Opinion
No. 76-293 C, CA 8368
Argued November 16, affirmed December 27, 1977
Appeal from Circuit Court, Klamath County.
Donald A. W. Piper, Judge.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
W. Benny Won, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and Al J. Laue, Solicitor General, Salem.
Before Schwab, Chief Judge, and Lee and Joseph, Judges.
Affirmed.
JOSEPH, J.
Defendant appeals his conviction of first degree manslaughter (ORS 163.118) for the slaying of Louis Knight. The conviction arose from the same incident involved in State v. Wright, (CA 8175, 31 Or. App. 1345, 572 P.2d 667 (1977), and the facts are adequately set forth in that opinion.
Defendant raises only one assignment of error which merits discussion. He contends that the trial court erred in admitting the testimony of a psychiatrist who had been hired to examine defendant concerning his state of mind at the time he shot Knight. The testimony of the psychiatrist was limited to replying "No" when asked if the defendant had been suffering from extreme emotional disturbance at the time of the shooting. The objection to the testimony was based upon the doctor-patient privilege (ORS 44.040(1)(d) and the asserted irrelevancy of the testimony.
"Subject to ORS 44.610 to 44.640, a regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action, suit or proceeding, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient."
The psychiatrist testified for the state on rebuttal. In the defendant's case he had called Charles Smith, his companion at the time of the shooting. Smith testified that just before the shooting he "was telling [defendant] to calm down and everything" and that "I was shook up too, so I — I was just trying to get him to calm down and go back to my place * * *." From this testimony and defendant's own testimony about his prior harassment by Knight and Day the jury could have inferred that defendant was suffering from extreme emotional disturbance at the time of the shooting. The state, therefore, had the burden of negating extreme emotional disturbance beyond a reasonable doubt, State v. Keys, 25 Or. App. 15, 18, 548 P.2d 205 (1976), and the testimony of the psychiatrist was relevant for that purpose.
Cf., Patterson v. New York, 432 U.S. 197, 97 S Ct 2319, 53 L Ed2d 281 (1977).
The privilege was created and is limited by the statute. Even if defendant had gone to the psychiatrist for the purpose of treatment, the doctor-patient privilege by its terms does not apply in a criminal case. State v. Betts, 235 Or. 127, 384 P.2d 198 (1963).
Affirmed.