Kansas v. Cheever , 134 S. Ct. 596 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KANSAS v. CHEEVER
CERTIORARI TO THE SUPREME COURT OF KANSAS
No. 12–609. Argued October 16, 2013—Decided December 11, 2013
Shortly after respondent Cheever was charged with capital murder, the
Kansas Supreme Court found the State’s death penalty scheme un-
constitutional. State prosecutors then dismissed their charges to al-
low federal authorities to prosecute him. When Cheever filed notice
that he intended to introduce expert evidence that methampheta-
mine intoxication negated his ability to form specific intent, the Fed-
eral District Court ordered Cheever to submit to a psychiatric evalua-
tion. The federal case was eventually dismissed without prejudice.
Meanwhile, this Court held the State’s death penalty scheme consti-
tutional, see Kansas v. Marsh, 548 U. S. 163. The State then brought
a second prosecution. At trial, Cheever raised a voluntary intoxica-
tion defense, offering expert testimony regarding his methampheta-
mine use. In rebuttal, the State sought to present testimony from the
expert who had examined Cheever by the Federal District Court or-
der. Defense counsel objected, arguing that since Cheever had not
agreed to the examination, introduction of the testimony would vio-
late the Fifth Amendment proscription against compelling an accused
to testify against himself. The trial court allowed the testimony, and
the jury found Cheever guilty and voted to impose a death sentence.
The Kansas Supreme Court vacated the conviction and sentence, re-
lying on Estelle v. Smith, 451 U. S. 454, in which this Court held that
a court-ordered psychiatric examination violated a defendant’s Fifth
Amendment rights when the defendant neither initiated the exami-
nation nor put his mental capacity in dispute. The court distin-
guished the holding of Buchanan v. Kentucky, 483 U. S. 402, that a
State may introduce the results of such an examination for the lim-
ited purpose of rebutting a mental-status defense, on the basis that
voluntary intoxication is not a mental disease or defect under Kansas
law.
2 KANSAS v. CHEEVER
Syllabus
Held: The rule of Buchanan, reaffirmed here, applies in this case to
permit the prosecution to offer the rebuttal evidence at issue. Pp. 4–
10.
(a) In Buchanan, the prosecution presented evidence from a court-
ordered evaluation to rebut the defendant’s affirmative defense of ex-
treme emotional disturbance. This Court concluded that this rebut-
tal testimony did not offend the Fifth Amendment, holding that when
a defense expert who has examined the defendant testifies that the
defendant lacked the requisite mental state to commit an offense, the
prosecution may present psychiatric evidence in rebuttal. Buchan-
an’s reasoning was not limited to the circumstance that the evalua-
tion was requested jointly by the defense and the government. Nor
did the case turn on whether state law referred to extreme emotional
disturbance as an affirmative defense. Pp. 4–6.
(b) The admission of rebuttal testimony under the rule of Buchan-
an harmonizes with the principle that when a defendant chooses to
testify in a criminal case, the Fifth Amendment does not allow him to
refuse to answer related questions on cross-examination. See Fitz-
patrick v. United States, 178 U. S. 304, 315. Here, the prosecution
elicited testimony from its expert only after Cheever offered expert
testimony about his inability to form the requisite mens rea. Exclud-
ing this testimony would have undermined Buchanan and the core
truth-seeking function of trial. Pp. 6–7.
(c) This Court is not persuaded by the Kansas Supreme Court’s
reasoning that Cheever did not waive his Fifth Amendment privilege
because voluntary intoxication is not a mental disease or defect as a
matter of state law. “Mental disease or defect” is not the salient
phrase under this Court’s precedents, which use the much broader
phrase “mental status,” Buchanan, 483 U. S., at 423. Mental-status
defenses include those based on psychological expert evidence as to a
defendant’s mens rea, mental capacity to commit the crime, or ability
to premeditate. To the extent that the Kansas Supreme Court de-
clined to apply Buchanan because Cheever’s intoxication was “tempo-
rary,” this Court’s precedents are again not so narrowly circum-
scribed, as evidenced by the fact that the courts where Buchanan was
tried treated his extreme emotional disturbance as a “temporary”
condition. Pp. 7–8.
