*1 Missouri, Respondent, STATE Ray CARTER, Appellant.
Michael 63653.
No. Missouri,
Supreme Court Banc.
En
Aug. 1982.
Rehearing Denied Nov. *2 HOUSER,
NORWIN D. Judge. Senior Carter, Ray convicted of Michael murder degree in the second sentenced to 30 appealed imprisonment, to the Mis- years’ Appeals, Southern souri Court District. *3 was transferred to this appeal Court assigned for the opinion reason before respect the issues raised the inter- Supreme of the Rules pretation discovery relating matters of Court in this impression general State and of first importance requiring a interest and conclu- by this Court. sive determination homicide, which juve- occurred in the dormitory Jasper Jail, County nile several inmates of was witnessed and a employees probation jail, jail officer. strong introduced The State and uncontra- defendant, jail evidence in- dicted mate, unprovoked attack on made a fel- inmate, Kralicek, Joe Billy striking low him 30-pound with a mop 15 to 25 times metal killing him. wringer, and not pleaded guilty by reason Defendant 552.030, disease defect. of mental § Prior to trial defendant em- RSMo psychia- was examined two ployed and purpose of obtaining expert for the trists support of his testimony in defense: Dr. Turfboer, who concluded that defendant psychosis from a toxic excluding suffered responsibility, Roy Wilson, Dr. criminal who, contrary expectations, to defendant’s was suffering that defendant not concluded or defect excluding disease from a mental Counsel for responsibility. criminal defend- not to call Dr. Wilson as a ant decided The State moved for a defense witness. compel defendant order to disclose report. Following a Wilson’s contested Dr. hearing, motion was sustained the State’s suppress motion to Dr. Wil- and defendant’s testimony was overruled. Pursuant son’s Dr. Wilson disclosed court order his trial, At the following report State. testimony pro ques- con on the direct Robards, Defender, Public David Charles condition, mental tion of defendant’s Buchanan, Defender, Public Joplin, Asst. Dr. Wilson as called a witness in State appellant. for objection testified over He rebuttal. Ashcroft, Gen., Haden, Atty. Jay John D. suffering defendant in his Gen., Jefferson for Atty. City, respon- Asst. or defect excluding disease from mental dent. responsibility.
First, contends disclo- privilege. By waived the inter been ordered and the should not insanity, sure the defense posing have been allowed to use should any right any waived assert effectively testimony in rebuttal because Wilson’s Dr. including attorney- claim of defendant of (1) deprived this his When defendant filed privilege. client silent, thereby the Fifth invading remain rely upon intention to the defense notice of against prohibition compulsory Amendment excluding disease or defect crimi of mental self-incrimination; (2) deprived defendant responsibility, thereby opened up he nal because process of law of due Wilson’s into his mental condition and enti inquiry product the work report constituted to move disclosure of the the State tled actually employed Dr. insanity basis of underlying plea factual work product under the doc- Wilson —that result of examinations de and the by agents prepared for the material trine *4 psychiatrists. It is well settled fendant’s attorney as well as prepar- material places once party question the that when attorney protected; himself is (3) by the ed condition in he thereby his issue of of his Sixth deprived defendant Amend- physician-patient privilege to ex the waives the effective right to assistance ment testimony any doctors who have clude counsel, (4) violated the attorney-client and him for that purpose. State v. examined privilege. 705, 425, Mo. 203 429 Sapp, S.W.2d 356 Cochran, 778, (1947); v. 356 Mo. 203 attorney-client privilege The State is 707, 1947); 491.060(3), (banc statute. Section 711 v. by State created S.W.2d Swin 1978, 746, (Mo. makes an incompetent burne, S.W.2d banc RSMo 324 750-751[4] testify “concerning any 251, 543 1959); Speedy, to communication v. 256 S.W.2d State by relation, his client in to him Husgen made ex v. (Mo.App.1976); State rel. thereon, 414, without Stussie, his advice the consent of (Mo.App. 617 S.W.2d 416[4] is privilege 199, 165 client.” The the client’s 1981); such to v. 257 Long, Mo. S.W. State from the client and runs to the attor 1914); Lewisohn, claim 748, (banc State v. 379 753 Stevenson, v. 128 ney. Mo.App. Ehrhardt 1192, (Me.1977). “Appellant 1211 A.2d (1907). 