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JULY 30, 1986




T. J. Porter was indicted for murder after the shotgun slaying of Vardaman Freeman, a Natchez barber. After giving notice of his intention to offer the insanity defense, Mr. Porter was ordered to submit to a psychiatric examination. Mr. Porter was convicted of manslaughter, and was sentenced to 20 years in prison. From his conviction, Mr. Porter brings this appeal.


 During the afternoon of Thursday, June 30, 1983, T. J. Porter entered the Rebel barber shop of Natchez, Mississippi, wielding a shotgun. Addressing Vardaman Freeman, the shop owner, Porter exclaimed," You slept with her last night, and I'm going to kill you! "Mr. Freeman responded," No Porter, I didn't, "to which Mr. Porter answered," Yes, you did, I caught you, and I'm going to kill you. "Shortly afterward, Porter fired a fatal shotgun blast into the right side of Vardaman Freeman's chest.

 Mr. Porter had become suspicious of a developing relationship between his wife and Mr. Freeman after Mrs. Porter moved out of the Porter home and filed for divorce. Mr. Porter even warned Mr. Vardaman's co-worker, Jan Beard, that he would kill Mr. Freeman if he caught Freeman with his wife. The Wednesday night before the Thursday slaying, Mr. Porter's suspicions were confirmed when he witnessed his wife spend the night at Mr. Freeman's home.

 Shortly after the slaying, Mr. Porter located his attorney and surrendered himself to the sheriff of Adams County. He was charged with murder and was indicted September 6, 1983. Subsequently, Mr. Porter filed written notice of his intention to offer the insanity defense.

 Consequently, Mr. Porter was ordered to undergo a psychiatric examination to which he objected adamantly. The examination was conducted on March 26, 1984, nine months after the killing.

 Prior to, and during his trial, Mr. Porter stipulated that he killed Vardaman Freeman with a shotgun during the afternoon of June 30, 1983. The issues were narrowed at trial to Mr. Porter's legal sanity at the time of the killing.

 The jury failed to return a murder conviction, but returned a manslaughter conviction. Mr. Porter was sentenced to a term of 20 years in prison.


 Did the trial court err in ordering Mr. Porter to undergo a psychiatric examination?

 The appellant contends the Fifth Amendment's proscription against compelled self-incrimination was violated when he was ordered to submit to a psychiatric examination. Authority for the circuit court to require a psychiatric examination is found in the Uniform Criminal Rules of Circuit Court Practice, Rule 4.08 (2) which states in part:

 The court may upon motion of the prosecuting attorney require the defendant to be examined by a competent psychiatrist selected by the court. No statement made by the accused in the course of any examination provided for by this rule shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.

 The present case is factually similar to United States v. Byers, 740 F.2d 1104 (C.A.D.C.1984). In Byers, a murder defendant unsuccessfully asserted, and supported with expert testimony, an insanity defense. On appeal, the defendant argued that his Fifth Amendment guarantee against self incrimination had been violated when a government psychiatrist testified concerning statements made by the defendant during a court-ordered psychiatric examination.

 In an opinion authored by Judge Scalia, the Court commented," [V]irtually all other circuits have addressed claims materially indistinguishable from that raised by appellant. They have uniformly held that where the defendant has interposed the defense of insanity, the Fifth Amendment's

 privilege against self-incrimination is not violated by a court-ordered psychiatric examination. . . . "*fn1 740 F.2d at 1111.

 Accordingly, the court rejected the appellant's claim, holding that when a defendant raises the defense of insanity, he may constitutionally be subjected to compulsory examination by a court-appointed psychiatrist. 740 F.2d at 1115.

 The Fifth Circuit Court of Appeals reached a similar conclusion in United States v. Cohen, 530 F.2d 43 (5th.Cir.1976). Resolving the issue whether a defendant's privilege against self-incrimination is violated per se by a court-ordered psychiatric examination to determine the accused's mental condition at the time of the offense, the court held," [T]he government will seldom have a satisfactory method of meeting defendant's proof on the issue of sanity except by the testimony of a psychiatrist it selects . . . . "Id. at 48. The court continued," Given the defendant's power to have any incriminating factual statements resulting from the examination suppressed, we think the proper analogy is to the required furnishing of handwriting exemplars by the defendant and similar proceedings. "Id.

 In the present case, the appellant attempts to distinguish Cohen on the fact that the defendant in Cohen offered expert testimony, while the defendant in the instant case offered no expert testimony. Absent an expert witness to testify on behalf of the defendant, the appellant argues there was no compelling reason for the state to use expert testimony.

 This Court has held many times that lay testimony, as well as expert testimony, is admissible to prove a defendant's mental capacity to distinguish right from wrong at the time the crime is committed. Taylor v. State, 452 So.2d 441, 448 (Miss. 1984); Groseclose v. State, 440 So.2d 297, 301 (Miss.1983).

 This Court believes the present case is materially indistinguishable from Cohen and Byers. We therefore follow federal precedent and find the defendant's Fifth Amendment rights were not violated by the compelled psychiatric examination.


 Did the trial judge commit reversible error when he expressed his opinion on the defendant's sanity to Dr. Guild?

 Prior to the trial, the trial judge telephoned Dr. Guild, a psychiatrist, to arrange the psychiatric examination. During their conversation, the trial judge" may have indicated to Dr. Guild that [the judge] doubted that Dr. Guild's examination of the defendant would reflect that [the defendant] was legally insane at the time of the commission of the crime. "

 The appellant claims the opinion of the psychiatrist might have been swayed by his conversation with the trial judge. To the contrary, the ...

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