Update: On December 20, 2016, Harris withdrew his not guilty plea. The court entered a plea of guilty to involuntary manslaughter and sentenced Harris to 13 years with credit for time served.
On January 22, 2015, the Supreme Court of Ohio handed down a merit decision in State v. Harris, 2015-Ohio-166. In a unanimous opinion written by Justice Kennedy, in which Justice French wrote a short separate concurrence, the court held that when a defendant asserts, but then totally abandons, a mental-capacity defense, a psychologist’s testimony about the defendant’s feigned mental illness during the mental competency evaluation is inadmissible during the state’s case-in-chief, and that the admission of such testimony in this case was prejudicial error. The case was argued March 11, 2014.
Joseph Harris was charged with aggravated murder, murder, aggravated robbery and having weapons while under disability for shooting a man to death during a drug deal. Harris filed a suggestion of incompetence to stand trial (IST), and entered a plea of not guilty by reason of insanity (NGRI).
Pursuant to R.C. 2945.371, the trial court ordered an evaluation of Harris’ mental condition. The evaluation was done by clinical psychologist Carla Dreyer, who determined Harris was competent to stand trial. The trial court filed an entry finding Harris competent to stand trial. Harris then filed a notice of alibi. While Harris never formally abandoned his NGRI plea during the discovery phase, he never pursued it at trial.
At Harris’ trial, the state called Dr. Dreyer as a witness in its case-in-chief over Harris’ objection. The state pointed out that Harris had never withdrawn his insanity plea. At that point, Harris’ lawyer represented to the court that the defense was not pursuing any mental-capacity defense, and withdrew the suggestion of incompetence and the NGRI plea on the record. The court overruled Harris’ objection, and allowed Dreyer’s testimony during the state’s case-in-chief. She opined that Harris was competent to stand trial , was malingering, and was feigning or exaggerating symptoms of mental illness in an effort to escape prosecution. The prosecution also called four inmates from the Hamilton County Justice Center, who testified that Harris said he was going to the psychiatric ward to fake being “crazy.”
The day after jury deliberations had begun, the trial court filed an entry finding that Harris had withdrawn his NGRI plea before the case was submitted to the jury.
The jury found Harris guilty of all charges, and he was sentenced accordingly. Finding that the trial court erred by allowing Dreyer’s testimony, and that the error was not harmless beyond a reasonable doubt, the First District Court of Appeals reversed the convictions for aggravated murder and aggravated robbery, and remanded the case for a new trial on those charges and related specifications.
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.
Crim.R. 52(A) (Harmless Error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.)
Fifth Amendment, U.S. Constitution (No person shall. . . be compelled in any criminal case to be a witness against himself.)
Article I, Section 10, Ohio Constitution (No person shall be compelled in any criminal case, to be a witness against himself[.])
Culombe v. Connecticut, 367 U.S. 568 (1961) (the Fifth Amendment prohibition against self-incrimination requires that “the State. . . produce the evidence against [the defendant] by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.”)
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; psychiatrist’s opinion of defendant’s credibility improper.)
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)
State v. Perry, 2004-Ohio-297 (Under the harmless-error standard of review, the government bears the burden of demonstrating that the error did not affect the substantial rights of the defendant.)
State v. Morris, 2014-Ohio-5052 (When deciding if an error has affected the substantial rights of a defendant, thereby requiring a new trial, appellate courts must determine whether: (1) the defendant was prejudiced by the error, meaning did the error have an impact on the verdict; (2) the error was not harmless beyond a reasonable doubt; and (3) absent the prejudicial evidence, does the remaining evidence establish the defendant’s guilt beyond a reasonable doubt.)
Fifth Amendment Privilege Against Self-Incrimination
The opinion traces some of the case background of the application of the Fifth Amendment privilege against self-incrimination to information obtained through a court-ordered psychiatric evaluation of the accused (See precedent section). The court also notes in this section of the opinion that the language in Article I Section 10 of the Ohio Constitution contains essentially the same language and thus provides similar protections. Essentially, existing precedent supports Harris’ position that testimony of a mental health professional arising out of a compelled evaluation cannot be used against a criminal defendant who is not relying on a mental competency defense.
The opinion next looks at the history and purpose of R.C. 2945.371, the section of the criminal code dealing with evaluations and reports of a defendant’s mental condition. R.C. 2945.39(J), which was first enacted into the statute in 1997, clearly and strictly prohibits the use of a defendant’s statements from a compelled psychiatric examination on the issue of guilt, although the statute does permit the use of such testimony by the state for other matters.
