Oliver Jones v. Richard L. Dugger , 839 F.2d 1441 ( 1988 )

KRAVITCH, Circuit Judge:

We consider a single, difficult issue in this case: may the prosecution, to rebut a defendant’s claim of insanity, present the opinion testimony of a police officer that a defendant was sane at the time of the offense, when that opinion is based on observations of the defendant during an interrogation in violation of Miranda because the defendant did not intelligently waive his rights?

I.

Terry Sonier and Kathy Collis were driving in the northwest section of Miami on the night of March 18, 1977 when their car developed engine trouble. They stopped at a closed service station to check the car when Oliver Jones, the petitioner, approached them displaying a firearm. Jones demanded money, which the women gave him. He ordered them to get back into the car and to drive to a nearby church. After directing the women to get out of the car and to lie on the ground, he committed sexual battery against them.

Jones first told the women that he would have to kill them because they could identify him; he then ordered them to dress and drive to a nearby shopping center. The car broke down again, and as the three walked away from it, they were approached by police officer Robert Barnett. When Collis told Barnett that Jones had a gun, Jones dropped the gun and fled. He was apprehended a few blocks away by another officer, taken into custody, and identified by both women.

At about 3:30 a.m., Detective Raymond Holsberry began to question Jones. Hols-berry asked Jones what grade he had finished in school and whether he could read and write; Jones replied that he had completed the ninth grade and that he could read and write. Jones denied involvement in the crime until, over two hours later, he started to cry and confessed. Jones refused to repeat his statements for stenography, and Holsberry did not videotape the interrogation.

A month after his arrest, a state trial court adjudicated Jones incompetent to stand trial and committed him for treatment. He was adjudicated incompetent again in November 1977. A trial court eventually found him competent to stand trial, and the trial took place in December 1981.

Immediately before the beginning of trial, the defense moved to suppress the statements made by Jones to Detective Holsberry on the ground that Jones had not knowingly and intelligently waived his Miranda rights.¹ The court heard the testimony of three psychiatrists as well as Detective Holsberry before ordering the suppression of Jones’ post-arrest statements. The court also refused to allow the prosecution to use Jones’ statements in the course of questioning its experts to elicit the experts’ opinions of Jones’ sanity.

Sanity was the central issue at trial. The state sought to introduce testimony by Detective Holsberry that Jones appeared to be rational and well oriented at the time of his questioning, and that Holsberry believed Jones to have understood the difference between right and wrong that evening. The trial court overruled defense objections, holding that Holsberry could testify as to his observations of the defendant on the night of the questioning but could not “go into the text of the statements.”

Detective Holsberry testified as follows:

[Q.] How much time did you spend with Mr. Jones[?]

A. Approximately three hours.

Q. Did you have some conversation with him?

A. Yes, I did.

Were his answers responsive to your questions? <y

Yes, they were. <¡

Did he appear to be well oriented as to where he was? o*

Yes. <¡

Did you have any difficulty understanding his responses? o?

No, I did not. <*

Based upon what he was saying, did you get the feeling that he understood what you were saying? o*

A. Yes.

Q. Was he aware of where he was?

A. Yes.

Q. Based upon your observations of him, and based upon your conversations with him, were you able to form an opinion as to whether or not he was aware of the consequences of being arrested?

A. Yes, he was. At the time he was crying.

Q. Were you able to form an opinion as to whether or not he knew right from wrong?

[A.] Yes. I felt he knew right from wrong.

Jones was convicted on eight counts and sentenced to six consecutive 100-year terms and one consecutive 15-year term. The Florida District Court of Appeal affirmed the judgment of conviction. The federal district court denied Jones’ petition for habeas corpus, and this appeal followed.

II.

This case lies at the intersection of two lines of authority. In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Supreme Court held inadmissible the expert opinion of a psychiatrist as to the defendant’s future dangerousness because that opinion was based on a com-

pelled psychiatric examination not requested by the state to rebut a defense of insanity² and at which no Miranda warnings had been administered to the defendant. The Supreme Court rejected the state’s contention that the fifth amendment privilege was inapplicable to exclude from evidence Smith’s admissions to the state psychiatrist because the communications were nontestimonial in nature. The Court noted that the psychiatrist’s diagnosis, “as detailed in his testimony, was not based simply on his observation of [Smith]. Rather, Dr. Grigson drew his conclusions largely from [Smith’s] account of the crime during their interview, and he placed particular emphasis on what he considered to be [Smith’s] lack of remorse. Dr. Grigson’s prognosis as to future dangerousness rested on statements [Smith] made, and remarks he omitted, in reciting the details of his crime.³ The Fifth Amendment privilege, therefore, is directly involved here because the State used as evidence against [Smith] the substance of his disclosures during the pretrial psychiatric examination.” Estelle v. Smith, 451 U.S. at 464-65, 101 S.Ct. at 1873-74 (emphasis added) (citation omitted).