(d) This Court declines to address in the first instance Cheever’s
contention that the prosecution’s use of the court-ordered psychiatric
examination exceeded the rebuttal-purpose limit established by Bu-
chanan, see 483 U. S., at 424. Pp. 9–10.
295 Kan. 229, 284 P. 3d 1007, vacated and remanded.
SOTOMAYOR, J., delivered the opinion for a unanimous Court.
Cite as: 571 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–609
_________________
KANSAS, PETITIONER v. SCOTT D. CHEEVER
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS
[December 11, 2013]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
The Fifth Amendment to the United States Constitution
provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself . . . .” The
question here is whether the Fifth Amendment prohibits
the government from introducing evidence from a court-
ordered mental evaluation of a criminal defendant to rebut
that defendant’s presentation of expert testimony in sup-
port of a defense of voluntary intoxication. We hold that it
does not.
I
On the morning of January 19, 2005, Scott Cheever
shot and killed Matthew Samuels, a sheriff of Greenwood
County, Kansas, and shot at other local law enforcement
officers. In the hours before the shooting, Cheever and his
friends had cooked and smoked methamphetamine at a
home near Hilltop, Kansas. Samuels and multiple depu-
ties drove there to arrest Cheever on an unrelated out-
standing warrant.
When one of Cheever’s friends warned him that officers
were en route, Cheever rushed outside and tried to drive
away, but his car had a flat tire. He returned inside and
hid with a friend in an upstairs bedroom, holding a loaded
2 KANSAS v. CHEEVER
Opinion of the Court
.44 caliber revolver. Cheever then heard footsteps on the
stairs leading up to the room, and he stepped out and shot
Samuels, who was climbing the stairs. After briefly re-
turning to the bedroom, Cheever walked back to the stair-
case and shot Samuels again. He also shot at a deputy
and a detective, as well as members of a local SWAT (spe-
cial weapons and tactics) team that had since arrived.
Only Samuels was hit.
The State charged Cheever with capital murder. But
shortly thereafter, in an unrelated case, the Kansas Su-
preme Court found the State’s death penalty scheme
unconstitutional. State v. Marsh, 278 Kan. 520, 102 P. 3d
445 (2004). Rather than continuing to prosecute Cheever
without any chance of a death sentence, state prosecutors
dismissed their charges and allowed federal authorities to
prosecute Cheever under the Federal Death Penalty Act of
1994, 18 U. S. C. §3591 et seq.
In the federal case, Cheever filed notice that he “in-
tend[ed] to introduce expert evidence relating to his intox-
ication by methamphetamine at the time of the events on
January 19, 2005, which negated his ability to form spe-
cific intent, e.g., malice aforethought, premeditation and
deliberation.” App. to Pet. for Cert. 69–70. Pursuant to
Federal Rule of Criminal Procedure 12.2(b), the District
Court ordered Cheever to submit to a psychiatric evalua-
tion by Michael Welner, a forensic psychiatrist, to assess
how methamphetamine use had affected him when he
shot Samuels. Welner interviewed Cheever for roughly five
and a half hours.
The federal case proceeded to trial. Seven days into
jury selection, however, defense counsel became unable to
continue; the court suspended the proceedings and later
dismissed the case without prejudice. Meanwhile, this
Court had reversed the Kansas Supreme Court and held
that the Kansas death penalty statute was constitutional.
Kansas v. Marsh, 548 U. S. 163, 167 (2006). A second
Cite as: 571 U. S. ____ (2013) 3
Opinion of the Court
federal prosecution never commenced.
Kansas then brought a second state prosecution. At the
state trial, Cheever presented a voluntary-intoxication
defense, arguing that his methamphetamine use had ren-
dered him incapable of premeditation. In support of
this argument, Cheever offered testimony from Roswell
Lee Evans, a specialist in psychiatric pharmacy and dean
of the Auburn University School of Pharmacy. Evans
opined that Cheever’s long-term methamphetamine use
had damaged his brain.1 Evans also testified that on the
morning of the shooting, Cheever was acutely intoxicated.
According to Evans, Cheever’s actions were “very much
influenced by” his use of methamphetamine.
After the defense rested, the State sought to present
rebuttal testimony from Welner, the expert who had ex-
amined Cheever by order of the federal court. Defense
counsel objected, arguing that because Welner’s opinions
were based in part on an examination to which Cheever
had not voluntarily agreed, his testimony would violate
the Fifth Amendment proscription against compelling an
accused to testify against himself. The State countered
that the testimony was necessary to rebut Cheever’s
voluntary-intoxication defense.
