Hartless v. State

McAULIFFE, Judge. On 17 October 1987, Angelica Valezco, a 20-year-old clerk at a High’s Dairy store in Columbia, Maryland, was stabbed to death during a robbery of the store. Petitioner David Andrew Hartless was charged with the crime and tried by jury in the Circuit Court for Howard County. Hartless was found guilty of premeditated first degree murder, second degree murder, robbery, robbery with a dangerous and deadly weapon, assault, and battery.

After merger of the lesser included offenses, Hartless was sentenced to life imprisonment for first degree premeditated murder and to a consecutive sentence of 20 years for robbery with a dangerous and deadly weapon. The Court of Special Appeals affirmed in an unreported opinion. In his petition for writ of certiorari, Hartless alleged that the trial court committed two errors: 1) it violated his right against compelled self-incrimination and his right to due process of law by allowing the State to obtain mental examinations of him, and by releasing the results of those examinations to the State before he had introduced any psychiatric testimony in his defense, and 2) it erroneously excluded a defense expert’s testimony concerning Hartless’ ⁵⁶¹ psychological profile and his mens rea at the time of the crime. We granted certiorari to decide these issues.

I. Early in the course of the proceedings, the State filed a “Request for Expert and Alibi Witnesses” pursuant to Maryland Rule 4-263 requesting, among other things, copies of all written reports made by experts that the defendant intended to call as witnesses. Thereafter, the defendant provided the State with a copy of a report of Dr. Ellen McDaniel, a psychiatrist, and informed the State that the defense intended to present expert psychiatric testimony that the defendant “had not formed the specific intent to kill.” In response, the State filed a motion pursuant to Rule 4-263(d)(l), seeking a mental examination of the defendant by a psychiatrist and a psychologist. The defendant opposed the State’s request for a mental examination, and alternatively sought a protective order limiting the State’s access to results of the mental examination. After a hearing on the motions, Judge Cornelius F. Sybert Jr. granted the State’s motion for a mental examination.

Judge Sybert also issued a protective order directing that the results of the examination be turned over to the court for in camera review, and that pending further order of the court, the State should not have access to oral or written reports of the results of the examination, nor contact with the examining experts. The court denied the defendant’s request to have counsel present at, and to have a video recording made of, the examinations. The defendant was thereafter examined by a psychiatrist and a psychologist selected by the State, and the results were provided only to Judge Sybert. When trial commenced before Judge J. Thomas Nissel and a jury, the State had had no contact with its experts or access to their findings.

After six days of the State’s case in chief and two days before the State rested, Judge Sybert ordered that the parties be given a summary of the findings by the State’s ⁵⁶² experts. After the State had rested, the State was given full access to the reports and to the experts. The court ordered, however, that the State could use information gained from its experts only in rebuttal and only if Hart-less’ psychiatric expert testified at trial for the defense. During the trial, Judge Nissel refused to admit the testimony and report of Dr. McDaniel when offered by the defense, and therefore the State never offered the testimony or reports of its experts.

The defendant argues that even though the results of the examination by the State’s experts were not admitted at trial, the examination itself violated his right against self-incrimination, and the order to submit to an examination may have had a “chilling effect” on the defendant’s right to testify, thus denying him due process of law. The defendant also claims that the examination gave the State insight into the defendant’s ability to communicate with the jury, and an unfair opportunity to be made aware of the defendant’s responses to questioning. We note, however, that the defendant does not specifically claim that his decision not to testify was influenced by being subjected to the State’s mental examinations; nor does he point to any statements made during those examinations that could have given the State insight into his defense. Hartless concedes that a compelled mental examination is not per se unconstitutional.

He acknowledges it is well established that such an examination is permissible when a defendant enters a plea of not criminally responsible, and that, if he had entered such a plea, the State would have been entitled to a mental examination under § 12-110 of the Health-General Article, Maryland Code (1982, 1990 Repl. Yol.). Hartless recognizes that Rule 4-263 also authorizes mental examinations of defendants, but he asserts that the Rule is intended to be limited to cases involving pleas of not criminally responsible. Hartless concludes that since he sought only to present evidence of a lack of premeditation or of intent to commit murder, no examination was authorized under Maryland law. ⁵⁶³ The State responds that the examinations were properly ordered pursuant to Rule 4-263, and did not violate any of the defendant’s constitutional rights.

The State asserts that when a defendant intends to produce expert psychiatric testimony concerning his mental condition, the State must be allowed to conduct its own mental examination in order to effectively evaluate and rebut the defendant’s psychiatric testimony. The State claims that its need for an examination is equally great, whether the defense is offering expert testimony to show insanity or to show a lack of mens rea or other mental state.

