                 IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE
                                                     FILED
                                                       March 9, 1998
                                       FOR PUBLICATION
                                              Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )     Filed: March 9, 1998
            Appellee             )
                                 )
                                 )        KNOX CRIMINAL
                                 )
Vs.                              )
                                 )   HON. RICHARD BAUMGARTNER,
                                 )             JUDGE
                                 )
THOMAS DEE HUSKEY,               )
                                 )
            Appellant.           )   No. 03S01-9610-CR-00096




For Appellant:                   For Appellee:

Herbert S. Moncier               John Knox Walkup
Knoxville, Tennessee             Attorney General & Reporter

Gregory P. Isaacs                Michael E. Moore
Knoxville, Tennessee             Solicitor General

                                 John H. Baker, III
                                 Assistant Attorney General
                                 Nashville, Tennessee

                                 At Trial:
                                 Randall Eugene Nichols
                                 District Attorney General
                                 Knoxville, Tennessee

                                 Professor Neil Cohen
                                 Special Assistant Attorney General
                                 Knoxville, Tennessee




                          OPINION



TRIAL COURT AFFIRMED                                    ANDERSON, C.J.
              We granted interlocutory review in this death penalty case to

determine whether the trial court’s orders compelling the defendant to undergo a

mental examination in accordance with Tenn. R. Crim. P. 12.2(c), and requiring

disclosure to the prosecution of material related to the examination, violated the

right to counsel or the right against self-incrimination under the United States or

Tennessee Constitutions.



              We recently held that where a defendant asserts an insanity

defense or seeks to introduce testimony with regard to a mental condition, a

court-ordered mental evaluation, and disclosure of materials from the evaluation,

does not violate the right against self-incrimination provided that any statements

made by the defendant during the evaluation, and any “fruits” derived from such

statements, are admissible at trial against the defendant only for impeachment or

rebuttal of an issue respecting mental condition on which the defendant has

introduced testimony. We also held that a defendant does not have the right to

the physical presence of counsel during a court-ordered examination. State v.

Martin, 950 S.W.2d 20 (Tenn. 1997); see Tenn. R. Crim. P. 12.2.



              After reviewing the record, we conclude that our ruling in Martin

controls much of the outcome of this case, and that the trial court’s orders did not

violate the defendant’s rights under the United States or Tennessee

Constitutions. The trial court’s judgment is affirmed and the case is remanded

for trial.



                                 BACKGROUND

              The defendant, Thomas Dee Huskey, was indicted in case number

51903 for four counts of first-degree murder committed against four victims:

Patricia Rose Anderson, Patricia Ann Johnson, Darlene Smith, and Susan East




                                        -2-
Stone.1 The prosecution filed notice of its intent to seek the death penalty for

each offense. This appeal pertains solely to the four capital charges in case

number 51903; however, we will review the salient portions of the entire record to

place the issues in procedural context.



                In March and April of 1994, Huskey filed notice of his intent to use

expert testimony with regard to a mental condition and to rely on an insanity

defense with respect to all the cases. When the State filed a motion to compel

Huskey to undergo a mental examination under Rule 12, Huskey moved for a

protective order requiring, among other things, that counsel and a defense expert

be permitted to attend the examination and that the examination be recorded.

Huskey argued that these measures were necessary to preserve his right to

counsel and his right against self-incrimination.



                The trial judge, Judge Ray Lee Jenkins, denied the motion for a

protective order and entered three written orders in all cases compelling Huskey

to undergo a mental examination at the Helen Ross McNabb Mental Health

Center in Knoxville. Although orders were entered on May 17, 1994, May 8,

1995, and May 11, 1995, no examinations were conducted because the defense

refused. Judge Jenkins later ruled that because of the refusal to be examined,

the defense could not rely on an insanity defense or introduce expert testimony

as to a mental condition in one of the non-capital cases, case number 49828,

which was finally tried in October of 1995.2 Huskey was convicted of rape and

related offenses.




        1
           The defendant was also indicted in case numbers 49828, 49829, 49830, 49831, 50090,
and 50 091 for m ultiple rapes , robberies , and kidn appings com mitted a gainst se veral victim s.
Although the defendant has raised s everal issues with respect to these cases, they are not before
us in this ap peal.

