ROBERT POWELL V. HON. WILLIAM L. GRAHAM, JUDGE FRANKLIN CIRCUIT COURT, ET AL
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RENDERED : FEBRUARY 23, 2006
TO BE PUBLISHED
'Supt~tc9 (gaurf of
2005-SC-625-MR
ROBERT POWELL
v.
3
AP
APPEAL FROM COURT OF APPEALS
2005-CA-000525-OA
FRANKLIN CIRCUIT COURT NO. 04-CR-0114
HON . WILLIAM L . GRAHAM, JUDGE,
FRANKLIN CIRCUIT COURT
APPELLEE
AND
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE ROACH
REVERSING
Appellant, Robert Powell, sought a writ of prohibition against the enforcement of
a trial court order requiring him to submit to a separate mental health examination by
the prosecutor's expert witness . The Court of Appeals denied the writ, opining that the
trial court's order was appropriate because Appellant had placed his mental health in
issue . While we hold that the trial court had the authority to compel Appellant to
undergo the mental examination, because the trial court's order failed to prospectively
provide appropriate protections for Appellant's Fifth Amendment rights, a writ should
have issued . Therefore, we reverse.
I. Background
On June 3, 2004, Appellant took an early lunch break from work, supposedly to
take his wife to a doctor's appointment . When he got home, he found his wife
unresponsive and cold to the touch, and he called 911 . Emergency medical personnel
soon arrived and found Appellant's wife dead . She had suffered for many years from
lupus, depression, and fibromyalgia, the symptoms of which include chronic severe
pain . She took a variety of medications, including morphine and methadone . A
postmortem examination revealed that the concentration of morphine in her blood
significantly exceeded the therapeutic level, and the Medical Examiner concluded that
she had died from "acute opiate intoxication ."
Appellant began to exhibit mental and emotional problems soon after his wife's
death . Early in the morning of June 30, 2004, while drinking alcoholic beverages,
Appellant was observed putting fingernail polish remover in his mouth . He was taken to
the Frankfort Regional Medical Center and released about seven hours later. Later that
day while speaking with his father-in-law, Appellant allegedly confessed to having
assaulted and slowly poisoned his wife with rat poison and drain cleaner over the weeks
leading up to her death . Appellant then began putting shoe polish in his mouth.
The Kentucky State Police were contacted, and Appellant was taken to the
Medical Center again . While there, he was diagnosed as suffering from acute
psychosis, and arrangements were made to transfer him to the psychiatric unit at
Samaritan Hospital in Lexington . While still at the Medical Center, KSP Detective
Dennis Stockton and a Frankfort police officer advised Appellant of his Miranda rights
and questioned him regarding his incriminating statements . Appellant again confessed
to killing his wife, claiming that he had slowly poisoned her because they had not been
sexually intimate for approximately four years . The Franklin County Sheriffs Office then
transported Appellant to Samaritan Hospital, where he was to be kept and observed
pursuant to a 72-hour commitment order. While at Samaritan, Appellant allegedly
claimed to have smothered his wife and prayed, "Please, God, don't let them find out
how I did this ."
On July 2, 2004, Detective Stockton and another KSP Detective, Greg Wolf, went
to Samaritan Hospital to question Appellant a second time . After being read his
Miranda rights again, Appellant stated that he had not poisoned his wife but instead had
smothered her with a pillow. Appellant claimed that he had sought a way of killing his
wife that would make her death appear to have been the result of natural causes. He
also claimed to have killed her to put her out of her (and his) misery.
Based on his statements to the detectives, Appellant was indicted by a Franklin
County Grand Jury for murdering his wife. Appellant's case was set to be tried in
January 2005. On November 12, 2004, Appellant's lawyer filed a motion requesting a
continuance for the approaching trial . The motion indicated that the lawyer was in the
process of investigating Appellant's apparent mental debilitation at the time he made the
statements to the KSP detectives. The lawyer also stated that he anticipated seeking
suppression of the statements based, at least in part, on Appellant's mental state at the
time the statements were made . The prosecutor in the case filed a motion requesting
that the trial court order Appellant to undergo a mental examination pursuant to RCr
7.24(3)(B)(ii) on grounds that Appellant had placed his mental condition in issue by
announcing his intent to seek suppression of his statements based on his mental state .
