S057107, Opinion — State v. Petersen

199
Argued and submitted July 1, peremptory writ to issue directing the trial court
to modify its order consistent with this opinion October 15, 2009
STATE OF OREGON,
Plaintiff-Adverse Party,
v.
STEVEN JAMES PETERSEN,
Defendant-Relator.
(CC CR0801069; SC S057107)
218P3d 892
CJS, Criminal Law § 645.
En Banc
Original proceeding in mandamus.*
Jeremy C. 	Rice, Assistant Attorney General, 	Salem,
argued the cause for Plaintiff-Adverse Party. With him on
the brief were John Kroger, Attorney General, and Jerome
Lidz, Solicitor General.
* On petition for writ of mandamus from an order of the Clackamas County
Circuit Court, Kathie Steele, Judge.

200 	State v. Petersen
Laura Graser, Portland, argued the cause and filed the
brief for Defendant-Relator.
DE MUNIZ, C. J.
Peremptory writ to issue directing the trial court to mod-
ify its order consistent with this opinion.

Cite as 347Or199
DE MUNIZ, C. J.
The issue in this original mandamus proceeding
arises out of the state's prosecution of defendant-relator
(relator) for murder. In preparation for his upcoming trial,
relator has tendered notice of his intent to introduce expert
testimony establishing that, at the time of the alleged crime,
he suffered from an extreme emotional disturbance, as well
as from diminished mental capacity, both of which prevented
him from forming the requisite mental state needed to sup-
port a charge of murder. The trial court subsequently ordered
relator to undergo a mental examination conducted by a
state-retained mental health expert. Among other things, the
trial court's order required relator, in the course of that
examination, to answer "all questions asked of him" concern-
ing his "thoughts at or immediately near the time" of the
alleged offense. Relator then brought the present mandamus
proceeding, contending that that aspect of the order violates
his 	right 	against 	compelled 	self-incrimination 	protected
under Article I, section 12, of the Oregon Constitution. 1 He
seeks a peremptory writ of mandamus requiring the trial
court to amend its order to exempt him from any affirmative
obligation 	to 	answer 	such 	questions 	during 	the 	state-
conducted mental examination. We agree with relator and
therefore issue a peremptory writ.
The facts are undisputed. Relator is accused of mur-
dering his stepson. After his indictment in 2008, relator
timely notified the trial court that he intended to present
expert 	testimony to 	support the 	affirmative 	defense of
extreme emotional disturbance under ORS 163.115, 2 as well
as the defense of diminished capacity or partial responsibility
under ORS 161.300. 3 The trial court subsequently ordered
1 The applicable text of Article I, section 12, is set out post.
ORS 163.115{1)(a) provides:
"Except as provided in ORS 163.118 and 163.125, criminal homicide con-
stitutes murder:
"(a) When it is committed intentionally, except that it is an affirmative
defense that, at the time of the homicide, the defendant was under the influ-
ence of an extreme emotional disturbance[.]"
" ORS 161.300 provides:
"Evidence that the actor suffered from a mental disease or defect is admis-
sible whenever it is relevant to the issue of whether the actor did or did not
have the intent which is an element of the crime."

202 	State v. Petersen
relator to undergo a state-conducted mental examination
pursuant to ORS 161.315 and ORS 163.135(5). 4 Paragraphs
(2), (3), and (4) of the trial court's order provide:
"(2) 	IT IS FURTHER ORDERED that the psychiatrist
or licensed psychologist advise the Defendant that he is
conducting the examination for and on behalf of the State of
Oregon; that he is not examining Defendant for purposes of
treatment and that the Defendant need not answer any
questions concerning his acts or conduct at or immediately
near the time of the commission of the offense. 'At or imme-
diately near the time of the commission of the offense'
includes any acts or conduct bearing a proximate con-
nection to the crime charged or of any other crime which
acts or conduct could in any way tend to incriminate the
Defendant; by incrimination is meant any statement con-
cerning any acts or conduct which involve him in the crime
charged or any other crime;
"(3) 	IT IS FURTHER ORDERED that the psychiatrist
or licensed psychologist is allowed to inquire about the
Defendant's thoughts at or immediately near the time of
the commission of the offense;
"(4) 	IT IS FURTHER ORDERED that the Defendant
is to answer all questions asked of him by the psychiatrist
or licensed psychologist and/or perform any tests given in
the course of the usual examination except as heretofore
limited by specification (2)[.]"
The order also provides in the final paragraph (8) that rela-
tor's failure to act in accordance with the provisions of the
order wi11-"in addition to any other sanctions" that the trial
4 ORS 161.315 and ORS 163.135 each authorize the state to conduct a mental
examination of a criminal defendant after the defendant tenders notice of his or her
intent to rely on certain defenses at trial. ORS 161.315 applies to the diminished
capacity or partial responsibility defense. That statute provides, in part:
''Upon filing of notice or the introduction of evidence by the defendant as
provided in ORS 161.309(3), the state shall have the right to have at least one
psychiatrist or licensed psychologist of its selection examine the defendant."
ORS 163.135(5), in turn, applies to the affirmative defense of extreme emotional
disturbance. It provides:
"After the defendant files notice as provided in this section, the state rnav
have at least one psychiatrist or licensed psychologist of its selection exarnin~
the defendant in the same manner and subject to the same provisions as pro-
vided in ORS 161.315."

