MICHAEL CAIN V. HON. LISABETH HUGHES ABRAMSON, JUDGE, JEFFERSON CIRCUIT COURT AND COMMONWEALTH OF KENTUCKY ()
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AS MODIFIED : MAY 24, 2007
RENDERED: JANUARY 25, 2007
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2006-SC-000477-MR
MICHAEL CAIN
V.
ON REVIEW FROM COURT OF APPEALS
NO. 2006-CA-0825-OA
JEFFERSON CIRCUIT COURT NO. 06-CR-0368
HON. LISABETH HUGHES ABRAMSON,
JUDGE, JEFFERSON CIRCUIT COURT;
AND
COMMONWEALTH OF KENTUCKY
(REAL PARTY IN INTEREST)
APPELLEES
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING
Appellant, Michael Cain, is charged with three counts of first degree robbery,
KRS 515 .020, and second degree persistent felony offender status, KRS 532.080(2) .
On February 21, 2006, Cain filed notice of his intent to assert the defense of mental
illness or insanity . In response, the Commonwealth filed a motion pursuant to KRS
504 .070 and RCr 7.24(3)(B)(ii) to have Cain submit to a psychiatric examination to be
conducted by the Commonwealth's expert on the issue of criminal responsibility. On
April 3, 2006, Hon . Lisabeth Hughes Abramson, then presiding circuit judge, granted the
Commonwealth's motion and ordered Cain to submit to the psychiatric examination.
Two days later, Cain informed the Commonwealth that he desired the presence of
counsel during the psychiatric examination, asserting his right to counsel pursuant to
the Sixth Amendment to the United States Constitution and section 11 of the Kentucky
Constitution . The Commonwealth responded with a motion to have counsel excluded
from Cain's examination, and on April 11, 2006, the circuit court heard arguments on
whether defense counsel should be excluded. The circuit court granted the
Commonwealth's motion to have Cain's counsel excluded from the psychiatric
examination but allowed Dr Allen, a psychiatrist at the Kentucky Correctional Psychiatric
Center (KCPC), to be "present on behalf of Mr. Cain to observe the evaluation ."
On April 17, 2006, the circuit court granted a stay of the psychiatric examination
to allow Cain to file an original action in the Court of Appeals as a writ of prohibition, or
mandamus, which was subsequently denied on June 2, 2006, by the Court of Appeals
without issuing an opinion . Cain now appeals this denial, alleging he is entitled to the
relief sought by way of the writ of prohibition, to wit, having his counsel present during
the psychiatric examination . For the reasons set forth herein, we affirm the Court of
Appeals and deny Cain's petition for the writ.
ANALYSIS
1 . Fifth Amendment Claims.
In support of his contention that a writ is the appropriate remedy in this case,
Cain argues he has no adequate remedy by appeal or otherwise and, if denied, he will
suffer great injustice and irreparable injury . He also alleges that he has a constitutional
right to have counsel present during the psychiatric evaluation .
The standards governing a writ of prohibition have been clearly expounded by
this Court.
A writ of prohibition maybe 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 .
Hoskins v. Maricle, 150 S.W .3d 1, 10 (Ky. 2004) (emphasis in original) .
In the case at bar, Cain claims that the trial court will be acting erroneously by
ordering the psychiatric evaluation regarding criminal responsibility without the presence
of his defense counsel and that he has no remedy by appeal or otherwise . However,
Cain has a remedy via the "otherwise" language of the standard enunciated above : Cain
can procure his own expert to observe the evaluation pursuant to KRS 504.080(5) .
Ironically, in Cain's response to the Commonwealth's motion to exclude defense
counsel from the evaluation, Cain requested the following from the trial court: "Counsel
for Mr . Cain respectfully requests that this Court order that defense counsel and/or an
[sic] psychologist or psychiatrist retained by the defendant shall be permitted to
participate in the examination of Mr. Cain by Dr. Curl." (Emphasis added) . Although not
required by RCr 7.24(3)(B), the trial court allowed Dr. Allen of the KCPC to observe the
evaluation "on Cain's behalf ."
Cain now argues, however, that the protections afforded criminal defendants by
RCr 7.24(3)(B)(ii) are insufficient to adequately protect his rights under the Fifth
Amendment to the United States Constitution . Kentucky Criminal Procedure Rule
7 .24(3)(B)(ii) provides, in pertinent part, as follows:
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.
