Mathias, J.
Thomas L. Esmond (“Esmond”) brings this interlocutory appeal from the order of
the Newton Superior Court requiring him to undergo a psychiatric evaluation by the State’s mental health expert without the presence of counsel. Because the Indiana Supreme Court has held that a defendant who raises an insanity defense has no right to the presence of counsel during a psychiatric examination, we affirm.
. . . .
In Williams v. State, 555 N.E.2d 133 (Ind. 1990)], the defendant claimed a right to the presence of counsel when being examined by court-appointed psychiatrists after presenting an insanity defense. Our supreme court wrote:
A psychiatric examination involves no “intricacies of the law.” Because the examiner, appointed by the trial court, under Ind. Code § 35-36-2-2, is disinterested, the defendant is thus not facing his adversary in such an examination. The defendant was not entitled to the presence of his counsel during the psychiatric examinations.
Id. Esmond acknowledges the holding in Williams but attempts to distinguish it from the present case by noting that he is claiming the right to counsel during an examination by the State’s psychiatric expert, not the disinterested court-appointed psychiatric expert at issue in Williams.
Our supreme court addressed this issue in Taylor v. State, 659 N.E.2d 535 (Ind. 1995). In that case, the defendant was charged with murder and presented an insanity defense. The two court-appointed psychiatric examiners determined that “Taylor could understand the proceedings and assist in his defense and that he probably understood right from wrong on the night of the shooting.” Id. at 539. “The State . . . had Taylor examined by a psychiatrist . . . who testified that Taylor’s descriptions of the night of the shooting revealed that he did know right from wrong.” Id. at 540. Taylor presented the testimony of several experts who disagreed with the opinions of the State’s expert. Id. at 539-40.
On appeal, Taylor claimed that his examination by the State’s expert violated his right to remain silent under the Fifth Amendment and his right to counsel under the Sixth Amendment. Our supreme court rejected both claims. With regard to Taylor’s claim regarding his right to counsel, the court noted that a defendant is entitled only to “the opportunity to consult with counsel before submitting to a psychiatric examination by the State.” Id. at 541 (citing Estelle v. Smith, 451 U.S. 454, 471 (1981)). And defense counsel must be informed of the scope and nature of the examination. Id. (citing Buchanan v. Kentucky, 483 U.S. 402, 424 (1987)). But when the defendant raises a defense of insanity, “counsel is on notice that the State may examine the defendant and that the results of that examination may be used to rebut the insanity claim. So long as the testimony of the State’s physician goes to the mental capacity of the defendant, the requirements of the Sixth Amendment have been satisfied.” Id. (emphasis added).
“The justification for permitting the State’s examination is the maintenance of a fair state-individual balance. The defendant may not plead insanity and then prevent the State from gathering reliable evidence bearing on that issue.” Id. (emphasis added) (citations and quotations omitted). “When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case.” Estelle, 451 U.S. at 465 (quoted in Taylor, 659 N.E.2d at 541).
That having been said, the State may not use a defendant’s statements during such an examination to demonstrate his guilt. Id.
As we have explained, the purpose of the exam is to evaluate the defendant’s mental health, not to gather further evidence of guilt. The focus of the examination must be the defendant’s mental health, and the physician’s trial testimony must remain similarly focused. Id. Accordingly, the State may not misuse its access to the defendant during a psychiatric evaluation by attempting to prove the defendant’s guilt through the testimony of its physician. Id. If the trial court determines that the State is abusing this opportunity by using the defendant’s statements during the examination to demonstrate his guilt, the court “should not hesitate to exclude such statements.” Id. In cases where the defendant makes statements probative of his sanity at the time of the crime and also incriminating, such statements may be admitted, at the sound discretion of the trial court, if the prejudice to the defendant does not substantially outweigh its probative value. Id.
Per Taylor, [footnote omitted] so long as Esmond’s counsel was informed of the scope and nature of the psychiatric examination, Esmond was entitled only to the opportunity to consult with his counsel before submitting to a psychiatric evaluation by the State. 659 N.E.2d at 541. Here, when Esmond raised his defense of insanity, his counsel was on notice that the State may examine Esmond to rebut the insanity claim. See id. So long as the testimony of the State’s psychiatric expert goes to Esmond’s mental capacity, and not his guilt, there is no violation of Esmond’s right to counsel. See id. Accordingly, we conclude that the trial court did not err in ordering Esmond to undergo a psychiatric evaluation by the State’s expert without the presence of his counsel, with the caveat that the State’s psychiatric expert may testify only as to Esmond’s mental heath, not his guilt.
RILEY, J., concurs
CRONE, J., concurs with separate opinion:
. . . Because Williams and Taylor effectively compel the result reached by my colleagues, I reluctantly concur. I write separately to express my reservations about this result in light of the facts of this case and to invite our supreme court to consider the issue anew.
. . . At a hearing on March 14, 2014, both Esmond’s counsel and the State stipulated that Esmond was incompetent to stand trial and unable to assist in his defense. On March 19, 2014, Esmond filed an objection to the State’s motion to compel. On March 26, 2014, the trial court held a hearing on Esmond’s objection and ruled that by asserting an insanity defense, Esmond waived his right to the assistance of counsel at Dr. Masbaum’s examination. If the defendant is incompetent to stand trial, how in the world can he be expected to accurately relate what occurred during an examination by the State’s expert to his attorney? Without being present or having the benefit of a recording of the examination, efense counsel would be forced to wade into cross-examination blind. I fail to see how the interests of justice are promoted by such a procedure.
Based on the parties’ stipulation, the trial court stayed “the proceedings in this cause[,]” id., including, presumably, Esmond’s examination by Dr. Masbaum. Even if Esmond’s mental condition improves and the stay is ultimately lifted, it is doubtful whether his counsel will be able to effectively cross-examine Dr. Masbaum about the examination. At the very least, Esmond’s counsel could seek – and should be granted – an opportunity to record the examination to protect Esmond’s Sixth Amendment right to confront the witnesses against him.
. . . .
Because Dr. Masbaum was not appointed by the trial court, he cannot be considered disinterested, as were the court-appointed experts in Williams. And although Dr. Masbaum may not be Esmond’s adversary, he is the agent of the adversary, which is seeking to disprove Esmond’s insanity defense. In Taylor, the court acknowledged that “[t]here will be cases … in which the defendant makes statements during [a psychiatric] interview that are both probative of his sanity at the time of the crime and incriminating.” 659 N.E.2d at 541. Such statements may be admitted if “if the prejudice to the defendant does not substantially outweigh [their] probative value[.]” Id. In light of the foregoing, one could argue that a psychiatric examination by the State’s expert does indeed involve intricacies of the law, even though the expert is not an attorney and may not use the examination to gather evidence of guilt. [Footnote omitted.] For all these reasons, I believe that our supreme court should revisit Williams and Taylor and reconsider its presumption that the Sixth Amendment does not entitle a criminal defendant to the assistance of counsel during a psychiatric examination by the State’s expert. And although Esmond does not raise a separate argument under the Indiana Constitution, it bears repeating that Article 1, Section 13 “affords citizens greater protection than its federal counterpart[.]” Hall, 870 N.E.2d at 460.