Cite as 34 7 Or 199
court might wish to impose-preclude relator from introduc-
ing expert testimony at trial regarding his mental state.
Relator subsequently moved the trial court to modify
its order to prohibit the state's expert from asking questions
directed at relator's "thoughts, acts, or conduct" at or near the
time of the crime. The trial court denied that motion. As
noted, relator then petitioned this court for a writ of manda-
mus directing the trial court to modify its order in the man-
ner just described. We stayed the state's scheduled mental
examination and issued an alternative writ of mandamus
commanding the trial court to amend its order as relator had
requested or show cause for not doing so. The trial court
declined to amend the order and relator now petitions this
court for a peremptory writ of mandamus directing the
order's modification.
In doing so, relator argues that the relief he seeks is
mandated by the rule articulated in a line of cases commenc-
ing with Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968),
discussed post. In response, the state contends that, for pur-
poses of the mental examination that relator faces here,
nothing prohibits the state from questioning relator concern-
ing his thoughts at or near the time of the crime because rela-
tor has made an affirmative decision to support his proposed
defenses through the testimony of his own mental health
expert. The state argues that, as a result of that voluntary
choice, 	relator's 	subsequent 	participation in 	any 	state-
conducted mental examination cannot be viewed as "com-
pelled" because relator has, in essence, waived his Article I,
section 12, right to remain silent during that examination. To
better understand those arguments, we begin by briefly
examining the context provided by our past decisions con-
cerning mental examinations like the one at issue here.
In 1910, this court first validated the state's use of
expert testimony in response to the claim that a criminal
defendant had lacked the capacity to form a culpable mental
state at the time of an alleged crime. See State v. Roselair, 57
Or 8, 14, 109 P 865 (1910) (holding that a trial court may
allow a qualified physician to examine a criminal defendant
on behalf of the state and assert an opinion at trial as to
whether the defendant was sane or not at the time of the

State v. Petersen
alleged offense). Nearly 60 years later, in State v. Phillips,
245 Or 466, 422 P2d 670 (1967), this court authorized the
state to conduct limited pretrial psychiatric examinations of
all criminal defendants who pleaded not guilty by reason of
insanity to the charges against them. 5 In doing so, the court
distinguished between the testimonial and nontestimonial
aspects of the evidence that could lawfully be obtained in the
course of such examinations:
" 'The constitutional privilege against self-incrimination in
history and principle seems to relate to protecting the
accused from the process of extracting from his own lips
against his will an admission of guilt, and in better rea-
soned cases it does not extend to the exclusion of his body or
of his mental condition as evidence when such evidence is
relevant and material, even when such evidence is obtained
by compulsion.' "
Id. at 475-76 (quoting State v. Grayson, 239 NC 453, 80 SE2d
387 (1954)) (emphasis added).
Shepard v. Bowe followed in 1968. In that case, the
court addressed the questions of whether a trial court has
"the authority to require that the defendant, at a pretrial
mental examination, answer questions concerning his con-
duct relating to the offense charged, and can the court order
defendant's counsel not to advise his client to refuse to
answer questions upon the ground that they might incrim-
inate him?"
250 Or at 290. The defendant in Shepard had pleaded not
guilty by reason of insanity to the criminal charges against
him and the state had secured a court order requiring the
defendant to 	undergo a 	state-conducted pretrial mental
examination. Among other things, the examination order:
(1) expressly required the defendant to answer any question
put to him regarding his conduct at or near the time of the
alleged crime; and (2) prohibited the defendant's lawyer from
advising his client not to answer questions that might tend to
incriminate him. On the defendant's petition for mandamus
The holding in Phillips was subsequently codified in 1971 and extended to
cases involving the defenses of diminished or partial responsibility and extreme
emotional distress. See State ex rel Johnson u. Woodrich, 279 Or 31, 34-35, 566 P2d
859 (1977) (so stating).