On March 3, 2005, the trial court entered an order granting the prosecutor's
motion. The trial court's order, however, relied on CR 35.01, which provides :
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When the mental . . . condition of a party. . . is in
controversy, the court in which the action is pending may
order the party to submit to a . . . mental examination by a
physician . . . or appropriate health care expert . . . . The
order may be made only on motion for good cause shown
and upon notice to the person to be examined and to all
parties and shall specify the time, place, manner, conditions,
and scope of the examination and the person or persons by
whom it is to be made .
In ordering the mental examination, the trial court expressly found that "[s]uch `good
cause' exists under the circumstances of this case . . . ."
Appellant promptly sought relief from the Court of Appeals by filing a petition for a
writ of prohibition against the trial court. The Court of Appeals denied the writ, claiming
that Appellant's mental health status at the time he made his incriminating statements
"directly bears upon the issue of [his] guilt." Thus, the court noted, RCr 7.24(3)(B)(ii)
allowed the trial court to order Appellant to submit to a mental examination .
Appellant subsequently appealed to this Court a&a matter of right. Ky. Const. ยง
115 .
II. Analysis
A. Availability of the Writ
We find ourselves once again faced with the task of addressing whether a party
is entitled to a writ of prohibition . It was something of an understatement when we
recently noted that "[e]xtraordi nary writs are disfavored . . . ." Buckley v. Wilson , 177
S.W .3d 778, 780 (Ky. 2005) .
Relief by way of prohibition or mandamus is an extraordinary
remedy and we have always been cautious and conservative
both in entertaining petitions for and in granting such relief.
This careful approach is necessary to prevent short-circuiting
normal appeal procedure and to limit so far as possible
interference with the proper and efficient operation of our
circuit and other courts . If this avenue of relief were open to
all who considered themselves aggrieved by an interlocutory
court order, we would face an impossible burden of
nonappellate matters .
Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961) . A petitioner must make a significant
showing for a writ even to be available in a given case because extraordinary writs
inherently intrude into the workings of the lower courts and bypass the normal appellate
process . Even in those rare cases when a writ is available as a remedy, the court
originally hearing the petition retains its discretion to grant or deny the writ after
examining the merits . Ultimately, the higher courts' power over the extraordinary writs
"has no limits except . . . judicial discretion, and each case must stand on its own
merits ." Bucklev , 177 S .W .3d at 880 . It is with this understanding in mind that we begin
our discussion.
We recently clarified the high standards that must be met before a writ may be
granted . See Hoskins v. Maricle, 150 S .W.3d 1 (Ky. 2004) (returning to the standards
announced in Chamblee v. Rose, 249 S .W.2d 775 (Ky. 1952) and Bender v. Eaton, 343
S.W.2d 799, 800 (Ky. 1961)) . In the short time since then, we have repeatedly been
called on to elaborate on the minutiae of these standards and their application . See
Fritsch v. Caudill , 146 S .W .3d 926 (Ky. 2004); Grange Mut. Ins. Co v. Trude , 151
S.W.3d 803 (Ky. 2004); Russell County, Kentucky Hosp. Dist . Health Facilities Corp . v.
Ephraim McDowell Health Inc. , 152 S .W.3d 230 (Ky. 2004); Newell Enterprises, Inc. v.
Bowling, 158 S.W .3d 750 (Ky. 2005) ; The St. Luke Hospitals, Inc. v. Kopowski , 160
S .W .3d 771 (Ky. 2005); Independent Order of Foresters v. Chauvin, 175 S .W.3d 610
(Ky . 2005); Bucklev v. Wilson, 177 S .W.3d 778 (Ky. 2005) . Despite the recent deluge of
discussion of the law of writs, it is necessary to reiterate at least a summary of that law,
if only to aid in framing our analysis . This is especially true in a case such as this one
where the Court of Appeals failed even to cite Hoskins , the now seminal writ case .