476, 1118 privilege 106 The is S.W. to call as witnesses permitted be could not to communications between at limited call, whom he desired to only doctors those Hardin, torney the client. State v. and 558 object to as to and claim then (Mo.App.1977). 807 It operates S.W.2d treated and who examined doctors other attorney incompetent only render (citing same condition three him for testify to confidential communications cases).” supra, v. Sapp, State 203 Missouri a client. It not by does extend made to him S.W.2d between the client and a to communications employed token and for the same by through same By client psychiatrist opin pleads insanity effort to obtain an attorney in an a defendant reasons privileges, including of his defense of mental support ion in all other waives excluding respon People Edney, criminal v. or defect disease testimony challenge against under sibility. privilege is self-incrim supra, and Cochran, attorney-client privilege. supra; within the State v. not ination. State Sorna, Mich.App. Swinburne, Speedy, 88 People supra; supra. 276 State v. (1979); People Edney, 39 N.W.2d why fundamental reason another There is N.E.2d N.Y.S.2d N.Y.2d sought be invoked de- privileges United States ex rel. Ed (N.Y.App.1976); grounds for reversal of this fendant F.Supp. (E.D.N.Y. ney v. conviction, namely, the pro- judgment 1976); (1982). A.L.R. 4th 594 Annot. promulgation by the Su- impact found testimony reciprocal discovery of Wilson rules Had preme Court privilege, it still would rules exclusionary priv- upon been within has had been available defendant because ilege. closes, 25.05(A)(1) concludes, Under Rule a defendant and he that defendant State, to disclose to the required without question at the time in was insane and was order, results of mental examinations court irresponsible for mentally his homicidal act. defense intends to which the introduce in does not intend to prosecutor call the the trial. Under 25.06(A), evidence at Rule testify at the trial. Is there limitations, subject to constitutional a de that defendant could compel doubt any dis- required, be court fendant order on evidence and be of this entitled to closure motion, to the to disclose State material and it trial? Would it be fair use at the 25.05, not covered Rule upon information the benefit deprive of this finding by the State’s on the vital issue? evidence Would it be reasonable, and that request is the material deprive the trier of fair or wise the fact sought is information relevant and ma Just this evidence? evidence case. to the terial State’s available defendant in be would request If when a is made by case, evidence available to so the material and information which State poor rule in this. It is that does not ordinarily shielded and protected would ways. both work by the attorney-client privi- from disclosure policy Public considerations upon the rule calls court to lege, the deter- in favor of weigh heavily disclosure under request the reasonableness of the mine of this case. circumstances There is no materiality to State’s case of the defendant committed a brutal question *5 sought. information and In mak- material highly incriminating under cir homicide ing this determination court must exer- only ques The live and vital cumstances. judicial discretion, balancing cise a sound jury was for decision whether tion interests of the and respective State mentally responsible was for his defendant in disclosure nondisclosure. defendant purpose The fundamental of a crimi acts. procedure was prescribed complied The is the fair ascertainment of the trial nal a motion filed under the with. The State Sorna, 892, 276 N.W.2d People v. truth. the requisite findings made The court rule. (Mich.App.1979). The jury needed 895[4] disclosure. There ordered the is noth- and available evidence every touching bit of an abuse of discretion ing to indicate on the to render an intelligent, issue in order that court. On the contrary, of the part verdict. Not just only and the defend fair to have exercised its appears discre- court ant, Missouri, of has also the State but Unques- under record. properly, tion accurate, just in an and in interest direct material disclosed and informa- tionably the upon based all available rel verdict formed was relevant sought and material to tion evidence bearing material on the and evant report case. Dr. Wilson’s and the State’s of the fact must The trier not be question. directly upon the testimony bore central deprived of valuable effectively wit “so whether defendant at the in the case: issue public as to undermine interest nesses was mentally responsi- homicide time of the justice.” of Pouncy v. in the administration It acts. has not been shown or ble for his Florida, 642 (Fla.App.1977). 