2011-297, State of New Hampshire v. Gary E. Marchand

Michael A. Delaney

and provide a procedural framework for courts to follow. Accordingly, we

courts use when ordering them? We answer the first question in the negative, and (2) if such examinations may be compelled, what procedures should trial psychological or psychiatric examination when he raises an insanity defense;

No. 2011-297 Hillsborough-southern judicial district

incrimination prevent the State from compelling a defendant to undergo a

, deputy chief appellate defender, of Concord, on the

case presents us with two questions: (1) does the right against self- Marchand, to undergo a psychological evaluation by the State’s expert. This (Nicolosi, J.) denying the State’s request to compel the defendant, Gary E. HICKS, J. This is an appeal from an order of the Superior Court

brief and orally, for the defendant. ___________________________ David M. Rothstein THE SUPREME COURT OF NEW HAMPSHIRE attorney general, on the brief and orally), for the State.

reporter@courts.state.nh.us to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 The State disagrees, arguing that Briand

Superior Court (Lynn to submit to an examination by the State’s expert.

examination by the State’s expert, Dr. Albert Drukteinis. After a hearing, the expects to call his treating physicians to testify and thus cannot be compelled The State moved to compel the defendant to submit to a psychological waived his right against self-incrimination by notifying the State that he in preparation for trial. The defendant accordingly argues that he has not

conducted after the homicide. his statements to them did not involve the alleged homicide and were not made

intend to introduce any expert testimony developed from an evaluation experts; and (2) evinces the intention to rely on that testimony at trial.” The physicians (and thus they will not indirectly convey such statements) because during the period of time leading up to the homicide. The defendant does not defendant argues that he made no testimonial statements to his treating according to the State, “Briand the homicide. Thus, they will testify only as to the defendant’s mental health same access to the accused that he has given his own expert.” However, the

examination when she (1) submits to psychiatric examination by defense rested upon the fact that such expert expert testimony took place before or after the crime occurred.” Rather, homicide with the defendant, nor has any of them met with the defendant since against self-incrimination, obligating the accused to provide the State with the the psychiatric evaluation that was the subject of the [defendant’s] proposed

crime. The defendant concedes that, under Briand

to resist the State’s request that she submit to court-ordered psychiatric

treatment prior to the alleged homicide. None of them has discussed the In their briefs, both parties focus heavily upon State v. Briand indirectly through an expert witness, [it] is treated as a waiver of his privilege establish this defense. Those physicians provided him with psychiatric to introduce testimonial statements, namely, his account of relevant facts the State that he plans to present the testimony of five treating physicians to, “when a defendant decides testimony based only upon evaluations that took place prior to the alleged evaluation, id. at 651, whereas the defendant here expects to introduce expert Briand sought to introduce expert testimony based upon a post-arrest

650, 657 (1988), in which we held “that a criminal defendant waives her right

see

wife. In March 2010, he filed a notice with the superior court stating that he see RSA 630:1-b, I(b) (2007), in connection with the alleged homicide of his RSA 630:1-a, I(a) (2007), and an alternative count of second degree murder, in dispute. The defendant was indicted on one count of first degree murder, Our analysis begins with a recitation of the relevant facts, which are not tolerate placing the defendant in this untenable position.”

p. 3 It concluded that the “New Hampshire and federal constitutions should not

waived his rights against self-incrimination.

hold him criminally accountable when the defendant has not voluntarily State seeks would be to force the defendant to assist the government to existed prior to the alleged crime. The inevitable result of the ruling the

the defendant would have to forgo introducing critical evidence that

disclosure about the alleged criminal event with the government’s expert, maintain his right against self-incrimination by resisting a forced advantage in front of the jury that the defendant does not. In order to

the defendant’s compelled statements, the State would have an

Should the State be able to produce expert evidence on sanity based on

of a ruling compelling the defendant to undergo an examination: With no guiding case law, the court looked to the potential consequences

of a criminal act – nor has the court found any case on point.” opted to have its own expert evaluate the defendant after he has been accused context of the case at bar – that is, a circumstance where the defense has not

concluded that “[n]one of the cases resolve the issue in the same factual

by the State in circumstances similar to this case. The court ultimately defendant is compelled to undergo a psychological or psychiatric examination cases addressing whether the right against self-incrimination is violated if a

On March 29, 2011, the Superior Court (Nicolosi Presented with an apparently novel question, the court examined various

his right against self-incrimination.

