*1
STATE of OLIN,
Terry Defendant-Appellant. Dale
No. 13080.
Supreme Court of Idaho.
July
393
*2
Orofino,
I.Q.
performance
but
Kinney,
range,
Robert E.
mental
test-
for defend-
ant-appellant.
normal,
high
I.Q.
report
110. The
ed at
compe-
defendant was
concluded that
Gen.,
David H. Leroy, Atty.
Lynn E.
However,
tent
to stand trial.
Thomas,
Gen., Boise,
plaintiff-re-
Sol.
specifically
opinion
state an
as to
failed to
spondent.
wrongful-
capacity
appreciate
Olin’s
*3
BAKES,
Justice.
Chief
his con-
ness of his conduct
to conform
at the
requirements
duct to the
of the law
26, 1977,
On
police
October
Orofino
crime,
required
as
under I.C.
time of
body
Ralph
discovered the
Peterson at
18-211(3)(d).
ques-
There was also some
§
Orofino,
his residence in
Idaho. Peterson
been
tion as to whether the defendant had
death,
had been stabbed
few arti-
and a
psychiatrists
examined
two
adequately
personal property, including
cles of
an auto-
required by
as
the trial court’s order. Con-
mobile, had been taken from the residence.
sequently,
receiving
copy
after
a
day,
County
That same
the Clearwater
evaluation,
sheriff
the defendant filed a motion to
learned that the deceased’s automo-
therein,
possession
bile was in the
Auto
Binkley
findings
contest the
contained
Lewiston, Idaho,
Sales
and that
the car
being
compli-
to exclude the
as not
had been
Binkley’s by
traded to
the defend-
ance with the court’s order.
ant Terry Olin on October
3, 1978,
April
A
was held on
Shortly following
discoveries,
these
Olin
Azar,
Dr.
a psychiatrist,
psycholo-
and two
surrendered to the
sher-
County
Kootenai
gists
employed by
Security
Idaho
Medi-
office,
iff’s
having been
informed
rela-
Facility
hearing.
cal
testified at the
All
tives
police
looking
that the
were
for him.
participated
three of the witnesses had
officer,
Olin told an investigating
and later
defendant,
testing
evaluation
trial, that,
testified at
preced-
immediately
and there was
the effect
testimony to
killing,
Peterson had forced the
also
Estess,
second
had
psychiatrist,
defendant
to commit an unnatural sex act
participated in the evaluation. At the hear-
at knifepoint, and that he had then killed ing,
although
Dr. Azar testified that
Peterson to defend himself from a further
opinion concerning the defendant’s mental
attempted sexual assault. Olin indicated
capacity at the time the crime was commit-
that he then took the automobile and other
inadvertently
ted had been
omitted from
property only
deciding
after
that the police
the de-
report, his conclusion was that
would never believe his account of the inci-
appreciate
fendant in fact was able to
dent.
wrongfulness of his conduct and conform
November, 1977,
In
the defendant was
requirements
his conduct to the
of the law
charged by information with the crimes of
at the time of the incident involved. While
grand larceny and
degree
first
murder.
criticizing a
of irregularities
number
Subsequently, he filed a notice of intent to
defendant,
evaluation of the
the court de-
rely upon the defense of mental disease or
termined that
the defendant had received
defect. Pursuant to this notice and defend-
adequate
evaluation and that
the testi-
motion,
ant’s
the court ordered that
mony of Dr. Azar cured the deficiencies in
director of Health and
appoint
Welfare
two
report.
the evaluation
psychiatrists to
conduct mental evaluation
Subsequently, the
submitted
report.
defendant and to submit a
motion for the allowance
funds to
public
Olin
then
Security
sent to the Idaho
obtain an additional
evaluation.
Medical
for
Facility
purpose.
An eval-
Next,
This motion was denied.
the defend-
conducted,
uation
report prepar-
and a
ant
public
ed
moved for the allowance of
funds
which indicated that the defendant had a
mental evalua-
history
family
problems
obtain
physical
hearing.
which inhibited his
learn. His
tion
defense ar-
ability to
Counsel for the
verbal
skills tested
gued
in the dull-normal
was essential
preparation
of the defense of
mental dis-
P.2d
Included
defect; however,
ease or
this motion was
scope
19-852(a)
within the
are the
also denied.