        2
          When Judge Jenkins subsequently recused himself, all of the cases, including the
capital cases in number 51 903, were assigned to Judg e Richard Baum gartner.

                                                -3-
               With regard to the remaining cases, including the capital cases we

are concerned with here, more hearings were held on the mental examination

issues in February, April, and May of 1996. On May 2, 1996, Judge

Baumgartner ordered that Huskey was to be examined by Dr. Clifton Tennison at

the McNabb Mental Health Center. After a two-hour interview with Huskey,

Tennison reported to the trial court that he needed more sessions with Huskey,

additional background information, and also “someone with substantive

experience and demonstrated expertise,” specifically in the field of disassociative

identity disorder.



               The trial court instructed Tennison to inquire into the availability of

additional experts in the field after finding that someone with further expertise

and experience was necessary to effectively complete the examination:


               [Dr. Tennison] advised us that due to the nature of
               the illness that Mr. Huskey may suffer from, that he
               felt that he was not personally capable of providing
               the Court with the best evaluation that could be
               accomplished. And that he felt the appropriate thing
               for him to do within the discipline that he’s an expert
               in is to employ the services of an individual who was
               more qualified, had more experience, [and] had
               studied in this specific area of disassociative identity
               disorder.


At a later hearing, Tennison related the qualifications and experience of several

experts in the field of disassociative identity disorder, including Dr. Phillip Coons,

a psychiatrist in Indiana who had been brought to Tennison’s attention by the

prosecution.



               On May 9, 1996, the trial court ordered in all the cases that Huskey

be examined by Tennison and Coons. The order required the examination to be

recorded but stated that no one could be present during the examination unless

approved by Tennison and Coons. The order required counsel for the State and

the defense to make available Huskey’s medical records, employment records,

                                          -4-
school records, psychological/psychiatric records, and witnesses with knowledge

of Huskey’s conduct. The order stated that upon completion of the examination,

the defense would have “a reasonable period” in which to decide whether it

intended to proceed with an insanity defense or evidence respecting a mental

condition; if it did, the State would be provided with the “evaluation and test

results from the examination.”



                 Huskey objected to the participation of Coons, and argued that the

order violated his right to counsel, right against self-incrimination, and right to

due process. With regard to the four capital cases, the trial court granted

Huskey’s request for an interlocutory appeal of the May 9, 1996 order pursuant

to Tenn. R. App. P. 9.3 After the Court of Criminal Appeals denied the appeal,

we granted Huskey’s application for permission to appeal to this Court, finding

that review of the May 9th order prior to conducting the examination would

provide guidance to the trial court on these issues and avoid the possibility of

serious errors that potentially would require retrials of four complex capital cases.



                 Because neither the defense nor the State sought a stay of the

proceedings while the appeal was being sought, however, further events and

hearings continued to unfold in the trial court. Although no examination was

conducted pursuant to the May 9th order, the defense later moved that Huskey

be examined by the Middle Tennessee Mental Health Institute (MTMHI) because

MTMHI had conducted examinations with regard to disassociative identity

disorder in prior cases. Hearings on this case culminated in the trial court

entering an order on August 12, 1996, that expressly superseded its May 9th

order.


         3
         With regard to the remaining non-capital cases, 49829, 49830, 49831, 50090, and
50091, which were tried in May of 1996, the trial court ruled that Huskey’s failure to submit to the
examination precluded him from relying on an insanity defense or introducing expert testimony
respecting a mental condition.



                                                 -5-
              The superseding August order directed that Huskey was to be

examined at Middle Tennessee Mental Health Institute (MTMHI) to determine his

“mental responsibility” at the time of the offenses. It provided that all “clinical

interviews” with Huskey were to be videotaped, but that defense counsel or

defense experts could not attend the examination process. The order stated that

MTMHI was to direct any requests for additional assistance to Dr. Tennison, who

was to report the request to the trial court. Unlike the May 9th order, the

superseding order did not require disclosure of records and witnesses but

“encouraged [prosecution and defense counsel] to cooperate with requests for

information from [MTMHI], subject to the attorney-client or other applicable

privileges.” Finally, the order provided that all information and opinions formed in

the examination would be held confidential until the defense was given a copy of

the report and also a reasonable period in which to determine whether to

proceed with an insanity defense or expert testimony regarding a mental

condition. The State was then to be given the “evaluation and test results” from

the examination.



