Robertson v. State , 298 Ark. 131 ( 1989 )

David Newbern, Justice.

Larry Dean Robertson appeals his conviction of capital murder for which he was sentenced to life imprisonment without parole. Robertson was accused of murdering Mrs. Bernice Sanderlin. The evidence showed that Robertson was released from prison and taken by a prison official to Dumas where he was to get on a bus. He went into a business establishment where he stabbed Mrs. Sanderlin with a pair of scissors. The scissors penetrated her eye and brain and caused her death. He left with Mrs. Sanderlin’s purse. The judge refused at several stages of the trial to rule on whether Robertson was mentally competent to stand trial. The judge erroneously thought, and stated repeatedly, that the question of competency to stand trial was to be resolved by the jury. We have no choice but to reverse and remand for a new trial.

Robertson was committed to the state hospital for a pre-trial mental examination. The report, filed on June 10, 1987, concluded he was capable of cooperating effectively with his attorney. On August 7,1987, the two lawyers who had been appointed to defend Robertson moved to suspend activity in the case and submitted affidavits to the effect that Robertson visualized the issues in his case in a manner incomprehensible to reasonable persons, and that he was hallucinating and unable to assist the lawyers in defending him.

A pre-trial hearing was held to consider several motions, one of which was the motion to suspend activity in the case. Dr. Paula Lynch testified she examined Robertson at the state hospital. She had access to records of other medical facilities, one of which concluded Robertson was schizophrenic and that he had been taking Thorazine, a major tranquilizer, and that Navane, an anti-psychotic drug had been prescribed for him. She did not interview Robertson’s family. She found him to be virtually symptom free and concluded he was competent at the time of her evaluation of him. At the close of the hearing, the court denied the motion to suspend activity.

Counsel for Robertson then took Dr. Lynch’s deposition pursuant to a court order. They asked her whether she had been hospitalized for any condition other than childbirth, and she refused to answer, citing the fifth amendment. At a pre-trial hearing on October 5, 1987, counsel asked the court to hold Dr. Lynch in contempt for her failure to respond or to strike her testimony from the record. The prosecutor said he had no objection to striking Dr. Lynch’s testimony and that he had no intention of calling her as a witness-at the trial. The court refused to strike the testimony, noting that Dr. Lynch’s testimony had been at the request of the defense.

Also at the October 5 hearing, counsel presented testimony by Robertson’s parents to the effect that Robertson had had mental problems, and tendencies toward violence, since his high school days. They also testified about periods of hospitalization for mental illness Robertson had undergone in Mississippi. Dr. Douglas Stephens testified he had interviewed Robertson on several occasions and had concluded he suffered from paranoid schizophrenia and was unable to assist counsel in his defense.

At the conclusion of the hearing, the court denied the motion to suspend the proceedings due to Robertson’s inability to communicate effectively with his counsel. The court stated it would be for the jury to decide if Robertson had a defense of mental defect. The prosecutor then asked the court to make a finding whether Robertson could communicate adequately with his attorneys. The court refused, again stating it was for the jury to decide. As abstracted by the appellant, the discussion was:

Mr. Gibson [the prosecutor]: Could I ask the court to make a finding as to whether or not Mr. Robertson is able to communicate adequately with the attorneys?

The court: No, that would be making a ruling. It’s for the jury to determine his condition.

Mr. Gibson: I’m talking about his fitness to proceed.

The court: We’re going to proceed.

Mr. Gibson: In other words, the Court is so finding he is.

The court: Fit to proceed. The jury has certain responsibilities, and that’s what they’re going to do.

Mr. Haddock [defense counsel]: The Court’s ruling is, if I understood the Court correctly, that it’s a jury question for them to determine whether or not he has present abilities to effectively assist counsel in his defense?

The court: Well, no, I’m ruling that it’s for the jury to determine or not whether he was able to conform his actions to the requirements of the law on this alleged date.

Although the appellant did not abstract the remainder of the court’s remarks, they are quoted accurately in the argument portion of his brief, and at page 5. of the state’s brief it is acknowledged that the court stated just after the discussion quoted above that the court was not making “any ruling” as to Robertson’s mental condition. The court’s statement continued as follows:

Now, by finding that, when the jury finds that they’ll be taking care of all these ancillary matters. Now, they can find whatever they find to be the facts, but I’m not going to make any rulings as to his mental condition and his abilities to consult with anybody or help anybody.

Throughout the pre-trial proceedings and during the trial, Robertson, against the advice of his counsel, insisted on making statements to the court, some of which could only be characterized as bizarre. He referred to various agencies of the federal government such as the CIA, the NSC, and the FBI, and demanded that the records kept on him by these agencies be furnished to him.

