Oral Argument Preview: Proper Use at Trial of Defendant’s Statements to Court-Appointed Psychologist During a Competency Exam. State v. Harris

Update: On January 22, 2014, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

View the analysis of the oral argument here.

On March 11, 2014, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Joseph Harris, 2013-414. The issue in this state’s appeal is whether a psychologist’s trial testimony about a defendant’s feigned mental illness based on statements made during a competence and sanity evaluation is admissible during the state’s case-in-chief.

Case Background

Shane Gulleman sought out Joseph Harris to purchase oxycontin. By previous arrangement, Harris agreed to sell Gulleman seven pills for $210. The two men met in Gulleman’s car after midnight; when Harris entered the vehicle, he believed he saw Gulleman reach for a gun. Harris shot Gulleman 8 or 9 times, including a shot to the head, then fled from the scene. Gulleman was later found in his car with his wallet, $210 in cash, and his gun. He died at the scene.

Charged with Aggravated Murder, Murder, Aggravated Robbery and Having Weapons While Under Disability, Harris entered a plea of Not Guilty by Reason of Insanity (NGRI). The court ordered a psychiatric evaluation; Harris was found competent to stand trial. Eight days after that finding, Harris withdrew his NGRI plea.

At trial, the prosecution presented four inmates from the Hamilton County Justice Center who testified Harris had planned to rob a buyer, did rob a buyer named “Shane,” and then repeatedly shot him. The inmates also testified that Harris said he was going to the psychiatric ward to fake being “crazy.”

Harris testified at trial, and admitted to meeting with Gulleman to sell him oxycontin. He further testified that Gulleman turned to reach something in the backseat, which he thought might be a gun, at which point Harris shot Gulleman repeatedly before running away. Harris denied feigning insanity or incompetency and accused the inmate witnesses of lying.

During the state’s case-in-chief, Dr. Carla Dreyer, the court appointed psychologist who performed the competency evaluation, testified that in her expert opinion Harris was feigning or exaggerating symptoms of mental illness in an effort to escape prosecution.

The jury found Harris guilty of all charges. Harris was sentenced to an aggregate sentence of life without parole, plus sixteen years. The First District Court of Appeals reversed, finding the trial court erred by allowing the testimony of the court appointed psychologist during the state’s case-in-chief. The court of appeals found that since Harris voluntarily submitted to the psychological exam in entering the NGRI plea, neither his Fifth or Sixth Amendment rights were violated.  But it found the state’s use of Dr. Dreyer’s testimony about Harris malingering was improper evidence of consciousness of guilt under R.C. 2945.371(J).

Key Statute and Precedent

When a defendant enters a plea of not guilty by reason of insanity, R.C. 2945.371 allows the court to order evaluation of the defendant’s mental condition at the time of the offense. R.C. 2945.371(J) bars statements made during that evaluation from use against the defendant for determination of guilt; however, it does not completely bar the prosecution or defense from calling the evaluator as a witness. The evaluator may testify to evidence on competency or insanity issues.

State v. Cooey, 46 Ohio St.3d 20 (1989) (interpreting a prior version of R.C. 2945.371) (a defendant’s statements made in the course of a court-ordered psychiatric examination may be used to refute his assertion of mental incapacity, but may not be used to show that he committed the acts constituting the offense)

Estelle v. Smith, 451 U.S. 454 (1981)  (admission of doctor’s testimony based on the substance of the defendant’s statements made during a court ordered pre-trial psychiatric evaluation violated the defendant’s Fifth Amendment right against self-incrimination and the defendant’s Sixth Amendment right to the assistance of counsel.)

Buchanan v. Kentucky, 483 U.S. 402 (1987) (no Fifth or Sixth Amendment violations occurred under Smith when a defendant requests a psychiatric evaluation or presents psychiatric evidence to put on a “mental status defense” when the prosecution uses information from the evaluation to rebut such a defense.)

State v. Goff, 2010-Ohio-6317 (when a defendant puts his mental state directly at issue, the state may order a psychiatric examination of the defendant, but evidence disclosed during the pre-trial inquiry can only be used by the State to rebut evidence presented by the defendant at trial.)

State’s Argument

The state acknowledges constitutional protection of statements admitting guilt made by defendants during a mental evaluation. However, the state argues that protection does not extend to a defendant who intentionally lies to an examiner to fake mental illness to avoid responsibility for his crime. When an NGRI plea has been pursued as a ruse, the state’s use of such evidence should not be limited to rebuttal, but should be allowed during the state’s case-in-chief.

R.C. 2945.371(J) allows the prosecution or the defense “to call as witness any person who evaluated the defendant or prepared a report” pursuant to the court’s order under that section. The state argues case law allows the prosecution to introduce a defendant’s statements for reasons other than implicating the defendant in the crime. To support the testimony of the inmate witnesses, the state argues Dr. Dreyer’s testimony shows Harris intended to mislead authorities to escape prosecution, not to show any factual issues of his guilt. Not allowing this kind of testimony by the expert would allow a defendant to raise an insincere NGRI plea, and be shielded by R.C. 2945.371.