              After beginning its examination, MTMHI notified Tennison that it

required additional assistance with regard to disassociative identity disorder. At

a later hearing, Tennison and Dr. Samuel Craddock, a psychiatrist with MTMHI,

testified that further expert assistance was needed to complete the examination.

The trial court once again instructed Tennison to inquire as to the availability of

additional experts. When Tennison later informed the court of Dr. Richard Kluft,

a psychiatrist from Philadelphia, Pennsylvania, the court considered Kluft’s

qualifications and availability, and made the following findings:


              [I]t is clear to the Court at this point in time, based on
              the record, that someone who has more experience,
              someone who is more versed in this area is needed
              to complete the evaluation process. What we have at
              this stage is an incomplete process which is not going
              to be of benefit to the Court or, ultimately, to the trier
              of fact in this case. . . .

                                          -6-
              It appears to me, based on again Dr. Tennison’s
              testimony here today, that Dr. Kluft . . . a medical
              doctor from the Philadelphia area . . . [and] director of
              Disassociate Identity Disorder Center . . . sounds to
              me to be the most appropriate individual; and also . . .
              the most available at this stage of the proceedings,
              and I am going to ask Dr. Tennison to employ the
              services of Dr. Kluft for the purposes of completing
              this evaluation.


Over defense objections, the trial court conducted a teleconference with Kluft

and then ordered that Huskey be examined by Kluft.



              Huskey was examined by Dr. Kluft, subject to defense objections.

On October 26, 1996, after Kluft’s examination, the trial court provided a copy of

Kluft’s report to the defense. The report indicated that Huskey suffered from

disassociative identity disorder and met the standard for insanity. On

October 28, 1996, the trial court ruled that the defense had 48 hours in which to

elect to proceed with a mental responsibility defense, after which the materials

stemming from the examination would be disclosed to the State. The defense

objected to the disclosure of the material and on October 29, 1996, sought a stay

of the order from this Court.



              In seeking the stay of the trial court’s order, Huskey for the first

time advised this Court of the events that had transpired since the May 9th order;

specifically, that the trial court had entered the August 12th superseding order,

and that an examination had occurred. Despite the changed circumstances, we

concluded that the reasons for granting interlocutory review remained valid:


              After due consideration, this Court concludes that the
              reasons for reviewing the interlocutory appeal granted
              on October 7, 1996, remain valid, notwithstanding the
              fact that the defendant has now undergone an
              evaluation. . . . An interlocutory appeal will serve the
              interest of deciding complex issues before the trial
              proceeds, thus reducing the potential for a serious
              error that would necessitate a retrial. Moreover, this
              Court further concludes that the trial court ruling of
              October 28, 1996, granting the State access to

                                         -7-
               records from the evaluation, is directly related to the
               right to counsel and self-incrimination issues this
               Court has already elected to review.


We therefore stayed the trial court’s order and the trial so as to complete our

review of the issues presented in this interlocutory appeal.



                             MENTAL EXAMINATIONS

               A defendant who seeks to rely on an insanity defense or introduce

expert testimony with respect to a mental disease, defect or condition, must file

notice prior to trial in accordance with Tenn. R. Crim. P. 12.2 (a) and (b). When

notice is filed, the prosecution may request that the defendant be compelled to

undergo a mental examination “by a psychiatrist or the other expert designated

for this purpose” by the court. Tenn. R. Crim. P. 12.2(c). The rules limit the use

at trial of statements made by the defendant in the course of the court-ordered

examination:


               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, no testimony by the expert based upon
               such statement and no other fruits of the statement
               shall be admitted in evidence against the defendant in
               any criminal proceeding except for impeachment
               purposes or on an issue respecting mental condition
               on which the defendant has introduced testimony.


