that lacked substantial of his but criminality to the his conduct to conform requirements capacity addition, In was law. lay testimony given concerning childhood circumstances defendant’s unhappy defense. of the insanity support examina- the court-ordered Based upon tion, rebuttal Dr. testified for the on People Reifman but the defendant had an antisocial personality, ato He brain responded from syndrome. suffering organic the defendant’s life hypothetical question experi- positing ence and activities that such a did person concluding not suffer from a mental defect or disease and had substantial his conduct conform to the capacity of the and law requirement appreciate criminality his The conduct. offered evidence that defend- People ant had no while and problems disciplinary living working within a minimum area of the from security penitentiary which he had been behavior at the good furloughed time of the murder. A witness also testified prosecution as to remarks the defendant had made while a rifle and taking her from on the money apartment of the gunpoint day which was offered to show he killing, appreciated of his conduct. criminality raised principal questions defendant are our whether Rule 413
(1) Ill. 2d R. requires 413) the defendant and his counsel be reasonable notice given of the time and of the ordered place examina tion, and whether (2) court-appointed psychiatrist’s awas “critical stage” prosecution entitled the defendant of counsel. Rule 413 reads in part: “(a) person of the accused. Notwithstanding judicial
initiation of proceedings, subject to constitu- limitations, tional judicial may officer require the accused, among other to: things,
[*] [*] [*] (ix) physical submit to a reasonable or medical inspection body. of his
(b) personal Whenever the appearance of the ac cused is required purposes, for the foregoing reasonable notice of the place time of such appearance shall be counsel, given by the State to the accused who ***” shall have the to be present. 58 Ill. R. 413. *4 The defendant contends that the examina- psychiatric tion ordered on the motion and People’s conducted aby of the psychiatrist awas People’s “medical choosing so, If is he the rule body.” inspection argues, its reasonable notice of time and as place, requires giving well as the his counsel. conferring however, not, We that the do consider exami psychiatric nation was a “medical of the contem type inspection” the rule. The to order a plated by authority specific examination for the People’s purposes of an accused’s mental condi ascertainment independent occurrence, tion the reference to at time of a criminal with the affirmative defense of not founded on Rule insanity, the but Section 115 — 6 of on statute. Code ch. Criminal Procedure of 1963 Rev. Stat. (Ill. par. 6) provides: 115 — Psychiatrist. If the has
“Appointment defendant may rely upon insanity the defense of given notice that he *** justify a and circumstances case if facts may defenses belief the aforesaid reasonable raised, shall, State, on motion of order Court one to examination least defendant submit attorney. prosecuting psychiatrist, be named *** experts shall be made available to reports of such Any statements defendant to such defense. made defendant experts against be admissible shall not *** insanity case defense of in which unless he raises the only on the issue of whether they shall be admissible ***.” was insane in statute has provided expressly legislature to the defense. It is available be made
that experts’ reports was made by that no legislature provision significant at the examination. It is of counsel for the presence not Rule 413 that establishes the statute and procedures to a court-ordered criminal with respect proceeding it motion when examination on People’s defense affirmative raise the that a defendant may appears under bemay required The submissions of insanity. to the presence Rule which give 413(a), evi- relate to physical under obviously counsel 413(b), *5 353 one of the is not den ce. A mental examination possible it is in Rule and enumerated 413(a), clearly submissions “medical not intended to inspection comprehended in rule. This is used as term his body” reference is to fact made illustrated by specific Rule and examinations” in correlatively “mental 413(c), other discovery, Rule reciprocal among allowing 412(a)(iv) examinations” tests, of of “mental any expert reports written motion. upon contends that Dr. Reifman’s
The defendant also a critical examination constituted stage and rise to a constitutional prosecutorial gave proceedings v. of counsel. United States Wade right presence 218, 1926, 1149, S. Ct. 388 L. Ed. 87 U.S. 18 2d (1967), 695, and v. Corcoran Cir. 407 Thornton F.2d (D.C. Wade, In are cited as this Supreme supporting position. due to its Court held that a lineup, post-indictment inherent and suggestability grave potential prejudice, raised, was such a When the issue is critical stage. said, Court a must whether Supreme “analyze defendant’s substantial to inheres potential rights prejudice in the confrontation and counsel ability particular 218, 227, L. to U.S. avoid that help prejudice.” (388 1157, 1926, 1149, Ed. 87 S. Ct. purpose 2d critical counsel’s at any underlying a fair is “to the defendant’s basic stage preserve trial to cross-examine as affected by right meaningfully have effective witnesses him assistance against Wade the trial itself.” United States v. counsel 87 S. Ed. 388 U.S. L. (1967), 1926, 1932. Ct.