In Cape v. Francis, 741 F.2d 1287 (11th Cir.1984), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 245 (1985), this court held inadmissible similar psychiatric opinion testimony introduced at the guilt/innocence stage of a capital trial based on the results of a compelled psychiatric examination, at which no Miranda warnings had been administered and in advance of which Cape’s defense attorney had never been notified that the examining psychiatrist would testify as to matters other than competency to stand trial.⁴ It was not clear to the court whether Cape had actually admitted committing the murder, or whether “the murder itself was even dis-' cussed during the interview,” but it was clear that the psychiatrist had based his diagnosis of sanity on the substance of his conversations with Cape, including “ ‘the details of how he came there’ ” and “ ‘the details of the difficulty he was in.’ ” Cape, 741 F.2d at 1293-94. As we explained, Cape could well have told the doctor the same self-exculpatory story that he told the jury, but there was no doubt that the contents of Cape’s discussions with the psychiatrist, as opposed to his mere demeanor, influenced the psychiatrist’s conclusions. We did not consider it significant that the psychiatrist did not relate any specific statéments made by Cape to the jury, for “[i]t is enough that the psychiatrist based his expert opinion on the contents of responses by a defendant who had not been given proper warnings and had not had an adequate opportunity to consult with counsel.” Cape, 741 F.2d at 1294 & n. 7.

Another line of cases, however, holds that there is a range of evidence relating to the appearance and demeanor of a defendant and to the physical properties of a defendant’s body that does not implicate the fifth amendment. Broadly speaking, “the distinction which has emerged, often expressed in different ways, is that the [fifth amendment] privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). Thus the Supreme Court has held that the government can compel a defendant to give a voice exemplar for identification purposes without running afoul of the fifth amendment. United States v. Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 767-68, 35 L.Ed.2d 67 (1973). The Sixth Circuit has ruled that a prosecutor’s comments about a defendant’s demeanor at the counsel table during trial did not violate the fifth amendment, because the comments referred not to the defendant’s failure to testify but rather to the conduct and demeanor of the accused. See Cunningham v. Perini, 655 F.2d 98, 100 (6th Cir.1981) (per curiam), cert. denied, 455 U.S. 924, 102 S.Ct. 1286, 71 L.Ed.2d 467 (1982).⁵

The appellant argues, and we agree, that the resolution of this case depends on whether Detective Holsberry’s testimony was based on “testimonial” and “communicative” aspects of Jones’ statements.⁶ The question is concededly a very close one; as the Supreme Court has observed, “the distinction between real and physical evidence, on the one hand, and communications or testimony, on the other, is not readily drawn in many cases.” South Dakota v. Neville, 459 U.S. 553, 561, 103 S.Ct. 916, 921, 74 L.Ed.2d 748 (1983); see Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832. Nonetheless, we conclude that Holsberry’s testimony falls on the permissible side of the line.

First, Holsberry never testified as to any specific statements made by Jones; the trial court excluded all such statements. Second, Holsberry never stated that Jones had said that he had committed the crimes; in fact, Holsberry mentioned neither the details of the crime nor the details of any exculpatory explanation that Jones might have had for his actions that evening. Third, unlike the testimony of the examining physician in Estelle v. Smith that he based his conclusions on the details of the story that Smith told him, Holsberry gave no indication that his opinion of Jones’ sanity was grounded in the details of Jones’ statement.⁷

Holsberry did testify that he had a conversation with Jones, that Jones appeared to be well oriented, that Jones’ answers to his questions were responsive, and that Jones understood what Holsberry was saying. None of these observations related to the substance of Jones’ story; they were more like demeanor evidence, observations that Jones was alert and comprehending. Our conclusion that this testimony was admissible also comports with the Supreme Court’s retrospective look at Estelle v. Smith in South Dakota v. Neville, where the Court recalled that, in Smith, it had “specifically rejected the claim that the psychiatrist was observing the patient’s communications simply to infer facts of his mind, rather than to examine the truth of the patient’s statements.” Neville, 103 S.Ct. at 921 n. 12 (emphasis added).⁸

We do pause on Holsberry’s affirmative response to the prosecutor’s question, “Were you able to form an opinion as to whether or not he knew right from wrong?” If the prosecutor was pursuing a line of questioning based on the substance and the details of Jones’ confession, Hols-berry’s testimony could well be indistinguishable from the testimony given by the doctors in Smith and Cape; it would have been based on Holsberry’s analysis of Jones’ story. In this trial, however, the question followed the prosecutor’s questions about the responsiveness of Jones’ answers, Jones’ ability to make himself understood, Jones’ ability to comprehend Holsberry, and Jones’ awareness of the consequences of being arrested — questions that did not implicate the testimonial aspects of Jones’ statements.