At trial
defendant did not
fourteenth amendment
of due
further pursue the defense of mental dis-
process and equal protection
they
apply
ease or defect. The defendant was convict-
indigent
defendants.
Britt v. North
ed of both grand larceny and first degree
Carolina,
murder.
appeals
The defendant
only his 433,
(1971),
In accord with these case. circumstances of the 19-852(a) have stated in applying I.C. § expert investigative services bar, the defendant In the case at assistance automatical an is not financial assistance to obtain requested
“[financial
ly
upon
mandatory,
depends
by psychiatrist.
but
other mental examination
rather
was in
significant
request
Most
that this
needs of the defendant as revealed
[the]
addition to the
examination
by the facts
of each
and circumstances
18—
and obtained under I.C. §
mandated
authorizing
expenditure
case. Before
fact, the
ordered
211.1 In
trial court had
public
purpose
particular
funds for a
by two
the defendant be examined
defense,
must
indigent’s
the trial court
just
as re
psychiatrists,
rather
than
one
are neces
determine whether the funds
While there
quired under I.C.
18-211.2
§
sary
justice.”
in the interest of
adequacy
question
some
below as to the
Powers,
at 1374.
443
1978),
Cir.
cert. denied
psychiatric
436 U.S.
examinations available to a de-
920,
98 S.Ct.
56
(1978);
L.Ed.2d 762
fendant
19-852(a)
under
18-211 and
I.C. §§
McGarty O’Brien,
(1st
“18-213. ON indigent GROUND tive assistance defendants OF MENTAL ILLNESS —EXAMINA- vary greatly from case to the same TION BY AND necessarily PSYCHIATRIST LI- does not hold true in the in- CENSED indigent requests PSYCHOLOGISTS OF DE- stance of defendants’ for transcripts.3 ordinarily FENDANT’S It can CHOICE —PSYCHIA- be assumed prior TRISTS AND proceeding LICENSED PSYCHOLO- that a of a aris- prosecution GISTS AS WITNESSES.— ... out of the same will be valuable to a defendant “in at least two “(2) When, notwithstanding ways: as a device in discovery preparation pursuant 18-211, filed section Idaho trial, and as a tool at the trial itself for Code, the defendant wishes to be exam- impeachment prosecution witnesses.” ined by qualified psychiatrist or other Carolina, Britt v. North 404 U.S. at expert choice, of his own such examiner S.Ct. at 434. shall be permitted to have reasonable ac- cess to purpose the defendant for the Nevertheless, the fact the Britt such examination.” court stated that value of a transcript *6 It argued 18-213(2) is grants may that to a “ordinarily a defendant be as- sumed,” defendant the to right by may be examined a there cer- indicates that arise psychiatrist choice, assumption of his own tain and that that cases which such is right simply particular should not be denied not because a warranted facts and to private defendant is unable afford a psy- circumstances involved. case at bar However, presents exception. chiatrist. as discussed previously, such an The basis for equal protection only requires assuming transcript prior clause that a of a pro- state provide ceeding to a defendant with pre- “the basic valuable to defendant is, tools of adequate paring defense or his appeal, previously, defense stated when those tools price may are available for a to that be used for dis- transcript Carolina, others.” covery impeachment purposes. Britt v. North or Britt v. Carolina, 228, at require at 433. does not North 404 U.S. at at a state to provide any- present only purpose a defendant with 434. In the 3, 1978, thing might April hearing probe that he desire for his defense of the was to merely evaluating be obtained the work of the because it and conclusions Coronado, 421, 423, existed at that time. That same rule was In State v. also However, applicable (1977), present case. P.2d script we held that “a tran- to the I.C.R. provision transcripts preliminary hearing, alleged did of of the when 5.1 not address the defense, necessary certainly proceedings type to be must of involved in the present Consequently, among services and of a included those facilities case. rules more provided by below, general nature, under the state [I.C. § 19-852].” as discussed form the (Emphasis added.) present opinion. Such an absolute rule But basis of the see I.C.R. 5.2 regard hearing preliminary transcripts (effective July 1981). as amended made due to the of I.C.R. 5.1 as it gists had given psy- The testi- who and evaluated the psychiatrists psychologists. and tests, have no mony hearing consulting adduced at the would with chological and after relevance at trial unless the work and con- personnel. Dr. Estess and other medical psychiatrists psycholo- clusions of the examined, Dr. Although extensively cross at issue at gists specifically placed were Thus, in unqualified. Azar’s opinion was prosecu- trial. The record discloses that the Azar showing that Dr. the absence of a tion did not call and never intended to call a tran- opinion, his subsequently changed any psychiatrists psychologists competency script of the mental testify at trial. Their names are not con- “the foundation provided not have would witnesses, tained on the state’s list of opin- psychological for the nothing there is else in the record to indi- trial.” at utilize must defendant ions which cate