Cite as 34 7 Or 199 (2009) 	205
relief that followed, this court first noted that the responses
required by the trial court's order "might be incriminating
upon any of the issues in the trial, including the issue
whether the relator committed the act charged." Id. (footnote
omitted). After examining how other jurisdictions had dealt
with the possibility of compelled self-incrimination in similar
situations, the court vacated the examination order, stating:
"We conclude that the only way in which the constitu-
tional right of the defendant not to be compelled to testify
against himself can be adequately preserved is to hold that
the defendant cannot be required to answer the questions
which the trial court's order requires him to answer, and
the restrictions placed upon defense counsel by the trial
court's order must be removed.
"* * * * *
"We are aware that in holding that the defendant can-
not be compelled to answer the psychiatrist's questions we
may be lessening the quality of the evidence available to the
state. Psychiatrists have expressed the opinion that it is dif-
ficult, at least in some cases, to arrive at a competent opin-
ion on the mental state of the defendant if the defendant
cannot be questioned about the alleged crime. We are of the
opinion that this is a price that must be paid to enforce the
constitutional protection."
Id. at 293-94 (internal citations omitted).
Our discussion in Shepard focused narrowly on the
conduct-related evidence that the defendant would have been
forced to provide as a result of the trial court's order. Conse-
quently, Shepard's primary holding-that the trial court
could not force the defendant to discuss his conduct at or near
the time of the crime-should not be read as the definitive
exposition of all the topics that could, if broached in a state-
conducted mental examination, potentially violate a defen-
dant's privilege against self-incrimination. Had that been the
case, there would have been no need for further holding that,
contrary to the trial court's order, the defendant's lawyer
could, indeed, advise his client against answering other ques-
tions in the course of that examination. Here, however, we
are faced with an order that poses a different question: In
giving notice of the intent to rely on a mental defense, do

206 	State v. Petersen
criminal 	defendants constructively waive 	their privilege
against self-incrimination such that they can be forced-dur-
ing a pretrial court-ordered mental examination-to discuss
the thoughts they had at or near the time of an alleged
offense? We turn now to that inquiry.
Both the United States and the Oregon constitu-
tions recognize an individual's right against compelled self-
incrimination. Here, relator relies on Article I, section 12, of
the Oregon Constitution as the source of that right. That con-
stitutional provision states, in part:
"No person shall be*** compelled in any criminal prose-
cution to testify against himself."
In State ex rel Johnson v. Woodrich, 279 Or 31, 566
P2d 859 (1977), this court recognized that pretrial mental
examinations must be conducted consistently with the privi-
lege against self-incrimination. In Woodrich, the defendant
had notified the state of his intent to rely on extreme emo-
tional disturbance and mental disease or defect as defenses
in his upcoming murder trial The state subsequently peti-
tioned this court for a writ of mandamus, calling on the court
to reconsider Shepard and order an unlimited mental exam-
ination of the defendant. In denying the state's request, the
court affirmed the primacy of an accused's right to be free
from compelled self-incrimination during state conducted
mental examinations like the one at issue in Shepard. After
noting that the statutory authority for such examinations
was a codification of this court's holding in Phillips, a plural-
ity of the court opined:
"It was neither our intent nor that of the legislature to
attempt to undercut the constitutional privilege against
self-incrimination. It was our intent to make the best use of
modern psychiatric expertise consistent with the privilege
as we understand it."
Id. at 35 (emphasis added; footnote omitted). In Woodrich,
however, one member of the court, specially concurring in
that decision, observed:
"The state has made a person's mental condition a cru-
cial factor in the existence or extent of his culpability. If, as
I assume, he could not be compelled to answer questions