Tenn. R. Crim. P. 12.2(c). If a defendant fails to comply with a court-ordered

examination, the trial court may preclude the defendant from relying on the

insanity defense or introducing expert testimony as to a mental condition. Tenn.

R. Crim. P. 12.2(d).



               We observed in Martin, supra, that “there are obvious concerns

generated when a defendant is compelled to undergo a mental examination at

which he or she will, in all likelihood, discuss not only details of his or her life but

also information about the charged offense.” Like the defendant in Martin,

                                           -8-
Huskey challenges the court-ordered mental examination as violative of his right

against self-incrimination and his right to counsel under the United States and

Tennessee Constitutions. Huskey also raises several issues with regard to the

number and nature of examinations ordered by the trial court, as well as the trial

court’s order granting discovery of materials and results stemming from the

court-ordered examination to the prosecution.4



                                       SELF-INCRIMINATION

                  The Fifth Amendment to the United States Constitution provides in

part that “no person . . . shall be compelled in any criminal case to be a witness

against himself.” Article I, § 9 of the Tennessee Constitution states that “in all

criminal prosecutions, the accused . . . shall not be compelled to give evidence

against himself.” Although we may extend greater protection under our State

Constitution, we have traditionally interpreted article I, § 9 to be no broader than

the Fifth Amendment. See Martin, 950 S.W.2d at 22; State v. Frazier, 914

S.W.2d 467, 473 (Tenn. 1996).



                  We observed in Martin that virtually every federal and state

jurisdiction has held that where a defendant raises an insanity defense, a court-

ordered psychiatric examination and the prosecution’s use of evidence from the

examination to rebut evidence of a mental condition introduced by a defendant

does not violate the Fifth Amendment privilege against self-incrimination. 950

S.W.2d at 24 n. 3 (collecting cases). We likewise found that a court-ordered

mental examination does not violate article I, § 9 of the Tennessee Constitution,

provided that any statements made by the defendant during an examination, and


         4
           By filing several motions with this Court and by restating the issues in his briefs on
app eal, d efen se c oun sel ha s rep eate dly sou ght to expa nd th e num ber o f issu es fo r revie w, as well
as to include issues pertaining to the non-capital cases in 49828, 49829, 49830, 49851, 50090,
and 50091. Our review, however, is limited to case number 51903; specifically, whether the
court’s orders compelling Huskey to undergo the mental examination and requiring disclosure of
the examination material to the prosecution violated the defendant’s right to counsel and the right
against self-incrimination. Accordingly, we express no view on any of the other arguments made
by Husk ey.

                                                      -9-
any “fruits” from such statements, are admissible at trial only for impeachment

and to rebut any evidence respecting a mental condition introduced by the

defendant. Id. at 24-25; see Tenn. R. Crim. P. 12.2(c).



             Our reasoning was two-fold. First, as stated by the United States

Supreme Court, “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 [the defendant]

has interjected into the case.” Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct.

1866, 1874, 68 L.Ed.2d 359 (1981). As one commentator has summarized:


             Once either or both notices are filed [by a defendant],
             the court, upon motion of the prosecution, can order
             the defendant to submit to a psychiatric examination
             by a psychiatrist designated by the court. This
             provision is the key to the notice requirement because
             the prosecution would be placed at a serious
             disadvantage if it could not introduce its own expert
             testimony, based upon the examination of the
             defendant, in response to the alleged lack of
             responsibility due to mental condition.


Wayne R. LaFave, Criminal Practice and Procedure, § 19.4 at 517.



             Second, the admissibility of the defendant’s statements made

during an examination at trial is expressly limited to impeachment or rebuttal of

the mental condition evidence introduced by the defendant. “In other words,

such material may not be used by the prosecution to prove the guilt of the

defendant and may not be used if the defense does not introduce testimony at

trial on mental condition.” Martin, 950 S.W.2d at 24-25; LaFave, supra, § 19.4 at

517-18.