None of these questions touched on the substance of Jones’ story, and the prosecutor’s final question — if it referred to the substance of Jones’ story — would not have followed from them. To hold Holsberry’s answer to this final question inadmissible, we would have to conclude that, without any foundation, the prosecutor — and the jury — suddenly leaped from concentrating on Jones’ behavior to theorizing about the substance of Jones’ statement. Such a conclusion is too speculative. Even when he asked Holsberry about Jones’ ability to tell right from wrong, the prosecutor did not prompt Holsberry with any details of the story, nor did he ask Holsberry if there were any particular aspects of Jones’ story that supported his conclusion about Jones’ sanity. Although the question may have been objectionable as a departure from the previous questioning concerning Jones’ demeanor, we conclude that it did not implicate the content of Jones’ statement so as to intrude on the fifth amendment.

We recognize that this conclusion places us in possible conflict with the D.C. Circuit’s opinion in United States v. Hinckley, 672 F.2d 115, 132-33 (D.C.Cir.1982) (per curiam), affirming the suppression of the opinion testimony of FBI agents that John Hinckley was sane as based on statements taken in violation of Miranda.⁹ Distinguishing the compelled psychiatric examination of a defendant for purposes of proving sanity held permissible in the D.C. Circuit, the court wrote, “[w]e see, however, a vast difference between compelling a psychiatric examination as the only effective means to counter a defendant’s assertion of insanity and allowing the use of lay testimony obtained in violation of Miranda generally to rebut a defendant’s insanity defense.” 672 F.2d at 133 n. 116. There is, of course, such a difference; nevertheless we are convinced that the more important difference is between testimonial communications, which are protected by the fifth amendment, and nontestimonial aspects of a defendant’s behavior, which are not. Because we believe that Holsberry’s testimony was based on the nontestimonial aspects of Jones’ behavior, we conclude that the Constitution does not require that his testimony be suppressed.

Accordingly, the order of the district court denying the writ of habeas corpus is AFFIRMED.

1 . See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966).

2 .When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, the prosecution can require the defendant to submit to a sanity examination conducted by a psychiatrist for the prosecution. United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976). In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981.

3 . The psychiatrist stated under cross-examination that Smith’s account of the crime and his failure to indicate any remorse evinced a "sort of cold-blooded disregard for another human being’s life.” Estelle v. Smith, 451 U.S. at 465 n. 9, 101 S.Ct. at 1874 n. 9.

4 . Cape conceded that the psychiatric opinion testimony would be admissible if limited to the issue of his competency to stand trial. Cape, 741 F.2d at 1293.

5 . We do not necessarily imply our approval of either the holding or any particular language in Cunningham.

6 . The state urges us to distinguish this case from cases such as Cape and Estelle v. Smith because those cases involved the admissibility of statements made without Miranda warnings whereas this case involves statements made after an invalid waiver of the Miranda rights. We need not decide the viability of this distinction in light of our conclusion that Holsberry’s testimony was not based on testimonial aspects of Jones’ statements.

7 . In his dissent, Judge Clark- argues that this case is similar to Estelle v. Smith and its progeny, in which courts have concluded that the admission of psychiatric testimony concerning a defendant’s mental state violated the fifth amendment. With all respect, we think that Judge Clark reads those cases with too selective' a glass. As we explained in the text, the psychiatrist in Estelle v. Smith based his testimony largely upon the substance of Smith's statements and the remarks that Smith omitted to make. Ante, Maj.Op. at 1443. In Cape, we noted that the record did not unambiguously demonstrate that Cape had admitted committing the murder, but that Cape could have simply told the examining psychiatrist a self-exculpatory story. Ante, Maj.Op. at 1443.

In Battie v. Estelle, 655 F.2d 692, 700 (5th Cir.1981), we pointed out that "here as in Smith the mental health expert who testified for the State based his analysis of petitioner’s future dangerousness on the content of the responses given by petitioner to the expert’s tests” (emphasis added). In Battie, the State relied on Dr. Patterson’s opinion testimony to establish Bat-tie’s future dangerousness at sentencing, not Battie’s guilt. Although, as Judge Clark notes, Dissent at 1448, Dr. Patterson did not ask Battie about the details of the crime, see 655 F.2d at 695, there were other testimonial or communicative matters that Battie could have related to Dr. Patterson that would have been relevant to a diagnosis of future dangerousness. We do not suggest that the details of the crime are the only testimonial or communicative matters that may implicate the fifth amendment privilege against self-incrimination. A defendant’s discussion of his past life, or his ability to form meaningful relations with other people, or his future prospects as a productive member of society, all could have testimonial aspects, as could a defendant’s failure to indicate remorse or the existence of a justification for his crime. The testimony of Officer Holsberry that was admitted in this case reflected nothing of the kind.

