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State v. Syvertson7/13/1999
luation is requested through a defendant's attorney, there is no denial of defendant's right to consult his counsel." See also, e.g., State v. Jensen, 333 N.W.2d 686, 696 (N.D. 1983); Vanderbilt v. Collins, 994 F.2d 189, 196-98 (5th Cir. 1993); Brown v. Butler, 876 F.2d 427, 429-30 (5th Cir. 1989); Wilkens v. State, 847 S.W.2d 547, 550-51 (Tex. Cr. App. 1992).
[ ] There has been some dispute whether Estelle applies to non-capital sentencing proceedings. Compare People v. Branch, 805 P.2d 1075, 1082- 83 (Colo. 1991) and People v. Wright, 430 N.W.2d 133, 138 n.13 (Mich. 1988), indicating Estelle applies, with Baumann v. United States, 692 F.2d 565, 578 (9th Cir. 1982) and Wolfe v. State, 562 N.E.2d 414, 418-19 (Ind. 1990), indicating Estelle does not apply. This Court has applied Estelle principles in the past, albeit to the guilt phase of a criminal trial. See State v. Jensen, 333 N.W.2d 686, 696-97 (N.D. 1983). The United States Supreme Court has recently stated Estelle principles do apply in non-capital sentencing proceedings. In Mitchell v. United States, 119 S.Ct. 1307, 1316 (1999), the Supreme Court held the district court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination by holding the defendant's silence against her at the sentencing hearing in a non-capital case. The Court reasoned:
"As the Court stated in Estelle: "Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." 451 U.S., at 463, 101 S.Ct. 1866. Estelle was a capital case, but we find no reason not to apply the principle to non-capital sentencing hearings as well." Mitchell, 119 S.Ct. at 1314.
We conclude Estelle principles apply in this case.
[ ] Here the trial court granted Syvertson's pretrial request for a psychiatric evaluation and specified the limited purpose of the examination was to determine Syvertson's competency to stand trial and his competency at the time of the offenses. Although Syvertson's court-appointed counsel filed a notice of intention to rely on the defense of lack of criminal responsibility by reason of mental disease or defect, Syvertson was subsequently allowed to represent himself at trial and Syvertson did not present any mental-status evidence within the meaning of Estelle and Buchanan during the trial. See Schneider v. Lynaugh, 835 F.2d 570, 576 (5th Cir. 1988) (holding "the defendant must introduce mental-status evidence that may fairly be characterized as expert testimony before the prosecution may respond with the results of a psychiatric examination") (footnote omitted). Syvertson also presented no mental-status evidence during the sentencing hearing. Nevertheless, the trial court allowed the prosecution during the sentencing hearing, over Syvertson's objection, to quote from Syvertson's pretrial psychiatric evaluation report stating there was "clear evidence of a lot of sexual pre-occupation, difficulty dealing with anger, and broad underlying destructive and aggressive impulses that make this individual quite frightening." We conclude the introduction of this evidence violated Syvertson's fifth amendment right against self-incrimination.
[ ] Harmless error analysis applies to the admission of psychiatric evidence in violation of the principles enunciated in Estelle and Buchanan. See Satterwhite v. Texas, 486 U.S. 249, 258 (1988); Brown, 876 F.2d at 430-31. In State v. Chihanski, 540 N.W.2d 621, 623-24 (N.D. 1995), we stated the test to apply when determining whether a federal constitutional error requires reversal:
"` efore a federal constitutional error can be held harmless, the court
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