         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 1, 2006

        STATE OF TENNESSEE v. ROBERT JONATHAN HARRISON

                      Appeal from the Circuit Court for Chester County
                          No. 05-323    Roy B. Morgan, Jr., Judge


                    No. W2006-00483-CCA-R9-CD - Filed March 2, 2007


We have granted this Rule 9 interlocutory appeal from the Chester County Circuit Court for purposes
of clarifying both the appropriate procedure to be employed and the scope of discovery with regard
to obtaining the records and reports of an examining psychiatrist or expert in a competency
proceeding in which the mental health expert will be called as a witness. The Defendant, Robert
Jonathan Harrison, is currently charged with three counts of rape, one count of rape of a child, one
count of attempt to commit rape, and one count of incest. Following an evaluation by the
community mental health center, Harrison was found to be competent to stand trial. A second
competency evaluation was performed by a private clinical psychologist at Harrison’s request, and
he was found to be incompetent to stand trial. The State sought, and was granted, a judicial
subpoena pursuant to the provisions of Tennessee Code Annotated section 40-17-123, directing that
the clinical psychologist produce to the State “any and all records” related to the competency
evaluation of Harrison. Harrison then filed a motion to quash the subpoena, which was denied by
the trial court, and this appeal followed. After review, we conclude that the issuance of the judicial
subpoena under the authority of Tennessee Code Annotated section 40-17-123 was error.
Notwithstanding, and in the absence of any specific rule applicable to the issue presented, we hold
that the rules of civil procedure provide appropriate procedures for obtaining disclosure of the
information sought and properly define the scope of the discovery of the examining mental health
expert. Accordingly, we reverse and remand to the trial court for proceedings consistent with this
opinion.

  Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed and
                                      Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
ROBERT W. WEDEMEYER , J., joined.

Joseph T. Howell, Jackson, Tennessee, for the Defendant, Robert Jonathan Harrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; Jody S. Pickens, Assistant District Attorney
General, for the Appellee, State of Tennessee.
                                               OPINION

                                                 Facts

        The Defendant was indicted by a Chester County grand jury for three counts of rape, one
count of rape of a child, one count of attempt to commit rape, and one count of incest. In November
of 2005, upon motion by defense counsel, the trial court ordered a forensic evaluation by Pathways,
Inc., the community mental health center, to determine the Defendant’s competency to stand trial.
The evaluation concluded that the Defendant was competent.

        Subsequently, the Defendant sought and obtained court-ordered funding for the services of
a private clinical psychologist. The second evaluation concluded that the Defendant was
incompetent to stand trial. Based upon this evaluation, the Defendant filed a petition requesting that
he be declared incompetent to stand trial and gave notice that he would be relying upon the
competency evaluation of the private clinical psychologist at the hearing. The State then filed an
application for a judicial subpoena to obtain “any and all records” in the possession of the clinical
psychologist “related to the psychological evaluation” of the Defendant. The State asserted in its
affidavit in support of the subpoena that it sought to obtain the information for impeachment
purposes should the examining psychologist testify at the competency hearing. The trial court issued
the judicial subpoena pursuant to Tennessee Code Annotated section 40-17-123, which the
Defendant moved to quash. The trial court denied the motion to quash, finding that a judicial
subpoena issued pursuant to Tennessee Code Annotated section 40-17-123 was the proper avenue
for obtaining the records of the psychologist.

        After a discussion of the applicability of the judicial subpoena to the facts presented, the trial
court granted the Defendant’s Application for Permission to Appeal pursuant to Tenn. R. Crim. P.
9. The trial court’s decision to grant the Rule 9 appeal was based upon the need to develop a
uniform body of law with regard to the issuance of a judicial subpoena as it relates to the question
of discovery within a pre-trial competency proceeding.

                                                Analysis

A. Judicial Subpoena

        The trial court granted the State’s request for a judicial subpoena pursuant to the authority
of Tennessee Code Annotated section 40-17-123(a)-(d) (2003). The following relevant provisions
of the statute are noted:

        (a) The following procedure shall be employed when a law enforcement officer, as
        defined in § 39-11-106, seeks to obtain a subpoena for the production of books,
        papers, records, documents, tangible things, or information and data electronically
        stored for the purpose of establishing, investigating or gathering evidence for the
        prosecution of a criminal offense.


                                                   -2-
         (b) If the officer has reason to believe that a criminal offense has been committed or
         is being committed and that requiring the production of documents or information
         is necessary to establish who committed or is committing the offense or to aid in the
         investigation and prosecution of the person or persons believed to have committed
         or believed to be committing the offense, the officer shall prepare an affidavit in
         accordance with subsection (c).
                  ....