they that would be called to testify at trial. recorded numerous of the A review requiring jurisdictions other cases from Appellant’s brief appeal on does point a tran with a defendant provide transcript out how the state testimony in aid of his proceeding prior taken at competency hearing script would prior proceed have been of that those any use or presenting value in discloses defense defense, mistrials, his hear equal preliminary but merely argues the ings involved protection appellant claim that “had which hearings, suppression ings and financial means transcript to do so the the examination concerned their nature therefore, obtained,” could have been who the defendant against state witnesses “the state deny indigent cannot to an de- appear reasonably certain at least were fendant adequate those ‘basic tools of an We behalf. prosecution’s trial appeal, defense or are when those tools cited to none no cases and are have found ” price available for a to others.’ In mak- addressing type prior proceeding ing transcript, the motion for the trial coun- we are concerned in this case. with which stated, sel “It essential that defendant Here, in the record to indi nothing there is April have a hear- prosecution intended to call cate insofar as the adduced there- psychologists as wit psychiatrists very at forms the root and essence of the any the witnesses had testi nesses or the psychiatric psycho- foundation for to the defense so that mony favorable logical opinions which defendant must uti- might want to call them. Had However, lize at trial.” intended for some the defendant reason hearing, which is now a part witnesses, as hostile such should call them appeal, only record on shows that ex- made known to the trial court. have been pert April rendered at the opinion *7 intent, Absent communication of such an Azar, was Dr. the psychiatrist reason there was little for the court who submitted the written had proceed prior consider the the Estess, psychi- association with Dr. another ing to have relevance at trial. Conse any pro- Dr. Azar testified his atrist.4 that as quently, support the factors which the had both opinion fessional the defendant of a sumption ordinarily that a wrongful- the to understand the capacity prior proceeding is valuable to a defendant ability to con- conduct and the ness of his are lacking present in the case. We there form his conduct to the not fore conclude that the defendant was was killed. Dr. the victim law at the time re prejudiced by arrived at the court’s denial of his he had that Azar testified that consulting psycholo- with the com- opinion quest, and that the trial court did not after Idaho, private psychia- employees Estess were Dr. ther were of the State of nor 4. Dr. Azar and Boise, Idaho, who, by agree- agreement providing practicing in all did their necessary call for their trists Idaho, provided psychi- lump State of for a sum. ment with the services individual case on an basis. Nei- atric services mit reversible error in denying that re- to meet that standard support and quest.5 jury’s conclusion that the killing was done
with malice. II Similarly, the elements of delib eration premeditation and need not be INSTRUCTION proved evidence, by direct may but be in addition, the defendant claims ferred from the facts and circumstances of error in the court’s instruction jury to the killing, 222, Foley, v. State 95 Idaho concerning felony murder. At the time of 223-24, 119, (1973). 506 P.2d 120-21 Pre trial in this provided I.C.R. 30 require appreciable meditation does not party may assign any portion space “[n]o as error of time between the intention to kill of the charge rather, killing; or and the may omission therefrom it be as instan unless he objects thoughts taneous as two successive of the prior thereto to the time that the State, 706, 710, mind. Carey v. 91 Idaho jury is charged.” objection No was made 836, (1967). 429 P.2d The facts trial in regard instruction; present case show that the victim had a consequently, we do not address the issue. homosexual, history being and that the 30; I.C.R. Owens, 632, State v. 101 Idaho defendant had a great aversion to such 640, 619 P.2d (1980); v. State people. point The defendant at one McCurdy, 683, 686, 603 P.2d responded trial admitted that he had to a 1020 (1979). homosexual advance of person another soup chasing attempting “knock III out of” that person other with a crowbar. The defendant claims made victim SUFFICIENCY OF EVIDENCE a homosexual advance toward him on the The defendant also asserts that night killing. Certainly jury was the evidence was support insufficient reject story entitled to defendant’s conviction of degree first murder. light feelings self defense in of his concern argued that the killing justifiable, or at homosexuals, the fact and in view of least sufficiently provoked it bring with initially given the defendant had in the definition of voluntary manslaughter, police a different account of substantially and that in any event there was no evidence on. “It events than the one he later relied of either malice aforethought delibera jury province is within the [in tion however, and premeditation. jury, The criminal to believe or to disbelieve case] applicable instructed law con witness, any portion of any ” cerning points, these evidence and from the Cacavas, 55 testimony, such v. .... State guilty determined that defendant was (1935). Idaho P.2d degree first murder. It is well estab jury could also properly have considered lished that a sub jury supported verdict some fact that the defendant took and sold stantial will be dis competent evidence property of the victim’s as further circum Gerdau, turbed on appeal. 