# FILED

November 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION STATE OF TENNESSEE, ) Filed: November 23, 1998 ) Appellee, ) Supreme Court ) No. 01S01-9809-CC-00175 Vs. ) ) Hon. John H. Gasaway,III, ) Judge PAUL DENNIS REID, ) Montgomery County ) No. 38887 Appellant, ) ) Hon. Cheryl Blackbur n, ) Judge ) Davidson County ) No. 97-C-1834 AND ) ) ) STATE OF TENNESSEE, ) Hon. J. Randall Wyatt, ) Judge Appellee, ) Davidson County ) No. 96-B-866 Vs. ) ) CHRISTOPHER DAVIS, ) ) Appellant. )

FOR APPELLA

NT REID : FOR STATE OF TENNESSEE: J. Michael Engle John Knox Walkup Assistant Metro Publi c Defender Attorney General & Reporte r Nashville, Tennessee Michael E. Moore Michael R. Jones Solicitor General Public Defender 19th Judicial Distri ct Kathy Mo rante Clarksville, Tennessee Assistant District Attorney General Nashville, Tennessee FOR APPELLA

NT DAVIS: Hershell Koger Victor S. Jo hnson, III Pulaski, Tennessee District Attorney General 20th Judicial Distri ct Niles Nim mo Nashville, Tennessee John Wesley Car ney, Jr. District Attorney General 19th Judicial Distri ct FOR AMICUS CURIAE: Tennessee As

sociation Criminal Defense Lawy ers Jefferson T. Dorsey Nashville, Tennessee 

## O P I N I O N
COURT OF CRIMINAL APPE ALS DROWOTA, J.-2-

AFFIRMED AS MODIFIED. We granted and consolidated the applications for permission to appeal filed on behalf of Paul Dennis Reid and Chr istopher Davis to cons ider the following three important questions of cr iminal procedure.
1. Whether a defendant must give pre-trial notice of the intent to introduce expert testimony of his or her mental condition as mitigation at the sentencing phase of a capital trial? 2. If so, whether, at the req uest of the State, the trial cour t may order a mental examination of the defend ant by a mental health expert selected by the State? 3. If so, what procedures should be followed in connection with this notice and examination?

For the reasons herein explained, we hold that a capital defendan t must file pretrial notice of intent to p resent expert testimony regarding mental condition as mitigation evidence at the sentencing phase of the trial. Once such a not ice is filed, the trial court, upon r equest of the State, may order the defendant to undergo a psychiatri c evaluation by a mental health expert selected by the State. The defense will be afforded access to any expert reports prior to trial. The State will be afforded access to th e reports only after a jur y returns a verdi ct of guilty and the capital defendant confirms his or her intent to offer expert ment al condition evidence in mitigation at the sentencing hearing. Accordingl

y, the decisions of the Court of Crimi nal Appeals are affirmed as modified.

BACKGROUND Because this appeal involves questions of law, the relevant facts are-3-

undisputed. The defendant, Paul Dennis R eid is charged in Dav

idson County with two counts of premeditated first degree murder and two alternate counts of first degree f elony mur der. Reid is also cha rged in Mon tgomery Co unty with two counts of first degree premeditated murder and two alternate counts of first degree felony murder for two separate killings. The defendant Christop her Davis is charged in Davi dson County with tw o counts of premeditated first degr ee murder and two alternate c ounts of felony first degree mur der. These three cases have been assigned to three different trial judges.

In each of these cases, the State has g iven notice of its intenti on to seek the death penalty, and in each of thes e cases, the trial judg e has ruled that the defense must provide pretrial notice to the State of intent to introduce evidence relating to mental conditi on as mitigation proof during the sentencing phase of the capital trial. In addition, all three trial courts ruled that Reid and Davis must undergo a psychiatri c evaluation by a mental health expert selected by the State once the notice is filed. Each trial judge entered an or der delineating the procedure to govern the evaluation once the notice is filed. The orders dif fered in one primary respect: the procedure to be followed after c ompletion of the mental evaluation.