Our cases contemplate two categories or "classes" of cases where a writ of
prohibition might be appropriate : (1) where the lower court is acting outside its
jurisdiction, and (2) where the lower court is acting erroneously but within its jurisdiction .
The standards for evaluating a petition for a writ under each class were succinctly
stated in Hoskins :
A writ of prohibition may be granted upon a showing that (1)
the lower court is proceeding or is about to proceed outside
of its jurisdiction and there is no remedy through an
application to an intermediate court; or (2) that the lower
court is acting or is about to act erroneously, although within
its jurisdiction, and there exists no adequate remedy by
appeal or otherwise and great injustice and irreparable injury
will result if the petition is not granted .
150 S .W.3d at 10 . Appellant claims that both classes of writs apply in this case.
1 . No Jurisdiction
Appellant claims that the trial court was without jurisdiction to compel his
participation in a mental health examination in this case because no statute or rule
authorizes the examination of a criminal defendant in order to assist the prosecutor in
responding to a motion to suppress . On this count, we disagree with Appellant . There
is little question that the trial court had jurisdiction over this matter. Appellant was
indicted by the Franklin County Grand Jury, and is now being prosecuted in the Franklin
Circuit Court. This is sufficient to give the Franklin Circuit Court jurisdiction over the
matter. Appellant's claim that there is no statute, rule, or other source of authority that
allows the trial court to order such an examination is better understood as a claim that
the trial court is acting in error.
2. Acting Erroneously
Appellant's second claim, that the trial court acted erroneously in making the
order, is built on the claim of error discussed above. This claim is more persuasive. In
addressing this aspect of the Appellant's claims, we first note that the trial court's order
contained no requirement that affirmative steps be taken to protect Appellant's Fifth
Amendment rights . No doubt, the Commonwealth would argue that because the trial
court's order was made pursuant to a request under RCr 7.24(3)(B)(ii), which contains
express protections relating to a defendant's Fifth Amendment rights, no such express
requirement in the order is necessary. But the trial court expressly entered its order
under the authority of CR 35.01, not RCr 7.24(3)(B)(ii), and, as developed further below,
we are of the opinion that RCr 7 .24(3)(B)(ii) is inapplicable in this case. Thus, we must
confine our analysis as to the availability of the writ to the trial court's actual order,
which provided no ex ante protection of Appellant's Fifth Amendment rights .
Appellant claims that he has no adequate remedy by appeal because once he
has been compelled to submit to the mental examination, any statements he has made
cannot subsequently be unmade by an appellate court. In essence, Appellant claims
that a mental examination will inevitably lead to Fifth Amendment violations, and that no
appellate remedy is sufficient. While we note that there are traditional remedies for
such violations, e .g ., suppression of the offending statements, there is little guarantee
that such remedies will be entirely effective in this case. Suppression is often employed
after the fact, but it is an imperfect remedy; preventing the violation from occurring in the
first place is preferable where possible . On this point, we have previously held that
"[c]ompelling someone accused of a crime to submit against his or her will to a
psychological examination could likely produce testimony, the effect of which could not
be obliterated by appellate remedies ." Bishop v. Caudill, 118 S .W .3d 159, 163 (Ky.
2003). The nature of the potential constitutional violation in this setting requires more
than an after-the-fact, ad hoc appellate fix. This is why, for example, in the one instance
where our Criminal Rules expressly authorize a compelled mental examination by the
prosecutor's expert, the rule also includes specific protections aimed at preserving the
criminal defendant's rights . See RCr 7.24(3)(B)(ii) ("No statement made by the
defendant in the course of any examination provided for by this rule, whether the
examination be with or without the consent of the defendant, shall be admissible into
evidence against the defendant in any criminal proceeding . No testimony by the expert
based upon such statement, and no fruits of the statement shall be admissible into
evidence against the defendant in any criminal proceeding except upon an issue
regarding mental condition on which the defendant has introduced testimony .") .