96 Ida supporting charge stantial evidence ho 531 P.2d rebutting the defendant’s claim of self de Malice implied when circum fense. We conclude that the evidence was stances attending killing show an aban finding support sufficient to of malice doned malignant heart. 18- was there premeditation, and the matter *8 victim in Certainly, the fact that the properly province fore within the exclusive Gerdau, this jury. supra. case was is sufficient stabbed 33 times note, only however, require preparation probably denial will the 5. We the of that it is prudent transcript originally requested, policy but will also more transcript the to allow require pay expenditure funds to under such A denial the of additional circumstances. generally greater expenditure will public with the of for costs otherwise associated lead to granting appeal. request. funds than would the appeal As of such a evidenced this McFADDEN, Justice,
IV dissenting. Pursuant to defendant’s notice of intent JUROR MISCONDUCT to rely upon the defense of mental disease Finally, it is argued that the trial defect, pursuant to defendant’s mo- court erred in denying a motion for a new trial based upon juror’s tion, one communications the district court ordered that the Di- with a party third who awas cousin of the Department rector of the of Health and defendant. Upon defendant, motion of a appoint psychiatrists Welfare to two con- new trial is granted required to be “if duct an examination of the defendant and interests of justice.” However, I.C.R. 34. report submit a of examination to the the question of whether the interests of court. 18-211. An examination was justice require a new trial under the cir conducted, report of the examination cumstances a particular of case is directed prepared and submitted to the court. court; the sound discretion of the trial report The of examination included a de- and the trial court’s decision thereon will scription examination, of the nature of the not be disturbed absent an abuse of that diagnosis the of mental Powers, discretion. condition of the State v. 100 Idaho 291-2, 596 P.2d (1979); defendant, 803-4 State v. opinion and the that the defend- McConville, 349 P.2d capacity pro- ant had the to understand the ceedings against him and to assist in his examination, report own defense. present case, In the the court held a however, two opinion hour on the matter. The did not include an as to rec ord particular discloses that conversa capacity appreciate the defendant’s minutes; tion lasted from fifteen to twenty wrongfulness his conduct to or conform however, only two or three were minutes law his conduct to the spent discussing the juror defendant. The conduct, alleged at the time criminal and the defendant’s good cousin were 18-211(3)(d). required under I.C. § friends, and the discussion took place while Nonetheless, court the district ruled that the cousin was repairing a flat tire for the omission was corrected juror. The relevant two to three minutes of Dr. hearing contesting Azar at the of conversation concerned the unfortunate findings report of examination. circumstances surrounding the defendant’s ruling, Based this the majority opines upbringing and family denying life. In that the defendant was not entitled to an motion trial, for a new the judge stated the independent psychiatric evaluation at state following: expense because already he had
“Well, received an this is a very serious matter.... However, examination at state listening expense to all of the which evidence in this matter —it’s obvious that a conver- adequate by rendered the testimony ad- sation place. took It’s also obvious that duced at hearing. nothing was said that conversation apparent purpose intended that was in any way prejudicial granting independent a motion for an defendant; defense any provide evaluation is to defense juror, Bonner, comments that counsel, who is ordinarily expert not an have sympathetic made were posi- psychiatric matters, the knowledge neces- tion of the defendant.” sary to determine if a lack defense of In light of the circumstances surrounding tenable, criminal responsibility and to the conversation and the fact that the con- help prepare the defense if it is so deter- versation was toward sympathetic the de- mined. fendant, regard, this it we is to be further say cannot trial court abused denying its discretion in a new observed that an trial. examination which is ade- The conviction is affirmed. quate to determine competency to stand SHEPARD, thereof, trial JJ.,
DONALDSON con- and which would cur. primarily involve the issue as to whether
400
the defendant’s
competency
persons
mental
at the
criminations between
and differ-
time of the
examination
at the antici
groups
persons.