In support of his contention, Cain cites Powell v. Graham , 185 S.W.3d 624 (Ky.
2006), wherein this Court granted the appellant's request for a writ of prohibition to
prevent the trial court from compelling him to submit to a mental health evaluation
without first taking steps to protect his Fifth Amendment rights . However, a closer
examination of Powell reveals that the trial court in that case ordered the defendant to
undergo a psychiatric evaluation pursuant to CR 35.01, which may be employed in
criminal cases pursuant to RCr 13.04. Moreover, the trial court took no additional steps
to safeguard the appellant's constitutional rights, and this Court noted that "the civil rule
cannot be applied blindly." Id . at 633.
Powell , supra , presents facts quite different from those involved in the case at
.
bar, where here, Cain initially notified the court and the prosecution, pursuant to RCr
7 .24(3)(B)(i), of his intention to raise mental defect or disease as a defense to the
charges pending against him . Thus, the procedural safeguards of RCr 7.24(3)(B)(ii),
which were inapplicable in Powell, are available in the case at bar and provide the
necessary constitutional protection Cain otherwise seeks by means of a writ . As the
predecessors to this Court have expounded, a writ "is an extraordinary remedy, and
[this Court has] always been cautious and conservative both in entertaining petitions for
and in granting such relief ." Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).
Furthermore, the protections provided by RCr 7.24(3)(B)(ii) are sufficient to
alleviate Cain's concerns that any information he divulges during the evaluation "cannot
be recalled ." In Bishop v. Caudill , 118 S.W .3d 159, 164 (Ky. 2003), this Court
recognized the Fifth Amendment protections inherent in RCr 7.24(3)(B)(ii) and held:
A criminal responsibility evaluation, even if performed by the
Commonwealth's examiner, is not a compelled examination as it is
initiated by the defendant. By asserting the defense of mental illness or
insanity, a defendant is claiming lack of criminal responsibility for the
crime.
Accordingly, the Commonwealth must have the right to rebut this position,
a right which necessarily includes obtaining its own independent
examination of the defendant. 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.
Quite simply, the contention that irreparable injury would otherwise result should the writ
be denied is without merit as Cain's Fifth Amendment rights are adequately protected .
2. Claims pursuant to the Sixth Amendment to the United States Constitution and
Section 11 of the Kentucky Constitution.
Additionally, Cain argues that he has a constitutional right under both the Sixth
Amendment to the United States Constitution and Section 11 of the Kentucky
Constitution to be represented by counsel during his psychiatric evaluation, and he
contends that denial of the writ would in essence be a denial of his constitutional right to
have counsel present during this alleged "critical stage" of the proceedings. We again
disagree .
In United States v. Byers , 740 F.2d 1104 (D.C .Cir. 1984), the federal Court of
Appeals explained what constitutes a "critical stage" for Sixth Amendment purposes . "it
is a test under which, as the initial criterion of Sixth Amendment applicability, the
accused must find himself `confronted, just as at trial, by the procedural system, or by
his expert adversary, or by both ."' Id. at 1117-18 (quoting United States v. Ash, 413
U .S. 300, 310, 93 S .Ct. 2568, 2574, 37 L.Ed.2d 619 (1973)) . In further analyzing Ash ,
su ra, the court described two elements of this criterion :
[T]he defendant must be confronted either with the need to make a
decision requiring distinctively legal advice - which may occur even in a
context in which the prosecutor or his agents are not present - or with the
need to defend himself against the direct onslaught of the prosecutor which may require some skills that are not distinctively legal[ .]
Id. at 1118 (emphasis in original) . On this latter point, the court described such nonlegal skills as "'being schooled in the detection of suggestive influences ."' Id. (quoting
United States v. Wade , 388 U .S. 218, 230, 87 S.Ct. 1926, 1934, 18 L.Ed .2d 1149
(1967)) .
Here, as in Byers, su ra, Cain was first confronted by the procedural system
when he raised the defense of mental incapacity for criminal responsibility, "a
determination that would have several legal consequences, including the likelihood of a
court order that he undergo psychiatric examination," Byers, 740 F.2d at 1118. See
also RCr 7.24(3)(B)(ii) . However, Cain will not be confronted by the procedural system
during the psychiatric evaluation itself, as he has to make "no decisions in the nature of
legal strategy or tactics - not even . . . the decision whether to refuse, on Fifth
Amendment grounds, to answer the psychiatrist's questions ." Byers, 740 F .2d at 1118 .