         (d)(1) Upon preparing the affidavit, the law enforcement officer shall submit it to
         either a judge of a court of record or a general sessions judge who serves the officer’s
         county of jurisdiction. The judge shall examine the affidavit and may examine the
         affiants under oath. The judge shall grant the request for a subpoena to produce the
         documents requested if the judge finds that the affiants have presented a reasonable
         basis for believing that:
                  ....
                  (B) Production of the requested documents will materially assist law
                  enforcement in the establishment or investigation of the offense; . . . .

T.C.A. § 40-17-123(a),(b), & (d)(1)(B). First, we note that Tennessee Code Annotated Section 39-
11-106 defines a “law enforcement officer” as “an officer, employee or agent of government who
has a duty imposed by law to: (A) Maintain public order; or (B) Make arrests for offenses, whether
that duty extends to all offenses or is limited to specific offenses; and (C) Investigate the commission
or suspected commission of offenses . . .[.]” T.C.A. § 39-11-106(a)(21) (2003).

       The duties of the district attorney general are found at Tennessee Code Annotated section 8-
7-103. The statutory duty relevant to the issue in this case provides:

                  Each district attorney general:

                  (1) Shall prosecute in the courts of the district all violations of the
                  state criminal statutes and perform all prosecutorial functions
                  attendant thereto, including prosecuting cases in a municipal court
                  where the municipality provides sufficient personnel to the district
                  attorney general for that purpose . . . .1

T.C.A. § 8-7-103(1) (2003). No provision of the enumerated duties of Tennessee Code Annotated
section 8-7-103 requires the district attorney general or his or her assistant to: (1) maintain public



         1
          This statutory duty conforms with the commonly accepted “prosecution function” of the district attorney which
recognizes that “[t]he office of prosecutor is an agency of the executive branch of government which is charged with the
duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law.” ABA, S TAN D ARD S
R ELATIN G TO T H E P RO SECU TIO N F U N CTIO N § 1.1 (1970).

                                                          -3-
order; (2) make arrests for offenses; or (3) investigate crimes.2 Accordingly, we conclude that
neither the district attorney, nor his assistant, is a law enforcement officer within the meaning of
Tennessee Code Annotated section 40-17-123(a). Contra Tenn. Op. Att’y Gen. No. 05-153 (2005).

        Next, we note that Tennessee Code Annotated section 40-17-123 was enacted as part of the
Terrorism Prevention and Response Act of 2002, which criminalized conduct arising from acts of
terrorism in this state. See T.C.A. §§ 39-13-801 to -808 (2006); see also Camelia Gibson, et al. v.
John D. Richardson, et al., No. W2002-03027-COA-R7-CV (Tenn. Ct. App. at Nashville, Jan. 17,
2003). It is obvious from a reading of the statute that the subpoena authority of Tennessee Code
Annotated section 40-17-123 is designed for the production of documents to assist law enforcement
officers in the investigation of crimes. The judicial subpoena power of this statute is not intended
as a discovery device in pending cases. For these reasons, we conclude that the judicial subpoena
provisions of Tennessee Code Annotated section 40-17-123 have no application to this case.
Notwithstanding this conclusion, we proceed to examine, for purposes of clarification, the
appropriate procedure and the scope of discovery regarding an expert in a competency proceeding.

B. The Competency Hearing

       We begin our review by observing that there is no statute or uniform body of law in this state
delineating the procedures or protocol for determining competency to stand trial.3 Nonetheless, the
Fourteenth Amendment to the United States Constitution and article 1, section 8 of the Tennessee
Constitution prohibit the trial of a person who is mentally incompetent. State v. Reid, 164 S.W.3d
286, 305 (Tenn. 2005) (citing Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838 (1966)). The
standard to be applied in determining if a defendant is competent to stand trial is whether the
defendant is able to understand the nature of the proceedings, consult with counsel, and assist in the
preparation of his defense. Berndt v. State, 733 S.W.2d 119, 123 (Tenn. Crim. App. 1987).
Typically, determination of a defendant’s competency is initiated pursuant to the provisions of
Tennessee Code Annotated section 33-7-301, which provides:

         (a)(1) When a defendant charged with a criminal offense is believed to be
         incompetent to stand trial, or there is a question about the defendant’s mental


         2
         In Imbler v. Pachtman, 424 U.S. 409, 430, 96 S. Ct. 984, 995 (1976), the Supreme Court held that when the
prosecutor engages in certain investigative activities or police-related actions the right to absolute prosecutorial immunity
is lost.

