Summary
rejecting claim that section 16–8–103.6disclosure requirement infringed defendant's right to effective assistance of counsel
Summary of this case from People v. BondurantOpinion
No. 94SA109
Decided October 11, 1994. Petition for Rehearing DENIED November 29, 1994.
Original Proceeding
RULE DISCHARGED
David F. Vela, Colorado State Public Defender, Natalie Frei, Deputy State Public Defender, Robin Desmond, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner
Honorable John E. Anderson, III, District Judge, Cason City, Colorado, Attorney for Respondents
Edward J. Rodgers, District Attorney, Eleventh Judicial District, Cason City, Colorado, Attorney for Amicus Curiae District Attorney, Eleventh Judicial District
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General Paul Farley, Deputy Attorney General, John August Lizza, First Assistant Attorney General, Thomas S. Parchman, Assistant Attorney General, Human Resources Section, Denver, Colorado, Attorneys for Amicus Curiae the State of Colorado
Colorado District Attorneys Council, Raymond T. Slaughter, Executive Director, Katherine M. Clark, Staff Attorney, Denver, Colorado, Attorneys for Amicus Curiae Colorado District Attorneys Council, Law Office of Stanley H. Marks Richard A. Hostetler Richard A. Hostetler, Denver, Colorado, Attorneys for Amicus Curiae Colorado Criminal Defense Bar
In this original proceeding pursuant to C.A.R. 21, we issued a rule directing the respondent, the Fremont County District Court, to show cause why it should not be prohibited from requiring petitioner, Christopher Shane Gray (Gray), to disclose to the prosecution psychiatric and psychological examinations and records produced in the course of treatment which occurred prior to the offense at issue. We issued a rule to show cause and now discharge the rule.
This court has original jurisdiction to issue a writ of mandamus or prohibition "where the district court is proceeding without or in excess of its jurisdiction," C.A.R. 21, and "where the trial court has abused its discretion and where an appellate remedy would not be adequate." Halaby, McCrea Cross v. Hoffman, 831 P.2d 902, 905 (Colo. 1992); see also People v. District Court, 790 P.2d 332, 334-35 (Colo. 1990); White v. District Court, 695 P.2d 1133, 1135 (Colo. 1984).
I.
Gray is charged with one count of criminal attempt to commit murder in the first degree pursuant to sections 18-2-101 and 18-3-102, 8B C.R.S. (1986), one count of first-degree burglary pursuant to section 18-4-202, 8B C.R.S. (1986), one count of theft pursuant to section 18-4-401, 8B C.R.S. (1986), one count of second-degree kidnapping pursuant to section 18-3-302, 8B C.R.S. (1986), one count of aggravated intimidation of a witness or victim pursuant to section 18-8-705(1)(b), 8B C.R.S. (1986), one count of first-degree assault pursuant to section 18-3-202, 8B C.R.S. (1986), one count of second-degree burglary pursuant to section 18-4-203, 8B C.R.S. (1986), one count of first-degree trespass pursuant to section 18-4-502, 8B C.R.S. (1986), and five counts of violent crime pursuant to section 16-11-309, 8A C.R.S. (1986).
On November 17, 1993, Gray entered a plea of not guilty by reason of insanity and asserted the affirmative defense of impaired mental condition. He also filed a motion to suppress medical records of his psychiatric hospitalization in 1990, when at such time, he was evaluated and treated for mental health problems. Approximately six weeks later, Gray filed a motion for a constitutional interpretation of section 16-8-103.6, 8A C.R.S. (1994 Supp.).
At the hearing on the motion requesting a constitutional interpretation of section 16-8-103.6, the prosecuting attorney asserted that, pursuant to section 16-8-103.6, the prosecution is entitled to any records of any examinations ever performed on Gray in his lifetime that may deal with any psychological condition which might support a plea of not guilty by reason of insanity or not guilty by reason of impaired mental condition. Conversely, Gray contended that such an interpretation violates his right to effective assistance of counsel.
