MILLER v. DISTRICT COURT, 737 P.2d 834 (Colo. 1987)

JUSTICE ERICKSON delivered the Opinion of the Court.

[25] JUSTICE ROVIRA concurring in the result only:

[26] I agree with the majority that the contempt order against Dr. Miller must be vacated and that it is premature to quash the subpoenas to Drs. Miller and McDonald. However, since my reasons differ from at least some of those of the majority, I write separately. [27] From the sketchy transcripts we have of the proceedings, it appears that the People wished to call Drs. Miller and McDonald at a suppression hearing on the admissibility of the defendant's confession, and at the trial. The hearing of February 9, 1987, however, was neither of those. Its sole purpose was, as the majority concedes, to stage a proceeding so that the issue of whether Drs. Miller and McDonald could be compelled to testify could be presented to this court for review in an original proceeding.⁷

[28] Trial courts should not engage in such activity, and I do not believe that this court should give its blessing to such proceedings by addressing the merits of the claims "presented." Further, as the majority notes in its footnote five, even if the gross procedural irregularities were ignored, contempt was never properly established. The contempt issue in this case is determined in footnote five; the text of section II of the majority opinion is dicta.

[29] One of the problems presented by hearing a "test case" is that a number of sub-issues may escape careful scrutiny. In section II of its opinion, the majority paints with a very broad brush, indeed. It offers no distinctions between a psychiatrist called at a suppression hearing, the purpose of which is to determine whether the defendant knowingly waived hisMirandarights prior to making a statement, the sanity phase of a trial, the guilt phase of aPage 842trial, or an attempt by the prosecution to obtain pretrial discovery of the advice given by a psychiatrist to defense counsel.

[30] While section III of the majority opinion does imply the rule may be different when a psychiatrist is called in rebuttal after the defendant has placed his mental condition in issue, the majority does not provide an analysis which would make this difference important while simultaneously rendering the procedural posture of the case irrelevant.

[31] Accordingly, I would vacate the finding of contempt, discharge the rule as to the subpoena of Dr. Miller, and require this case to proceed in an orderly manner. Absent the adoption of my resolution of this case, I think it appropriate to comment on the substance of the majority opinion. [32] The majority states it is "settled that a psychiatrist retained by defense counsel to assist in the preparation of the defense is an agent of defense counsel . . . ." Maj. op. at 7. The majority's extension of the Colorado privilege statute, quoted at page 6 of the majority opinion, seems unwarranted. Privilege statutes are in derogation of the common law and should be narrowly construed.Bellman v. Dist. Ct.,187 Colo. 350,531 P.2d 632(1975) (Pringle, C.J., dissenting). While the insurance investigator inBellmanmay be similar enough to a clerk or stenographer to fall within the statute, an independent expert is not necessarily so.See State v. Schneider,402 N.W.2d 779(Minn. March 20, 1987) (defense-retained psychiatrist is neutral expert employed to make an independent determination as to the defendant's sanity, and thus not an agent of the defense attorney);State v. Craney,347 N.W.2d 668(Iowa 1984) (defense-retained psychiatrist is a subcontractor, similar to a handwriting expert, not an agent, and may be called by either party),cert. denied,469 U.S. 884(1984).

[33] Since we are interpreting a Colorado statute, I do not think it wise to simply follow the majority rule without examining the competing policy concerns involved. The parties, bench, and bar deserve a thorough examination of this important issue — not merely adoption of the "majority" rule, which may be based on authorities significantly different from Colorado's section13-90-107(1)(b).

[34] Some of the authorities the majority relies on are inapposite to this case. For example,State v. Kociolek,23 N.J. 400,129 A.2d 417(1957) (cited on page eight of the majority opinion), was interpreting common law; there were no statutes involved. On the other hand,Peoplev. Lines,13 Cal.3d 500,119 Cal.Rptr. 225,531 P.2d 793(1979) (cited by the majority on pages seven and eight), dealt with a California statute which defined the attorney-client privilege in language different from and broader than that used by the Colorado statute. In my view, none of these authorities are persuasive in interpreting the Colorado privilege statute, which expressly delineates persons that come within the attorney-client privilege.

[35]Ake v. Oklahoma,470 U.S. 68(1985), quoted by the majority at page 10, dealt only with a defendant's right (under the federal Constitution) to have a psychiatrist appointed, at state expense, to conduct an examinationand present his findings to the jury.Indeed,Akedirectly or indirectly refers to the psychiatrist presenting his findings to the trier of fact no less than nine times in just two pages,Akeat 80-81, which is all the People appear to desire in this case.

[36] The majority also relies on the American Bar Association's Criminal Justice Mental Health Standards [Standards] for the general proposition that the People may not call a psychiatrist originally retained by the defendant absent a waiver by the defendant. Maj. op. at 7, 13-14 n. 1. The majority states that its opinion is "consistent" with the standards. Maj. op. at 13 n. 1. When the Standards are viewed in context, I think the result the majority reaches is contrary to, rather than consistent with, them.