Cite as 34 7 Or 199 (2009) 	207
about his state of mind in court, he equally cannot be com-
pelled to answer them out of court. His statements to the
state's examiner about that mental condition may become
the basis of testimony against him on that crucial factor in
a criminal trial. No one can be compelled to give the prose-
cution statements that may be used against himself, even if
this makes it more difficult for the prosecution to contradict
evidence in his favor. The United States Supreme Court
has recently reiterated its consistent rejection of arguments
that one may be compelled to incriminate oneself when this
is required by a governmental need. See Lefkowitz v.
Cunningham, 431 US 801, 808, 97 S Ct 2132, 53 L Ed 2d 1
(1977), and cases there cited.
"* * * * *
"It may well be that the state of a man's mind is as much
a fact as the state of his digestion, but an accused could not,
consistent with the privilege, be made to testify about his
digestion. When the issue is what fed a defendant's mind or
emotions, perhaps a distinction can be found between gen-
eralized psychometric and diagnostic tests that could be
considered analogous to physical examinations, to which
the accused can be ordered to submit, and more individual-
ized inquiries designed to elicit the accused's own testimony
as to thoughts, memories, feelings, or fantasies bearing on
that issue, which would be subject to his privilege not to
answer. Perhaps such a distinction would upon scrutiny
prove illusory. In any event, a line between 'testimonial'
and 'non-testimonial' mental examination of an accused
excludes more than the questions about his conduct relat-
ing to the alleged offenses that are excluded under Shepard
v. Bowe. How much more must await a future case."
279 Or at 39-41 (Linde, J., specially concurring) (footnote
omitted).
Those observations are instructive today. Here, the
trial court's order makes clear that the pretrial examination
that relator is scheduled to undergo will be conducted "for
and on behalf of the State of Oregon" and not for relator's
treatment. The order authorizes the state's mental health
expert to question relator concerning his thoughts at or near
the time of the alleged crime and requires that relator
answer those questions, or face the prospect that he will be

208 	State v. Petersen
prohibited at trial from introducing expert testimony regard-
ing his mental state at the time of the crime. To reiterate the
point made by the special concurrence in Woodrich, under
those circumstances, relator's ruminations
"may become the basis of testimony against him on that
crucial factor in a criminal trial. No one can be compelled to
give the prosecution statements that may be used against
himself, even if this makes it more difficult for the prosecu-
tion to contradict evidence in his favor."
Id. at 39. We agree.
The state, however, cites State u. Mende, 304 Or 18,
741P2d496 (1987), for the proposition that the principles of
waiver upon which that case was decided are also controlling
here. In Mende, the defendant had moved to dismiss the
criminal charges against him, arguing that he had been
denied a speedy trial and that his defense had been preju-
diced as a result. In support of his motion, the defendant had
submitted an affidavit to the trial court asserting a specific
allegation of prejudice. However, at the ensuing hearing, the
defendant, asserting his constitutional privilege against self-
incrimination, refused to be cross-examined by the state on
the matters that he had asserted in the affidavit. In response,
the trial court struck the allegations of prejudice from the
defendant's affidavit. On review, this court upheld the trial
court's ruling, concluding that "[b]y submitting the affidavit,
[the defendant] waived his privilege not to testify concerning
the matters asserted in his affidavit at the hearing on his
motion to dismiss." Id. at 21.
Drawing on Mende, the state now argues:
"By choosing to invoke statutory defenses related to his
mental state, defendant has chosen to place his mental
state in issue. By seeking to introduce expert testimony to
support his statutory defenses, defendant has voluntarily
accepted the conditions that the legislature has placed on
the use of such evidence. In that sense, even though
required by statute, defendant's answers to the state's
questions about his mental state are not 'compelled.' "
Those arguments are problematic for a number of reasons.
First, in every trial concerning an allegation of criminal con-
duct, a defendant's mens rea is potentially at issue, whether