The district court denied Gray's motion to suppress the medical records regarding his 1990 psychiatric hospitalization. The district court ruled that the physician/psychologist-patient and attorney-client privileges do not apply to psychiatric and psychological examinations conducted before the date of the offenses in question, regardless of whether the defense intends to call a defense-retained psychiatrist as an expert witness. The district court additionally ruled that section 16-8-103.6 does not violate Gray's Sixth Amendment right to effective assistance of counsel. The district court later supplemented its order and ruled that, because Gray had placed his mental condition at issue by pleading not guilty by reason of insanity and by asserting the affirmative defense of impaired mental condition, he had impliedly waived his right to assert any privilege.
Gray thereafter filed a petition for relief in the nature of a writ of prohibition pursuant to C.A.R. 21, and a request to stay proceedings pending resolution of this petition. We ordered the district court to show cause why the relief requested in the defendant's petition should not be granted.
The petition names as respondents in this case "The District Court of the Eleventh Judicial District, and the Honorable John E. Anderson III, one of the judges thereof." We refer to the respondents collectively as "Fremont County District Court" or "district court." Amici curiae briefs in support of respondents, opposing the relief sought by Gray, were filed by the District Attorney for the Eleventh Judicial District, the State of Colorado (through the Colorado Attorney General), and the Colorado District Attorneys Council.
We now conclude that the admission of hospital records and psychiatric testimony neither violates the attorney-client privilege nor deprives the defendant of his constitutional right to effective assistance of counsel.
II. [8] SCOPE OF THE ATTORNEY-CLIENT PRIVILEGE
Gray argues that the attorney-client privilege under section 13-90-107(1), 6A C.R.S. (1987), applies to communications between a defendant and the physician or psychologist who is evaluating the defendant's mental condition at the request of the defense. Gray relies on two cases — Miller v. District Court, 737 P.2d 834 (Colo. 1987), and the dissent in People v. Fuller, 791 P.2d 702 (Colo. 1990) — to support his contention. Gray further contends that this court should narrowly construe section 16-8-103.6 and requests this court to interpret the statute consistently with the dissenting opinion in People v. Fuller. Gray additionally contends that his insanity or impaired mental condition defense does not create a waiver of the communication protection afforded under the attorney-client privilege.
In reexamining Miller and Fuller, we note that Miller was decided at the same time the legislature was enacting sections 13-90-107(3), 6A C.R.S. (1987), and 16-8-103.6, 8A C.R.S. (1994 Supp.). In Miller, we recognized that the attorney-client privilege extends to communications between the client and agents of the attorney and held that a defendant's disclosures to a psychiatrist retained by defense counsel to perform a mental status evaluation of the defendant's condition, but whom the defense did not intend to call as a witness at trial, were protected. Miller, 737 P.2d at 838. This holding was based on the fact that the psychiatrist is an agent of defense counsel for purposes of the attorney-client privilege. We additionally found that the defendant's assertion of an impaired mental condition defense did not create an implied waiver of his right to assert the attorney-client privilege as to disclosures made to a defense-retained psychiatrist since to hold otherwise would compromise a defendant's ability to communicate freely and confidentially with a psychiatrist retained to assist the defense. We therefore concluded that, absent a waiver of the privilege, the psychiatrist could not be forced to reveal disclosures made to him by the defendant.
In People v. Fuller, 791 P.2d 702 (Colo. 1990), the defendant claimed that section 16-8-103.6, 8A C.R.S. (1989 Supp.), violated his right to effective assistance of counsel because the language of the statute created uncertainty as to whether statements made by a defendant during the course of a medical examination by a defense-retained psychiatrist would have to be disclosed to the prosecution. Fuller argued that the uncertainty of the statute, coupled with the trial court's refusal to rule on the issue, hampered defense counsel's investigation concerning Fuller's mental condition and therefore violated his constitutional right to effective assistance of counsel. Because Fuller did not raise an impaired mental condition defense subsequent to the denial of his challenge of the constitutionality of the statute, a majority of this court found that Fuller lacked standing to challenge the constitutionality of the statute on appeal.