353 So.2d the ruling that was not reasona- suggested Edney ex rel. States United supports rea- Every consideration ble. (E.D.N.Y.1976), aff’d 556 F.Supp. order. of the Essential fairness sonableness Cir.1977), (2d cert. denied 431 U.S. F.2d such require ruling. Let seem would 2683, 53 (1977), L.Ed.2d 276 97 S.Ct. case where a homicide the de- us assume “The 1046 referred to increased at The prosecutor insanity. causes a fense is in inaccuracy truth-finding for potential employed by State to deprived trier of fact is of in the as the process of bol- hope the defendant examine witnesses,” and referred position that defendant valuable stering the State’s concept of the that “the trier fact salutary homicide. To of sane at the time was dismay prosecutor adequate access to as surprise and much should that his reports testimony possi- examination dis- doctor available the doctor, the defendant’s knowing mental state is in might ble where the doctor at 1049. issue." Id. against turn to be a witness him are not out importance sufficient in considerations physician-patient privilege The and outweigh and override the stat- this case to attorney-client privilege are to be used fairness, justice and requirements ed legitimate com preserving confidential determining whether a re- public policy munications, not for suppressing the truth for disclosure the State is reasona- quest by one lets the bars privileged down. after 25.06(A). Rule ble under No constitutional limitation is point: Defendant’s second “The privileges These have no consti involved. failing grant erred a mis trial court underpinning; they purely tutional repeatedly it out brought trial when origin. Under the statutory disclosure rules jury before Dr. Patil who evidence benefits testify had examined the defendant did party be denied a applicable, when him not be suffering found from a circumstances of this under the case. responsi or defect excluding disease mental product work doctrine does case, issue bility, central in the so as Wilson’s report Dr. testi not insulate jury way present and use mony disclosure at trial. hearsay deprive inadmissible the de product “opinions, consists theories Work confrontation and fendant of defendant’s attorney or conclusions ... cross-examination.” between communications [and] Patil, employee of Fulton attorney.” Hardin, State v. and his Hospital, shortly examined defendant after (Mo.App.1979); State v. Rose S.W.2d was of the opinion the homicide and man, (Mo.App.1979). 583 S.W.2d suffering was not from a of Dr. Wilson report opin was not an excluding responsibility or defect disease ion, theory or conclusion of defendant’s Patil was called as the time. Dr. or a communication *6 the trial. at witness therefore was attorney, his and not product attorney. on work Hired a conducted a Leggett, Dr. who second ex- give basis defendant a psychiat one-time Fulton State amination and an prepare objective ric examination the same Hospital, reached conclusion. report condition, defendant’s mental on Dr. as witness, a Leg- the State Dr. Called in the capacity indepen Wilson acted of an on redirect gett was asked examination contractor, not as agent an dent of defense his evaluation and whether conclusion were any word, counsel in real sense of the and Patil. to that Dr. Before the identical legal of defense not as a member counsel’s question witness answered staff. The fact that de investigative or grounds hearsay on the objected paid mother Dr. Wilson’s fee did fendant’s objection The was confrontation. right of relationship. agent-principal an not create Leggett give did and Dr. not sustained any fiduciary did not assume Dr. Wilson answer. or his accept counsel duty to defendant defendant’s witness cross-examination On fee. his ing payment Turfboer, asked what information he Dr. Defendant was not deprived him, when he examined had on defendant right (Dr. to effective assist report constitutional had the Fulton his that he testified by the ruling. prosecutor court’s The of counsel The then asked: report). ance Patil’s preparing counsel said there was no report fact that “And that possibly psychi could choose a objected for his client defect?” Defendant or disease might make report hearing adverse to jury atrist out of theory defense, ground or that in