             In this case, Huskey initiated Rule 12 proceedings by properly filing

notice of his intent to rely on expert testimony as to a mental condition and the

defense of insanity. The prosecution moved the trial court to order Huskey to

                                       -10-
undergo a mental examination. After numerous hearings, Judge Baumgartner

required Huskey to submit to a mental examination.



              Under Martin, supra, and the overwhelming weight of state and

federal authority, such a procedure did not in and of itself violate the defendant’s

right against self-incrimination. It is now incumbent upon the trial court and the

parties to adhere to the protections built into Tenn. R. Crim. P. 12.2(c): any

statements made by Huskey during the examination, any expert testimony based

on such statements, and any “fruits” derived from the statements are admissible

at trial against the defendant only for impeachment or rebuttal of evidence of

mental condition or insanity introduced by the defendant. These limitations

ensure full protection of the defendant’s right against self-incrimination.




                               RIGHT TO COUNSEL

              The Sixth Amendment to the United States Constitution and article

I, § 9 of the Tennessee Constitution guarantee the right to the assistance of

counsel at critical stages “where counsel’s absence might derogate from the

defendant’s right to a fair trial.” The right to counsel “preserves the defendant’s

basic right to a fair trial as affected by [the] right meaningfully to cross examine

the witnesses . . . and to have effective assistance of counsel at the trial itself.”

Martin, 950 S.W.2d at 25 (quoting, United States v. Wade, 388 U.S. 218, 226, 87

S. Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967)).



              In Martin, we joined the majority of jurisdictions in holding that a

defendant does not have the right to the physical presence of counsel during a

court-ordered mental examination:




                                         -11-
              [W]e agree with the courts which have distinguished
              the ‘critical stage’ prior to a psychiatric examination
              from the examination itself. We are convinced that
              the examination differs in purpose and procedure
              from other stages of the adversarial system, and that
              counsel’s physical presence in a strictly passive,
              observational capacity, is not necessary to protect the
              defendant’s related rights to a fair trial and to confront
              witnesses. In particular, the defendant has access to
              the information and results generated by the mental
              examination, as well as the right to interview,
              subpoena, and cross-examine the experts with regard
              to their methodology, opinions, and results.


950 S.W.2d at 26-27. In contrast, a defendant does have the constitutional right

to counsel in making the decision whether to assert a mental condition defense

and thereby submit to a psychiatric examination. Id. at 25 (citing, Estelle v.

Smith, 451 U.S. at 470-71, 101 S. Ct. at 1877; Satterwhite v. Texas, 486 U.S.

249, 254, 108 S. Ct. 1792, 1796, 100 L.Ed.2d 284 (1988); Powell v. Texas, 492

U.S. 680, 685, 109 S. Ct. 3146, 3150, 106 L.Ed.2d 551 (1989)).



              In this capital case, the trial court’s May 9th order deferred the

question of the presence of counsel or a defense expert to the mental

evaluators, and the August 12th order precluded counsel or a defense expert

from being present at the examination. Although not constitutionally required,

the trial court’s orders required recording of all the examinations of Huskey, a

measure we endorsed and encouraged in Martin to “preserve evidence and to

enhance the accuracy and reliability of the truth-seeking function of the trial.”

950 S.W .2d at 27. This issue is controlled by Martin. The trial court’s orders did

not violate Huskey’s right to counsel under the United States or Tennessee

Constitutions.



                           MULTIPLE EXAMINATIONS

              In addition to the Martin issues, the defendant challenges the

number and nature of the trial court’s orders compelling the mental examination.



                                        -12-
He contends that Rule 12.2(c) limits the prosecution to a single examination,

regardless of whether the examination yields a particular conclusion or result.5



                 The record shows that the trial court initially ordered a mental

examination to be conducted by Dr. Tennison of the McNabb Mental Health

Center. After conducting a two-hour interview with Huskey, Dr. Tennison told the

trial court that he could not complete an examination without more information

and additional expert assistance. After additional hearings, the trial court, on

May 9, 1996, ordered Huskey to be examined by Tennison and Dr. Phillip

Coons. When this examination never took place, because of the refusal by the

defense, additional hearings culminated in the August 12th superseding order

that required Huskey to be examined by Dr. Tennison and experts at MTMHI.