Three justices dissented and, in analyzing the language of section 16-8-103.6, determined that section 16-8-103.6 implied a waiver of the defendant's claim to confidentiality arising from communications with a physician or psychologist during court-ordered examinations in preparation for trial. The dissent concluded that such an interpretation would violate a defendant's Sixth Amendment right to counsel based on Miller and Hutchinson v. People, 742 P.2d 875 (Colo. 1987). Fuller, 791 P.2d at 711-12.
The common law attorney-client, physician/psychologist-patient privileges have been codified in Colorado by section 13-90-107(1), 6A C.R.S. (1987). This statute defines these privileges and delineates their scope, as follows:
(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
. . . .
(d) A physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient . . . .
. . . .
(g) A licensed psychologist shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment . . . .
The purpose of the attorney-client privilege is to promote candid and open discussion between the client and the attorney. The attorney-client privilege applies only to confidential communications by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations. Lanari v. People, 827 P.2d 495, 499 (Colo. 1992).
In 1987, the legislature enacted section 13-90-107(3):
Act approved May 16, 1987, ch. 119, sec. 5, 1987 Colo. Sess. Laws 623.
The provisions of paragraphs (d) [physician privilege] and (g) [psychologist privilege] of subsection (1) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S. Physicians and psychologists testifying concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S. do not fall under the attorney-client privilege in paragraph (b) of subsection (1) of this section.
Section 13-90-107(3) applies to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to 16-8-103.6 and does not limit the time frame for the medical examination. Section 16-8-103.6, 8A C.R.S. (1994 Supp.), states in pertinent part:
The statutory scheme contemplates that a psychiatric or psychological examination of a defendant by a defense-retained psychiatrist, acting as an agent of defense counsel, does not fall under the umbrella of the attorney-client privilege.
Waiver of Privilege: A defendant who places his mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, . . . waives any claim of confidentiality or privilege as to communications made by him to a physician or psychologist in the course of examination or treatment for such mental condition for the purpose of any trial or hearing on the issue of such mental condition. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.
Our analysis of this case is not governed by our decision in Miller since Miller was based on the statutory attorney-client privilege which, after Miller was decided, was amended. We therefore find Miller neither controlling authority on the issue of the attorney-client privilege nor persuasive in interpreting Colorado's revised attorney-client privilege statute.
We now review the legislative history of section 16-8-103.6, which reveals that the statute is intended to provide for broad disclosure. House Bill 87-1233 was introduced in the 1987 legislature, and hearings were held concerning it by a subcommittee of the Senate Judiciary Committee. In the Senate Committee on Judiciary Hearings, Deputy District Attorney Dan May, from the Fourth Judicial District, testified about the purpose of the statutory changes.
Act approved May 16, 1987, ch. 119, sec. 1, 1987 Colo. Sess. Laws 622.
[W]hat our Bill needs to do is say, listen[,] if you want to plead insanity, fine . . . . Let's find out what the truth is. Let's see all these doctors' reports. . . . What we're trying to prevent is to allow the defendant to manipulate the system . . . .
. . . .
. . . What this is is really just to get at the truth. . . . [If a defendant asserts an insanity defense,] then [the defendant] open[s] the door. If [the defendant] want[s] to use [the insanity defense] as a benefit to [him,] then we say, OK, let's see if that's the truth or at least get all the information that there is on it. It opens the door in the impaired mental condition, in the insanity and in the competency [proceeding]. . . .
. . . .
. . . [Section] 13-90-107[:] This is a privilege statute . . . [;] all [it does] is ma[k]e it clear . . . that if they want to plead insanity, impaired mental condition[,] or incompetency [the] psychiatrist or psychologist or physician is not bound by the confidentiality . . . .