The gravity of these concerns and the nature of the constitutional right involved
lead us to the conclusion that the harm caused by the compelled mental examination
satisfies the "great injustice and irreparable injury" prong required under the proceedingerroneously writ standard . We have described "irreparable injury" in various ways,
including "something of a ruinous nature," Bender, 343 S .W.2d at 801, and " incalculable
damage to the applicant . . . either to the liberty of his person, or to his property rights,
or other far-reaching and conjectural consequences ." Litteral v. Woods , 4 S.W.2d 395,
397 (Ky. 1928) (emphasis added) . But this standard requires more than mere, or even
great, injury . As our predecessor court noted :
An impression has arisen that the mere loss of valuable
rights or property through an error of the court constitutes
great and irreparable injury entitling the loser automatically
to relief from the error. However, a careful analysis of the
cases dealing with the supervisory power of the Court . . .
under Section 110 of the Kentucky Constitution will disclose
that in addition to the element of great and irreparable injury
there must be some aspect of injustice . There must be
something in the nature of usurpation or abuse of power by
the lower court, such as to demand that the Court . . . step in
to maintain a proper control over the lower court. The object
of the supervisory power of the Court . . . is to prevent
miscarriage of justice .
Schaetzley v . Wright, 271 S.W.2d 885, 886-87 (Ky. 1954) (citations omitted) . Forcing a
criminal defendant to undergo a mental examination by an agent of the prosecution
immediately brings up core Fifth Amendment concerns . This is what drove our decision
in Bishop , where even though we did not engage in such explicit analysis of the
availability of a writ, we nonetheless granted one. That decision was based, at least in
part, on the danger that the Commonwealth would glean insights into defense strategies
or would obtain a further confession from the defendant. Similarly, a compelled mental
examination in these circumstances, ordered without any prospective protection for
incriminating statements that such an examination might produce, presents such a large
potential for abuse of a criminal defendant's Fifth Amendment rights that we must also
conclude the great injustice and irreparable injury prong has been met .
Thus, Appellant, like the petitioner in Bishop , has met the prerequisites for the
availability of the writ he seeks.
B. Whether the Trial Court Erred
This, of course, leaves us to evaluate whether the trial court acted incorrectly,
and, if so, whether the Court of Appeals abused its discretion by denying the writ. We
begin by noting that the prosecutor and the Court of Appeals invoked RCr 7.24(3)(B)(ii)
as justification for the trial court's action . The Commonwealth continues to press this
argument on appeal. RCr 7.24(3)(B)(i) discusses the notice requirements where a
defendant "intends to introduce expert testimony relating to a mental disease or defect
or any other mental condition of the defendant bearing upon the issue of his or her guilt
or punishment . . . ." In turn, RCr 7.24(3)(B)(ii) states:
When a defendant has filed the notice required by paragraph
(B)(i) of this rule, the court may, upon motion of the attorney
for the Commonwealth, order the defendant to submit to a
mental examination . No statement made by the defendant in
the course of any examination provided for by this rule,
whether the examination be with or without the consent of
the defendant, shall be admissible into evidence against the
defendant in any criminal proceeding . No testimony by the
expert based upon such statement, and no fruits of the
statement shall be admissible into evidence against the
defendant in any criminal proceeding except upon an issue
regarding mental condition on which the defendant has
introduced testimony . If the examination ordered under this
rule pertains to the issue of punishment (excluding a pretrial
hearing under KRS 532.135), the court shall enter an order
prohibiting disclosure to the attorneys for either party of any
self-incriminating information divulged by the defendant until
the defendant is found guilty of a felony offense, unless the
parties otherwise enter into an agreement regulating
disclosure.
The Court of Appeals' holding that RCr 7.24(3)(B)(ii) applies in this case because
Appellant's mental status directly bears upon the issue of his guilt is simply incorrect.
