People v. Boucher, 345 N.W.2d 670

People v. Boucher

345 N.W.2d 670

Mich. Ct. App.

1983

Check Treatment

Danhof, C.J.

Defendant was convicted after a jury trial of first-degree murder for the shooting of his ex-wife on October 16, 1968, MCL 750.316; MSA 28.548. He was sentenced to life imprisonment and presently appeals as of right. Defendant was previously convicted of the same offense, but the conviction was reversed by this Court on January 29, 1973, after the prosecution filed a motion for peremptory reversal in which it confessed reversible error.

On appeal, defendant argues initially that he was denied his constitutional right to a speedy trial. The shooting of defendant’s ex-wife occurred on October 16, 1968. Defendant was first convicted of the offense on April 23, 1971. This conviction was reversed by this Court on January 29, 1973. On June 27, 1973, defendant was found incompetent to stand trial and was committed to North-ville Hospital. On July 23, 1976, defendant was found to still be incompetent and the charge against him was dismissed pursuant to MCL 330.2044(l)(b); MSA 14.800(1044)(l)(b). On December 28, 1978, the prosecution petitioned to reinstate the case. This petition was granted on November 30, 1979.

Defendant herein argues that the 29-month period between July, 1976, and December, 1978, *219 resulted in a violation of his right to a speedy trial. The United States Supreme Court recently considered this issue in United States v MacDonald, 456 US 1; 102 S Ct 1497; 71 L Ed 2d 696 (1982), and determined that no Sixth Amendment right to a speedy trial arose until charges were pending. In MacDonald, civilian criminal charges were reinstated against defendant after military authorities had dismissed the charges. The Supreme Court there held that "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges”. 456 US 7. The charges here were dismissed pursuant to statute and were reinstated after defendant became competent to stand trial. The 29-month period between dismissal and reinstatement did not result in a violation of defendant’s right to a speedy trial.

Defendant next argues that the trial court instructed the jury on an improper standard concerning defendant’s insanity defense. The trial court instructed the jury on the issue of insanity by following verbatim the insanity instructions used in People v Durfee, 62 Mich 487; 29 NW 109 (1886), and expressly approved in People v Martin, 386 Mich 407, 419, fn 5; 192 NW2d 215 (1971), cert den sub nom Lewis v Michigan, 408 US 929 (1972). Defendant argues that these instructions were improper under 1975 PA 180, MCL 768.21; MSA 28.1044(1). Sections 2 and 3 of 1975 PA 180 provide, however:

"Section 2. This amendatory act shall apply to offenses committed on or after the effective date of this act. The law in effect at the time the offense was committed shall apply to offenses committed before the effective date of this act.

*220 "Section 3. This amendatory act shall take effect August 6, 1975.”

The express terms of the statute indicate that the amended definition of legal insanity was inapplicable to this case, as the offense occurred in 1968, prior to the effective date of the act.

The third issue raised by defendant on appeal is that the testimony of Dr. Warren Gordon, a psychiatrist who examined defendant shortly after defendant was arrested, violated the physician-patient privilege. MCL 600.2157; MSA 27A.2157 provides in pertinent part:

"No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”

Since the physician-patient privilege was not recognized at common law, the scope of the privilege is governed by this statute. People v Lawrence Johnson, 111 Mich App 383, 388; 314 NW2d 631 (1981), lv den 414 Mich 949 (1982). Dr. Gordon was called by an assistant prosecutor shortly after defendant was taken into custody and asked to examine defendant. Dr. Gordon testified that he read defendant his Miranda 1 rights, informed defendant that he had been asked to talk with him by the prosecutor and stated to defendant that the information would be released to the prosecutor for use in court. No physician-patient privilege arose between defendant and Dr. Gordon, since the information given by defendant was not for purposes of treatment by Dr. Gordon._

*221 Defendant also argues that his examination by Dr. Gordon deprived him of his Fifth Amendment right to remain silent and his Sixth Amendment right to assistance of counsel. This argument is without merit. Although defendant’s right to counsel had attached at the time he spoke with Dr. Gordon, Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981), defendant waived his right to counsel and his right to remain silent. The instant case is distinguishable from Estelle, supra, upon which defendant relies. In Estelle, the defendant was not advised of his Miranda rights. The psychiatrist who talked to defendant in Estelle did not obtain permission from defendant’s attorney and did not inform the defendant that any statements made by him could be used against him at the sentencing portion of his trial to determine whether the death penalty was appropriate. In this case, defendant was repeatedly advised of his Miranda rights. Defendant waived his right to remain silent and his right to counsel. Defendant was told that Dr. Gordon was interviewing him at the prosecution’s request and that statements made by defendant could be used against him at the trial.

Defendant also argues that insufficient evidence was produced to show that defendant was sane at the time of the offense. This issue has been resolved by our decision regarding the proper insanity test. Defendant does not dispute that the evidence of sanity was sufficient under the Durfee test. Since we have found that the Durfee instructions were proper, we find no error on this issue.

We find defendant’s remaining allegation to be without merit. The jury instructions given by the trial court were proper.

Affirmed.

Notes

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).