from Logan County Common Pleas Court Trial Court No. CR 15 08
S. Triplett, Tina McFall and Kort Gatterdam for Appellant.
C. Stewart for Appellee.
Defendant-appellant Brittany R. Pilkington
("Pilkington") brings this appeal from the judgment
of the Court of Common Pleas of Logan County ordering her to
submit to a psychological evaluation. Pilkington challenges
the judgment on the grounds that it violates her
constitutional rights. For the reasons set forth below, the
judgment is affirmed.
On August 25, 2015, the Logan County Grand Jury indicted
Pilkington on three counts of aggravated murder, each with
two death penalty specifications. Doc. 1. Pilkington filed a
motion to suppress her prior statements on April 1, 2016.
Doc. 201. A continuance of the suppression hearing was
granted on July 19, 2016, with the hearing being set to occur
in October of 2016. Doc. 238. On October 11, 2016, Pilkington
filed a supplement to her motion to suppress raising
additional arguments. Doc. 263. The hearing was held on
October 18 and 19, 2016. Doc. 287. The State then filed it
response on October 24, 2016 to the motion to suppress. Doc.
274. Pilkington filed her rebuttal to the State's
response on October 28, 2016. Doc. 275. The trial court ruled
on the motion to suppress on November 18, 2016. Doc. 287. The
trial court found that in this case, "the interrogations
were objectively coercive police activity. Id. at 3.
The trial court based this upon the length of the
interrogations, the way Pilkington was treated by the
officers, and the fact that requests by Pilkington to speak
to her mental health counselor were ignored. Id.
However, the trial court determined that although there was
hearsay testimony regarding Pilkington's limited mental
abilities, there was no direct evidence that her will was
overborn. Id. at 4-5. The trial court then denied
the motion to suppress. Id. . at 5.
On July 10, 2017, Pilkington filed a motion to reopen the
evidence and present a second supplement to the motion to
suppress her statements given to the police. Doc. 343. The
motion was based upon the opinions of experts after
additional psychological and neuropsychological evaluations.
Id. The State filed its response to the motion on
July 31, 2017. Doc. 345. Pilkington's rebuttal to the
State's response was filed on August 7, 2017. Doc. 346.
On August 10, 2017, the trial court granted Pilkington's
request. Doc. 347.
On August 21, 2017, a status conference was held. Doc. 352.
At that hearing, the parties discussed having Pilkington
evaluated by the State's expert. Id. The trial
court granted the State leave to file a motion. Id.
On September 6, 2017, the State filed its motion to have
Pilkington evaluated for her competency to waive her Miranda
Rights, an IQ test, and any other evaluations deemed
necessary. Doc. 353. Pilkington filed her memorandum in
opposition to the State's motion on September 12, 2017.
Doc. 354. On September 14, 2017, the trial court determined
that since Pilkington's state of mind had been made an
issue by the defense, the State was entitled to an
independent evaluation. Doc. 356. However, the trial court
ordered that the "evaluator shall not ask any questions
regarding the facts and circumstances of the alleged
offenses." Id. at 2. On September 27, 2017, the
trial court ordered Pilkington to "submit to a
psychological evaluation to address her competency to waive
Miranda rights on August 18, 2015, the voluntariness of her
statements to law enforcement on August 18, 2015, an IQ test
(if necessary), and to review issues raised by the defense
experts". Doc. 359. On October 2, 2017, Pilkington filed
her notice of appeal from these judgments. Doc. 363.
Pilkington raises the following assignment of error on
The trial court erred in granting the State's
motion to have [Pilkington] psychologically evaluated and
[Pilkington's] compelled participation in the
psychological evaluation will violate her rights guaranteed
by the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and Article I, Section 10 of the Ohio
The sole assignment of error questions whether the trial
court erred by requiring Pilkington to submit to a
psychological evaluation as requested by the State.
Pilkington's argument is that the State's request
that she submit to a psychological evaluation would be
similar to compelling her to answer questions without counsel
and would violate her Sixth Amendment right to counsel and
her Fifth Amendment right not to be compelled to offer
evidence against herself. Both sides admit that there is no
statutory or case law that is directly on point for the facts
before us. Thus, we are addressing an issue of first
It is central to that principle that in addition to
counsel's presence at trial, the accused is guaranteed
that he need not stand alone against the State at any stage
of the prosecution, formal or informal, in court or out,
where counsel's absence might derogate from the
accused's right to a fair trial. The security of that
right is as much the aim of the right to counsel as it is of
the other guarantees of the Sixth
Amendment-the right of the accused to a speedy and public
trial by an impartial jury, his right to be informed of the
nature and cause of the accusation, and his right to be
confronted with the witnesses against him and to have
compulsory process for obtaining witnesses in his favor. The
presence of counsel at such critical confrontations, as at
the trial itself, operates to assure that the accused's
interests will be protected consistently with our adversary
theory of criminal prosecution.
U.S. v. Wade, 388 U.S. 218, 226-27, 87 S.Ct. 1926,
18 L.Ed.2d 1149 (1967) (footnote of citations omitted).
"A criminal defendant, who neither initiates a
psychiatric evaluation nor attempts to introduce any
psychiatric evidence, may not be compelled to respond to a
psychiatrist if his statements can be used against him at a
capital sentencing proceeding." Estelle v.
Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 63 L.Ed.2d 359
(1981). However, "if a defendant requests such an
evaluation or presents psychiatric evidence, then, at the
very least, the prosecution may rebut this presentation with
evidence from the reports of the examination that the
defendant requested." Buchanan v. Kentucky, 483
U.S. 402, 422-23, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987).
In an analogous case, the Supreme Court of Ohio has held that
when a defendant demonstrates an intention to use expert
testimony from a psychiatric examination at trial, the trial
court may compel the defendant to submit to an examination by
the State's expert. State v. Goff, 128 Ohio
St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075. In Goff,
the defendant wished to establish an affirmative defense of
self-defense by establishing that she suffered from
battered-woman syndrome which caused her to be in fear of
imminent danger. Id. The Court cited with approval
to State v. Manning (74 Ohio App.3d 19, 598 N.E.2d
25 (1991)) in which the Ninth Appellate District held that
"[w]hen a defendant introduces psychiatric evidence and
places her state of mind directly at issue, as here, she can
be compelled to submit to a[n] independent examination by a
state psychiatrist." Manning at 24. After
reviewing the case law from other jurisdictions, the
Goff Court concluded that a court can compel a
defendant who has demonstrated an intent to use expert
testimony from a psychiatric examination to submit to another
examination by an expert of the State's choosing.
Goff at ¶ 58.
By putting her mental state directly at issue and
introducing expert testimony based upon her own statements to
the expert, the defendant opens the door to a limited
examination by the state's expert concerning
battered-woman syndrome and its effect on the defendant's
behavior. Courts have the inherent authority to preserve
fairness in the trial process, and allowing the defendant to
present expert testimony on the specific effects of
battered-woman syndrome on the defendant while denying the
prosecution the ability to ...