                 The superseding order contained numerous safeguards: officials

were ordered to determine only Huskey’s mental responsibility at the time of the

offense; all clinical interviews with Huskey were to be recorded; requests by

MTMHI for information were subject to the attorney-client or other applicable

privileges; and the defense was to receive a copy of the examination results and

a period of time in which to determine whether it would proceed with its mental

condition defense prior to disclosure of any material to the prosecution. While

Huskey consented to the examination pursuant to this order, the examination

once again could not be completed. Tennison and Dr. Craddock of MTMHI

informed the trial court that additional expert assistance was needed to complete

the examination. The trial court then ordered that Huskey was to be examined

by Dr. Kluft. This examination took place as ordered, and Kluft rendered his

findings and opinions.


        5
            Although Huskey includes the orders entered by Judge Jenkins in his argument, we
reiterate tha t our review is solely over the rulings of J udge B aum gartner in c ase nu mbe r 51903 .
Huskey also argues that the prosecution “manipulated” its filing of motions under Rule 12.2(c),
resulting in the examinations being ordered just prior to the non-capital trials and leaving
insufficient time for adequate preparation. While we note that the trial court expressly rejected
this c onte ntion , the is sue is not am ong thos e on w hich we gr ante d this interlo cuto ry app eal.

                                                   -13-
             We do not interpret Tenn. R. Crim. P. 12.2(c) so narrowly as to

allow only a single interview. See Martin, 950 S.W.2d at 21; see also State v.

Lovelace, 469 A.2d 391 (Conn. 1983), cert. denied, 465 U.S. 1107, 104 S.Ct.

1613, 80 L.Ed.2d 142 (1984)(discretionary with trial court). The record reflects

that Dr. Tennison was unable to complete the examination and candidly

informed the trial court that he needed additional assistance. Dr. Craddock of

MTMHI also was unable to complete an examination and requested assistance.

Dr. Kluft, an expert in disassociative identity disorder, was located and was able

to complete the examination. Accordingly, the trial court monitored the

proceedings, carefully considered the expert testimony, and, based on the

evidence, ensured that the defendant was subjected to a complete examination.

We conclude there was no abuse of the trial court’s discretion.



                                   DISCOVERY

             Much of Huskey’s argument is aimed at the trial court’s orders

allowing disclosure of material relating to the court-ordered examination under

Rule 12.2(c) to the prosecution. His primary contention is that discovery of

materials related to expert testimony is governed by Tenn. R. Crim. P. 16, and

that the State is not entitled to materials relating to the examinations conducted

by Dr. Tennison, MTMHI experts, or Dr. Kluft, unless the defense presents these

experts as witnesses. The trial court ruled that Rule 12.2(c) was not limited by

Rule 16. We agree.



              In Martin, we said that restricting disclosure of the results of a

court-ordered examination under Rule 12.2(c) “begs the question of how the

prosecution would recognize appropriate impeachment or rebuttal without

access to the material.” 950 S.W.2d at 25. Our conclusion was based on the

context and purpose of a court-ordered evaluation Rule 12.2(c):




                                        -14-
              It would be most anomalous to say that a defendant
              may advance the defense of insanity, have himself
              examined by his own experts and then invoke the
              constitutional guarantees against self-incrimination for
              the purpose of preventing examination by the state.
              [Citation omitted]. It would be a strange doctrine,
              indeed, to permit a person charged with a crime to put
              in issue his want of mental capacity to commit it, and
              in order to make his plea invulnerable, prevent all
              inquiry into his mental state or condition.


Id. at 24 (quoting, State v. Whitlow, 45 N.J. 3, 210 A.2d 763, 767 (1965)).



              The defendant’s reliance on discovery under Tenn. R. Crim. P. 16

is misplaced. In general, the state’s duty to disclose reports of examinations and

tests is set forth in Tenn. R. Crim. P. 16(a)(1)(D):


              Reports of Examinations and Tests. Upon request of
              a defendant the state shall permit the defendant to
              inspect and copy or photograph any results or reports
              of physical or mental examinations, and of scientific
              tests or experiments, or copies thereof, which are
              within the possession, custody or control of the state,
              the existence of which is known, or by the exercise of
              due diligence may become known, to the district
              attorney general and which are material to the
              preparation of the defense or are intended for use by
              the state as evidence in chief at the trial.