In Thornton Corcoran F.2d (D.C. a of mandamus writ directing petitioner sought his counsel the district court to issue an order permitting conference to attend staff hospital psychiatrist to stand trial concerning petitioner’s competency his mental condition at the time of the offense he allegedly committed. The court refused issue the writ saying dicta, mandamus was not an ha appropriate remedy, however, the court observed that the claim was petitioner’s but frivolous.” In “anything (See 698-702.) then Circuit separate opinion, Judge Burger disagreed with dicta. staff conference to a hospital Likening Civil Commission Hannah v. Rights investigation (see Larche 363 U.S. 4 L. Ed. 80 S. Ct. “ *6 he stated that it ‘is 1502), purely investigative It does does It not hold trials adjudicate. fact-finding. or determine civil criminal or It does not anyone’s liability. indict, issue orders. Nor does it or any punish, impose legal sanctions. It does not make determinations depriving *** life, of his In short anyone liberty, property. [it] does not and affirmative action which will cannot take any affect an The of its only individual’s purpose legal rights. 420, 441, ***.’ existence is to find facts U.S. 4 L. [363 ” Ed. 80 S. Ct. (407 F.2d 1514.] he further And noted: “There is no basis legal equating Medical to a ‘confrontation’ Staff Conference either within the in the traditional sense or cases only Those apply Wade-Gilbert. meaning vice of The to critical requiring stages. prosecutive to be conducted as a sensitive process diagnostic matter it were an seems too adversary though need The obvious to discussion. value of that is undermined which inhibits process by anything views; the free of the exchange integrity makes The presence process privacy imperative. for the at a staff conference lawyer patient the free would inhibit expression obviously of ideas occurs. The normally which exchange *** is the to cross check on the power processes ***. examine
355 is unsuited method inquiry legal Medi- conducted. to be the medical investigation not be inhibited should cal procedures diagnostic ‘due pro- notions non-medical procedural with the consonant it is far more Indeed cess.’ Doctor between existing relationship sympathetic divested the medical inquiry and patient character. Our of an adversary as much as possible an attitude of should cooper- approach encourage must be ation rather than emphasis partisanship; unin- for an objective, on the common pursuit uncluttered by techniques hibited inquiry, 407 courtroom.” F.2d and devices 711. have considered the of courts majority great to Thornton have held both subsequent prior
question at the to have counsel there is no present v. United States examination. These decisions include: v. 22; United States Cir. 495 F.2d Trapnell (2d 1974), denied cert. Greene Cir. F.2d 1974), (7th 828; 95 S. Ct. Ed. L. U.S. Cir. ex rel. Stukes Shovlin (3d United States 1211; v. Mattson States (9th United *7 986, 36 L. Ed. 1234, 410 U.S. cert. denied F.2d (1973), 1513; v. Smith Cir. 183, 93 S. Ct. United States (5th 2d Bohle Cir. 787; States v. 436 United (7th F.2d 1971), 54; Cir. v. Baird 1969), United States (2d 445 F.2d 1971), 1005, L. 700, denied 396 U.S. 24 414 cert. (1970), F.2d v. 559; ex rel. Wax States 497, United 90 S. Ct. Ed. 2d 498, cert. denied 409 (1969), Cir. Pate F.2d (7th 1969), 83; 81, United States 830, 90 S. Ct. L. Ed. 396 U.S. 2d 24 719; v. United States 388 v. Albright (4th 160; F. People Supp. Fletcher 329 (D.D.C. 215, 407, cert. 386 Mich. 192 N.W.2d Martin (1971), 342, 929, S. Ct. 33 L. Ed. 92 408 U.S. 2d denied (1972), 763; 3, 45 210 A.2d 2505; v. Whitlow State (1965), N.J. 356 23,
State v. Wilson Ohio 26 (1971), App. 2d 268 N.E.2d 814; 535, Commonwealth v. Stukes 435 Pa. (1969), 257 There have been decisions: Lee v. A.2d 828. contrary 432, 452, Court County 27 N.Y.2d (1971), 267 N.E.2d cert. denied L. Ed. U.S. S. (1971), Ct. 46 role limited to In re (counsel’s passive observer); 63 Cal. Spencer 46 Cal. P.2d certain suf Rptr. held procedural (but safeguards ficient to exclusion of counsel at justify examination).