A plain reading of sections 13-90-107(3) and 16-8-103.6 demonstrates that the statutory attorney-client privilege does not extend to communications made to physicians or psychologists who are eligible to testify concerning a criminal defendant's mental condition once that mental condition has been asserted as a plea or defense. We therefore hold that Gray's medical records of psychiatric evaluations and treatments are not within the ambit of the attorney-client privilege. Our holding is consistent with public policy considerations which weigh heavily in favor of the disclosure of Gray's medical records. The fundamental purpose of a criminal trial is the fair ascertainment of the truth, and the trier of fact should not be deprived of valuable evidence or witnesses.
Section 27-10-120, 11B C.R.S. (1989), additionally supports our determination that the prosecution is entitled to Gray's 1990 psychiatric hospitalization records. Section 27-10-120 provides:
Records. . . .
(2)(a) Nothing in this article shall be construed as rendering privileged or confidential any information (except written medical records and information which is privileged under section 13-90-107, C.R.S.) concerning observed behavior which constitutes a criminal offense committed upon the premises of any facility providing services under this article or any criminal offense committed against any person while performing or receiving services under this article.
(b) The provisions of subsection (1) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S.
In State v. Pawlyk, 800 P.2d 338 (Wash. 1990), the court reaffirmed its holding in State v. Bonds, 653 P.2d 1024 (Wash. 1982), cert. denied, 464 U.S. 831 (1983), that, where the defendant raises an insanity defense, the testimony of the defense's psychiatric expert is not protected under the attorney-client privilege. In Bonds, the court determined that the public interest in disclosure outweighs the privilege and found convincing the reasoning in Stephen A. Saltzburg, Privileges and Professionals: Lawyers and Psychiatrists, 66 Va. L. Rev. 597, 635-42 (1980), where the author argues
that the defense psychiatrist's examination of defendant is likely to be more accurate on the issue of insanity than that of the prosecution's. The defense psychiatrist will generally examine defendant earlier than the prosecution. The examination will thus be closer to the time of the offense, when defendant's recollections are clearer and there is less likelihood that defendant's mental condition has changed. Moreover, a defendant might benefit by undergoing several psychiatric examinations, examining reports of psychiatrists unfavorable to his insanity defense, and tailoring his responses in subsequent examinations more favorably to his defense. Defendant is also likely to be more cooperative with his own psychiatrist and give a more accurate impression of his mental condition. Saltzburg argues, and we agree, that for these reasons all available evidence of defendant's mental condition should be put before the jury.
Pawlyk, 800 P.2d at 341 (quoting Bonds, 653 P.2d at 1035).
We find persuasive Saltzburg's discussion of why full disclosure outweighs the benefits of the attorney-client privilege.
III. [20] WAIVER
We next address Gray's argument that by pleading not guilty by reason of insanity or by asserting impaired mental condition, he waived neither the attorney-client nor the physician/psychologist-patient privilege.
In its order, which interpreted section 16-8-103.6, the district court stated:
The assertion in the Fuller dissent that the legislature intended waiver to be limited to examinations under subsection [16-8-]103.5(4) [ 16-8-103.5] is not supportable on any basis. The examination to be undertaken under that subsection is ordered by the court pursuant to section 16-8-106. So it must be asked . . . whether any defendant has successfully asserted a privilege with regard to section [16-8-]106 [ 16-8-106] examinations, other than the privilege against self-incrimination set forth in subsection [16-8-]106(2) [ 16-8-106]. And since the answer is no, it seems highly unlikely that the legislative purpose in enacting section [16-8-]103.6 [ 16-8-103.6] was to provide for waiver of a privilege which has never existed.
. . . .
Under section [16-8-]103.6 [ 16-8-103.6] those eligible to testify are any physicians or psychologists who have examined or treated the defendant post-offense for the mental condition at issue. . . . There is no language of limitation excluding defense physicians or psychologists.
. . . [A]s the legislature has provided at section [16-8-]103.6 [ 16-8-103.6], waiver of privilege or confidentiality occurs when the defendant places his mental condition at issue.
Waiver . . . extends not only to the physician and psychologist privilege, but to the attorney-client privilege as well. See added subsection 13-90-107(3).
(Emphasis added.)