Similarly, the psychiatric evaluation could not qualify as a "critical stage" in the
proceedings as the examiner is not an adversary. "An examining psychiatrist is not an
adversary, much less a professional one. Nor is he expert in the relevant sense - that
is, expert in `the intricacies of substantive and procedural criminal law."' Id. at 1119
(quoting Kirby v. Illinois , 406 U .S. 682, 689, 92 S .Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)
(plurality opinion)).
In this same vein, we find that a psychiatrist, employed by the Commonwealth to
conduct the evaluation, is not a legal adversary or an "agent of the prosecution,"
contrary to Cain's argument. As the United States Court of Appeals for the First Circuit
has noted:
The doctors designated . . . to make the examination are not partisans of
the prosecution, though their fee is paid by the state, any more than is
assigned counsel for the defense beholden to the prosecution merely
because he is . . . compensated by the state . Eachpis given a purely
professional job to do - counsel to represent the defendant to the best of
his ability, the designated psychiatrists impartially to examine into and
report upon the mental condition of the accused .
McGarty v. O'Brien , 188 F.2d 151, 155 (1st Cir. 1951) .
Furthermore, this Court will not entertain the argument that we should interpret
Section 11 of the Kentucky Constitution more broadly than the United States Supreme
Court interprets the Sixth Amendment, at least not in the context of what qualifies as a
"critical stage" in deciding whether to allow defense counsel's presence at a psychiatric
evaluation ordered pursuant to RCr 7 .24(3)(B)(ii) . "[T]he right of counsel guaranteed by
Section 11 of the Kentucky Constitution is no greater than the right of counsel
guaranteed by the Sixth Amendment of the United States Constitution . . . ." Cane v.
Commonwealth , 556 S .W.2d 902, 906 (Ky. App. 1977) .
On this point, we note that Cain's reliance on Baucom v. Commonwealth , 134
S .W.3d 591 (Ky . 2004) is without merit. Baucom only addressed the narrow issue of
whether the defendant in that case was denied "hybrid representation" for the sole
purpose of assistance during jury selection when that defendant had previously
effectuated a limited waiver of counsel . This Court ultimately found that Section 11 of
the Kentucky Constitution, unlike the Sixth Amendment to the United States
Constitution, supports "hybrid representation" because Section 11 "guarantees a
criminal defendant the right to be heard 'by himself and counsel ."' Baucom, 134 S.W.3d
at 592 (quoting Hill v. Commonwealth, 125 S .W .3d 221, 225 (Ky. 2004)) .
Similarly, Cain's reliance on Estelle v. Smith, 451 U.S . 454, 101 S.Ct. 1866, 68
L.Ed.2d 359 (1981), is misplaced . In Estelle , the defendant had neither pled guilty nor
given notice of his intent to raise insanity as a defense, and thus he clearly had the Fifth
Amendment right to decline any psychiatric evaluations for sentencing purposes. In
analyzing and distinguishing Estelle, the court in Byers found that
although the defendant was not confronted by his adversary he was
confronted "by the legal system," in that he had a law-related choice
before him, and could have profited from the expert advice of counsel "in
making the significant decision of whether to submit to the examination
and to what end the psychiatrist's findings could be employed[ .]"
Byers, 740 F.2d at 1119 (quoting Estelle, 451 U.S. at 471, 101 S.Ct. at 1877) (emphasis
in original) . As further explained by the Byers court, "[i]t was that, and that alone which
(given the importance of the matter involved) caused the interview `to be a "critical
stage" of the aggregate proceedings against respondent ."' Id . (quoting Estelle , 451 U.S.
at 470, 101 S.Ct. at 1876) . Thus, the Estelle court "described its holding as affirming a
Sixth Amendment right to assistance of counsel `before submitting to the . . . psychiatric
interview[.]"' 1d. (quoting Estelle, 451 U.S . at 469, 101 S .Ct. at 1876) (emphasis in
original) . In short, the Supreme Court in Estelle specifically disclaimed any implication
of a "constitutional right to have counsel actually present during the examination[ .]"
Estelle, 451 U .S. at 470 n .14, 101 S .Ct. at 1877.