A examination is to be from distinguished a An lineup. by qualified, court-appointed is not and it does not expert inherently suggestive, ordinarily substantial pose grave potential prejudice. We consider that the defendant’s were adequately rights to his own by safeguarded opportunity present expert trial, at to cross-examine Dr. Reif testimony conclusions, man as to his methodology defendant’s statements statutory prohibition against admitted into evidence on other than his issue any being affirmative defense of Rev. ch. Stat. insanity (Ill. We do find in the record to par. 6). anything 115 — that the of the defendant’s counsel was suggest a fair to insure his to trial. required There are also contentions the defendant that the assistant made a State’s Attorney “specific promise,” motion, on the notice of the time and give hearing the name of the the examination and place psychiatrist, the defendant from and that was prevented receiving benefit of counsel’s advice examination. prior counsel of the assistant State’s offer to “inform Attorney’s likes,” name, time, conditional at location and if he was record, and must deemed best be waived. According so no made the defendant’s attorney request because does not show advised. The record any prejudice had indicated at the The court there was no notification. allowed, and the that the State’s motion would be hearing *8 that the exami- order, day, provided following signed at least one week conducted until nation was not to be circumstances, entered. after the order was Considering the defendant to have for there was adequate opportunity consulted with his attorney. of
For the reasons appellate given judgment court is affirmed.
Judgment affirmed. in MR. took no KLUCZYNSKI part JUSTICE this case. consideration or decision of CLARK, MR. dissenting: JUSTICE have been believe the below should I judgments circuit court. reversed and the remanded to the cause course, states correctly majority, for the examination to order authority mental of an accused’s ascertainment State’s “independent is found occurrence” of a criminal at the time condition of 1963 Procedure of Criminal of the Code section 115 — 6 Ill. ch. Rev. Stat. par. 115-6). (74 (Ill. is whether here. The issue is not But that at 352.) germane of and reasonable notice entitled to the defendant of counsel at the pretrial of insanity. on the defense he rely once indicated would Ill. R. Our Rule 413) provides: Notwithstanding of the accused. “(a) person subject to constitu- judicial proceedings, initiation limitations, may require the judicial tional officer accused, other to: among things,
[*] [*] [*] or medical physical reasonable (ix) submit to a body. inspection (b) personal appearance Whenever the the accused notice required foregoing purposes, for the reasonable place appearance given such shall be the time and counsel, shall have accused and his who the State may be present. to be Provision made *9 appearances for purposes such in an order admitting the accused to or providing bail for his (Emphasis release.” added.)
The this rule plain evidences the intent to reading notice require of counsel whenever an presence accused must submit to a “medical of his inspection The body.” asserts majority Rule refers evidence I physical I do not believe only. the rule disagree. indicates an intention or be- implication distinguish tween medical and or psychiatric examination. inspection Webster’s Third New International Dictionary 1832 (1971) defines as “a branch of medicine psychiatry that deals with the science and mental, emotional, practice or treating behavioral ***.” Medical disorders encom- genetically passes psychiatric.