In its order addressing Gray's motion to suppress his 1990 hospital records, the district court ruled:
[T]he prosecutor seeks to have the [District] Court extend the waiver of section 16-8-103.6 to otherwise privileged communication made even prior to the date of offense. . . . [T]he Court remains unconvinced that the legislature necessarily intended section 16-8-103.6 to apply to communications prior to the date of [the] offense. . . .
Nonetheless, since this Defendant has placed his mental condition at issue both by virtue of his plea of not guilty by reason of insanity and by giving notice of the affirmative defense of impaired mental condition, there is an implied waiver with regard to the Charter Hospital records. See Clark[ v. District Court], [ 668 P.2d 3 (Colo. 1983)].
Gray maintains that the trial court's reasoning is faulty and that the trial court misapplied Clark. Clark states:
When the privilege holder pleads a physical or mental condition as the basis of a claim or as an affirmative defense, the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition. The privilege holder under these circumstances has utilized his physical or mental condition as the predicate for some form of judicial relief, and his legal position as to that condition is irreconcilable with a claim of confidentiality . . . .
Clark, 668 P.2d at 10.
(Emphasis added.)
Section 16-8-103.6, 8A C.R.S. (1994 Supp.), states in pertinent part:
Waiver of Privilege. A defendant who places his mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, . . . waives any claim of confidentiality or privilege as to communications made by him to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial or hearing on the issue of such mental condition. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.
Based on a plain reading of the statute, section 16-8-103.6 indicates that the legislature has created a statutory waiver to any claim of confidentiality or privilege, which includes the attorney-client and physician/psychologist-patient privileges. The defendant waives the protection to communications, including medical records, that pre-date and post-date the criminal offense, made by a defendant to a physician or psychologist in the course of examination or treatment. We conclude that, where a defendant tenders his or her mental condition as an issue in the trial, the defendant waives the right to claim the attorney-client and physician/psychologist-patient privileges, and a prosecution's use of testimony of a defense-retained psychiatrist, who is not called by the defendant to testify at trial, is admissible at trial.
The legislative history of and intent behind section 16-8-103.6 lend further support for our holding. The bill's sponsor, Representative Phillips, in presenting her bill to the House Committee on Judiciary, explained the purpose and effect of House Bill 87-1233:
[T]he bill is a matter of opening all evidence to a jury in criminal insanity cases. . . . [T]he Colorado Supreme Court has twice ruled that a party does not waive a claim of confidentiality when that party places his mental condition at issue in criminal cases. . . . House Bill 1233 would "waive claims of confidentiality in such cases."
In the Senate Committee on Judiciary hearings, Senator Donley initially moved to amend the bill by adding a new statutory section, section 16-8-103.7, which would have provided that the waiver of the attorney-client privilege only extends to communications between a physician or psychiatrist and his patient which occurred less than two years prior to the commission of the crime. Senator Donley withdrew his proposed amendment to restrict the time period for applying the waiver after discussion by the committee, in which it was explained that the waiver only relates to the mental condition that is being used as a defense. The testimony demonstrates that the legislature intended for the waiver of privilege under section 16-8-103.6 to apply to medical or mental health records that may have even pre-dated the criminal offense.
For example, Deputy District Attorney May testified:
[Y]ou're looking at who probably has the best knowledge of this particular person. . . . It is not unusual to confide in [a doctor whom you have seen] for many years prior to doing the crime. [This doctor] probably ha[s] the [most reliable] information of whether [the defendant] . . . is insane or not. So that's why we didn't put [a] time limit in because we would want to know what that [doctor] has to say as to whether [the defendant] is insane because [that doctor] probably has the best grasp of whether [the defendant] is [insane] . . . .
The legislative history demonstrates that the legislature intended to allow for full disclosure of medical and mental health records concerning the mental condition that the defendant has placed in issue in a criminal case. We therefore hold that, where a defendant tenders a plea of not guilty by reason of insanity or asserts the affirmative defense of impaired mental condition, the defendant waives his right to claim the attorney-client and physician/psychologist-patient privileges pursuant to section 16-8-103.6, and consents to disclosure of pre- or post-offense information concerning the defendant's medical condition.