The orders entered in the Dav idson County cases prov ide for the report of the mental health expert to be delivered to the court once the evaluation is complete. The trial judge w ill then provide the r

eport to defense counsel to allow each of the defendants to decide, with the assistance of counsel, w hether or not to proceed with the intr oduction of evidence of mental condit ion at the sentencing-4-

phase. If the defense elects to proceed with the introduction of mental condition evidence, the expert’s

report is given t

o the prosecution prior

to trial. If, however, the defense elects to forego introduction of mental condition evidence, the State is not permitted to review the expert’s report at all.

In contrast, the order enter ed by Judge Gasaway

in Montgomery County provides for the report of the State selected expert, and the report of any defense mental health expert, to be filed under seal with the trial court before commencement of jury selection. The reports will be r eleased only in the event the jury returns a verdict of guilty of first degree murder and the defendant confirms his intent to offer mental cond ition evidence at sentenci ng. If the defendant withdraws his previously filed noti ce of intent to offer such evidence, the reports will not be released.

Following entry

of the orders, both the Davi dson and Montgomery County trial courts allow

ed the defendants to seek interlocuto ry appeals. The Court of Criminal Appeals accepted r eview and, in separat

e decisions, upheld the val idity of the pretrial notice requirement and expert mental evaluation impo sed upon Reid and Davis. The intermediate court adopted the procedural g uidelines delineated by the Montgomery C

ounty Circuit Court

which limits acces

s to any expert repor

ts until the jury retur

ns a verdict of guilty

and the capital defendant confirms his intent to introduce exp ert mitigation pr oof of men tal condition a t the sentencin g hearing.

From those decisions, Rei d and Davis filed separate applications for permission to appeal to this Court, and on September 30, 1998, w e granted the-5-

applications, consolidated the appeals, and set the cause for hear ing on October 15, 1998. For the reasons that fol low, we affirm as modified the decisions of the Court of Criminal Appeals.

ANAL YSIS
A. Au thority To Impose Requirements In this Court, the defendants firs t argue that the trial c

ourts had no legal authority to requir

e a capital defendant either to prov ide pretrial notice of intent to offer mental condition evidence or to submit to an evaluation by a State selected mental health expert. According to the defendants T enn. R. Crim. P Rule 12.2 is limited in application to e xpert mental condition ev idence relevant to the determination of guilt or i nnocence. The defendants likewis e argue that Tenn. R. Crim. P. 16 requires disclosure of an expert’s report only if the report will be introduced by the defendant as ev idence in chief at trial or if the report was prepared by a witness

the defendant intends to call at tr ial and the report relates to the testimony of the witness.

While conceding that neither Rule 12.2 nor Rule 16 specifically refers to the sentencing phase of a capital tr ial, the State emphasizes th at appropriate provisions of those Rules previously hav

e been applied in the context of a capital sentencing proceeding. Where, as here, no rule precisely addr esses the situation, the State argues that the trial courts have inherent power to adopt a procedure which is consistent in principle and spirit with existing rules of criminal procedure and with the statutory scheme governing capital sentencing proceedings.1 By so stati ng, we do not i ntend to i mply that Tenn. R. Crim. P. 16 never applies i n a capital sen tenc ing he aring . As th e Sta te po ints o ut, we have prev ious ly applie d Ru le 16 to issue s aris ing in the context

of a capital sentenci ng hearing. For example, in State v. Nic hols , 877 S.W.2d 722, 729 (Tenn. 1994), we a

ffirmed a tr ial j udge who ordered a defe nse psychologi st to prov ide to t he prosec ution any inter view note s which would rela te to his testim ony at the se ntencing hearing. W e stated, “ when a psychologist or psychi atrist does not prepare