II

We begin our analysis by recognizing that, unlike § 12-110 of the Health-General Article, Maryland Rule 4-263 does not by its terms limit authorization of mental examinations of defendants only to cases in which a plea of not criminally responsible has been entered. Subsection (d)(1) of Rule 4-263 provides: (d) Discovery by the State.—Upon the request of the State, the defendant shall: (1) As to the Person of the Defendant.—Appear in a lineup for identification; speak for identification; be fingerprinted; pose for photographs not involving reenactment of a scene; try on articles of clothing; permit the taking of specimens of material under fingernails; permit the taking of samples of blood, hair, and other material involving no unreasonable intrusion upon the defendant’s person; provide handwriting specimens; and submit to reasonable physical or mental examinations; ____ (Emphasis added). To interpret the Rules, we use the same principles of construction as are used for interpreting statutes. In re Leslie M., 305 Md. 477, 481 , 505 A.2d 504 (1986); Pappas v. Pappas, 287 Md. 455, 465 , 413 A.2d 549 (1980).

We thus look to the plain meaning of Rule 4-263(d)(l) and construe its language without forced or subtle interpretations designed to limit its scope. Baltimore Sun v. University, 321 ⁵⁶⁴ Md. 659, 669, 584 A.2d 683 (1991); State v. Intercontinental, Ltd., 302 Md. 132, 137 , 486 A.2d 174 (1985). We find no authority, and Hartless points to none, to support his claim that Rule 4-263(d)(l) was not intended to apply to cases in which a defendant challenges with expert psychiatric testimony the existence of the mens rea element of a crime. The Rule is purposely drafted broadly to give a trial judge discretion to order any of these forms of discovery when the State has established them to be necessary and reasonable.

Thus, unless there are constitutional prohibitions, Rule 4-263 gives a trial judge discretion to grant the State’s request for a mental examination of a defendant who intends to offer expert psychiatric testimony to show the defendant’s mental status. We turn to Hartless’ claim that the application of Rule 4-263 in this case violated his constitutional rights. In so doing, we must consider whether State-requested mental examinations of a defendant in a criminal case infringe upon a defendant’s due process rights, or the right not to be compelled to give evidence against himself. As mentioned, it is accepted that these rights are not violated by allowing the State a mental examination of a defendant who has entered a plea of not criminally responsible, and, if the defendant introduces psychiatric testimony at trial, by allowing the State to present testimony by its psychiatrist on the issue of criminal responsibility.

See United States v. Byers, 740 F.2d 1104, 1111 (D.C.Cir.1984) and cases cited therein; United States v. Albright, 388 F.2d 719, 723-26 (4th Cir.1968); Bremer v. State, 18 Md.App. 291, 315-18 , 307 A.2d 503 , cert. denied, 269 Md. 755 (1973), cert. denied, 415 U.S. 930 , 94 S.Ct. 1440 , 39 L.Ed.2d 488 (1974). A number of different rationales have been advanced to support this rule. See, e.g., United States v. Baird, 414 F.2d 700, 707 (2d Cir.1969), cert. denied, 396 U.S. 1005 , 90 S.Ct. 559 , 24 L.Ed.2d 497 (1970) (defendant “estopped” from asserting rights when he voluntarily initiates inquiry into ⁵⁶⁵ his mental status); Albright, supra, 388 F.2d at 724 (examination of defendant maintains a “fair state-individual balance”); Granviel v. Lynaugh, 881 F.2d 185, 190 (5th Cir.1989), cer t. denied, 495 U.S. 963 , 110 S.Ct. 2577 , 109 L.Ed.2d 758 (1990) (raising insanity defense constitutes “waiver” of protection against compelled self-incrimination with regard to psychiatric testimony). We believe the underlying concern is that in order for the State to be able to bear effectively its burden of proving guilt, or of meeting an affirmative defense, it must have the means to adequately assess and, if necessary, rebut a defendant’s expert psychiatric testimony.

The United States Supreme Court has addressed this concern and supported the concept that a defendant who uses psychiatric testimony as part of a mental status defense waives his right against compelled self-incrimination. Language contained in [Estelle v.] Smith, [ 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981)] and in our later decision in Buchanan v. Kentucky, 483 U.S. 402 , 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987), provides some support for the Fifth Circuit’s discussion of waiver. In Smith we observed that “[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he has interjected into the case.” 451 U.S., at 465 , 101 S.Ct., at 1874 . And in Buchanan the Court held that if a defendant requests a psychiatric examination in order to prove a mental-status defense, he waives the right to raise a Fifth Amendment challenge to the prosecution’s use of evidence obtained through that examination to rebut the defense.