observed that Briand

factually distinguishable from Briand

raises an insanity defense, and, as briefly discussed above, Briand

of self-defense and/or provocation manslaughter,” and not an insanity defense. defendant in Briand submit to examination by the State’s expert and that such would not violate raised “a ‘battered woman’ defense that was framed as one other reasons, the State argued that the defendant should be compelled to does not resolve the issue in this case because the facts indirectly through an expert witness.” (Quotations omitted.) For this and provide a statement to his experts after the alleged homicide. The court further

some guidance in this area. The court, however, concluded that this case is

court may order a psychological or psychiatric examination when a defendant addressing the parties’ arguments. Pursuant to RSA 135:17 (Supp. 2011), the

defendant, thus allowing the defendant to introduce his account of relevant psychiatric testimony is, of necessity, based upon a personal interview with the p. 4 We start by agreeing with the trial court that Briand

defendant on the offense.” This appeal followed.

complete his examination, including completing a clinical interview of the

trial shall be suspended for a two-day period in order for [the State’s expert] to thereby waiving his privilege against self-incrimination as to the offense, the ruled that “[s]hould the defendant testify at trial or during the insanity phase,

provided with the expert’s ultimate conclusion prior to trial. Finally, the court

any derivative evidence contained therein. However, the parties would be conclusion of the guilt phase” so as to prevent the State from benefiting from bifurcated, the report would be available to both parties only “[u]pon

offer and the basis for any opinion.” The court ruled that if the trial is defendant,” id

we stated “[t]here is no question that part I, article 15 of the

defense or was not adequately provoked. See proving beyond a reasonable doubt that the defendant did not act in self-

defense plea or to prove provocation,” id

Briand

the State’s expert to prepare a written report “outlining the opinion(s) he may Soto, 162 N.H. at 715-16. killing that his own experts would not have been privy to.” It further ordered testimony, that testimony ultimately goes to the guilt or innocence of the which the State bears the burden of proof. See Etienne, 163 N.H. at 80-81; from the defendant about his thoughts or events leading [up] to and during the (provocation). Thus, these two defenses constitute elements of the crime for court-appointed psychiatrist,” Briand 80-11 (2011) (self-defense); State v. Soto, 162 N.H. 708, 715-16 (2011)

With regard to provocation and self-defense, the State bears the burden of

at 651, and that she intended to use her expert “to support a potential selfwe explicitly noted that “[the defendant] ha[d] not pleaded insanity,” id. incrimination is implicated in the context of an insanity defense. Even so, in

. Both statements suggest that a defendant’s right against self-

defendant pleads insanity or relies on some other defense based on psychiatric psychological testing that does not require a clinical interview or a narrative, 130 N.H. at 654, and that “[w]hether the New Hampshire Constitution protects statements a defendant may make to a In Briand

incrimination would be violated by ordering an examination in this context. does not resolve even the threshold question of whether the right against selfquestion with which we are presented today. Moreover, we note that Briand

The State’s expert will also “be allowed to conduct or have conducted any complete medical and mental health records pre-dating the killing of [his wife].” considered by the defendant’s treating physicians and to the defendant’s

ruled that “the State’s expert shall have full access to any information Consequently, the court set out a detailed procedure for trial. The court p. 5 See

provides greater protection to a defendant than does the Fifth Amendment. himself.” In certain instances, we have determined that Part I, Article 15 “No person . . . shall be compelled in any criminal case to be a witness against

defendant’s claim under the State Constitution, State v. Ball 5 Similarly, the Fifth Amendment to the United States Constitution provides: under both the State and Federal Constitutions. We first address the circumstances of this case would violate his privilege against self-incrimination

by the Fifth Amendment[;] . . . specifically, that the defendant must either evidence constitute compulsion.” State v. Cormier

State v. compulsory. Cf

subject shall . . . be compelled to accuse or furnish evidence against himself.” Part I, Article 15 of the New Hampshire State Constitution provides: “No The defendant argues that a compelled interview under the

would force upon the defendant the Hobson’s choice . . . which is condemned which the [privilege] applies, and did the action of the State in obtaining that sentencing when he has maintained his innocence throughout the proceedings “allowing a court to draw an adverse inference from a defendant's silence at

. Burgess, 156 N.H. at 757 (agreeing with other courts that

examination, the nature of that choice arguably renders the examination evaluation because he could chose to forgo his insanity defense to avoid the though the defendant would not strictly be compelled to submit to an are clearly testimonial,” Briand, 130 N.H. at 654 (emphasis added). Second, that “statements a defendant may make to a court-appointed psychiatrist . . . privilege applies only to testimonial statements, id. at 256, and we have stated Here, both questions are arguably answered in the affirmative. First, the rebutting an insanity defense., 127 N.H. 253, 255 (1985). privilege in the Federal Constitution. State v. Burgess objection: “[D]oes the evidence in question fall within the scope of evidence to Typically, two basic questions are raised by a self-incrimination

231 (1983), and cite federal opinions for guidance only. Id. at 232-33.