a summary report, but instead r

elies on extensive memoranda to record not onl y observat ions and hypo theses but al so evaluati ons, such records are disco verable under Rule 16(b)(1)(B).” Id . at 730. Likewise, in State v. Buck , 670 S.W .2d 6 00 (T enn . 198 4), the State had f ailed t o pro vide c ertain ma terials and t he na me s of c ertain witnesses to the defendant. On ap peal, the defendant argued that the trial court should not have allowed t he witnesses t o testi fy because of the nondisclosur e of the Stat

e. Alth ough we based our decision on the co ntent of the witnesse s’ testim ony, we fur ther obs erved tha t “the trial judge was ... also in er ror in i mplicitl y sustai ning the pr

osecution i n its cl aim that Rule 16 and discovery rules were not applicable in the sentencing hearing.” Id . at 606. Accordingl y, when an exi sting rul e of criminal pr

ocedure prec isely addr ess es an issue , we a pply th e rule even thou gh th e issu e aris es in the con text of a ca pital senten cing proc eeding. See Tenn. R. Crim. P. 1 ( list ing several proceedings t

o which the Rul es apply and statingin subsecti on (i) t hat the Rule s apply “ [i]n any other sit uation where the context

clearl y indi cates appli cabili ty). However, no exi sting rul e of crim inal pr oce dure prec isely ad dres ses the is sue s in th is app eal. -6- Clearly no existing rule of criminal pr ocedure precisely g overns the issues in this appeal. While Rule 12.2 certainl y is analogous, it s pecifically gover ns the notice and evaluation required when a defendant intends to intro duce expert testimony of mental condition at the guilt phase of a trial. It does not specifically require the defendant in a capit al case to give notic

e of his or her intent to introduce expert mental con dition testimony at the sent encing phase. Likewi se, Rule 16 is designed to govern reciprocal di scovery prior t o trial and does not address the various interests implicated by the issues in this appeal. 1 The inapplicability of these rules does not mandate the conclus ion that the trial courts had no legal authority to impose notice, evaluation, and disclosure requirements.

It is well settled that Tennessee courts have inher ent power to make and enforce reasonable rules of procedur e. Shettles v. State , 209 Tenn. 157, 161-62, 352 S.W.2d 1, 3 (1961); Brewer v. State , 187 Tenn. 396, 400, 215 S.W.2d 798, 800 (1948); Denton v. Woods , 86 Tenn. 37, 5 S.W. 489 (1887); State v. Johnson , 673 S.W.2d 877, 882 (Tenn. Crim. App. 1984); Haynes v. McKenz ie Memorial-7-

Hosp. , 667 S.W.2d 497, 498 (Tenn. App. 1984); Hull v. State , 543 S.W.2d 611, 612 (Tenn. Crim. App. 1976). Indeed, the Gene ral Assembly has explicitly recognized this inher

ent power. For exampl e, Tenn. Code Ann.§ 16-3-407 (1994 Repl.), provides that “[e]ach of the other courts of this state may adopt additional or supplementary rules of practice and procedure not inconsisten t with or in conflict with the rule

s prescribed by the sup reme court.” Moreover, Tenn. R. Cr im. P. 57 recognizes that i ssues will arise during criminal tri als for which “no procedure is specificall y prescribed by r

ule” and provides that tr ial courts have the inherent power to “proc eed in any lawful manner not inconsistent with thes

e rules or with any applic

able statute.”