As Appellant has raised and framed the issue, his mental status goes only to whether
the incriminatory statements he made should be suppressed at his trial. To read RCr
7.24(3)(B) in an expansive manner so as to include this dispute, as the Court of Appeals
did in this case, would make the rule applicable to almost any criminal proceeding
where a defendant's mental status is in question . But the rule clearly contemplates
psychological evidence that is to be used during trial, for example, to prove a lack of
guilt due to mental illness at the time of the crime or to show mitigating factors to reduce
the punishment . In essence, the rule is applicable only when a defendant intends to
offer evidence that directly bears on the issues of guilt or punishment, not in a situation
such as this where evidence of the defendant's mental instability relates to whether
other evidence is to be barred from trial and, therefore, has only a tangential bearing on
guilt. Such evidence is significantly removed from any ultimate decision as to guilt or
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punishment-this is likely why the trial court based its order on CR 35.01 rather than
RCr 7.24(3)(B)(ii) .
Appellant, however, argues that CR 35 .01 is inapplicable and claims that the only
justification for the rule's application in a criminal case is the concurring opinion of a
single justice in an earlier case. See Bishop v. Caudill , 118 S.W.3d 159, 165-167 (Ky.
2003) (Keller, J ., concurring) (arguing that CR 35.01 is applicable in criminal cases).
This is simply incorrect. The Bishop majority did not address CR 35 .01 because the
issue in controversy in that case, whether the defendant was competent to stand trial,
was expressly covered by a criminal rule . Moreover, Justice Keller was correct about
the applicability of CR 35.01 to criminal proceedings . RCr 13.04 provides that "[t]he
Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not
superseded by or inconsistent with these Rules of Criminal Procedure." Where there is
no specific criminal rule addressing the availability (or non-availability) of a mental
examination, as is the case here, RCr 13.04 would appear to require the application of
Cr 35 .01 . Thus, as we have noted specifically in a recent case, "CR 35 .01 . . . is
applicable to criminal proceedings by virtue of RCr 13 .04 . . . ." St. Clair v.
Commonwealth , 140 S .W.3d 510, 542 (Ky. 2004).
Appellant argues that this interpretation conflicts with our holding in Bishop v.
Bishop involved a criminal defendant who challenged his competency to stand
Caudill .
trial. The defendant moved for an examination to be paid for by the Commonwealth,
presumably pursuant to RCr 8.06 and KRS 504 . 100, both of which require the trial court
to appoint a mental health professional to examine any criminal defendant who the court
has "reasonable grounds to believe" is incompetent to stand trial . Subsequently, the
prosecution moved for a separate evaluation of the defendant by its own expert . The
trial court granted this motion, and ordered the criminal defendant to submit to a
separate mental examination by an agent of the Commonwealth . The defendant
petitioned the Court of Appeals for a writ of prohibition, which was denied. We reversed
on appeal .
In reversing, we focused on the fact that a compelled mental examination created
far too great a risk, bordering on a certainty, that the defendant's Fifth Amendment
rights would be violated . Though we have already quoted some of Bishop's language
on this point, it bears repeating, though with additional context :
The policy reasons behind prohibiting the Commonwealth
from obtaining its own competency evaluation are clear .
Compelling someone accused of a crime to submit against
his or her will to a psychological examination could likely
produce testimony, the effect of which could not be
obliterated by appellate remedies. That is, an unauthorized
psychological examination by the Commonwealth's agent
could result in the disclosure of prior conduct that would not
otherwise be accessible to the prosecution . For example, the
prosecution's mental health examiner may learn that a
defendant engaged in the commission of crimes for which he
had never been charged.
Bishop , 118 S .W .3d at 163. This language weighs heavily in favor of disallowing all
separate mental examinations by the Commonwealth except those expressly allowed
by RCr 7.24(3)(B)(ii) .
However, Bishop ultimately took a subtler tack. We went to great pains to point
out that "[t]he inquiry into a defendant's competency to stand trial is very different and
distinct from an inquiry into whether the defendant is criminally responsible for the acts
with which he is charged ." Id. at 162 . This is because a competency examination is
initiated by the court, and "[a] competency examiner is working for the court, not
necessarily the defense or the Commonwealth ." Id . at 163 . On the other hand, we
noted that a "criminal responsibility evaluation, even if performed by the
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Commonwealth's examiner, is not a compelled examination as it is initiated by the
defendant," id . at 164, and that because criminal responsibility is an issue for the jury to
decide, "the Commonwealth must have the right to rebut this position, a right which
necessarily includes obtaining its own independent examination of the defendant." Id .