(2008). of a court-ordered psychological or psychiatric evaluation done for purposes of, 156 N.H. 746, 752 whether the privilege against self-incrimination would be violated in the context privilege contained in the State Constitution is comparable in scope to the bears the burden of proving. Accordingly, we turn to the threshold issue of, e.g., State v. Roache, 148 N.H. 45, 48-53 (2002). Nonetheless, the

to carry the State’s burden, but rather to rebut a claim that the defendant being forced to provide information to the State’s expert that would be used not Thus, unlike Briand, here we are faced with the prospect of the defendant defendant has the burden of proving insanity by clear and convincing evidence. Labranche, 156 N.H. 740, 742 (2008), and, pursuant to RSA 628:2 (2007), the The defense of insanity, however, is an affirmative defense, see establish he has done.” United States v. Albright p. 6 he cannot be held criminally responsible, irrespective of what other proof may

charged, assuming that his guilt is otherwise established, or whether, legally, that the defendant was sane when he committed the crime. See

to prove whether a defendant possesses the requisite mentality to be guilty as convincing evidence. RSA 628:2, II. It is no longer the State’s burden to prove evidence wrested from a defendant whether he is guilty as charged but, rather, RSA 628:2, I. As other courts have recognized, “[t]he purpose is not to prove by 6

superseded

In New Hampshire, the defendant must prove insanity by clear and defendant’s claim that he was “not criminally responsible for his conduct.” would be used.

“the existence or nonexistence of legal insanity bears no necessary relationship 1968); see also Parkin, 238 So. 2d at 820-22. This distinction is significant, for defense that the defendant must prove by a preponderance of the evidence),, 388 F.2d 719, 723 (4th Cir. establishing the guilt of the defendant.” Lewis v. Thulemeyer which would incriminate him.”); Parkin v. State incrimination contemplates the use of [the defendant’s statements] to aid in

a witness to be sworn and give testimony concerning his guilt.” State v.

be used only to rebut the defendant’s claim of insanity – that is, to counter the must look to the purpose for which the fruits of the proposed examination clear and convincing evidence). Thus, the State’s proposed examination would (upholding constitutionality of statute requiring defendant to prove insanity by

by statute as stated in State v. Blair, 143 N.H. 669, 673-74 (1999)

insanity is an element of the crime, and holding that insanity is an affirmative legal compulsion to extract from the accused a sworn communication of facts Helgemoe, 118 N.H. 115, 125-27 (1978) (reversing case law holding that This, however, does not end our inquiry. “By definition, self- Novosel v.

originated as a reaction to the practice in the early English courts of compelling

extracting from his own lips against his will an admission of guilt.”). Thus, we principle seems to relate to protecting the accused from the process of 1970) (“The constitutional privilege against self-incrimination in history and

201, 212 (1988) (“Historically, the privilege was intended to prevent the use of Arsenault, 115 N.H. 109, 112 (1975); accord Doe v. United States, 487 U.S. (quotation omitted)). right to remain silent and suffer the imposition of a greater sentence” have previously noted, “[h]istorically [the privilege against self-incrimination] never admitted as testimony against him in a criminal case.”). Indeed, as we Fifth Amendment's Self–Incrimination Clause because his statements were defendant] was never made to be a ‘witness’ against himself in violation of the 443 (Colo. 1975); cf. Chavez v. Martinez, 538 U.S. 760, 767 (2003) (“[The

to a crime he claims he did not commit) or, in the alternative, stand on his incriminate himself at the sentencing hearing and show remorse (with respect illness.”); see does the State Constitution under these circumstances. See p. 7 The Federal Constitution offers the defendant no greater protection than

self-incrimination.”); Parkin

defense does not violate the defendant’s Fifth Amendment right against self-

defendant during the course of such an examination.”), overruled to introduce into evidence on the issue of guilt any statement made by the resolved is not guilt or innocence, but the presence or absence of mental

self-incrimination.”).