The trial court agreed with the State. The court was
persuaded, in part, by the fact that the defense expert had
himself relied on Welner’s examination report: “I think
that fact alone probably allows the State to call [Welner]
to give his own point of view.” App. 92. The court allowed
Welner’s testimony for the purpose of showing that
Cheever shot Samuels “because of his antisocial personal-
ity, not because his brain was impaired by methampheta-
mine.” Id., at 94.
——————
1 Evans described this damage as “neurotoxicity,” which is “the qual-
ity of exerting a destructive or poisonous effect upon the nerve tissue.”
The Sloane-Dorland Annotated Medical-Legal Dictionary 498 (1987).
4 KANSAS v. CHEEVER
Opinion of the Court
The jury found Cheever guilty of murder and attempted
murder. At the penalty phase, it unanimously voted to
impose a sentence of death, and the trial court accepted
that verdict.
On appeal to the Kansas Supreme Court, Cheever ar-
gued that the State had violated his Fifth Amendment
rights when it introduced, through Welner’s testimony,
statements that he had made during the federal court-
ordered mental examination. The court agreed, relying
primarily on Estelle v. Smith, 451 U. S. 454 (1981), in
which we held that a court-ordered psychiatric exami-
nation violated the defendant’s Fifth Amendment rights
when the defendant neither initiated the examination nor
put his mental capacity in dispute at trial. 295 Kan. 229,
243–244, 284 P. 3d 1007, 1019–1020 (2012) (per curiam).
The court acknowledged, id., at 244–245, 284 P. 3d, at
1020, our holding that a State may introduce the results of
a court-ordered mental examination for the limited pur-
pose of rebutting a mental-status defense. Buchanan v.
Kentucky, 483 U. S. 402, 423–424 (1987). But it distin-
guished Buchanan on the basis that under Kansas law,
voluntary intoxication is not a “mental disease or defect.”
295 Kan., at 250, 284 P. 3d, at 1023. Consequently, it
vacated Cheever’s conviction and sentence, holding that
Cheever had not waived his Fifth Amendment privilege
and that his federal court-ordered examination should not
have been used against him at the state-court trial. Ibid.
We granted certiorari, 568 U. S. ___ (2013), and now
reverse.
II
The Fifth Amendment guarantees that “[n]o person . . .
shall be compelled in any criminal case to be a witness
against himself . . . .” We held in Estelle that under the
Fifth Amendment, when a criminal defendant “neither
initiates a psychiatric evaluation nor attempts to intro-
Cite as: 571 U. S. ____ (2013) 5
Opinion of the Court
duce any psychiatric evidence,” his compelled statements
to a psychiatrist cannot be used against him. 451 U. S., at
468. In that case, a judge ordered a psychiatric exam-
ination to determine the defendant’s competency to stand
trial. Id., at 456–457. The prosecution then used state-
ments from that examination during the sentencing phase
of the trial as evidence of the defendant’s future danger-
ousness. Id., at 458–460. Emphasizing that the defend-
ant had neither “introduced” any “psychiatric evidence,”
nor even “indicated that he might do so,” id., at 466, we
concluded that the Fifth Amendment did not permit the
State to use the defendant’s statements in this manner.
In Buchanan, we addressed the admissibility of evi-
dence from a court-ordered evaluation where—unlike in
Estelle—a defendant had introduced psychiatric evidence
related to his mental-status defense. We held that the
Fifth Amendment allowed the prosecution to present
evidence from the evaluation to rebut the defendant’s
affirmative defense of extreme emotional disturbance.
And while, as Cheever notes, the mental evaluation in
Buchanan was requested jointly by the defense and the
government, our holding was not limited to that circum-
stance. Moreover, contrary to Cheever’s suggestion, the
case did not turn on whether state law referred to extreme
emotional disturbance as an “affirmative defense.” Bu-
chanan, 483 U. S., at 408, 422 (holding that the prosecu-
tion’s use of rebuttal expert testimony is permissible
where a defendant “presents psychiatric evidence”). The
rule of Buchanan, which we reaffirm today, is that where
a defense expert who has examined the defendant testifies
that the defendant lacked the requisite mental state to
commit an offense, the prosecution may present psychiat-
ric evidence in rebuttal. Ibid. Any other rule would un-
dermine the adversarial process, allowing a defendant to
provide the jury, through an expert operating as proxy,
with a one-sided and potentially inaccurate view of his
6 KANSAS v. CHEEVER
Opinion of the Court
mental state at the time of the alleged crime.