Thus, we noted : "we are persuaded by the Legislature's plain inclusion of the
Commonwealth's right to an independent examination when evidence of mental health
at the time of the offense is to be introduced, and its plain exclusion of a similar right
when only competency to stand trial is at issue."
While it is clear that the issue Appellant seeks to raise before the trial courtnamely, the impact of his mental state on the voluntariness of his incriminating
statements'-has no direct bearing on his guilt or punishment, it is equally clear that
this issue is distinct from an inquiry into his competence to stand trial. In a sense,
Appellant seeks to have the trial court make a factual determination as to whether he
was competent to confess to the police, but unlike a determination as to his competence
to stand trial,* this is not an issue that the trial court is charged with raising, or even has
the power to raise, independently . Thus, the specific issue Appellant is now raising is
something of a hybrid issue, failing somewhere between competency to stand trial and
criminal responsibility. Given the differences between the issue Appellant has raised
and that presented in the competency setting, we conclude that Bishop, with its blanket
' Though it is somewhat premature, given that Appellant so far appears to have
focused solely on whether he was mentally ill when he made his incriminating
statements, we note that the admissibility of those statements hinges on more than just
a factual finding of mental illness. Although a defendant's mental health condition at the
time of a confession is an important consideration, see Blackburn v. Alabama , 361 U .S .
199, 80 S.Ct. 274, 4 L .Ed .2d 242 (1960), the primary factor in such a case is whether
the police engaged in coercion . Colorado v . Connelly , 479 U.S. 157, 167, 107 S .Ct.
515, 522 (1986) ("We hold that coercive police activity is a necessary predicate to the
finding that a confession is not "voluntary" within the meaning of the Due Process
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prohibition on independent mental examinations by the Commonwealth in the course of
trial competency determinations, is of limited applicability outside that limited setting.
One aspect of this issue's similarity to criminal responsibility-that the defendant,
rather than the trial court, raises this issue-requires that the Commonwealth have a
chance to "rebut th[e] position . . . ... Id . at 164. Though this differs slightly from the dicta
in Bishop that indicated that this right of rebuttal arises from the fact that criminal
responsibility is a jury issue, it is not a significant departure from that case . The
prosecution's right of rebuttal more properly derives from the fact that the issue in
question is one that the defendant has raised . Though we often speak of fundamental
fairness in trial procedures as a principle to protect a defendant's rights, the principle is
no less applicable to the prosecution . Even if it is only an attempt at parity between the
prosecution and the defense, fundamental fairness demands that a defendant's
decision to place an issue in controversy subjects that claim to the rigors of the
adversarial process . To hold otherwise would give criminal defendants a distinct and
undeserved advantage when raising issues of mental health outside of the area of
competency to stand trial .
The hybrid nature of Appellant's underlying claim is precisely why CR 35.01 is
the applicable rule in this case . Neither the competency procedures, RCr 8 .06 and KRS
504 .100, nor the criminal responsibility procedures, RCr 7.24(3)(B), are a perfect fit.
The trial court correctly perceived that the Appellant's claimed issue fell in this gap.
While it may seem odd to some to apply a rule of civil procedure in a criminal case, in
some situations, it is necessary. The criminal rules simply do not dictate the trial
procedure to be followed in all cases. Whether this is due to inadvertent omission in
Clause of the Fourteenth Amendment .").
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some cases or an explicit refusal to enact a rule that merely repeats standard trial
practice as provided in the civil rules is unimportant . What is clear, however, is that RCr
13 .04 was clearly drafted with this gap-filling function in mind .