Accordingly, we hold that when issues arise for which no procedure is otherwise specificall

y prescribed, trial

courts in Tennessee have in herent power to adopt appropriate rules of proce dure to address the issues. Rules adopted pursuant to this inherent pow er must be consistent with constitutional princi ples, statutory laws, and generally applicabl e rules of procedure. Indeed, w hen circumstances mandate the adoption of supplemental rules, trial courts should pattern such rules upon analogous generally applic able rules of procedure. Trial courts must also bear in min d that all procedural rul es should be designed to provide for the just determination of every criminal proceeding, and to secure simplicity in proc

edure, fairness in administr ation and the elimination of unjustifiable expense and delay

. See Tenn. R. Crim. P. 2. Applying these guiding principles , we affirm and adopt the notice and ev aluation requirements fashioned by the trial courts in these capital cases.-8- B. Notice and Ev

aluation Requirement s A capital defendant has a federal consti tutional right to present mitigation evidence. Lockett v. Ohio , 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978); State v. Cazes , 875 S.W.2d 253, 266 (Tenn. 1994). In accordance with that constitutional mandate, the Te nnessee statute which governs capital sente ncing proceedings prov ides that evidence may be offered during the sentencing phas e which tends to “establ ish or rebut any mitigating factors.” Tenn. Code Ann. § 39-13- 204(c) (1997 Repl.). Among those mitigating factors specifically enumer ated in the statute are three w hich directly rela

te to a defendant’s mental condition: (1) “[t]he murder was committe d while the defendant was under the influence of ext reme mental or emotional distur bance;” (2) “[t]he defendant acted under extreme duress or under the substantial domin ation of another person;” (3) “[t ]he capacity of the defendant to appreciate the wrongfulness of the defendant’s con duct or to conform the defendant’s conduct to the requirements of the law was substantially

impaired as a result of mental disease or defect or intoxi cation which was i nsufficient to establish a defense to the crime but which subs tantially affected the defendant’s jud gment.” Tenn. Code Ann. § 39-13-204(j)(2), ( 6) & (8) (1997 Repl.). In addition, the statute direc ts the jury to consider “[a]ny other mitigating factor which is raised by the evidence produced by either the pros ecution or defense at either the g uilt or sentencing hearing.” Tenn. Code Ann. § 39- 13-204(j)(9) (1997 Repl .). Clearly, a capi tal defendant has a constitutional and sta tutory right to pre

sent mitigation proof relating to his or her

mental condition.

Juxtaposed aga inst a c apital d efendant’ s right to int roduce a broad r ange of-9-

proof in mitigation is the S tate’s right to offer evi dence to rebut the mitigating factors. Critical to any

effective rebuttal of expert mi tigation proof regarding mental condition is the State’s ability to conduct an independe nt psychiatric evaluation of the defendant. As was aptly explained by a United States District Court:
Psychiatry is far from an exact science because it does not rely primarily on the analy

sis of raw data. Instead, the basic tool of psychiatric study

remains the personal interv iew, which req uires rapport between the interviewer and the subject. The Government’s expert cannot meaningfully address the defense expert’s conclusions unless the Government’s expert is given similar access to the basic tool of his or her area of expertise: an independent review with a nd examination of the defendant.

United States v. Haw

orth , 942 F.Supp. 1406, 1407-08 (D.N .M. 1996) (internal citations and quotations omitted); see also United States v. Beckford , 962 F.Supp. 748, 758 (E.D. Va. 1997). “If a de fendant elects to present evide nce of his mental condition as a reason why he should not be sentenced to death, the Government must be able to follow wher e he has led and introduce its own countervailing evidence.” Haworth , 942 F.Supp. at 1408. Unless the State is allowed to conduct its own mental health ex amination, it may be depriv ed “of the only effective means it has of controverting

[defense] 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); see also State v. Huskey , 964 S.W.2d 892, 897 (Tenn. 1998) (quoting Estelle and holding that a defendant who intends to offer expert proof of insanity may be ordered to undergo an ev aluation by a State selected psychiatric expert). Clearly, the State’s ability to rebut a defendant’s expert mitigation evidence relating to mental condition would be effectively2 We em phasize t hat our hol ding in t his appeal r elates only to expert