a on that the requested counsel’s mistrial might examination a defendant hearsay ruled the issue and that had court or be right less than candid with speak guardedly defendant’s constitutional violated it to confront the witness against him. tion The to Dr. Leggett whether his evaluation objection court sustained the and cautioned was identical with that of Dr. Patil was not counsel for the State not to make any refer- questions The to Dr. answered. Turfboer try bring ences to or out the results of a the contents of Dr. Patil n as to and Dr. report from a doctor who was present reports were not Wilson’s answered. Ob testify, but denied motion for mis- jections questions to both of these were The court stated that trial. the jury had When defendant finally object sustained. “caught the drift” of what had been to Dr. Turfboer’s testimony ed that his then prosecutor The elicited said. from Dr. was not consistent opinion with the report opinion his Turfboer that was not consistent Fulton or Dr. report, from Wilson’s reports with either of the from Fulton. No objection. sustained defendant’s Dr. objection was immediate made to this in- testimony Leggett Wilson’s Drs. testimony. prosecutor quiry later essentially agreed Patil with each other and opinion Dr. Turfboer whether his asked was volunteered, objection him was and an with Dr. Wilson’sreport. consistent Out of was sustained. In thereto none of these hearing jury defense counsel request did defense counsel instances question this on objected ground objectionable questions or answers be it invaded defendant’s to confront Dr. from the stricken record and the jury in The court sustained the objection. Wilson. disregard structed to them. The court of then, time, for the Defense counsel first to instruct the jury fered to disregard the objected preceding question (already voluntary statement of Dr. Wilson but de answered) relating to the first Fulton re- not accept counsel did fense offer. and the court sustained port, objection. each instance defendant should have re then requested mistrial, Defense counsel improper question that the quested or state was request which overruled. The court and the jury ment be stricken instructed to that an objection to counsel earlier said disregard given it. This would have preceding question to Dr. Turfboer opportunity to court an consider corrective was consistent with whether Fulton short of a mistrial. reports Hospital would action State Cucko objection vich, (Mo. 1972). sustained had such an have been banc S.W.2d 24[13] been made. request any No was made at time. such only remedy defendant requested Another mistrial motion was made when stringent harsh and of a remedy mis Wilson, examination, on direct volun- granted trial. The court all the relief de being teered without asked that “Dr. Leg- for, asked except fendant a mistrial. gett and Dr. Patil essentially agreed with a mistrial Whether should be declared is a *7 they and essentially agreed each other with within the sound matter discretion of the objected me.” Defense counsel to the vol- who judge, trial observes the untary proceedings statement on the hearsay basis of right of is in a position and defendant’s therefore better confrontation and and than a mistrial. The judge, observing moved for court to appellate prejudi the evaluate the did not elicit that State’s the volun- non-prejudicial effect or of the incident cial statement, sustained tary objection and possibility and the error can be to instruct the jury disregard offered it. of aborting short the entire trial. corrected judge additionally The stated that he did 74, 82, (Mo. 431 S.W.2d State serious—that regard it as he “did not 1968); Parker, (Mo. 476 S.W.2d513 impressed really the jury enough think it to 1972). judge felt from he all saw and at necessary make a mistrial this stage,” jury heard that the had not been sufficient prosecutor admonished by saying, and import aware of the ly the references to idea, McFarlane, Mr. is to keep away “The report to the Fulton warrant the drastic from this.” mistrial, step and in the exercise of his The trial court did not err in denying discretion, judicial judge denied the sev for a requests mistrial. The ques- several motions eral for mistrial. We say cannot partment doing court abused in so its discre- his parole and officer around 3:00 Lira, 80, 82, S.W.2d a.m., tion. State taken asking protective to be into (Mo.1963). he believed he was the custody because conspiracy. The of a communist victim affirmed.