This is not to say, however, that the trial court's order in this case was not in
error. The civil rules were not drafted with the complicating constitutional factors of
criminal cases in mind . Not surprisingly, rote application of a civil rule to a criminal case
like this one can have unintended consequences of a constitutional dimension as
discussed above. The risk of a defendant revealing incriminating details or disclosing
valuable defense strategies during a compelled mental examination is significantly
increased over that inherent in the average police interrogation because such an
examination is, by its nature, significantly more intrusive than police questioning . The
mental examination authorized by CR 35.01 in the context of a criminal case will
inevitably infringe on a criminal defendant's Fifth Amendment rights without some
additional protection, yet the rule contains no default mechanism for safeguarding those
rights . This is not surprising, since CR 35 .01 is a civil rule. But to complicate matters,
the trial court's order in this case also fails to provide prospective protection for
Appellant's Fifth Amendment rights . Thus, we conclude that while the trial court had the
authority to order Appellant to undergo a mental examination by the prosecution's
expert, its order, as written, provides insufficient protection for Appellant's Fifth
Amendment rights. As such, the trial court's order, insofar as it failed to provide such
protection, was in error.
The mere fact the CR 35.01 does not require prospective protection of a
defendant's Fifth Amendment rights does not preclude the use of the civil rule in
criminal cases. This option is unworkable because there is no clearly applicable
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criminal rule and because we are presented with a factual scenario that demands that
the Commonwealth have an adequate opportunity to rebut assertions by the Defendant .
Were we to hold CR 35 .01 inapplicable, the gap in the criminal rules would still exist.
That gap must be somehow filled--preferably by a stable, predictable rule that is
already in place . CR 35.01 fits that bill. Nonetheless, where the application of a civil
rule creates tension with--and possibly violation of-a constitutional guarantee, the civil
rule cannot be applied blindly . Instead, it must be applied with an eye toward
preserving the constitutional order, perhaps by requiring that the trial court exercise its
discretion under the rule in a certain way or that additional protections be added
whenever a civil rule is to be applied in a criminal case.
The easiest way to apply CR 35 .01 in a fair manner is simply to impose on it the
protective template from the criminal rule that it most resembles, RCr 7.24(3)(B)(ii) .
That rule reasonably restricts the scope and use of evidence obtained from the
independent mental examination in a way that protects a defendant's privilege against
self incrimination . Not only would such restrictions provide prospective protection for
Appellant's Fifth Amendment rights, it would also allow him to retain his option not to
use that evidence or further pursue the issue after the examinations had taken place .
See Bishop, 118 S .W.3d at 164 ("Since the results of the Commonwealth's examination
are admissible only to rebut the mental health evidence introduced by the defense,
Appellant can preclude introduction of the Commonwealth's evidence by declining to
assert such evidence on his own behalf.").
We hesitate only slightly in this approach, because, as we noted in Bishop,
prospective Fifth Amendment protections like those in RCr 7.24(3)(B)(ii) might not be
sufficient. In the context of a mental examination "ordered against a defendant's wishes
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. . . the Commonwealth would [still] gain the inherent and unfair advantage of gleaning
insight as to the defense strategy ." Id. However, we read that language as limited to the
unique context of competency determinations, which the defendant has little ultimate
control over instigating. This is especially true given that our concern in this area in
Bishop was elevated by the defendant's active opposition to his trial attorneys . Id . at
163-64. Certainly the rule's protections are sufficient when criminal responsibility is at
issue . Similarly, in the context of other potential compelled mental examinations, the
overlay of the RCr 7.24(3)(B)(ii) protections provides the best balance between a
defendant's constitutional rights and the basic demands of fairness toward the
prosecution .
While we are cognizant of the Court of Appeals' broad discretion when
considering a petition for a writ of prohibition, we think that the danger posed to
Appellant's Fifth Amendment rights by the trial court's current order requires
intervention . Therefore, the judgment of Court of Appeals is hereby reversed, and this
matter is remanded and the Court of Appeals is instructed to enter a writ of prohibition in
conformity with this opinion .
All concur.
COUNSEL FOR APPELLANT:
J. Guthrie True
Johnson, True & Guarnieri, LLP
326 West Main Street
Frankfort, Kentucky 40601
APPELLEE:
Hon . William L. Graham
Franklin Circuit Judge
Courthouse
Frankfort, Kentucky 40601
COUNSEL FOR REAL PARTY IN INTEREST :
Gregory D. Stumbo
Attorney General
Larry Wayne Cleveland
Commonwealth Attorney
315 West Main Street
Frankfort, Kentucky 40601
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