we find nothing in the examination . . . to violate a defendant’s privilege against

element of the crime.” (citation omitted)); Thulemeyer issue which the defendant has interjected into the proceeding and upon which defendant, but rather would be used for the limited purpose of rebutting an the State to prove an element of the charged crime or to prove the guilt of the at 725 (holding that a compelled examination of a defendant raising an insanity

certain acts constituting a crime. It cannot be so used, for it is impermissible undergo an examination by a state expert], simply because the question to be

barring them on the Guilt issue, does not violate the defendant's rights against statements to [a court-appointed] psychiatrist where Sanity is the issue, but conclude [that permitting] the admission in evidence of defendant's [compelled] responsible therefor, if other proof establishes that he did do them. So limited, whether he possessed the requisite mental capacity to be criminally, 538 P.2d at 443-44 (“We violated by an examination, because the examination does not concern an proceedings on which he or she bears the burden of proof. The privilege is not 1996) (“The defendant who claims insanity interjects a new issue into the in a case such as this because the proposed examination would not be used by also United States v. Davis, 93 F.3d 1286, 1295 n.8 (6th Cir.

intended to aid in the establishment of facts showing that defendant committed directly an issue [when a defendant raising an insanity defense is compelled to

determine whether a defendant did or did not do the criminal acts charged, but Albright, 388 F.2d at 725 (“[T]he purpose of the examination is not to grounds by United States v. Lawson, 653 F.2d 299, 303 n.12 (7th Cir. 1981);

Accordingly, we now join other courts in holding that the privilege

an opinion as to defendant’s mental capacity to form a criminal intent. It is not Amendment privilege, because its sole purpose is to enable an expert to form defense does not F.2d 54, 66-67 (7th Cir. 1971) (“Such an examination does not violate the Fifth between which the jury is capable of distinguishing.” State v. Baker, e.g., United States v. Bohle, 445

concern guilt.

concern an element of the crime and, thus, does not directly

773, 777 (1980) (quotation omitted). In sum, evidence rebutting an insanity

and “insanity and criminal intent are distinct aspects of a criminal trial to the existence or nonexistence of the required mental elements of the crime,” it has the responsibility to structure trials in a manner that both “promote[s]

p. 8 relevant prudential concerns. To this end, the court should bear in mind that decides to do so. Rather, in making its determination, the court should look to and the right against self-incrimination has no bearing on whether or not it

courts, see We accordingly exercise our supervisory authority over New Hampshire trial

use anything Thus, the trial court has discretion to order an examination, RSA 135:17, for as long as reasonably possible. In no circumstances may the prosecution Courts should err on the side of caution and delay release of such information

defense and is compelled to submit to an examination by the State’s expert.

prosecution to prepare for its rebuttal to the defendant’s insanity claim.

if such examinations are used to “buttress [a defendant’s] guilt, the self-

elements. See right against self-incrimination is not violated when he raises an insanity guilt and insanity must be assiduously guarded to ensure that the defendant’s Nevertheless, we recognize that the critical line separating the issues of

constitutional error. Whitlock only at the point in the trial when such information is necessary for the, 663 F.2d 1094, 1107 (D.C. Cir. 1980), and the potential for derived from or related to the examination may be shared with the prosecution

ensure that these procedures are followed when an examination is ordered, for n.8; Zahradnick, 581 F.2d at 78. We stress that trial courts must diligently required to undergo a court-ordered psychiatric examination); see Martin, 950 S.W.2d at 23-25; see also Davis, 93 F.3d at 1295 incrimination is not violated when he pleads insanity and is subsequently affirmative use by the defendant of his or her expert testimony to refute the

from the examination to prove an element of the crime, absent an

However, the results of the examination may be used only trial court may order an examination of the defendant by the State’s expert. When a defendant raises an insanity defense, pursuant to RSA 135:17, a

provided to the prosecution and defense prior to trial. Any other information Davis, 93 F.3d at 1295 n.8. Only the expert’s ultimate conclusion should be v. Zahradnick, 581 F.2d 75, 78 (4th Cir. 1978); Albright 388 F.2d at 725;

1997) (outlining safeguards for ensuring that a defendant’s right against selfdefendant’s insanity claim. See State v. Martin, 950 S.W.2d 20, 23-25 (Tenn.

incrimination under either the State or Federal Constitution and, thus, we an examination by the State’s expert would not violate his right against selfcourts to follow.

N.H. CONST. pt. II, art. 73–a, and set forth a detailed framework for

only on the issue of insanity). Accordingly, requiring the defendant to undergo incrimination so long as evidence derived from the examination is admitted p. 9 9

.

Reversed in part; vacated in

DALIANIS, C.J.