The issue of whether the attorney-client privilege should apply to exclude testimony of a defense psychiatrist who is not called by the defense, but is called by the prosecution to rebut the defense of mental illness has been considered by a number of state and federal courts in factual situations which are precisely or closely analogous to the situation presented in the present case. We are aware that many courts have held that, when a defendant enters an insanity defense and intends to call psychiatrists to testify as to that issue, the defendant waives the attorney-client privilege and the privilege does not extend to nontestifying defense-retained psychiatrists. See Noggle v. Marshall, 706 F.2d 1408 (6th Cir. 1983) (holding that a 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); see also Haynes v. State, 739 P.2d 497 (Nev. 1987); State v. Craney, 347 N.W.2d 668 (Iowa), cert. denied, 469 U.S. 884 (1984); State v. Carter, 641 S.W.2d 54 (Mo. 1982), cert. denied, 461 U.S. 932 (1983); People v. Edney, 350 N.E.2d 400 (N.Y. 1976).
In State v. Carter, 641 S.W.2d 54 (Mo. 1982), the Supreme Court of Missouri concluded that the attorney-client privilege does not apply to communications between a client and a defense-retained psychiatrist in an effort to obtain a favorable opinion supporting the defendant's defense of mental disease or defect. The court stated that, had the testimony satisfied the privilege, the defendant, in any event, waived any right to assert any claim of attorney-client or physician-patient privilege by interposing the defense of insanity.
The New York Court of Appeals in People v. Edney, 350 N.E.2d 400 (N.Y. 1976), held that, where the defense of insanity was asserted and the defendant offered evidence to establish the claim, a waiver of privilege was effected. Under such circumstances, it concluded, the prosecution is permitted to use a psychiatric expert, who had examined the defendant at his attorney's request, as a witness in rebuttal to another psychiatric witness presented by the defense. The court persuasively presented the waiver rationale:
"When the patient first fully discloses the evidence of his affliction, it is he who has given the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus creating a waiver removing it from the operation of the statute; and once the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose `for when a secret is out[,] it is out for all time[,] and cannot be caught again like a bird, and put back in its cage. . . . The legislature did not intend to continue the privilege when there was no reason for its continuance and it would simply be an obstruction to public justice.'"
Id. at 402 (quoting People v. Al-Kanani, 307 N.E.2d 43 (N Y 1973)) (citations omitted).
IV. [31] RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
Gray next maintains that section 16-8-103.6's requirement of the disclosure of defendant's medical examinations by defense-retained psychiatric experts, when the defense does not intend to call the witness or to use the material at trial, infringes on Gray's Sixth Amendment and state constitutional right to counsel. The district court maintains that allowing the prosecution to discover and use a defense-retained expert whom the defense does not intend to call as a witness does not violate a defendant's constitutional right to effective assistance of counsel.
The right to counsel established by the Sixth Amendment to the United States Constitution and Article II, Section 16, of the Colorado Constitution includes the right to effective assistance of counsel in the preparation of a case. Strickland v. Washington, 466 U.S. 668, 685 (1984). In Strickland, the Supreme Court stated that the "[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Id. at 686. Similarly, the Court has considered direct state interferences with counsel's decision-making process to be a Sixth Amendment violation. See, e.g., Geders v. United States, 425 U.S. 80 (1976) (holding that court denied defendant effective assistance by preventing defense counsel and defendant from consulting during overnight recess); Herring v. New York, 422 U.S. 853 (1975) (holding that court violated Sixth Amendment by denying defense right to summation at bench trial); Ferguson v. Georgia, 365 U.S. 570 (1961) (holding that ban on direct examination of the defendant violated the Sixth Amendment).
In Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987), the prosecution used a report of a defense-retained psychiatrist to rebut the mental status defense of the defendant where the defendant did not testify at trial. The court rejected the defendant's claim that the use of the report infringed upon his Sixth Amendment rights, noting that the defendant misconceives the nature of the Sixth Amendment right. Id. at 424. However, the Supreme Court has not considered whether a state's statute which indirectly may affect defense counsel's judgment also violates the Constitution.