The admission of this rebuttal testimony harmonizes
with the principle that when a defendant chooses to testify
in a criminal case, the Fifth Amendment does not allow
him to refuse to answer related questions on cross-
examination. A defendant “has no right to set forth to the
jury all the facts which tend in his favor without laying
himself open to a cross-examination upon those facts.”
Fitzpatrick v. United States, 178 U. S. 304, 315 (1900). We
explained in Brown v. United States, 356 U. S. 148 (1958),
which involved a witness’s refusal to answer questions in
a civil case, that where a party provides testimony and
then refuses to answer potentially incriminating ques-
tions, “[t]he interests of the other party and regard for the
function of courts of justice to ascertain the truth become
relevant, and prevail in the balance of considerations
determining the scope and limits of the privilege against
self-incrimination.” Id., at 156. When a defendant pre-
sents evidence through a psychological expert who has
examined him, the government likewise is permitted to
use the only effective means of challenging that evidence:
testimony from an expert who has also examined him. See
United States v. Byers, 740 F. 2d 1104, 1113 (CADC 1984)
(en banc) (holding that the Government could present
rebuttal expert testimony in part because it is perhaps
“the most trustworthy means of attempting to meet” the
burden of proof (internal quotation marks omitted)).2
The prosecution here elicited testimony from its expert
only after Cheever offered expert testimony about his in-
ability to form the requisite mens rea. The testimony of
the government expert rebutted that of Cheever’s expert.
See id. at 1114 (“Ordinarily the only effective rebuttal of
——————
2 For that reason, we reject Cheever’s suggestion that the State could
effectively have rebutted the testimony of his expert by introducing
testimony from experts who had not personally examined him.
Cite as: 571 U. S. ____ (2013) 7
Opinion of the Court
psychiatric opinion testimony is contradictory opinion tes-
timony; and for that purpose . . . the basic tool of psy-
chiatric study remains the personal interview, which
requires rapport between the interviewer and the subject”
(internal quotation marks omitted)); State v. Druke, 143
Ariz. 314, 318, 693 P. 2d 969, 973 (App. 1984) (“[A]n in-
ference would arise that the evidence presented by the
[defendant] as to his mental condition is true because un-
contradicted”). The trial court therefore did not violate the
Fifth Amendment when it allowed Welner to testify that
Cheever “made a choice to shoot,” App. 131, because the
State permissibly followed where the defense led. Exclud-
ing this testimony would have undermined Buchanan and
the core truth-seeking function of the trial.
III
Neither the Kansas Supreme Court’s reasoning, nor
Cheever’s arguments, persuade us not to apply the settled
rule of Buchanan.
A
Although the Kansas Supreme Court acknowledged that
the State may present evidence obtained from a compelled
psychiatric examination when “the defendant presents
evidence at trial that he or she lacked the requisite crimi-
nal intent due to mental disease or defect,” 295 Kan., at
249, 284 P. 3d, at 1023, it reasoned that voluntary intoxi-
cation is not a “mental disease or defect” as a matter of
state law. Id., at 250, 284 P. 3d, at 1023–1024 (citing
State v. Kleypas, 272 Kan. 894, 40 P. 3d 139 (2001)). The
court therefore concluded that “Cheever did not waive his
Fifth Amendment privilege and thus permit his court-
ordered examination by Dr. Welner to be used against him
at trial.” 295 Kan., at 251, 284 P. 3d, at 1024.
This reasoning misconstrues our precedents. Although
Kansas law defines “mental disease or defect” narrowly, to
8 KANSAS v. CHEEVER
Opinion of the Court
exclude voluntary intoxication, that phrase is actually not
the salient one under our precedents. In Buchanan, we
permitted rebuttal testimony where the defendant pre-
sented evidence of “the ‘mental status’ defense of extreme
emotional disturbance.” 483 U. S., at 423. And “mental
status” is a broader term than “mental disease or defect,”
at least to the extent that Kansas law excludes voluntary
intoxication from that definition. Mental-status defenses
include those based on psychological expert evidence as to
a defendant’s mens rea, mental capacity to commit the
crime, or ability to premeditate. Defendants need not as-
sert a “mental disease or defect” in order to assert a de-
fense based on “mental status.”