Powell v. Texas, 492 U.S. 680, 684 , 109 S.Ct. 3146, 3149 , 106 L.Ed.2d 551 (1989). The Supreme Court stated that it would be unfair to the State to permit a defendant to use psychiatric testimony without allowing the State an effective means to rebut that testimony. Id. at 684-85 , 109 S.Ct. at 3149-50 . The Court ⁵⁶⁶ did not expressly define what means of rebuttal are constitutionally permissible.

Many state courts have, however, addressed this issue. Most have found no constitutional impediment to allowing the State to secure a mental examination of a defendant and to present rebuttal expert testimony in cases involving mental status defenses other than insanity. See, e.g., State v. Druke, 143 Ariz. 314 , 693 P.2d 969, 972-73 (Ct.App.1984); State v. Fair, 197 Conn. 106 , 496 A.2d 461, 463-64 (1985), cert. denied, 475 U.S. 1096 , 106 S.Ct. 1494 , 89 L.Ed.2d 895 (1986); People v. Gilbert, 101 Mich.App. 459 , 300 N.W.2d 604, 608 (1981); State v. Dixon, 655 S.W.2d 547, 560 (Mo.App.1983), cer t. denied, 464 U.S. 1072 , 104 S.Ct. 982 , 79 L.Ed.2d 219 (1984); State v. Goodwin, 249 Mont. 1 , 813 P.2d 953, 959 (1991); State v. Briand, 130 N.H. 650 , 547 A.2d 235, 237-40 (1988); State v. Myers, 239 N.J.Super. 158 , 570 A.2d 1260, 1266 (1990); People v. Atwood, 101 Misc.2d 291 , 420 N.Y.S.2d 1002, 1005-06 (1979); State v. Thompson, 768 S.W.2d 239, 248 (Tenn.1989), cert. denied, — U.S. -, 110 S.Ct. 3288 , 111 L.Ed.2d 796 (1990); Hernandez v. State, 805 S.W.2d 409, 411-12 (Tex.Cr.App.1990), cert. denied, — U.S. -, 111 S.Ct. 2275 , 114 L.Ed.2d 726 (1991); State v. Hutchinson, 111 Wash.2d 872 , 766 P.2d 447, 451-53 (1989). See also Ruiz v. State, 299 Ark. 144 , 772 S.W.2d 297, 307 (1989) (allowing the State to use a psychiatrist to testify on rebuttal as to the defendant’s “future dangerousness”).

In State v. Druke, for example, where the defendant sought to introduce expert psychiatric testimony to show a lack of mens rea to commit first degree murder, the court construed its discovery rule to permit a State mental examination and expert rebuttal testimony on the grounds that a defendant is not entitled to an unfair advantage in the presentation of his defense and, conversely, ... the state is entitled to a fair opportunity to present its evidence and to rebut the evidence presented by the defendant____In this case, if the [state] were denied the opportunity to have its own mental health expert examine [the defendant], it would have no means to rebut the testimony of ⁵⁶⁷ the latter’s expert save through cross-examination---[A]n inference would arise that the evidence presented by the [defendant] as to his mental condition is true because uncontradicted. 693 P.2d at 973 . The same right was afforded the prosecution in State v. Hutchinson, where the defendant sought to present expert testimony to establish his lack of mental capacity to form the intent to commit aggravated first degree murder. 766 P.2d at 451-53 . The court held that the right of the State to request a mental examination was conferred by a discovery rule which, like Maryland Rule 4-263, generally allowed the court to order a defendant to submit to a reasonable physical or psychiatric examination. Id.

The court emphasized that it would be unfair to allow the defendant to put his mental status in issue and then deny the State access to relevant information concerning it. Id. at 452. This reasoning was also applied in People v. Gilbert, where the State was held to be entitled to a mental examination of a defendant who, like Hartless, sought to present expert psychiatric testimony that he did not have the specific intent required for premeditated first degree murder because of a panic reaction 1 during the commission of the crime. 300 N.W.2d at 608 . The court held that if a defendant chooses to challenge with expert psychiatric testimony the intent element of a crime, the State is entitled to the same discovery rights as in the case of a defendant who pleads insanity.

Id. Federal Rule of Criminal Procedure 12.2 governs the notice a defendant must provide when intending to rely on an insanity defense or to present expert testimony concern ⁵⁶⁸ ing “any other mental condition of the defendant bearing on guilt.” 2 A number of federal courts have interpreted the Federal Rules of Criminal Procedure to suggest that a compelled government examination is constitutional where the defendant has offered expert psychiatric testimony to show a lack of mens rea. In United States v. Buchbinder, 796 F.2d 910, 915 (7th Cir.1986), the court applied the notice provisions of Rule 12.2(b) to exclude expert psychiatric testimony offered by a defendant who alleged that his depression made him unable to form the specific intent to commit wire fraud. The court’s holding was based on the premise that the government would be unfairly prejudiced by the testimony, since it did not have time to conduct its own examination of the defendant and to prepare its own expert testimony for rebuttal: Obviously, the government cannot conduct its own investigation into the validity of the defense of lack of mental capacity and decide if it will present expert witnesses in rebuttal until such time as it has knowledge of the psychiatric and psychological evidence the defense intends to present____ It is evident that the government did not have sufficient time prior to trial to have the defendant examined by its own expert witnesses and to prepare psychiatric testimony of its own concerning the defendant’s condition to rebut the defense expert’s testimony if necessary.