proof of mental conditi on. The noti ce, evaluat ion, and di sclosure requi rements do not appl y to l ay person testim ony. -10- precluded if the State is not afforded the opportunity to have the defendant evaluated by an independent menta l health expert. 2 We agree with a statement made by the Florida Supreme Court when it addressed this issue: “[n]o truly objective tribunal can compel one side in a legal bout to abide by the Marq uis of Queensberry’s rules, while the other fights ungloved.” Dillbeck v. State , 643 So.2d 1027, 1030 (Fla. 1994); see also Fla. R. Crim. P. 3.202 ( delineating notice, examination, and procedure governing expert te stimony of mental mitigation during the sentencing phas e of a capital trial). Acc ordingly, we co nclude that an independent psychiatric e xamination is essential to afford the State its right t o rebut expert defense proof of mental condi tion.

In light of our conclusion,the necessity of requir ing a capital defendant to provide pretrial noti ce of intent to offer expert mitig ation proof of mental condition becomes apparent. Our death penalty statute provides that the sentencing hearing “shall be conduc ted as soon as practicable befor e the samejury that determined guilt.” Tenn. Code Ann. § 39-13-204(a) (1997 Rep l.) (emphasis added). Serious difficulties for the defendant, the prosecution, and the j udicial system would result if notice of a capital defendant’s intent to present expert mitigation proof is deferred until the conclusion of th e guilt phase of the trial. No doubt there would be a leng thy delay before commencement of the s entencing phase while the State’s expert examined the defendant. During this time the jury would likely re main idly sequestered.Particularly tr oublesome is the very real possibility that ev

idence presented at the guilt phase, which usually is also relied-11-

upon at sentencing, would fade from the minds of the jurors. See Beckford , 962 F.Supp. at 762-63 (discussi ng the difficulties arisi ng if a defendant is not requir ed to provide pretrial n otice of intent to introduce ex pert mitigation eviden ce of mental condition). Requiri ng a capital defendant to prov ide pretrial notice of intent to introduce expert mitigation proof relating to mental condition protects th e State’s right of re buttal a nd elimin ates unju stifiab le delay.

In addition, there are no constitutional principles which preclude the notice and evaluation conditions imposed by the trial courts in these cases. W ith respect to the constitutionality

of pretrial notice requi rements, Williams v. Florida , 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) , is instructive. In that case, the Supreme Court reje cted the content ion that requiring a criminal d efenda nt to give pretrial notice of intent to r ely upon an alibi defense v iolated the Fifth Amendment. In so holding, the Supreme Cour t in Williams stated:
Nothing in the Fifth Amendment privilege entitles a defenda nt as a matter of constitutional right to await the end of the State ’s case before announcing the nature of his def ense, any more than it entitles him to await the jury’s verdic

t on the State’s case-in-c hief before deciding

whethe r or not

to take the stand

himself

.
Id . at 85, 90 S.Ct. at 1898; see also Johnson , 673 S.W.2d at 882 (app roving a rule which required the d efendant to provide notice of intent to present an alibi defense). We likewise conclude that req uiring capital defendants to provide pretrial notice of intent to p resent expert mitigation proof relating to mental condition does not violate the Fifth Amendment. Beckford , 962 F.Supp. at 761.

In two recent cases, we discussed the constitutionality of the psychiatric-12-

examination prescribed by Tenn. R. Crim. P. 12.2. See Huskey , 964 S.W.2d at 900; State v. Martin , 950 S.W.2d 20, 24 (Tenn. 1997). With respect to the Fifth Amendment right against sel f-incrimination we stat

ed:

the court-ordered examination and the disclosure of exa mination materia l does no

t viol ate the d efendant’ s right again st selfincrimination, provi ded the admissibility of any statements made by the defendant during the examinati on, and any ‘fruits’ deri ved 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 i s not limited by Rule 16 and does not depend on whether the defendant i ntends to use the information or witness i nvolved in the Rule 12 .2(c) examination.
Huskey , 964 at 900. We also held that an independent exami nation does not violate a defendant’s Six th Amendment right to counsel s o long as the defendant is provided the assistance of counsel when the decision of whether or not to raise an insanity defense is made. Martin , 950 S.W.2d at 26.