Judgment holding tank. put defendant deputies DONNELLY, C.J., and RENDLEN and taking space go here to into Without MORGAN, JJ., concur. strange as con- great detail days question, on the defendant duct SEILER, J., dissents in separate dissent- parole his officer that he was a explained opinion filed. ing agent narcotics investi- federal undercover WELLIVER, J., dissents in separate dis- conspiracy, that a communist he was gating filed and senting opinion concurs in sepa- of a communist brain control trans- under SEILER, dissenting opinion of J. rate he had and that taken some street mitter BARDGETT, J., dissents and concurs in made a trip had to Kansas drugs City. and dissenting opinion SEILER, J. separate parole grounds, officer had On these violation parole. This him arrested J., HIGGINS, not sitting. being in defendant’s moved from resulted SEILER, Judge, dissenting. holding cell a dormitory cell which dissent. I respectfully thought I never I prisoners, including other the victim. housed day when see the this court would would tried day place he Later in the tele- say pleading that a client a legitimate then and about 9:00 phone p.m., call God insanity—would thereby waive provocation, beating started without defense — attorney-client privilege and make with the mop wringer, Kralicek yell- victim prosecution his confidential available was the Kralicek devil and needed ing that to his By communications sheer lawyer. Defendant is a relatively killed. small to be fiat, contrary to our judicial statute, 491.- man, jailers § but efforts and other 1978, and 060(3) contrary to RSMo what (about cell) six were in the inmates same of other majority courts have vast held and him. He finally to subdue failed support judicial with whatever no other gas. tear After with the attack stopped single poorly reasoned New York than a the victim “dyna- stated was a decision, saying court is to defendants: runner for the gun conspiracy” mite insanity defense, Beware because if recognized that he turnkey further used, you your lawyer say whatever member of the conspiracy. another game is fair prosecution other for the each May the date of killing, Prior to incredible, revealed. must be This is behaving had been irrationally. it is. yet pleads here “[A] episodes car, included chopping up These his all insanity waives other privileges, includ- recently had purchased, he with an which ing privilege”, says axe; night an entire spending girl- his opinion. affirming this convic- principal nearby piles chat praying in order friend tion, opinion principal writes bad law. child; quitting job his because to conceive only states a few of principal part of the employer was communist understand what is the facts. To involved *8 believing that conspiracy; someone had here, should be reader aware of the the water supply to his trailer contaminated May 25,1976, defendant, following: Defendant, On for drugs. particularly since with reason, victim, killed the apparent Billy 1976, abuse, no had a January history drug Kralicek, in the Jasper County jail by Joe of amphetamines. in use In his especially about beating the victim the head and parole his officer on the with discussion heavy a metal mop wringer. killing, shoulders he said that he morning of the had and the victim were in- Both and then Quaaludes, had taken three had Defendant jail. jail was in the eggs” (apparently ampheta- mates “bird three having called the sheriff’s de- Quaa- because of mine) effect of the to counteract 62 Also, he related that he had was an entirely been proper
ludes.
decision for defense
slipped
mg.
LSD an ice cream cone
make,
pointed
and as
to
out later
coming
jail.
before
to
days
case,
or two
herein,
one
this been a civil
oppo-
had
However,
he was
he denied
under the influ-
not have used Dr.
side could
Wilson as a
site
drugs
Furthermore,
at that time.
copy
ence of
a
of his report.
witness or obtained
experts and
testimony by
non-experts was
refused to
Dr. Wilson
furnish the
After
would not
amphetamines
produce the
report
trial,
copy
prior
with a
to
state
by
exhibited
defendant.
symptoms
February 28,1980,
moved on
a
the state
for
facts,
compel
order to
disclosure
defend-
Based on these
defendant’s court-
court
report.
Dr.
Wilson’s
considered a defense of
ant
appointed
opposition
suggestions
and a motion
filed
by reason
mental disease or
guilty
Dr. Wilson’s
suppress
testimony. After
theory was that
to
His
defendant was
defect.
court
hearing, the trial
sustained
state’s
a toxic
suffering
psychosis.
per-
from
“A
for an order to disclose and over-
motion
for criminal
responsible
conduct if
son is not
motion
suppress.
Pur-
defendant’s
ruled
disease or
mental
defect he
as a result of
order,
court
defendant disclosed
suant
nature,
appreciate
qual-
or
not know
did
Also,
to the
report
state.