But more Rule 413 importantly, allows what the only (cid:127)sixth Const., amendment amend. (U.S. the VI) requires: of counsel presence at a examination, pretrial psychiatric or a substitute satisfactory because presence, examination is a critical In stage prosecution. United States v. Wade 388 U.S. 18 L. Ed. 2d 87 S. Ct. Court held that a Supreme post-indictment was a critical of the lineup stage pro- of counsel. ceedings Its ration- necessitating ale, here, which I find was that an accused pertinent “is need not stand alone guaranteed the State against at informal, formal any stage prosecution, in out, court or where counsel’s absence from might derogate the accused’s 218, 226, to a fair trial.” U.S. 1149, 1157, L. Ed. 87 S. Ct. The presence of counsel at the “is necessary the defendant’s preserve basic fair trial as affected by to cross-examine right meaningfully witness him and to have effective assistance of against Wade, counsel at 218, 227, the trial itself.” 388 U.S. 18 L. 1926, 1932; Comment, Ed. 87 S. Ct. Right an Mental Examination Pretrial to Counsel Accused, Pa. L. Rev. 448 118 U. (1970). examination, ordered nature of
The very motion, definition warrants a trial on State’s is The examination as a critical stage proceedings. Rev. that a adversary (Ill. State-appointed psychiatrist the tests asks the Stat. ch. 6) gives par. 115 — defendant not be confronted by A may questions. se, is State but the defendant prosecutor, per Moreover, confronted an State. appointed agent lulled that the a defendant into may believing psychia Louisell, & trist is Diamond Psychia impartial. (See Ruminations trist Witness: Some Specula as Expert tions, 1335, 1344 L. Rev. Mich. purpose (1965).) *10 evidence; be to of the examination may gather nevertheless, is of an charac the examination investigative statements, sometimes ter incriminating, get resulting the trier of fact testimony before ting through re Cal. 2d Spencer (In examining physician. 753, 46 Cal. This Rptr. P.2d 760.) cross-examination. leads to second point — effective cross-examination, a defense attorney For meaningful “have some must psychiatrist’s understanding “know the and and methodology diagnostic techniques” he able to followed if be challenge approach of the conclusions reached by effectively validity Couch, 11 state Miranda On the psychiatrist.” (Meister, & Soc. Prob. Colum. 445 (1975).) psychia- J.L. be theories must trist’s and comprehended techniques at trial. It is doubtful that before they may challenged this can anyone, attorney acquire compre- psychiatrist, conclusional, or other- hension from summary frequently examinations by wise inadequate reports examining see v. United an Calloway psychiatrists. example, (For This is to say States Cir. 270 F.2d (D.C. to limit access erected sometimes nothing impediments to such medical and institutional Thornton reports. Corcoran 695, 702-03; (D.C. Com ment, to Counsel at the Pretrial Right Mental Examination Accused, 118 U. Pa. L. Rev. 449 (1970).
A third consideration is the undue reliance possible by a trier of fact on evidence expert opinion examining psychiatrist. is not an exact Psychiatry science and evidence is derivative: only psychiatrist studies the mental state of a via the patient indirectly patient’s behavior. Such speech evidence is a necessity, but its usefulness is effective if we only recognize reliance on the of a “is testimony measured psychiatrist probability what has to offers more say information and better of the human comprehension behavior which the law wishes to understand. The psychia trist offers a or an hypothesis explaining” patient’s actions, accused’s and attaches value thoughts, feelings to them. But the such usefulness of “legal hypotheses values will less their scientific depend upon than precision their wisdom.” upon Louisell, & (Diamond The Psychia trist as an Witness: Expert Some Ruminations and Specula tions, Mich. L. Rev. In other 1342 (1965).) words, such however accurate testimony, and wise it may be, is value laden. It is so because the science is still and not understood imprecise, or embraced fully but the few many who only by “technical may possess of some For this reason the trier knowledge depth.” fact attach an credence may to such an overriding expert. *11 This is a defense, problem its own through and psychiatric cross-examination, experts through must so, contend with. To do the defense adequately attorney must be familiar with the thoroughly and hypotheses methods of the State-appointed psychiatrist.