In the context of the case at bar, we find the psychiatric evaluation, ordered by
the court upon notice by Cain of his intent to assert mental illness as a defense to the
crimes he is charged with committing, is not a "critical stage" in the procedural system
giving rise to a constitutional necessity for the presence of counsel . Thus, this Court
holds, under the facts of this case, that there is no constitutional right, under Section 11
of the Kentucky Constitution or under the Sixth Amendment to the United States
Constitution, for an accused to have counsel present during a psychiatric examination .
Finally, we note that the presence of counsel may act to impair the evaluation
process by giving counsel the opportunity, through the interposing of objections, to
redirect the course of the examination, limit the scope and efficacy of the evaluation, or
undermine the results of the evaluation . Thus, counsel's presence may be a hindrance
to a proper evaluation of whether or not Cain indeed suffers from a mental infirmity .
The court in B ers recognized such and succinctly expounded on the practical
considerations of having counsel present during psychiatric evaluations :
Even if a psychiatric interview otherwise met one of the two
theoretical tests for Sixth Amendment protection, it would be relevant to
consider the pragmatic effects of presence of counsel upon the process . .
. . The "procedural system" of the law, which is one justification for the
presence of counsel and which, by the same token, the presence of
counsel brings in its train, is evidently antithetical to psychiatric
examination, a process informal and unstructured by design . Even if
counsel were uncharacteristically to sit silent and interpose no procedural
objections or suggestions, one can scarcely imagine a successful
psychiatric examination in which the subject's eyes move back and forth
between the doctor and his attorney . Nor would it help if the attorney were
listening from outside the room, for the subject's attention would still
wander where his eyes could not. And the attorney's presence in such a
purely observational capacity, without ability to advise, suggest or object,
would have no relationship to the Sixth Amendment's "Assistance of
Counsel."
Even the United States Supreme Court in Estelle , supra , relied upon by Cain,
recognized this in approving the lower court's comment, wherein the court opined that
"`an attorney present during the psychiatric interview could contribute little and might
seriously disrupt the examination ."' Estelle , 451 U.S . at 470 n.14, 101 S .Ct. at 1877
(quoting Smith v. Estelle , 602 F.2d 694, 708 (5th Cir. 1979)) .
Byers, 740 F.2d at 1120 .
Although Cain is correct in asserting that the psychiatric evaluation is "the
Commonwealth's most powerful means of refuting a mental defense" and that the
evaluation's "specific purpose is to give the Commonwealth an opportunity to refute Mr.
Cain's anticipated insanity or mental illness defense," we point out that this is exactly
the reason for the exam - to flesh out Cain's claims of mental defect in support of his
contention that he is not criminally responsible for committing the charged crimes. The
procedure and protections set forth in RCr 7 .24(3)(B) as well as the holding of this case
serve the interests of justice by balancing the constitutional rights of the accused to
have counsel present at "critical stages" of the procedural system and to be free from
compulsion to incriminate himself with the right of the public to refute disingenuous or
inadequate claims of mental disease .
CONCLUSION
For the foregoing reasons, we deny Cain's petition for a writ of prohibition to
prevent the trial court from ordering a psychiatric evaluation of Cain, pursuant to KRS
504.070 and RCr 7.24(3)(B)(ii), without his counsel's presence.
All concur.
COUNSEL FOR APPELLANT:
Frank W . Heft, Jr.
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 W . Jefferson St.
Louisville, KY 40202
Carolyn D. McMeans
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 W. Jefferson St.
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Gregory Stumbo
Attorney General
Room 118 Capitol Building
Frankfort, KY 40601
Jeanne Anderson
Assistant Commonwealth's Attorney
30th Judicial District
514 W. Liberty St.
Louisville, KY 40202
Christie Floyd
Assistant Commonwealth's Attorney
30th Judicial District
514 W. Liberty St.
Louisville, KY 40202
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2006-SC-000477-MR
MICHAEL CAIN
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO . 2006-CA-0825-OA
JEFFERSON CIRCUIT COURT NO. 06-CR-0368
V.
HON. LISABETH HUGHES ABRAMSON,
JUDGE, JEFFERSON CIRCUIT COURT;
AND
COMMONWEALTH OF KENTUCKY
(REAL PARTY IN INTEREST)
APPELLEES
ORDER DENYING PETITION AND AMENDING LANGUAGE
Appellant's petition for modification of the Opinion of the Court by Justice Scott
rendered January 25, 2007 is DENIED.
On the Court's own motion, this Opinion is modified by change of language on
page 9, lines 6 and 7 as attached hereto . Said modification does not affect the holding .
All concur.
Entered : May 24, 2007.
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