Nor can we agree with Judge Clark that Gholson v. Estelle, 675 F.2d 734 (5th Cir.1982), supports reversal. In Gholson, the new Fifth Circuit distinguished the suggestion in Smith v. Estelle, 602 F.2d 694 (5th Cir.1979), aff'd, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), that '“[hjad Dr. Grigson drawn his conclusion from Smith’s manner or deportment, his attention span or facial expressions, a strong argument might be made that he gathered only [non-testimonial] evidence.”’ Gholson, 675 F.2d at 740-41 (quoting Smith, 602 F.2d at 704). Indeed, in Smith, we further suggested, "If Dr. Grigson had been analyzing only the patterns of the defendant’s speech, his grammar, organization, logical coherence and similar qualities, the question would be closer but arguably the fifth amendment would still not apply.” 602 F.2d at 704. Gholson did not present such a case, because the nonverbal, physiological reactions made by the defendant were deliberately elicited by the examining psychiatrist "to subtly extract [the] defendant’s thoughts by way of a prosecution psychiatrist’s analysis.” 675 F.2d at 741. “When interrogation is meant to produce certain reactions, whether they are willed reactions or not, the history and spirit of the fifth amendment is summoned to safeguard the rights of a defendant.” Id. The doctor in Ghol-son examined the defendant knowing that he could question the defendant in such a way as to elicit a meaningfully testimonial response, verbal or nonverbal. However difficult it may be to draw the line between this type of questioning and the demeanor evidence that we suggested in Smith could be permissible, that line clearly separates this case from Gholson. Gholson ’s progeny in the new Fifth Circuit adds little. In Muniz v. Procunier, 760 F.2d 588, 589 (5th Cir.), cert. denied, 474 U.S. 934, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985), the court noted only that the psychiatrist "used [the] interview as the basis for his opinion ... that Muniz would probably commit criminal acts of violence that would constitute a continuing threat to society.” In Jones v. McCotter, 767 F.2d 101 (5th Cir.) (per curiam), cert. denied, 474 U.S. 947, 106 S.Ct. 345, 88 L.Ed.2d 292 (1985), the state abandoned its argument that Jones’ communications were nontestimonial. It is unclear from the opinion in Jones what the substance was of the psychiatric testimony that was admitted. The Jones court relied on Muniz without further explanation.

Finally, Judge Clark seeks to extract more from United States v. Byers, 740 F.2d 1104 (D.C. Cir.1984), than is there. The dictum in the plurality opinion on which the dissent relies did not simply note that “Smith makes clear that it is improper to equate psychiatric examinations with the types of real or physical evidence with which Schmerber and related cases are concerned." Dissent at 1447. Although Judge Sca-lia noted that the Smith Court had dismissed "out of hand," 740 F.2d at 1112, the state’s argument that Smith’s communications to Dr. Grigson were nontestimonial in nature, Judge Scalia then wrote, in the next sentence: “The psychiatrist’s prognosis had been based on statements made to him by respondent Smith, and he had relayed the ‘substance’ of these statements; this was sufficient, the [Smith ] Court said, to implicate directly the Fifth Amendment.” Id. Even the dissenters in Byers did not suggest, as Judge Clark implies, Dissent at 1449, that all vocal responses are testimonial within the meaning of the Fifth Amendment. Rather, the dissenters suggested a distinction between nontestimonial and testimonial oral responses during a psychiatric examination: "While some statements are used purely as diagnostic inputs, others are used to establish the truth of the matter asserted. When a statement is used in the latter fashion, it is clearly testimonial and within the scope of fifth amendment protection." Id. at 1149 (Bazelon, J., dissenting) (dictum) (emphasis added).

8 . Nor is there any indication that Holsberry was referring to the substance of Jones’ statement when he told the jury that Jones was crying. That testimony was in response to the prosecutor's question as to Holsberry’s opinion of whether Jones was aware of the consequences of being arrested. Holsberry did not testify that Jones was crying because he felt sorry for what he had done. Holsberry’s testimony merely established that Jones was alert and comprehending.

9 . The conflict is not a square one because, as the state points out, Hinckley involved the admissibility of a statement made under custodial interrogation after Hinckley had asked for an attorney but without any waiver of the right to speak to an attorney, in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). This case involves the admissibility of statements made after a waiver of Miranda rights that was held invalid because it was not intelligently made.