In re the Personal Restraint of Hutchinson ( 2002 )

Chambers, J.

(dissenting in part and concurring in part) — I respectfully dissent. Darrin Rand Hutchinson, Sr., was denied due process of law by ambiguous and contradictory language in this Court’s fumbled attempt to answer his interlocutory plea for relief. Our failure to timely and clearly articulate the law denied Hutchinson the opportunity to meaningfully present his diminished capacity defense. Therefore, I dissent and would regretfully grant Hutchinson a new trial.

The majority aptly recites the facts. I stress a few. Hutchinson killed two police officers. He intended to present a diminished capacity defense. The prosecution moved to compel a mental examination and the defense objected. The law on diminished capacity was not well developed at the time and the parties sought guidance from us via interlocutory review. On September 26, 1988, about four months before trial, we issued a brief order stating:

“The trial court’s . . . order requiring that Mr. Hutchinson submit to an examination by a State’s expert is affirmed, but neither the interposing of a diminished capacity defense by Mr. Hutchinson nor his submission to this examination shall be deemed to waive his constitutional right against self-incrimination.”

State v. Hutchinson, 111 Wn.2d 872, 874, 766 P.2d 447 (1989) (Hutchinson I) (quoting court order). We also said an explanatory opinion would be issued in due course. Unfortunately, our order did not explain how to protect Hutchinson’s right against self-incrimination during this compelled examination, and the parties agreed to delay execution of the order hoping our full opinion would provide sufficient guidance. But by the end of the year the prosecution grew impatient with us and moved for the examination to be performed immediately.

The trial court granted the prosecution’s motion. Hutchinson appeared at the ordered examination with counsel. Inexplicably, the State’s psychiatric expert began the proceedings by stating “ ‘whatever you say does not have Fifth Amendment privileges.’ ” State v. Hutchinson, 135 Wn.2d 863, 872, 959 P.2d 1061 (1998) (Hutchinson III) (quoting Verbatim Report of Proceedings (Jan. 11, 1989) at 2). Defense counsel responded: “ ‘Darrin and I won’t be saying anything so you will be the only one speaking.’ ” Id. Hutchinson refused to answer any questions.

The defense argued that silence was the only way to preserve Hutchinson’s Fifth Amendment rights. The State moved to exclude the testimony of defense diminished capacity experts to sanction Hutchinson’s silence. The trial court substantially granted the State’s motion, which significantly impaired Hutchinson’s ability to present his defense. Two weeks before the trial, with this Court’s opinion nowhere in sight, the trial judge mused:

“[PJerhaps it would get the attention of the Supreme Court.

“. . . . I would like to have them hear this and quickly ....

“Now, I’ve ordered the examination, it isn’t taking place and I now have ordered sanctions. And I trust that somebody moves the matter to a higher authority.”

Hutchinson III, 135 Wn.2d at 872 (quoting Verbatim Report of Proceedings (Jan. 11, 1989) at 69-72).

Two days later, this Court’s opinion was published. It said in part that:

the defendant must submit to an examination as to mental condition and capacity. . . . The trial court is responsible for the protection of the constitutional rights of the defendant against self-incrimination by in camera consideration. . . .

Hutchinson I, 111 Wn.2d at 884-85. It also stated:

[t]he defendant. . . may refuse to answer any question if he believes his answer might tend to incriminate him or lead to evidence of an incriminating nature. RCW 10.77.020(4).

Hutchinson I, 111 Wn.2d at 884 (emphasis added). The trial judge understood us to mean that the examination must proceed, and that Hutchinson’s Fifth Amendment rights would be protected by his in camera review. The defense counsel understood us to mean Hutchinson could refuse to answer all questions tending to incriminate him, which she understood functionally to be the equivalent to not submitting to the examination. The State understood us to mean that the examination must go forward.⁴ We muddied the waters, and the learned judge and trial counsel were reasonably confounded.

It denies due process of law to inform a witness that a privilege exists, and then penalize the witness for relying on the privilege. Raley v. Ohio, 360 U.S 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959). Unlike the majority, I believe Raley applies.

In Raley, the Ohio Un-American Activities Commission summoned witnesses to testify about their supposed involvement in the communist party. The witnesses were assured that “they had a right to rely on the privilege against self-incrimination.” Raley, 360 U.S. at 425. However, Ohio law immunized testimony to legislative commissions, and therefore the witnesses were not actually privileged to refuse to answer questions. See Raley, 360 U.S. at 431. The witnesses remained silent, and were consequently indicted, tried, and convicted for failure to answer the commissioners’ questions. The Ohio Supreme Court upheld the convictions. The United States Supreme Court reversed, concluding:

We hold that in the circumstances of these cases, the judgments of the Ohio Supreme Court affirming the convictions violated the Due Process Clause of the Fourteenth Amendment and must be reversed .... After the Commission, speaking for the State, acted as it did, to sustain the Ohio Supreme Court’s judgment would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him.

Raley, 360 U.S. at 425-26. Importantly, the Supreme Court also said:

While there is no suggestion that the Commission had any intent to deceive .... A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them. . . . We cannot hold that the Due Process Clause permits convictions to be obtained under such circumstances.

Raley, 360 U.S. at 438-39. This fundamental principle of due process should be applied. As Justice Madsen wrote last time Hutchinson was before us, “[T]he majority overlooks the ambiguity of this court’s interlocutory order and the vague contradictory language in ... (.Hutchinson I), which the defendant reasonably understood to mean that he could refuse to answer questions by the state’s expert if he believed the answers might incriminate him.” 135 Wn.2d at 889 (Madsen, J., dissenting). Our interlocutory order and Hutchinson I, official pronouncements of this Court, misled Hutchinson into believing he had a right to refuse to answer questions he believed would tend to incriminate him. This Court did not include a limitation that the belief be rational. While read in broader context of Fifth Amendment jurisprudence and Washington law, this holding was incorrect. But it was still a holding of this Court, and Hutchinson relied on us to his severe detriment. In this case, there is no meaningful distinction between a criminal prosecution and a sanction that functionally prevents the presentation of defendant’s theory of the case.

This Court should do the proper and honorable thing and recognize its own error. Therefore, I would reverse and remand for a new trial. Hutchinson should be clearly instructed that he must fully participate in the examination if he intends to assert a diminished capacity defense, and he should be assured that his Fifth Amendment rights will be protected by in camera review.

I concur with the majority that Hutchinson did not suffer from ineffective assistance of counsel.

Sanders, J., concurs with Chambers, J.

Reconsideration denied November 4, 2002.

4 Greg Canova, special attorney representing the State, had previously expressed sympathy for defense counsel’s interpretation. He is quoted by the petitioner as saying “[I]f I were in the defense position, I would simply advise Mr. Hutchinson not to answer any questions, because the way the [Supreme Court’s] order is written, you can’t tell what he’s going to be required to answer and what he isn’t going to be required to answer.” Mot. for Discretionary Review at 3.