Id. In United States v. Halbert, 712 F.2d 388, 390 (9th Cir.1983), cert. denied, 465 U.S. 1005 , 104 S.Ct. 997 , 79 L.Ed.2d 230 (1984), the court found no constitutional violation in the admission of evidence derived from a court-ordered psychiatric examination of the defendant. After ⁵⁶⁹ raising a defense of diminished capacity, the defendant argued that if he were required to submit to a mental examination, only statements concerning sanity should be admissible under the Fifth Amendment and not those bearing on his mens rea. Stating that this distinction “elevates form over substance,” the court held that both forms of evidence are constitutionally admissible once a defendant raises a mental status defense.

Id. 3 Thus, there is substantial authority supporting the position that the State constitutionally may be permitted to have access to evidence on an issue the defendant has introduced and that, for rebuttal purposes, “the state must be able to follow where [the defendant] has led.” United States v. Byers, supra, 740 F.2d at 1113 . We have, in fact, found only two courts which have held that the prosecution may not conduct a mental examination of a defendant who asserts a mental status defense other than insanity. First, in State v. Hennum, 441 N.W.2d 793 (Minn.1989), the court granted a new trial to a defendant who had been ordered to submit to a state mental examination based upon her intent to present expert testimony concerning the battered woman syndrome as part of a self-defense claim to murder. In reaching its decision, however, the court did not directly address the constitutional issues involved, stating that questions as to the nature and scope of adverse medical examinations were best answered by the legislature.

Id. at 800 . The court decided that until the legislature spoke on this issue, expert testimony concerning whether the defendant suffered from the syndrome could not be adduced by either side. Id. at 799-800 . The court acknowledged that allowing a defendant to admit such expert testimony would require reciprocal rights for the State: ⁵⁷⁰ [Our] restriction will remove the need for a compelled adverse medical examination of the defendant.

Since the expert will only be allowed to testify as to the general nature of the battered woman syndrome, neither side need conduct an examination of the defendant. * * * * * * [W]e also note that allowing the defense to produce expert testimony based on a medical examination of a defendant without providing the state an opportunity to conduct a similar examination denies the state a fair chance to rebut the expert testimony of the defense. Id. 4 Second, in State v. Vosler, 216 Neb. 461 , 345 N.W.2d 806, 811-13 (1984), a divided court held that the defendant’s right against compelled self-incrimination had been violated by permitting the State to conduct a mental examination of the defendant and to rebut his expert testimony that he did not have the intent to commit murder. The defendant alleged that he had killed his wife’s paramour based on an “irresistible impulse” after finding the two in each other’s arms. Id., 345 N.W.2d at 808 .

The majority reached its result by reasoning that [defendant’s use of evidence of his mental condition to rebut the charge that he acted with premeditation and malice was aimed squarely at an element of the crime which the State had the burden to prove; that is, whether the defendant had the intent required to commit murder. * * * * * * In such a situation the fifth amendment requires that the State prove its case without compelling the defendant to submit to interviews by those in its employ. ⁵⁷¹ Id. at 812-13. 5 The dissenting judges strongly disagreed, arguing instead that [t]he reasons which support the right of the State to compel such an examination where the defendant pleads insanity are equally applicable in any case where psychiatric evidence may be offered by the defendant. ... [Fundamental fairness should prevent a defendant who uses such psychiatric testimony in his defense from denying the State an opportunity to meet and rebut that evidence. Id. at 814. We have carefully considered and weighed the important constitutional interests which all of these cases raise. Clearly a balance must be struck that protects a defendant’s right against compelled self-incrimination and his right to due process of law while, at the same time, adequately assuring that the State will not be unfairly disadvantaged in bearing its burden of proof.

Under the facts of this case, we hold that Judge Sybert did not abuse his discretion in granting the State’s request for a mental examination. The defendant had given notice of his intention to offer expert testimony concerning his mental state, and the State was entitled to have a reasonable opportunity to properly evaluate and meet that evidence. We also agree that ordinarily it would not be feasible to delay the mental examination until after the defendant had offered expert testimony on his mental state. Not only would this be difficult, if not impossible to accomplish without inordinately delaying the trial, it would also preclude the State from having information necessary to effectively cross-examine the defendant’s expert.

Although the