The state further argues that Dr. Dreyer only presented her opinion regarding Harris’s feigned mental issues, not actual statements from Harris concerning his admission of guilt. While the court of appeals agreed evidence of lying about identity, flight, escape, concealment, resistance to arrest, or other related conduct was allowed during the case-in-chief, the court ruled evidence of lying to a psychologist could only be introduced on rebuttal. Instead, Dr. Dreyer’s testimony was relevant during the state’s case-in-chief, because it was used to show Harris’s continuing efforts to manipulate witnesses, not to show his guilt.

Finally, the state reads State v. Cooey to hold that R.C. 2945.39(D) (a prior version of the statute) only prohibited use of a defendant’s statement during a court-ordered examination to prove that he committed the crime for which he was facing trial. Because Dr. Dreyer did not use any of Harris’s specific statements, no violation occurred.

Harris’s Argument

Harris argues that R.C. 2945.371 and Estelle v. Smith both limit the way information obtained from a court-ordered psychiatric evaluation can be used in a criminal trial. No statements from such evaluations can be used against the defendant on the issue of guilt. Harris argues that his statements provided the only basis for Dr. Dreyer’s opinion.  Thus her testimony improperly used his statements to prove his guilt, not to refute his mental capacity.

Harris disagrees with that part of the appellate decision finding that since he voluntarily submitted to the psychological exam in entering the NGRI plea, neither his Fifth or Sixth Amendment rights were violated. Harris argues that submitting to this examination was not voluntary, but mandatory, and that evidence that he was feigning mental illness did violate his Fifth Amendment privilege against self-incrimination, and his Sixth Amendment right to counsel, and should not have been permitted in the state’s case-in-chief.  It is his position that Estelle requires that he get the same warnings as required by Miranda before any court-appointed psychiatric examination. Even though Dr. Dreyer’s evaluation was for the limited purpose of determining competency to stand trial, she used that information in a manner which was beyond the permissible scope of R.C. 2945.371, and without Harris first receiving a warning of how his statements would be used. Further, pursuant to Buchanan v. Kentucky statements given at such examinations may only be used during rebuttal.  Since defense counsel was not notified in advance of the use to which the information obtained in the court-ordered examination would be put, Harris was deprived of his right to effective counsel, in violation of the Sixth Amendment.

Harris also argues that much of Dr. Dreyer’s testimony was used to show his criminal propensity, in violation of Evid. R. 404(A) and (B).

State’s Proposed Proposition of Law

A psychologist’s trial testimony regarding a defendant’s feigned mental illness during a competency and sanity evaluation is admissible under R.C. 2945.371(J) when it does not include factual evidence of guilt. It is admissible during the state’s case-in-chief to show the accused’s intent to mislead and defraud authorities to escape prosecution.

Harris’ Proposed Counter-Proposition of Law

The introduction of opinion testimony from an expert psychologist, who performed a court ordered psychiatric evaluation, pursuant to R.C. 2945.371 for purposes of a determination regarding a criminal defendant’s competency to stand trial[,] is inadmissible during the state’s case-in-chief.

Amicus Brief in Support of Harris

The Office of the Ohio Public Defender (OPD) filed an amicus brief in support of Harris. OPD presents as a proposed proposition of law:

Where a defendant’s sanity at the time of the offense is no longer in question, R.C. 2945.371(J) prohibits the introduction of testimony from the court-appointed psychologist who examined the defendant when it is offered for the purpose of demonstrating consciousness of guilt in the State’s case-in-chief. Consciousness of guilt is an issue of guilt under R.C. 2945.371(J).

First, OPD argues that testimony about a defendant’s statements made to a court-appointed psychologist during an R.C. 2945.371 examination may only be admitted to refute an assertion of mental incapacity. Because Harris indicated his intent to withdraw his NGRI plea, no rebuttal of this assertion was necessary.  Second, evidence of malingering, especially when the insanity defense is not at issue, is highly prejudicial, because presentation by a mental health expert imparts extra credibility to the assertion the defendant is lying. Finally, OPD points to strong policy disfavoring the state’s interpretation of R.C. 2945.371, because such an interpretation would force a defendant to choose between “foregoing either [the] right to a competency [or sanity] exam or [the] right to limit the admissibility of statements [made] during such an exam.” (quoting Porter v. McKaskle, 484 U.S. 984 (1984)).

Student Contributor: Rebecca Campbell

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One Response to Oral Argument Preview: Proper Use at Trial of Defendant’s Statements to Court-Appointed Psychologist During a Competency Exam. State v. Harris

  1. Bart Rosenberg says:

    Not withstanding the legal issues, the Court ordered a psychiatric exam, but a psychologist did it? These are two different albeit related disciplines. What exactly does the law specify? Can a Court substitute one for another? Generally, psychiatrist trumps psychologist by dint of medical training as I recall. Just saying.

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