The defendant’s duty to disclose is governed by Tenn. R. Crim. P. 16(b)(1)(B):


              Reports of Examinations and Tests. If a defendant
              requests disclosure under subdivision (a)(1)(C) or (D)
              of this rule, upon compliance with such request by the
              state, the defendant, on request of the state, shall
              permit the state to inspect and copy or photograph
              any results or reports of physical or mental
              examinations and of scientific tests or experiments
              made in connection with the particular case, or copies
              thereof, within the possession or control of the
              defendant which the defendant intends to introduce
              as evidence in chief at the trial or which were
              prepared by a witness whom the defendant intends to
              call at the trial when the results or reports relate to the
              witness’ testimony.


Accordingly, disclosure of reports of physical and mental examinations and tests

by a defendant under Rule 16, assuming all other requirements are met,

                                         -15-
depends on whether the defendant intends to introduce evidence or call a

particular witness at trial.



               There is, however, no similar provision limiting disclosure in Rule

12.2. The rule enables the prosecution to move for a court-ordered evaluation

after a defendant notices intent to rely on evidence as to insanity or mental

condition. The purpose of the rule is to provide the prosecution with a means to

obtain necessary information to rebut evidence of mental condition presented by

the defendant, while at the same time safeguarding a defendant’s right against

self-incrimination. This function simply could not be achieved were a defendant

permitted to prevent disclosure of the results by declining to use the evidence

generated by the examination or electing not to call the witness who conducted

the examination as a witness at trial. See, e.g., State Vilvarajah, 735 S.W.2d

837, 839 (Tenn. Crim. App. 1987)(noting distinction between evaluations under

Rule 12.2 and discovery under Rule 16(b)(1)(B)).



               The defendant also contends, however, that disclosure should not

include information that is subject to the attorney/client privilege or protected by

the work product doctrine. In this regard, we note that the superseding order of

August 12th made disclosure by the defendant to mental health officials “subject

to” any applicable privileges. The protection in Rule 12.2(c) limiting the

admissibility of statements made by a defendant in the course of an examination

is a protection of the right against self-incrimination. See LaFave, supra, at 174.

Thus, in Martin, supra, we said that a defendant “is free to object in limine to any

material on the basis of privilege, relevance, or any other ground.” 950 S.W.2d

at 25. The defendant may, therefore, on remand, object to disclosure of specific

material and attempt to establish the applicability of a privilege or other basis for

non-disclosure.




                                         -16-
              In summary, we hold that the court-ordered examination and the

disclosure of the examination material does not violate the defendant’s right

against self-incrimination, provided the admissibility of any statements made by

the defendant during the examination, and any “fruits” derived therefrom, is only

for impeachment or rebuttal of evidence of mental condition introduced at trial by

the defendant. Moreover, disclosure of the information from the examination is

not limited by Rule 16 and does not depend on whether the defendant intends to

use the information or witness involved in the Rule 12.2(c) examination.



                                   CONCLUSION

              For all of the foregoing reasons, we hold that the trial court’s order

compelling Huskey to undergo a mental examination pursuant to Tenn. R. Crim.

P. 12.2 did not violate the right to counsel or the right against self-incrimination

under either the United States or Tennessee Constitutions. We also hold that

disclosure of the material and results related to the examination to the State is

proper under the rules, provided any statements made during the examination by

the defendant, and any “fruits” derived from the statements, are admissible at

trial only for impeachment or rebuttal of evidence respecting a mental condition

introduced by the defendant.



              Accordingly, the judgment of the trial court is affirmed and this case

is remanded to the trial court for further proceedings. Costs of this appeal are

taxed to the defendant, Thomas Dee Huskey, for which execution shall issue if

necessary.



                                           ________________________________
                                           RILEY ANDERSON, CHIEF JUSTICE



CONCUR:

Drowota, Reid, Birch, and Holder, JJ.

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