In its order, the trial court stated:
If we examine all the legitimate needs of a defendant and his counsel to effective use of expert witnesses as discussed in Hutchinson, there are none that are unduly intruded upon by section [16-8-]103.6 [ 16-8-103.6] because there exist the substantial protections afforded by subsection [16-8-]107(1) [ 16-8-107].
If, on the other hand, we yield to an absolutist approach and allow not even of a need for improvement in this area, we irrefutably and unnecessarily subjugate the truth seeking process.
It is the opinion of this Court that the statutory scheme now in place does not itself jeopardize a defendant's right to effective assistance of counsel. And claims of ineffective assistance of counsel should ordinarily focus on the facts of individual cases.
In Hutchinson v. People, 742 P.2d 875 (Colo. 1987), this court assessed whether the use of a defense-retained handwriting expert, whom the defense did not intend to call as an expert to testify at trial and whom the prosecution wanted to call as a witness, violated a defendant's right to effective assistance of counsel. We held that the prosecution's use of a defense-retained handwriting expert during its case-in-chief, absent a waiver or compelling circumstances, conflicts with the meaningful exchange guaranteed by the Sixth Amendment and Article II, Section 16, of the Colorado Constitution. Id. at 880. This conclusion was based on the analysis that a defense expert may be needed as a defense witness or to rebut a case built upon the "powerful investigative arsenal" of the state. "Consequently, the prosecution should not be permitted to intrude upon this relationship as a matter of course and convert a defense expert into a potential witness-in-chief against the defendant. We can imagine few intrusions more disruptive to the efforts of defense counsel." Id. at 882.
Hutchinson, however, is not dispositive of the right to effective assistance of counsel issue before the court in this case since the defense expert in Hutchinson was offered on the issue of the defendant's guilt, and not on the limited issue of insanity or impaired mental condition. Further, policy considerations dictate full disclosure of mental evaluations performed by psychiatrists originally retained by the defense where a defendant asserts a mental status defense, since, unlike a trial to establish guilt, a defendant is the sole source of evidence concerning his mental condition. The state therefore has a significant interest in obtaining access to these psychiatric evaluations. Lange v. Young, 869 F.2d 1008, 1013 (7th Cir. 1989), cert. denied, 490 U.S. 1094 (1990).
In resolving the question presented, we find instructive cases in other jurisdictions where the criminal defendant presents an insanity defense at trial and advances a claim that the defendant's Sixth Amendment rights were implicated. Many courts have found that statutory schemes similar to Colorado's do not violate a defendant's Sixth Amendment rights. The majority of courts that have reviewed this issue have found that, where the mental state of an accused is an issue in a criminal case, it is "`in the interest of public justice' for the trial court to permit both the Government and the defendant full access to the reports and conclusions" of physicians and psychologists who have evaluated the mental state of the defendant, and such access does not interfere with the defendant's Sixth Amendment guarantees. United States v. Carr, 437 F.2d 662, 663 (D.C. Cir. 1970), cert. denied, 401 U.S. 920 (1971); see also Noggle v. Marshall, 706 F.2d 1408 (6th Cir.) (finding that attorney-psychiatrist-client privilege is not mandated by effective counsel requirements), cert. denied, 464 U.S. 1010 (1983); Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981) (concluding that admission of psychiatric testimony neither violated the attorney-client privilege nor deprived the defendant of his Sixth Amendment right to effective assistance of counsel), cert. denied, 455 U.S. 1003 (1982); State v. Pawlyk, 800 P.2d 338 (Wash. 1990) (holding that there was no violation of right to counsel where the defendant, who asserted an insanity defense, was ordered to disclose statements he made to a defense-retained psychiatrist not endorsed by the defense as a witness. The court stated that, "[i]f [a] defendant asserts an insanity defense, evidence pertaining to that defense must be available to both sides at trial."); State v. Craney, 347 N.W.2d 668 (Iowa) (holding that admission of psychiatric expert's testimony that included expert's opinion on defendant's sanity and diminished capacity, and expert's nonincriminatory observations of the defendant, was proper and did not create a Sixth Amendment violation), cert. denied, 469 U.S. 884 (1984); State v. Dodis, 314 N.W.2d 233 (Minn. 1982) (concluding that, where defendant raised a mental illness defense, a defense-retained expert, who had not been called by the defense to testify at trial, could be called as a witness by the prosecution during the mental illness portion of a trial and this procedure is consistent with the attorney-client privilege and constitutional rights to effective counsel).