Toward the conclusion of the trial, Robertson insisted on making a statement before the jury. His counsel objected and renewed the motion to suspend the proceedings on the ground that Robertson was incapable of assisting in his defense. The prosecutor commented that the court was competent to determine whether Robertson was able to assist his counsel. The court denied the motion and again stated it would be for the jury to determine whether Robertson was competent.

The defense presented testimony of Dr. Stephens as well as testimony of Dr. Donald Gold, a psychiatrist who had visited with Robertson and studied his case while Robertson was hospitalized in Memphis for a severe burn. Dr. Gold testified that Robertson was schizophrenic and that the only way he could help his counsel would be by “overtly demonstrating to the world just how bizarre and confused he is.” After Dr. Gold’s testimony, Robertson’s counsel renewed the motion to suspend the proceedings. Robertson stated he wanted to exercise his first amendment right, presumably to testify. The court said: “You want to continue, Mr. Robertson?” Robertson replied affirmatively, and the court said: “All right, the trial will continue. Your motion is overruled. Denied, Mr. Haddock.”

1. The court’s duty

It is the duty of the court to rule whether an accused is competent to stand trial. The statute, Ark. Code Ann. § 5-2-309(a) (1987) provides: “If the defendant’s fitness to proceed becomes an issue, it shall be determined by the court.” In Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980), 459 U.S. 1020 (1982), we held it was error to leave the matter to the jury. See Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The court in this case proceeded correctly to a point. There was no error in refusal to suspend the proceedings after the pretrial evaluation and hospital report and after Dr. Lynch’s testimony. Nor was there any necessity to obtain a reevaluation of Robertson each time his counsel moved to suspend activity in the trial. All the court was required to do, if he remained convinced that Robertson was and remained fit to stand trial, was make that ruling. Instead, he said again and again that it was a matter for the jury to decide.

The state points out that by continuing with the trial, the court could be inferred to have made the ruling. It is also argued that the question of fitness to proceed was not referred to the jury, as no instruction was given on that point. We cannot agree with those arguments. If the court thought the question was one for the jury, continuing the trial was necessary in order to let them decide the issue. Both defense counsel and the prosecutor clearly understood the issue of fitness to stand trial was for the court to determine, and that explains the fact that neither side offered an instruction on the matter. But absence of such an instruction does not cure the court’s misunderstanding that by deciding the general issue of Robertson’s competency the jury would be deciding the “ancillary” matter of his fitness for trial.

As we said in Gruzen v. State, supra, “The fact that there was a great potential for prejudice in the court’s failure to rule on the issue may be easily demonstrated, if the mere failure to make a ruling cannot be said to be prejudicial in and of itself.” 267 Ark. at 389, 591 S.W.2d at 347. Here, each time the issue was raised, there was additional direct evidence which could have borne on the court’s decision whether Robertson was fit to stand trial. The prejudice is obvious.

2. Dr. Lynch and the Fifth Amendment

Robertson has raised other issues. The only one likely to arise in the event of a new trial is whether the court should force Dr. Lynch to reveal her previous medical history or strike her testimony.

If the issue here were simply whether treatment of Dr. Lynch for psychiatric disorder is privileged, we might reach the same result as was reached by our court of appeals in Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984). There it was held, based on Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), that evidence of medical treatment, as opposed to physician-patient communications, could not be withheld because it was not covered by the physician-patient privilege found in A.R.E. 503. Here, however, Dr. Lynch, whether advisedly or not, relied on her fifth amendment right not to incriminate herself.

The federal appellate courts have wrestled with whether the testimony of a witness must be stricken where, for example, upon cross-examination the witness refuses to answer questions citing the fifth amendment privilege. The cases hold that the ruling is within the trial court’s discretion. United States v. Seifert, 648 F.2d 557 (9th Cir. 1980); United States v. Star, 470 F.2d 1214 (9th Cir. 1972). See also United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), cert. denied 375 U.S. 822 (1963). The testimony should be stricken if failure to answer deprives the party questioning the witness of the right to test the truth of the witness’s direct testimony, as opposed to a collateral matter. United States v. Cardillo, supra.

Dr. Lynch’s testimony was not before the jury. We find no error in the court’s refusal to strike the testimony. The answers to the questions she was asked about her personal mental history would not have refuted her previous report and direct testimony about Robertson’s condition. Rather, the answers could only have been viewed as affecting the weight of her previous, direct testimony.

Reversed and remanded.

Hickman, J., concurs. Purtle and Glaze, JJ., dissent in part.