Though the evaluation and notic e issues in this appeal r elate to the sentencing phase of a capital tr ial rather than to the gui lt-innocence determination, the controlling constitutional precepts remain the s ame. Beckford , 962 F.Supp. at 760. The Sixth Amendment is sati sfied so long as a capital d efendant is provided the assistance of counsel when he or she decides whether to introduce expert mitigation proof relating to mental condition at the sentenc ing phase. Once the decision is made to proceed w ith the introduction of such pr oof, the Fifth Amendment right against sel f-incrimination does not preclude a court-ordered examination by a State sel ected mental health expert. Id . Disclosure of the examina tion mat erial d oes not v

iolate the defenda nt’s ri ght aga inst se lfincrimination, provi ded the admissibility of any statements made by the defendant-13-

during the examination, an d any ‘fruits’ deriv ed therefrom, is admitted only for impeachment or rebuttal of evidenc e of mental condition introduced by the defense at the sentencing phase of the tr ial. United States v. Hall , 152 F.3d 381, 398 (5th Cir. 1998); see also Brown v. Butler , 876 F.2d 427, 430 (5th Cir. 1989) (holding that the State coul d not introduce expert tes timony based upon a previous psycholog ical examination of the defendant w here the defendant announced an intention to offe r expert psychological evidence but never actually introduced the evidence); Beckford , 962 F. Su pp. at 76 1. Accord ingly, we conclude that requiring a capital defendant to submit to a psy chiatric examination by a State selected mental heal th expert is constituti onally permissible.

C. Procedural Safeguards As a final issue, we must s et forth a procedural framewor k which both accommodates the State’s right of rebuttal and sa feguards a capital defendant’s constitutional right against self-incrimination.The procedures adopted by the t rial courts in t hese three capital cases are simila r. The primar y difference

is the time at which the defense and State are provided access to the ex pert reports. Under the Davidson County or ders, the reports are gi ven to the State prior to t rial. Under the Montgomery County order, which the Cour

t of Criminal Appeals adopted, access to any expert reports is deferred until after the jury returns a verdict of guilty and the capital defendant confirms his i ntent to introduce expert mi tigation proof at the se ntencing hearin g.

The State contends that it should be g iven access to the resul ts of any-14-

independent psychiatric examination prior to trial. In our view, there are valid justifications for provi ding the State access to the report only after the jur y has returned a verdict o f guilty and a capital defendant confirms his or her intent to offer expert mitigation ev idence relating to mental c ondition at the sentencing hearing. First, dela

ying access to the r

eport advances interests of judicial economy by avoiding

litigation as to w

hether particular pieces of evidence the State seeks to admit prior to the defense of fering psychiatric evidence were derived from the State’s psy chiatric evaluation. Delaying access al so forecloses the risk that the defendant’s ri ght against self-incr imination will be abr

idged by the State’s inadvertent or i ntentional introduction of the ex amination results or its fruits for purposes other than impeachment or rebuttal of expert mitig ation evidence of mental condition introduced by the defense. Hall , 152 F.3d at 399.

On the other hand, these same concer ns do not apply to the defense. In fact, providing the defense with access to any expert reports prior to trial would serve interests of judic ial economy. For exa mple, the defense will hav e sufficient time to review the reports, make an informed decision as to whether to introduce expert mental condition mitigation proof, and be prepared at the conclusion of the guilt phase of the trial to either confirm or withdr aw the previously

filed notice. If the defense confirms its previ ously filed notice, the Stat e will then be giv

en the reports and should have suffici ent time to study the report s and prepare its rebutta l proof.