equal pro-
ent
of
Both
pated
trial, may
time of
depth
be of the
process emphasize
tection and due
and detail
necessary
determine the more
judicial
central aim
entire
sys-
of our
question
subtle
as whether
or not a de
charged
must,
tem —all people
with crime
fendant was
capable of
mentally
possessing
concerned,
so far as the law is
‘stand on
the requisite intent
commit the charged
equality
justice
before
bar of
in
offense,
criminal
which would necessitate
every American court.’
the examination of the defendant’s mental
capabilities or processes
date,
at an earlier
There
justice
can be no equal
where the
i.e., the time of commission of the alleged
kind of
gets
trial a
depends
man
on the
Schultz,
crime. United
v.
States
431 F.2d
amount
money
of
he has.”
(Emphasis
907,
(8th
1970).
912
Cir.
generally,
See
added.)
Driscoll,
United
(2d
States v.
“In this own constitutional our of Mental Disease equal Rely on Defense guaranties pro- process due transported he was to the Idaho procedures in crimi- Defect tection both call for (ISMF), no remain- Facility invidious dis- Medical Security nal trials which allow *10 report, a not Court but undergo- to this to the fifty-one days there for while ing psychiatric hospital. eventual evaluation. The administrator of the Now that Report, Psychiatrist and Administrator’s the date of the days was some 66 after however, failed to include a determination filing days of Nine thereaft- this notice. of capacity appreciate defendant’s to the March, er, report on the of 6th wrongfulness of his conduct to conform Sanford, prepared by Dr. [administrator requirements his conduct to the law at of psychiatrist, in re- of the not the ISMF] the primary purpose time of the crime —the days That was 75 sponse to the order. of A was subse- examination. after the order was made. This letter response quently conducted in to defense report was not was not mailed —this findings counsel’s to the of the challenge shows, mailed, postmark until Azar, psychological report. evaluation Dr. March, days later. day 13th of part-time consulting psychiatrist at the you people I what “Now don’t know ISMF, regard testified in to defendant’s running totally are down disre- there — capacity mental at the time of the offense. Sanford, you Dr. gardpng] the law. Although Judge Maynard concluded that know what the of the law Dr. testimony adequately Azar’s rehabilitat- empowered are. You not you know are ed gross shortcomings original only psychiatrist to make reports, these report, judge compelled nonetheless felt upon your- is. You are much taking too to administer a stern rebuke wherein his stop. self it going is to Now Dr. retrospective observations well illustrate clears up Azar’s here the mat- inadequate ISMF’s evaluation: ter of the report adequate and makes “We have a serious situation here. The report. report have the We still do not charged Defendant with the crime of [consulting psychiatrist Dr. Estes to the degree. murder in the first Now the my If that is not in hands ISMF]. Defendant is entitled to all the defenses week, going end of this there to be possible are under the law. The going another Estes is hearing and Dr. to Defendant sits in this court today pre- subject be here. going Now I am not to sumed to charge be innocent of this until taxpayers county pay- to the of this proven guilty. The State of Idaho has an you any people. ments of costs for That interest in this case. duty has the is a matter for the Board Corrections. produce jurors before evidence for by totally ignor- You made this mistake them to determine whether or not the ing the statutes and order of this Defendant is guilty. per- State can’t you position Court. I wish were in a form the duty because a bunch of bureau- contempt where I could you find be- crats have stuck their nose in totally you cause I are going would. Now statutes, disregarded paid haven’t any straighten your ways out and mend or I Court, attention to the orders of the sent going go am Governor and have a report up here authorized good you hard look at how run that psychiatrist the only empow- who is one institution.” it, ered under the law do ordered —ex- Being complete agreement Judge with
amined
two psychiatrists. No mention
comments, nevertheless,
Maynard’s pungent
report
made in
any
second
I regret my
his
inability to fathom
reasons
psychiatrist,
no
came back. This
denying
defendant
further
matter was set down —the Defendant
If,
major-
examination
as
requested.
