David Russell Johnson has been indicted for the murders of Luther Harper and Melissa Booth, for possession of a firearm during the commission of a crime, and for possession of a firearm by a convicted felon. The State has filed written notice of its intent to seek the death penalty against him. Following the trial court’s issuance of several pre-trial rulings, this Court granted the State’s application for interim review and directed the parties to address whether the trial court erred in ordering the results of the State’s mental health expert’s examination of Johnson sealed until the conclusion of the guilt/innocence phase of Johnson’s trial. For the reasons set forth below, we affirm the trial court’s order.
1. Johnson announced in the trial court that he did not intend to introduce any testimony by a mental health expert in the guilt/innocence phase of his trial but that he might do so in the sentencing phase. The State sought an order from the trial court requiring Johnson to submit to an evaluation by a mental health expert chosen by the State so that it would be prepared to offer its own expert testimony in rebuttal. See Jenkins v. State, 265 Ga. 539 3 458 SE2d 477 1995 a defendant may be prohibited from presenting expert mental health testimony as mitigation evidence in the sentencing phase of a death penalty trial unless the defendant submits to a court-ordered examination by a mental health expert whose report would be made available to the prosecution. Johnson acknowledged he was required to cooperate in the court-ordered evaluation by a mental health expert selected by the State and asked the trial court to place the report of the State’s mental health expert under seal and to forbid the State from communicating with that expert until the conclusion of the guilt/innocence phase. Noting that Johnson did not plan to raise a mental health defense during the guilt/innocence phase of his trial, the trial court ruled that the results of the court-ordered mental evaluation were to be sealed, unavailable to the State or the defendant, until “when and if the case reaches the penalty phase.” If Johnson decided to present a mental health defense during the guilt/innocence phase, the court stated it would hold a hearing and unseal the results of the court-ordered evaluation for use during that phase of the trial. The decision to seal the results of the court-ordered evaluation until the penalty phase, should the trial proceed that far, is the subject of this appeal.