We therefore modify the decision of the Court of Cri minal Appeals insofar as it foreclosed both the State and the def ense from having access to expert-15-

reports until the jury has returned a verdict of guilty. We hold that the de fense is entitled to have access to any expert reports prior to trial. The State will be afforded access to the reports only after a jury returns a verdict of guilty and the capital defendant confirms his or h er intent to offer expert mental c ondition evidence in mitigatio n. In our view, thi s procedure both protects the State’s right of rebuttal and safeguards the defendant’s right against self-i ncrimination.

CONCLUSION In summary, we hold that where, as here, issues arise for which no procedure is otherwis

e specifically prescr

ibed, courts in Tennessee hav e inherent power to adopt appropriate rules of procedure. We approve the notice and examination requirements imposed by the trial cour ts in these cases. As previously stated, they are consistent with constitutional principles, statutory laws, and generally applicable rules of criminal proc edure. In addition the notice an d examination requirements, which closely parallel the analogous provisions of Rule 12.2, Tenn. R. Crim. P., ensure fairness and eliminate unjusti fiable delay. With respect to the disclosure procedures, we affirm as modified the decisions of the Court of Criminal Appeals.

Moreover, we adopt th e notice, examination, and di sclosure requirements approved in this appeal as the governing proced ure in this State in eve ry death penalty trial in w

hich the capital defendant intends t o introduce expert mitigation evidence relating to mental condition at the sentencin g hearing of his or her trial. The spec ific proc edure is s et out be low.-16- 1. If a capital defendant intends to introduce expert mental condition testimony as mitigation at the sentencing hearing, he or she must file pretrial written no

tice of intent no later than an appr opriate date set forth by the trial court.The notice shall include the name and professional qualifications of any mental condition professi onal who will testify and a br

ief, general summary of the topi cs to be addressed that is sufficient to per mit the State to determine if an evaluation is necessary and, if so, the area in which its expert must be knowledgeable. 2. If a capital defendant files notice that he or she intends to introduce expert mental con dition testimony at the sent encing hearing, the defendant shall, if requested by the State, be ex amined by a psychiatrist

or other mental health professi onal selected by the State. The ex

amination sh all take pl ace withi n a reasonabl e time frame set forth by the trial court. The State and def ense will cooperate to provide the court-ordered professional with all necessary and releva nt information. Said examinati on may be videotaped in accordance w ith the guidelines adopted i n State v. Martin , 950 S.W.2d 20 (Tenn. 1997). The report of that examinat ion and the report of any psychi atric examination initiated by the defendant shall be filed under seal w ith the Court before the commencement of jury selection. The Court-appointed professional conducting the examination for the State shall not discuss his/her examination with any

one unless and until the resul ts of the examination are released by the Court to counsel for the Sta te following the guilt phase of the trial. 3. The results of any examin ation by the State expert and the defense expert shall be rele ased to the defense prior to tri al to enable the defendant, with the assi stance of counsel, to determine whether or not to introdu ce expert mental condition testimony as mitigation at the sentencing hearing. The results of any examination shall be released to the State only in the event the jury returns a verdict of guilty

of first degree murder and only after the capital defendant confirms his or her intent to offer expert mental condition eviden ce in mi tigati on at the penalty phase. A

fter the return of a guilty verdic

t, the defendant shall file a pleading confirming or disavowing his or her intent to introduce ex pert mental condition testimony at a penalty phas e. If the defendant withdraws the previously-tender

ed notice, the results of any mental condition examinations concerning the defendant will not be rel eased to the State. The reports of any exa minations, whether by the State or defense experts, concerning the defendant shall be released to the State immediately after the fili ng of a pleading confirming the earlier notice. Even if the defendant confirms his or her intent to offer mental condition evidence, the defendant may withdraw the notice of intent to introduce expert mental condition proof at an y time before actually presenting such evidence, and, in that event, neither the fact-17- of notice, nor the results or reports of any mental exami nation, nor any facts disclosed only therein, will be admi ssible against the defendant.

_____________________________________ FRANK F. DROWOTA, III, JUSTICE

Concur: Anderson, C.J., Birch, Holder, Barker, JJ.