In Lange v. Young, 869 F.2d 1008 (7th Cir. 1989), the Seventh Circuit ruled that as a matter of state law the scope of the attorney client privilege — which allowed a psychiatrist who interviewed the defendant, but whom had not been called as a defense witness, to be called by the state to testify on the issue of defendant's insanity — does not violate the defendant's Sixth Amendment rights.
Unlike a trial to determine guilt, in which the state must assemble its evidence apart from any contact with the defendant, the defendant is the sole source of evidence in a trial to determine sanity. The defendant thus has the opportunity
to manipulate the information the state receives. The state's ability to call a defense psychiatrist equalizes the advantage reaped by a defendant who asserts the insanity defense.
Id. at 1013.
Additionally, in State v. Carter, 641 S.W.2d 54 (Mo. 1982), cert. denied, 461 U.S. 932 (1983), the court held that the defendant was not deprived of his constitutional right to effective assistance of counsel. In reaching this conclusion, the court recognized:
The fact that [the defendant] in preparing [his] defense . . . could . . . choose a psychiatrist who might make a report adverse to defense counsel's theory of [the] defense, or that in a psychiatric examination a defendant might speak guardedly or be less than candid with the doctor, knowing that the doctor might turn out to be a witness against him[,] are not considerations of sufficient importance in this case to outweigh and override the stated requirements of fairness, justice and public policy.
Id. at 59.
To deny the prosecution the ability to use such a defense expert simply because the defense does not wish to call the witness would interfere with the truth-seeking process inherent in a criminal trial. Further, any risk of prejudice to the defendant can be diminished by not informing the jury that the expert was originally employed by the defendant. See State v. Schneider, 402 N.W.2d 779, 788 (Minn. 1987) ("Experts are not the paid harlots of either side in a criminal case and should not be portrayed in such a light."); People v. Speck, 242 N.E.2d 208, 221 (Ill. 1968) ("A witness is not the property of either party to a suit and simply because one party may have conferred with a witness and even paid him for his expert advice does not render him incompetent to testify for the other party."), rev'd in part, 403 U.S. 946 (1971).
A defendant's mental state at the time of the commission of the crime is at issue in a defendant's sanity or impaired mental condition case. Where the defendant asserts a mental defense, each party has a definite interest in finding out the truth concerning the defendant's mental state at the time the crime was committed. To ascertain the truth, both prosecution and defense counsel need full access to reports concerning defendant's medical history as well as a diagnostic assessment by psychiatric witnesses who treated or examined the defendant before or after the crime concerning the mental condition. Additionally, a psychiatrist who has evaluated a defendant at defense counsel's request shortly after the event may have more valuable information than a doctor who evaluates the defendant at a later time, when intervening factors may bias the defendant's initial perceptions and reactions.
We therefore conclude that the trial court's order in this case to disclose Gray's hospital records, and the Colorado statutory scheme regarding disclosures, do not violate the defendant's constitutional right to effective assistance of counsel pursuant to the Sixth Amendment to the United States Constitution or Article II, Section 16, of the Colorado Constitution.
V.
In summary, we conclude that the admission of hospital records and psychiatric testimony neither violates the attorney-client privilege nor deprives the defendant of his constitutional right to effective assistance of counsel. We therefore discharge the rule.
JUSTICE LOHR concurs in part and dissents in part, and JUSTICE SCOTT joins in the concurrence and dissent.