was ordered
his notice
to be exam-
states,
ity
the “needs of the defendant and
day December, 1977,
ined on the
21st
(whatever
the circumstances of the case”
shortly
transported
thereafter was
Security
eyes
majority)
mean in the
Unit at
Idaho State Pen-
itentiary.
question
2nd
control the
“whether an ade-
day
On the
of—or the
25th day
February,
quate
Doctor —or Mr.
defense would be available to the
Clump
psychologist
made
requested expert
without
[staff
ISMF]
investigative aid,”
“[Ejven
certainly
then
addi-
the absence
specific allega-
*11
tional mental
defendant,
evaluation of the
tions it can ordinarily be assumed that a
transcript
presumably
prior
of the
mistrial
by
characterized
more
would be
profes-
valuable to the defendant in at least two
conduct,
Indeed,
sional
was in order.
hav-
ways: as a discovery
prepara-
device in
slipshod
observed the
manner in which
trial,
tion for
and as a tool at the trial
examined,
his client was
defense counsel
impeachment
itself for the
of prosecution
had no alternative
request
but to
an addi-
witnesses.”
Id. at
predetermine for himself the effectiveness Transcript proceed- parties. (a) — or futility insanity of his client’s defense motion to the ings. timely On district requisite expert, without the tools—his own prosecuting attorney court either the transcript. and a If proceeds he without court attorney or the defendant or his *12 fails, both, either or and he faces a not transcript and typewritten shall order a unlikely appellate ruling later that he has copies of exhibits or affidavits to be made defense, not though demonstrated that his party. prepara- for such The cost for the zeal, prosecuted with commendable transcript tion of such a on motion of the hampered, gain and simply did not the nod defendant shall be at the cost Surely from the jury. this is a Catch-22 defendant, unless the court finds the de- situation, attorney one from which an and indigent needy person or fendant to be an place can himself in the first only extricate preparation and orders the of the tran- by not getting caught in the Catch. Wiser script county expense at in the same counsel, given clearly trial adverse decisions transcript appeal. on Tran- manner as error, objections will make their scripts may requested any hearing be of enlight- hope for relief at the hands of an including ened appellate proceeding court. or before the court following: the Any that defense counsel’s suggestion presence hearing “(1) any probable at the at which the testi- cause The record of mony given is a sufficient alternative complaint, a hearing for the issuance of a transcript only itself not borders on warrant or a search warrant. arrest absurd, precluded by the but has been the “(2) preliminary The of any record repeatedly reject- Britt decision. “We have hearing. ed the suggestion that . .. counsel must “(3) any hearing on a The record have perfect memory keep or exhaustive suppress (Emphasis motion to evidence.” given notes of testimony at trial.” 404 added.) Indeed, at at 435. as a or specify The the rule does not language of finding footnote to that the Court noted transcripts hearings even intimate that “[wjhile might provide trial notes well (1), (2), other enumerated transcript, an for a than those adequate substitute (3) going notes does not bar an to be available on motion failure to make such are not claiming right indigent prisoner from defense counsel. prosecutor or Id. fn. at fn. transcript.” just op- free Quite contrary, provides it 4. transcripts may requested be posite —that hearing proceeding before “any Coronado, In State ” following . ... including court (1977), a sum- P.2d 1378 unanimous Court categories does not enumeration of three right marily upheld indigent an defendant’s on other closing the door come close preliminary to receive a of his transcript hearing as hearings, certainly not on a hearing based I.C. 19-852 and I.C.R. § a defendant’s important as the one which 5.1.2 Since the Coronado case the Idaho his state is discussed and Supreme applicable has revised the mental evaluation Court “(4) 19-852, p. perti- is indi- In the event that the defendant ante 4. I.C.R. 5.1 in § gent pay part for the cost of such and cannot nent read: copy a re- of record made Preliminary "Rule 5.1. examination —. .. proper showing cording upon a device court, be entered that an