The state argued throughout this case that Dr. Dreyer’s testimony was not used against Harris on the issue of guilt, but rather, was evidence of his consciousness of guilt. The high court rejected this distinction, as had the court of appeals. The high court found that consciousness of guilt is no different from guilt itself.
The court found that the record demonstrated that Harris had abandoned and indicated his intent to withdraw his NGRI plea, acknowledged to the court that he would not be introducing psychiatric evidence at trial, offered an alibi defense which was clearly inconsistent with an NGRI plea, and properly objected to Dr. Dreyer’s testimony. On this point, then, the court held that Dreyer’s testimony had been improperly offered in the state’s case in chief to help prove Harris’ guilt.
Harmless Error Analysis
Under Crim. R. 52(A), any error which doesn’t affect substantial rights shall be disregarded.
In November of 2014, in State v. Morris (a 4-3 decision in which Justice Kennedy wrote the lead dissent), the court dispensed with the distinction between constitutional and nonconstitutional error under Crim. R. 52(A).
Applying the newly formulated test for harmless error articulated in Morris, (see precedent section), the court found that the admission of Dreyer’s testimony violated Harris’ right against self-incrimination under the Fifth Amendment and under Article I Section 10 of the Ohio Constitution. Dreyer’s testimony was allowed in the state’s case-in-chief after Harris had clearly abandoned any mental-capacity defense. Dreyer’s testimony about Harris’ feigning of mental illness was an opinion as to Harris’ credibility which was not Dreyer’s role. Additionally, such testimony would undoubtedly have affected the jurors’ perception of Harris, and boosted the credibility of the jailhouse informants. Therefore, the erroneous admission of Dreyer’s testimony was not harmless beyond a reasonable doubt.
Finally, the remaining evidence against Harris was not strong, and a great deal of it hinged on the credibility of Harris’ testimony versus the jailhouse informants’ testimony, thus making Dreyer’s improperly admitted testimony that much more damaging.
Applying the analysis established in Morris, the court held that the improper admission of Dreyer’s testimony affected Harris’ substantial rights and was not harmless, thus entitling him to a new trial.
Justice French’s Separate Concurrence
Justice French agreed that Dreyer’s testimony violated Harris’ constitutional right against self-incrimination, and agreed that the error was not harmless. But she would find R.C. 2945.371(J) inapplicable to this case because that statute prohibits the state from introducing certain statements made by a defendant in an evaluation hearing, and here the state introduced only Dreyer’s opinions, not any statements made by Harris during his evaluation.
Both student contributor Beckie Campbell and I called this correctly for the defense, although neither of us thought the decision would be unanimous.
Here’s what I wrote after argument:
“I’m going to call this as a win for the defense, although not unanimously. In State v. Cooey, in the second syllabus paragraph, the Court was very clear, in interpreting an earlier version of the statute here at issue, that “a defendant’s statements made in the course of a court-ordered psychological 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.”
“The fact here is that although Harris didn’t withdraw his NGRI plea until very late in the day, it seems clear that at trial he never intended to pursue it. So since he did not put his mental condition at issue in this case, allowing the psychologist’s testimony in the state’s case in chief will likely be found to be error.
“Justice Lanzinger seemed clearest on the inherent prejudice of the psychologist’s testimony in the state’s case in chief here, and at times seemed to be dueling with the Chief on this point. While an opinion that Harris was malingering isn’t a direct statement that the psychologist thought he was guilty, it cast a cloud over Harris before he decided whether to testify. It was allowing an expert to say in the state’s case in chief that the defendant was not a person worthy of belief. I think Justice Lanzinger and Justice French saw this the most clearly. And clearly an expert’s opinion in this regard carries far more weight than that of the jailhouse inmates (I doubt any of the justices disagree with that).”
In State v, Goff, Justice Pfeifer wrote a very similar analysis of the damage to a defendant when an expert oversteps his or her role and inappropriately comments on credibility, which is why I thought he would also find for the defense although he didn’t ask any questions during the argument.
I think what ultimately turned the Chief and Justice O’Donnell—the justices least sympathetic during argument toward the defense– to the defense position is that the record did clearly show that Harris had abandoned his NGRI plea, made it clear he wouldn’t be introducing any kind of psychiatric testimony, acknowledged to the court that he didn’t meet the criteria for legal insanity, and timely objected to the psychologist’s testimony.
While the case has no syllabus, it is an important affirmance of protections afforded criminal defendants against self-incrimination, by a crowd that can scarcely be accused of being soft on criminals.