         3
           W e would acknowledge that our supreme court has found it necessary to adopt specific procedures regarding
competency issues for which “no procedure is otherwise specifically proscribed”; however, none of these cases address
procedures within the context of a hearing on competency to stand trial. See, e.g., Reid v. State, 197 S.W .3d 694, 702-03
(Tenn. 2006) (burden of proof and procedural issues involving competency to proceed in post-conviction capital case);
Coe v. State, 17 S.W .3d 193, 215 (Tenn. 2000) (procedural issues involving competency to be executed); Van Tran v.
State, 6 S.W .3d 257, 270-71 (Tenn. 1999) (procedures for litigating the issue of present competency to be executed);
State v. Reid, 981 S.W.2d 166, 174 (Tenn. 1998) (competency issues relating to mitigating evidence at sentencing phase
of capital case). Nonetheless, we would observe that the espoused principles relating to competency in these cases have
application to the case before us.

                                                            -4-
       capacity at the time of the commission of the crime, the criminal, circuit, or general
       sessions court judge may, upon such judges own motion or upon petition by the
       district attorney general or by the attorney for the defendant and after hearing, order
       the defendant to be evaluated on an outpatient basis. The evaluation shall be done
       by the community mental health center or licensed private practitioner designated by
       the commissioner to serve the court or, if the evaluation cannot be made by the center
       or the private practitioner, on an outpatient basis by the state hospital or the state-
       supported hospital designated by the commissioner to serve the court. If and only if
       the outpatient evaluator concludes that further evaluation and treatment are needed,
       the court may order the defendant hospitalized, and if in a department facility, in the
       custody of the commissioner for not more than thirty (30) days for further evaluation
       and treatment for competence to stand trial subject to the availability of suitable
       accommodations.

T.C.A. § 33-7-301(a)(1) (Supp. 2005).

        The purpose of a competency hearing is not to adjudicate the defendant’s guilt or innocence.
Rather, the purpose of an inquiry into competency is to determine the defendant’s fitness to stand
trial. See State v. Coe, 17 S.W.3d 193, 214-15 (Tenn. 2000) (finding that a competency hearing is
not a criminal prosecution, the only issue being the defendant’s mental state). Indeed, a finding that
a defendant is incompetent does not absolve criminal responsibility for the charged crime; it merely
suspends the criminal proceeding. The defendant bears the burden of proof to establish
incompetency to stand trial, and the requisite standard of proof is that of a preponderance of the
evidence. Reid, 164 S.W.3d at 307. Additionally, the rules of evidence apply in a competency
hearing. See generally Reid, 164 S.W.3d at 308-309 (holding testimony was properly excluded
under the clergy-penitent privilege).

       A competency proceeding is unique in that it is in the nature of a civil proceeding but
conducted within a criminal case. See Coe, 17 S.W.3d at 214 (“[a] competency proceeding is sui
generis; it is not a trial.”) In Coe, our supreme court held that the rules of civil and criminal
procedure do not apply to competency proceedings except to the extent that the rules offer an
appropriate procedure which does not conflict with the purpose of the competency hearing. Id. at
215.

        Although the Defendant stands indicted on criminal charges, the reciprocal discovery
provisions of Tenn. R. Crim. P. 16, specifically Rule 16 (b)(1)(B), which relates to the reports of
mental examinations, are inapplicable to a competency proceeding. This discovery provision
requires disclosure of the results of mental examinations and tests by a defendant only if the
defendant intends to introduce evidence of the results at trial or call the witness who prepared the
results. Moreover, the notice and disclosure provisions of Tenn. R. Crim. P. 12.2, which relate to
a mental defense “bearing upon the issue of guilt,” have no application to a competency proceeding,




                                                 -5-
as guilt is unrelated to competency.4 However, the inapplicability of these rules does not mandate
the conclusion that trial courts have no legal authority to impose notice, evaluation, and disclosure
requirements. Reid, 981 S.W.2d at 171. When “no procedure is specifically proscribed by rule,” the
trial court has the inherent power to adopt appropriate rules of procedure to address the issue. Id.
at 170; see also Tenn. R. Crim. P. 57.