order shall district “(d) Transcript Proceedings. . . . prepared at the cost of shall be county.” It mind determined. is for intents at trial. It be a remarkably strange all would and purposes as important as the prelimi- attorney pierce who would endeavor to hearing, nary in fact its outcome psychiatrist of a without the aid hearing. do with away any preliminary In choosing of at least his own one of —which hearing similarity that manner the bears attempting would be true in equally a suppression hearing in that if is defendant analysis of those who at the men- testified require- found of unsound mind within the hearing, especially tal evaluation absent a statute, ments of the is all further evidence (Had transcript. mag- been in suppressed. court, istrate at the least there would have available.) a tape been opin- is difficult to see how the Court’s ion can today conformity be said to be in 19-852(a)(l) this comes I.C. provisions 19-852(a)(2) with the of I.C. § play, into and controls the issue effective mandating indigent that an defendant section, assistance of counsel. This with its provided “to be with necessary services requirement indigent representation (including facilities of “to represented by attorney entitled *13 investigation preparation).” and other It person having same as a his to the extent statutory provision required was this which entitled,” clearly own counsel is so removes holding our in which the Coronado controversy question of need from case Criminal our Code’s annotator concise- one psy- for both a and at least ly accurately as commented follows: regard chiatrist. Without for the rule that parameters right “While the of a the cumulative number of witnesses does (2) criminal defendant under subdivision of a necessarily not control the decision is pretrial to services and facilities not attorneys jury, without doubt most defense particularly defined, a psychiatrists pros- as the many will want as preliminary to hearing, alleged when be certainly go to ecutor has —and would defense, necessary to certainly must when mental condition is issue trial among be included services and fa- those is proposition without at least one. The so provided by cilities the state under the no discussion. apparent as to need further statute.” may accept the di- legislature’s One well rective, non-indigent be and if it that a as to Equally compelling coming a psychiatrist to aid defendant would have correct determination in this case are the counsel, indigent that an de- his it is clear assistance of effective being is to no the law fendant entitled counsel Idaho United States less— requirement both con- and the Idaho Constitutions. Any- also be needed. stitutions —if this “It is our the best enunci- opinion that less discrimination. The thing flagrant is obligation is ation of defense counsel’s case ade- which made this record was DeCoster, v. found in United States in defense the merit quately establishes U.S.App.D.C. 487 F.2d which should motions —both of counsel’s (1973) is to the entitled —‘a granted. have been reasonably competent assistance of at- acting diligent conscientious torney his attorney’s is also to be noted that an It adopt We advocate’. this standard.” represent his obligation zealously ethical Tucker, v. P.2d client, Responsi- of Professional Idaho Code (1975). 7-101, neces- Regulation bility, Disciplinary every thorough investigation sitates say pure sophistry to deal client. defense potential available Olin’s defense effective counsel could for trial properly the case prepare order he endeavoring advocate he to be when testimony given at attorney’s review of right denied have a psychiatrist hearing or men- trial, proceeding (preliminary at his elbow both in preparing for certainly and this trial tactics attorney’s materially related hearing) so tal evaluation new plough which to on is essen- at trial not the occasion posture to the defendant’s Larkin, 102 Idaho That duty. ground. of that See State the fulfillment tial to by a be circumvented should not P.2d 1065 obligation regarding judicial determination premature be reversed. should judgment subse- at the relevance de- subjective Relevance is quent trial.
termination, be irrelevant and what im- appear particularly attorney might
one have tradition-
portant to another. Courts second-guessing an away from
ally shied