Cite as 347Or199 (2009) 	209
the defendant has raised an affirmative defense, or not. In
fact, for purposes of the Oregon Criminal Code, conduct and
mental state are virtually inseparable:
"As used in chapter 743, Oregon Laws 1971, and ORS
166.635, unless the context requires otherwise:
"* * * * *
" 'Conduct' means an act or omission and its accompanying
mental state."
ORS 161.085(3) (emphasis added). Here, relator's decision to
raise statutory defenses to the charge against him has not
altered the state's burden to prove the existence of a culpable
mental state beyond a reasonable doubt, nor has it otherwise
altered relator's rights under Article I, section 12.
Second, it is not the conditions imposed by the legis-
lature that are problematic in this case. Rather, it is the con-
ditions imposed by the trial court's order. Relator has been
ordered to undergo a pretrial mental examination conducted
by the state. With the exception of questions concerning his
conduct and actions at the time of the crime, the order
requires relator to answer all questions asked of him during
that examination without regard for how potentially incrim-
inating his answers may be in connection with the murder
charge he now faces or, for that matter, any other uncharged
crime that he may have committed. Relator's failure to abide
by the terms of the order will not only cause relator to forfeit
his affirmative defenses, but it will also expressly subject
relator to "other sanctions," such as contempt. We have rec-
ognized such orders as residing among "obvious examples" of
compulsion for purposes of Article I, section 12. See State. v.
Fish, 321Or48, 57, 893 P2d 1023 (1995) (so stating).
Third, Mende has no practical application at the pre-
trial stage of a criminal proceeding. Mende dealt with the
state's right to cross-examine a defendant who, by tendering
an affidavit to the court, had effectively offered his direct tes-
timony into evidence at a hearing. The issues here, in con-
trast, have arisen during the discovery stage of the criminal
proceedings against relator; relator has not taken an oath,
nor offered his own testimony into evidence, either in person
or by affidavit.

210 	State v. Petersen
That 	said, 	there 	is 	a 	final-and 	ultimately
dispositive-reason for rejecting the notion that Mende's
principles of waiver should also control here: Notice of rela-
tor's intent to present expert testimony relevant to the issue
of whether relator suffered from an extreme emotional dis-
turbance and diminished capacity at the time of the alleged
crime is not, by itself, a waiver of relator's privilege against
self-incrimination. Because of that notice, the state is enti-
tled to have its own expert examine relator. The state's
authority to conduct such an examination, however, does not
in any manner require relator to answer incriminating ques-
tions that may be put to him in the examination process.
Relator faces the state's mental examination with his privi-
lege against self-incrimination fully intact. The state's expert
is free to examine relator as the expert sees fit, but relator is
equally free to not answer questions that he or his lawyer
view as incriminating. Thus, the trial court's order in this
case is proper insofar as it permits the state's expert toques-
tion relator; it is improper, however, insofar as it prospec-
tively requires relator to provide answers that are incrimi-
nating on pain of forfeiting his defenses at trial.6 The only
point at which the trial court can order relator to answer
questions that elicit incriminating responses is after relator
has waived his privilege in that regard. Unless and until rela-
tor puts on evidence at trial constituting such a waiver-
either through his own testimony7 or that of his expert-the
coercive portion of the trial court's order in this case is
premature.
Based on the foregoing analysis, we conclude that
the trial court's order must be modified. However, we reject
relator's contention that the order must prohibit the state's
6 That part of the order suffers from another problem in that it announces the
judge's choice of sanctions before there has been any arguable violation of the
order. That choice-assuming it is ever necessary to make-is a discretionary one.
The order should not announce, before the fact, how that discretion will be applied.
7 This court recognized in State u. Cox, 337 Or 477, 493, 98 P3d 1103 (2004)
that
"when a witness refuses to submit to any cross-examination or to answer cross-
examination questions necessary to test the witness's direct testimony, that
refusal undermines the trier of fact's ability to rely on the witness's direct tes-
timony. In those circumstances, the courts generally have recognized that a
trial court may strike the witness's testimony."

Cite as 347Or199 (2009) 	211
mental health expert from asking questions regarding rela-
tor's "thoughts, acts, or conduct at or immediately near the
time of the commission of the offense." In our view, the state's
mental health expert must be permitted to attempt a full
examination. That said, however, the authority to question
relator in conjunction with that examination does not neces-
sarily oblige relator to give an answer in every case. Instead,
the order must be modified to reflect that relator may invoke,
without sanction, his right against self-incrimination as to
any question asked of him by the state's expert during the
state's pretrial mental examination.
Peremptory writ to issue directing the trial court to
modify its order consistent with this opinion.