Dr. Wilson’s
of his conduct or
wrongfulness
was
ity or
as a rebuttal witness Dr. Wil-
called
state
conforming
his conduct to the
incapable
testified,
objection,
over
son,
as to his
who
552.030.1,
of law.”
requirements
§
RSMo
mental condition.
defendant’s
opinion
Furthermore, evidence of such men-
1969.
or defect
admissible
disease
tal
“[t]o
claims that the trial
appeal defendant
On
did or did not
the defendant
prove
ordering
disclosure of Dr.
erred
mind which is an
element of
have a state
allowing
and in
report
Dr. Wilson
Wilson’s
552.030.3(1), RSMo
offense ...
.”
§
state in
testify for the
rebuttal. This
terms ‘mental disease or
“The
defect’
1969.
claimed,
action,
it is
erroneous because
psychosis
alcoholism without
include
do not
the attorney-client priv-
violated
this action
”
psychosis
without
drug abuse
....
physician-patient privilege,
ilege,
552.010,
1969.
RSMo
rights,
fifth amendment
§
defendant’s
sixth amendment
Defendant,
trial,
underwent
two
prior
of counsel.
assistance
effective
at Fulton
Hospi-
examinations
mental
examined
aby
hold,
He was also
along
tal.
with the vast ma-
should
We
Turfboer,
Dr.
psychiatrist,
that have decided
jurisdictions
retained
jority
suffered
report
psychia-
concluded
that the
of a
question,1
excluding
responsi-
criminal
psychosis
paid
hired and
for
the de-
toxic
who is
trist
who is not to be called as a
attorney hired a second
bility. Defense
fendant
Roy
Wilson of the
subject
Smith-
the defense is not
psychiatrist,
for
witness
Clinic in
Glynn-Callaway
Springfield,
get,
psychiatrist may
and such
disclosure
paid
Defendant’s mother
opinion.
second
the state. We
as a witness
be called
Contrary to defense
persuasive,
this examination.
and the principal
find
should
Dr. Wilson
expectations,
grips
concluded
no effort
to come to
counsel’s
makes
not suffering
from a
of the courts which
with,
reasoning
or defect that would exclude
disease
on the communica-
the decision
based
Thus, counsel
being
decided not to
as
within the
responsibility.
tions
a defense
adjunct
witness. This
to the attor-
Dr. Wilson
as an
compass
call
of and
Alvarez,
516,
(1979); People
Hillik
Md.
States v.
519 F.2d
See United
A.2d
State,
er, Mich.App.
543,
(1971);
(3d Cir.1975);
Houston
Thereafter,
in a similar situation involv-
defendant, obviously the cloak of the
here, psychiatric testimony, in
ing, as
Unit-
when,
here,
But
ends.
as
privilege
Alvarez,
(3d
65
is a
opinion
waiver,
is naive and not
principal
here,
The
under the circumstances
when it
being
says
attorney-client
realistic
that Dr.
privilege.
Wilson
of the
acting as a
member of
was
defense
Pratt,
supra,
(1945). 85, Reece Georgia, See 350 U.S. 167, 100 L.Ed. (1955); 77
76 S.Ct. Rowell v. 45,
Alabama, U.S. 287 53 77 S.Ct. L.Ed. result, (1932). As a
158 other courts have attorneys often
recognized require the experts represent
assistance of order adequately gone clients and have their so HOCKEMEIER, Appellant, Farrell D. an indigent far as to hold right to effective process due counsel en v. compasses appointment BERRA, Respondent. J. Kenneth expert preparation to assist of his No. 64458. See, e.g., Martin, Williams v. defense. 618 (4th Cir.1980); F.2d 1021 United States v. Missouri, Supreme Court Hartfield, (9th 513 F.2d Cir.1975); En Banc. Beto, 379 (5th Cir.1967); F.2d 937 Hintz ex rel. Pate, Robinson v. United States Oct. (7th Cir.1965), part aff’d in
F.2d grounds, other on
remanded U.S. 836, 15 (1966); L.Ed.2d 815 Bush v.
86 S.Ct. F.Supp.
McCollum, (N.D.Tex.1964), (5th
aff’d, Cir.1965). 344 F.2d See also Stifel, 433 F.2d (6th
United States denied,
Cir.1970)
cert.
(dictum),
401 U.S.
1232,
Lee v.
Beto,
(5th
(dictum); Greer