        After review, we conclude that there should be disclosure to the State of the Defendant’s
mental health expert’s detailed written report setting out findings, including results of all tests
conducted, diagnoses and conclusions, together with like reports of all earlier examinations of the
same condition. After delivery of the report, the Defendant shall be entitled upon request to receive
a like report of any examination previously or thereafter made of the Defendant for the same
condition. The court on motion may order delivery of a report on such terms as are just, and, if the
examining mental health expert fails or refuses to make a report, the court may exclude testimony
if offered at the competency hearing. See generally, Tenn. R. Civ. P. 35.02.5

         Also, because a defendant may not invoke the right against compelled self-incrimination in
a competency examination,6 we conclude that use of a defendant’s statements to the examining
mental health expert should be limited. Neither a defendant’s statements to the expert, nor any
testimony by the expert based upon such statement, nor any fruits of the statement shall be admitted
into evidence against a defendant in any criminal proceeding, under a plea of not guilty or of not
guilty by reason of insanity, except for impeachment purposes on any issue respecting mental
condition on which a defendant has introduced testimony. See generally Tenn. R. Crim. P. 12.2(c);
State v. Martin, 950 S.W.2d 20, 27 (Tenn. 1997). This procedure protects against self-incrimination
while at the same time fostering honesty by a defendant during the evaluation process.

         As observed by our supreme court in Martin,


         4
          Rule 12.2 of the Tennessee Rules of Criminal Procedure conforms to the federal rule. Tenn. R. Crim. P. 12.2,
Advisory Comm’n Comments. The Federal Rules of Criminal Procedure provide that Rule 12.2 “does not deal with the
issue of mental competency to stand trial,” as this issue is governed by statute. Fed. R. Crim. P. 12.2, Advisory Comm’n
Comments. Moreover, we would note that federal courts, as well as several other states, have characterized competency
proceedings as “civil in nature.” See, e.g., U.S. v. Hamilton, 107 F.3d 499, 505 (7 th Cir. 1997) (competency hearings
are governed by 18 U.S.C. § 4241 and are civil in nature); see also People v. Harris, 14 Cal. App. 4 th 984, 991 (1993)
(competency hearing is civil in nature); People v. Skeirik, 229 Cal. App. 3d 444 (1991) (a competency hearing takes
place during a criminal proceeding, but it is not a criminal action and is “governed by the rules applicable to civil
proceedings”); Lindsey v. State, 314 S.E.2d 881, 884 (Ga. 1984); State v. Humdy, 875 P.2d 429, 430 (Okla. Crim. App.
1994); Ray v. State, 909 S.W .2d 567, 569 (Tex. App. 1995) (a competency hearing is civil in nature, and sufficiency of
the evidence is reviewed based on civil standards); Morales v. State, 801 S.W .2d 624, 625 (Tex. App. 1992) (civil rules
apply to competency hearing).

         5
           Rule 35.01 permits a court to order the physical or mental examination of a party upon motion of another party
when the condition is in controversy. Tenn. R. Civ. P. 35.01, Advisory Comm’n Comments. Rule 35.02 governs the
report of the examining physician.

         6
          See Reid, 981 S.W.2d at 172 (holding court-ordered mental evaluation does not violate Fifth Amendment right
against self-incrimination or Sixth Amendment right to counsel).

                                                          -6-
         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. 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.

Martin, 950 S.W.2d at 247 (citations omitted) (quoting State v. Whitlow, 45 N.J. 3, 210 A.2d 763,
767 (1965)).

         In sum, we conclude that a competency hearing is in the nature of a civil proceeding and that
the procedures employed herein advance the supreme court’s policy of free and open disclosure of
all information relating to an inquiry into a defendant’s competency. See Van Tran, 6 S.W.3d at 269
n.14.

                                                  CONCLUSION

        For the above reasons, the judgment of the trial court is reversed; the Defendant’s motion to
quash is granted; and the case is remanded8 with instructions that if the Defendant intends to call the
examining psychologist as a witness at the competency hearing, the Defendant shall deliver to the
State, prior to the hearing, the written report of the examining expert, together with all supporting
data, consistent with this opinion. The State’s request for the records and reports sought may,
without leave of court, be served upon the Defendant, after notice is given by the Defendant that the
examining expert will be called as a witness at the competency hearing. Any dispute as to time
constraints or other acts related to the performance of this rule shall be resolved by the trial court.



                                                                 ____________________________________
                                                                 DAVID G. HAYES, JUDGE




         7
          W e acknowledge that the issue in Martin involved statements produced by a court-ordered mental evaluation
with Martin asserting an insanity defense at trial. Nonetheless, we conclude that the procedural issue is analogous to the
present case, because the use of a defendant’s statement at trial, which was obtained by means of a court-ordered
evaluation, implicates the same constitutional concerns as presented in a court-ordered competency inquiry.

         8
           W e are unable to make a determination as to whether the information obtained from the examining
psychologist via the judicial subpoena conforms with the procedures we order, as the produced information from the
clinical psychologist was not included in the record on appeal.

                                                           -7-
