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IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FILED
June 9, 1997
Appellate C ourt Clerk

FOR PUBLICATION Cecil Crowson, Jr. Filed: June 9, 1997 STATE OF TENNESSEE, Appellee, ) ) ) ) ) ) ) ) ) ) )

KNOX CRIMINAL

Vs.

HON. RICHARD BAUMGARTNER, JUDGE

DAVID PAUL MARTIN, Appellant.

No. 03-S-01-9604-CR-00040

For Appellant: Herbert S. Moncier Ann C. Short Knoxville, Tennessee

For Appellee: John Knox Walkup Attorney General & Reporter Michael E. Moore Solicitor General Kathy Morante Deputy Attorney General Eugene J. Honea Assistant Attorney General Nashville, Tennessee At Trial: Randall E. Nichols District Attorney General Knoxville, Tennessee Robert Jolley Assistant District Attorney Knoxville, Tennessee

OPINION
AFFIRMED ANDERSON, J.

We granted review in this case to determine whether a court-ordered mental evaluation violated the defendant's right against self-incrimination and the right to counsel under the United States and Tennessee Constitutions.

The Court of Criminal Appeals concluded that the defendant waived his right against self-incrimination by asserting an insanity defense and that the mental evaluation, which was ordered by the trial court and conducted pursuant to Tenn. R. Crim. P. 12.2(c), did not violate the right to counsel because it did not constitute a critical stage of the proceedings. The Court then affirmed the defendant's conviction for voluntary manslaughter.

We hold that where a defendant asserts a defense based on his or her mental state, a court-ordered mental evaluation does not violate the right against self-incrimination provided any statements made during the evaluation, and any "fruits" derived from such statements, are used by the prosecution only for impeachment or rebuttal of the defense. We also hold that the defendant does not have the right to counsel during the mental evaluation itself.

Accordingly, while we employ different reasoning, we affirm the judgment of the Court of Criminal Appeals for the reasons articulated below.

BACKGROUND David Paul Martin, the defendant, and the victim, his second wife, had a tumultuous marriage marked by domestic disputes, physical violence, and numerous separations and reconciliations.

In May of 1991, the victim entered Martin's house, cursed his daughter, argued with him, and then said she wanted "to see him locked up again." According to one witness, Martin responded, "Well, here I go." Martin's -2-

daughter, however, denied that Martin made such a statement. In any event, Martin knocked the victim from her chair and strangled her to death. He then showered, gave his children some keys and money, and waited for the police to arrive.

Martin was indicted for first-degree murder, and he filed notice of his intent to rely on a mental responsibility defense. The State moved, and the trial court ordered, that the defendant undergo a mental examination. Martin moved for an order to protect his right to counsel, his right against self-incrimination, his right to confrontation, his right to a fair trial, and also to assure that the examination was fairly administered. He specifically asked that his counsel or a defense expert be permitted to attend the mental examination.

At a hearing on Martin's motion for a protective order, Dr. Clifton Tennison, a psychiatrist with the Helen Ross McNabb Center, testified that:

My opinion is that, to have anyone else present during psychiatric evaluations hinder and hampers the accuracy of the evaluation. The person will color and change their responses, based on who is in the room.

Following the hearing, the trial court entered an order compelling Martin to undergo a mental evaluation to determine his competency and his mental state at the time of the offense. The order provided that Tennison could determine who could be present during the evaluation and whether it would be recorded by video or audio tape.

Dr. Tennison decided that neither defense counsel nor experts employed by Martin would be present at the evaluation; however, he allowed the examination to be videotaped. When Tennison completed his examination, he sought permission for Dr. James Burrell, a clinical psychologist, to conduct an additional interview. The trial court authorized Burrell's involvement over -3-

defense objection. Dr. Burrell did not allow defense counsel or defense experts to be present, nor did he allow the examination to be recorded.

After Martin renewed his notice to rely on a mental responsibility defense, the trial court entered an order which stressed the following:

[N]o statements made by [the defendant] during the court ordered examination, or any fruits of those statements, shall be introduced at the trial of this cause unless and until the issue of mental responsibility is raised by [the defendant], or for impeachment purposes as provided by Rule 12.2(c), Tenn. R. Crim. P. Any party who intends to use such statements, or the fruits thereof, shall first make application to the bench outside the hearing of the jury prior to eliciting testimony or introducing evidence contemplated by this Order.

At trial, Martin presented the testimony of Dr. John Kandilakas, a clinical psychologist who treated him after the offense. Dr. Kandilakas testified that at the time of the offense, Martin was suffering from a major depressive disorder and had suffered a disassociative reaction. He concluded that Martin met the test for insanity pursuant to Tenn. Code Ann.

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