The also notes that its majority correctly decision follows the view of most not all. jurisdictions Others —but to of counsel at a recognize right presence pretrial
361 v. Court examination. Lee County (E.g., 452, 432, denied cert. 27 267 N.E.2d N.Y.2d (1971), 46; 823, 50, In re L. Ed. S. Ct. 404 U.S. 30 92 2d (1971), 33, 400, 46 Cal. 406 Cal. P.2d Spencer (1965), 753; Cir. Schantz F.2d Eyman (9th Rptr. L. Ed. denied 397 U.S. cert. (1970), also v. Corcoran 90 S. Ct. See Thornton (D.C. 1259. re After previous appeals 695.) court, Court mands, the trial in Lee v. County ordered psychi pretrial 267 N.E.2d N.Y.2d counsel and the defense atric examination which both attend. advice of were On district attorney permitted examination, defendant refused to counsel on the answer his behavior day questions concerning were, crime; unable the psychiatrists accordingly, give state. On accused’s mental opinion regarding State, ordered the defendant’s motion of the court struck, his evi defense exclusion of insanity dence, of examination without new nonmedical York Court of New Appeals personnel. struck, ruled not have been the defense should defendant from psychi presenting although preventing issue atric evidence was acceptable. Turning examination, court held to counsel at the succinctly critical examinations are a because “pre-trial psychiatric of a crime under one accused prosecution stage rationale, is entitled to have the defendant Wade counsel make effective basic more present cross-examination.” 267 N.E.2d N.Y.2d that the also determined prosecuting the role counsel could attend and that attorney limited to observation. passive the Federal Ninth
In a habeas corpus proceeding, held that “the Circuit Court post-indictment Appeals on the a State psychiatrist questioning petitioner instructions, notice to and in without county attorney’s *12 counsel, the absence of violated petitioner’s at all critical of the criminal assistance of counsel stages Eyman him.” (Schantz (9th proceedings against Schantz was decided on the basis 418 F.2d 13.) Wade, above, but of United States v. in context of the amendment violation the fifth privilege preventing examination, not the an issue self-incrimination at against Schantz court apparently would allow raised here. (The at active role for counsel the examination.) entitled to but concluded that because petitioner counsel, his conviction could denied assistance of stand.
Thornton v. Corcoran Cir. 1969), F.2d (D.C. with cited also right, majority, recognized dicta, Thornton’s lends support qualification. reasoning, at the a counsel claim of a sixth amendment court was examination although pretrial psychiatric the “staff conference” itself (of specifically addressing examination follows which examining psychiatrists) dissent, In itself. Judge 699-703.) F.2d (407 conference, staff viewed the impliedly Burger He itself, as free from the adversary examination process. could counsel only impair felt the of defense presence re- and the into process decision-making investigation a “The a mental state. defendant’s presence garding a staff conference would lawyer patient the free ideas inhibit obviously expression exchange which occurs the doctor and between normally patient.” this view I do not find convincing. counsel
First, so obvious that it is not examination, especial- an effective would inhibit impair role of is confined where the attorney passive ly Lee v. Court County be. I must observation as believe 459. N.E.2d N.Y.2d Second, it is true the examination pretrial nature, is of an as intimate but portraying the doctor where relationship, doctor-patient involving have an relationship and may State enduring appointed State, strained. The is a bit State-appointment with into the realm casts the examination investiga- element tive and adversary. *13 v. Whitlow
Even State 210 A.2d N.J. that the 763, cited presence majority, recognized inherently counsel at the of counsel was not felt harmful. The presence simply however, others, I Like commanded Constitution. have a “beneficial of counsel may believe the presence effect” on examination: “The presence reassuring do much to alleviate the accused’s counsel could feelings distrust, of isolation and and in fact contribute to the otherwise hindered effectiveness an examination reluctance to to the accused’s freely respond psychiatrist.” to Counsel at the Pretrial Mental Exami Comment, Right Accused, nation 118 U. Pa. L. Rev. 456 (1970). Thornton v. has been elsewhere (As (e.g., suggested Corcoran alternative (D.C. the defendant’s sixth devices be found which may protect at a critical amendment to counsel pro- stage actual In a counsel’s presence. without requiring ceeding case, for may particular psychiatrists object possibly legiti- of an counsel. A mate reasons presence observing the examina- would intrude videotape, example, upon tion only very minimally.) defendant, Rule 413 and the
I under our believe the Constitution, has amendment of the United States sixth at a of counsel pretrial Moreover, examination, a critical of the prosecution. stage the record shows notice of the examination. inadequate Hence, I would have reversed remanded.
MR. CHIEF GOLDENHERSH in this joins JUSTICE dissent.