To the extent that the Kansas Supreme Court declined
to apply Buchanan because Cheever’s intoxication was
“temporary,” our precedents are again not so narrowly
circumscribed. Like voluntary intoxication, extreme emo-
tional disturbance is a “temporary” condition, at least
according to the Kentucky state courts where Buchanan
was tried. See McClellan v. Commonwealth, 715 S. W.
2d 464, 468–469 (Ky. 1986) (defining extreme emotional
disturbance as “a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one’s judgment, and
to cause one to act uncontrollably from [an] impelling force
of [an] extreme emotional disturbance rather than from
evil or malicious purposes”). We nonetheless held in
Buchanan that the defense of extreme emotional disturb-
ance, when supported by expert testimony, may be re-
butted with expert testimony. The same is true here.
Cheever’s psychiatric evidence concerned his mental status
because he used it to argue that he lacked the requisite
mental capacity to premeditate. The Fifth Amendment
therefore did not bar the State from using Welner’s exam-
ination to rebut Cheever’s voluntary-intoxication defense.
Cite as: 571 U. S. ____ (2013) 9
Opinion of the Court
B
Cheever further contends that the Fifth Amendment
imposes limits on the State’s ability to introduce rebuttal
evidence regarding a defendant’s mental status. Accord-
ing to Cheever, Welner’s testimony exceeded these limits
by describing the shooting from Cheever’s perspective;3 by
insinuating that he had a personality disorder; and by
discussing his alleged infatuation with criminals.
We have held that testimony based on a court-ordered
psychiatric evaluation is admissible only for a “limited
rebuttal purpose.” Buchanan, 483 U. S., at 424. In Bu-
chanan, for example, although the prosecution had used a
psychiatric report to rebut the defendant’s evidence of
extreme emotional disturbance, we noted that the trial
court had redacted the report so as to avoid exposing the
jury to “the very different issue” of the defendant’s compe-
tency to stand trial. Id., at 423, n. 20. Two years later, we
explained in dictum that “[n]othing” in our precedents
“suggests that a defendant opens the door to the admis-
sion of psychiatric evidence on future dangerousness by
raising an insanity defense at the guilt stage of the trial.”
Powell v. Texas, 492 U. S. 680, 685–686, n. 3 (1989) ( per
curiam). Here, however, the Kansas Supreme Court did
not address whether Welner’s testimony exceeded the
scope of rebuttal testimony permitted by the Fifth
Amendment or by the State’s evidentiary rules. We ac-
cordingly decline to address this issue in the first
——————
3 In an extended soliloquy, Dr. Welner narrated the crime from
Cheever’s perspective, in part as follows: “I don’t jump out of the
window the way my confederate later does. And when I do shoot,
I don’t shoot before Matthew Samuels walks through the curtain in
such a way that I might scare him, the way my later shots frightened
the deputies that came to pull him away, but I shoot him at a point in
which he is very much within my range, has passed through that
curtain, and I know that he is coming upstairs, and that is when I
shoot.” App. 130–131.
10 KANSAS v. CHEEVER
Opinion of the Court
instance.4
* * *
We hold that where a defense expert who has examined
the defendant testifies that the defendant lacked the
requisite mental state to commit a crime, the prosecution
may offer evidence from a court-ordered psychological
examination for the limited purpose of rebutting the de-
fendant’s evidence.
The judgment of the Kansas Supreme Court is therefore
vacated, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
——————
4 Kansas contends that reaching a federal constitutional question
may not be necessary because Cheever argued in opposing certiorari
that the scope of Welner’s testimony violated state evidentiary rules.
Reply Brief 4–5. We agree with the State that the impact of Kansas
evidentiary rules is a matter best left to the state courts to decide on
remand. We do observe, however, that while our holding today sug-
gests a constitutional ceiling on the scope of expert testimony that the
prosecution may introduce in rebuttal, States (and Congress) remain
free to impose additional limitations on the scope of such rebuttal
evidence in state and federal trials.