[37] While the Standards do prohibit the People from calling defense-retained psychiatrists,Page 843they also require that the People be allowed contemporaneous psychiatric evaluations of the defendant. Standard 7-3.4(a) requires the defendant to notify the state within forty-eight hours of beginning his own psychiatric examination. Standard 7-3.4(c) provides that if the court determines that an adequate evaluation of the defendant's mental condition has been precluded because the defendant has refused to cooperate with the mental health professional the court, in its discretion, may exclude the introduction at trial of testimony by a mental health professional offered by the defendant concerning the defendant's mental condition.

[38] The commentary to Standard 7-3.4(c) states in part:

[39] "Paragraph (c) of the standard endorses an intermediate response. It does not bar noncooperating defendants from asserting defenses based on their mental condition at the time of an alleged crime, but instead allows courts to exclude mental health or mental retardation professional testimony in support of the defense claim. This rule of reciprocity places in balance the prosecution and defense evidence, because a defendant's personal testimony, the testimony of lay witnesses, and other relevant nonexpert evidence may be used by either side to establish or refute the defense claim. Most appellate courts in fact have endorsed the reciprocity approach [footnote citation to authority] . . . ."

[40] Standards, commentary to 7-3.4, at 7-95 and 7-96. Thus the Standards, when viewed as a whole, require a balance: either both sides have timely expert assistance or neither side does.

[41] However, in Colorado the defendant need not notify the People that his mental condition is an issue until he enters a plea of not guilty by reason of insanity or asserts the affirmative defense of impaired mental condition, sections16-8-103and 103.5, 8A C.R.S. (1986), which may be months after his own experts have completed their evaluations. Even then, he does not have to cooperate with the People's experts. Section16-8-106(2), 8A C.R.S. (1986) (defendant shall have a privilege against self-incrimination during evaluation). The strongest sanction for failing to cooperate is notice to the jury that he did not do so.Id.⁸

[42] These statutes, when coupled with the court's extension of the attorney-client privilege to persons the legislature did not mention in the attorney-client privilege statute, allow the defendant to avoid informing the People for months, not cooperate with the court-appointed experts, and then present his own expert testimony without fear of meaningful response by the People. I do not find the majority opinion at all consistent with the even-handed approach of the Standards.

[43] In this case, the defendant's experts (including Drs. Miller and McDonald) examined the defendant within days or weeks of the murder. The People had no way of knowing a psychiatric examination might be necessary until the defendant pled not guilty by reason of insanity some four months later. The court-appointed experts did not get a chance to examine the defendant until five months after the event. Clearly, the fact that the court-appointed psychiatrists did not examine the defendant until five months after the defendant's own experts had completed their examinations put them at a disadvantage.

[44] The People also contend in their brief that the defendant did not cooperate with Dr. Metzner, one of the court-appointed experts. Even if the defendant had been cooperative in this case, however, that is no guarantee that another defendant would be. The majority decision does not provide an exception where the defendant is noncooperative. The majority states that the prosecution must "investigate its own case," maj. op. at 9; however, it does not explain how the People can accomplishPage 844that task if the defendant refuses to cooperate with a court-appointed psychiatrist.

[45] Even assuming that a defense-retained psychiatrist is included within the attorney-client privilege, many courts have held that entry of an insanity plea and putting on psychiatrists to testify as to that issue waives the privilege.See Noggle v. Marshall,706 F.2d 1408(6th Cir. 1983) (guarantee of effective counsel does not insulate from disclosure, on the issue of defendant's sanity, the opinion of a medical expert who was retained by the defense as a potential witness);State v. Schneider,402 N.W.2d 779(Minn. March 20, 1987);State v. Dodis,314 N.W.2d 233(Minn. 1982);State v. Carter,641 S.W.2d 54(Mo. 1982),cert. denied,461 U.S. 932(1983);People v. Edney,39 N.Y.2d 620,350 N.E.2d 400(1976);Granviel v. State,552 S.W.2d 107(Tex.Cr.App. 1976),cert.denied,431 U.S. 933(1977) (no attorney-client privilege attaches to communication between a defendant and a psychiatrist who makes an examination with respect to sanity).⁹The cases reason that the defendant is not free to present the experts who will testify most favorably to him on the sanity issue and then block the other experts by invoking a privilege. In this case, the defendant has previously entered such a plea and put on his own psychiatric experts. In addition, he has asserted the affirmative defense of impaired mental condition.

[46] I agree that the subpoenas may not be quashed at this stage. Again, however, I do not think the court should render an advisory opinion on the subject, suggesting, as it does, that the People must wait until their rebuttal case at trial, as opposed to the suppression hearing, to attempt to call Drs. Miller and McDonald.