People v. Hayes

v HAYES PEOPLE 1). (Calendar Argued No. 67551. October No. Docket Decided 28, 1984. 1,1985. February December Released Larry Hayes'was jury Allegan a convicted the Circuit Court first-degree of murder. the of defendant’s failure to On basis court, examinations, cooperate during psychiatric George the R. J., granted pretrial Corsiglia, prosecutor’s had motion relating insanity to an defense. The Court of bar Walsh, P.J., Holbrook, Appeals, D. F. and B. E. R. Burns and D. (Docket Jr., JJ., unpublished opinion per in an curiam affirmed 47321). appeals. The No. opinion by Cavanagh, joined by In an Justice Chief Justice Brickley, Boyle, Ryan, Supreme Williams and Justices and Court held: requirement insanity a defendant who raises an cooperate psychiatric relating defense in a examination insanity presenting claim or of be barred from evidence of insanity unconstitutionally infringe at trial does not on right present defense; defendant’s nor is the sanction vague. unconstitutionally defense, right although 1. The a fundamental process, right. element due not an absolute An accused comply procedure must still with established rules and evidence, designed reliability to assure both and fairness in the guilt ascertainment of or innocence. Nor is there a constitu- insanity Legislature tional to assert an defense. The has insanity, created definitions of mental illness and and the they limitations of apply the circumstances within which do necessarily questions proportions. raise of constitutional In requiring psychiatric defendant to with evaluations sanity, Legislature on the give issue of intended trial insanity courts discretion to determine an whether defense should be barred on the basis a defendant’s failure References for Points in Headnotes 2d, seq. 21 Am [1-3] Jur Criminal Law 65 et § Validity providing and construction of statutes examination of accused to determine mental condition. 32 ALR2d 434. requirement protect cooperate. purpose is to of the regarding integrity and defense of the evidence parties provide a fair accurate the court with and competency to stand trial defendant’s evaluation responsibility. criminal presents Michigan, insan- evidence of 2. In once a defendant sanity required prove ity, prosecution to the defendant’s the is unique beyond defense The character of the a reasonable doubt. expert. requires a the defendant medical evaluation of cooperation by the full defendant is essential Because testimony process, to preclusion the basis of failure of on a overriding policy cooperate a The is not too harsh sanction. mandatory provide for a reasonable the considerations basis bar. vague. unconstitutionally provides It fair 3. The statute is not non-cooperation by voluntary bar defendant will notice that a present insanity. insanity attempt to of That the an evidence might non-cooperation acknowledged the result in is and itself protected by requirement independent that an defendant is the prior hearing trial. the on that be held to does matter Nor provide the and discretion to statute unstructured unlimited impermissible oc- to whether conduct trial court determine Instead, to the on the trial court is make determination curred. testimony report the and basis of the examiner’s written statutory is to the The scheme intended court’s observations. public, only protect not the but also the and benefit to benefit by providing of his for a full and determination defendant fair responsibility. criminal Affirmed. Levin, joined Kavanagh, dissenting, by Justice stated Justice right of a in a criminal case that the constitutional defendant present may

to on a defense not be conditioned the surrender right against of his constitutional self-incrimination. right to A has to remain silent and defendant a fundamental present Generally, a it is a witnesses to establish defense. criminally responsible that a is not for defense defendant activity sanity insanity. of of a defendant criminal because presumed, present right is to a the the defense includes right presumption. competent to offer evidence to rebut act, presenting any a from Under the defendant barred relating testimony insanity if at he remains silent lifted, mandatory psychiatric if the examination. The bar cooperates preclusion fully. The threat of an absolute speak insanity may of defense induce some defendants be with the forensic examiner. Those who refuse do so will penalized exercising right their constitutional to remain requirement silent. The that a defendant who raises an insan- ity voluntarily cooperate psychiatric defense awith examiner is precludes unconstitutional to the extent it a defendant offering any probative insanity unless he psychiatric submits to court-ordered examination. gives insanity A defendant who notice of an defense be required psychiatric to submit to a examination so that if he expert sanity, people calls an witness on the issue his responsive expert testimony delaying can offer without consequence failing cooperate If trial. with a forensic preclusion expert examiner is limited to the testimony defendant, rights present offered the constitutional necessarily infringed. defense and to remain silent are not op the Court Insanity — — Psychiatric — 1. Criminal Law Defenses Examina- tions. requirement insanity a defendant who raises defense relating in a examination to the claim of insanity presenting or be barred from evidence of at infringe upon trial does the defendant’s defense; (US Const, unconstitutionally nor is vague the sanction VI, 1963, XIV; 1, 13, 17, 20; Ams 768.20a[4]; Const art MCL §§ 28.1043[1][4]). MSA — Insanity. — 2. Criminal Law Defenses right present defense, although a a fundamental element process, right; of due is not an absolute an accused must comply procedure with established of rules and evidence so as reliability guilt to assure fairness and in the ascertainment of innocence; right or nor is there a constitutional to assert a insanity, requirement defense of and the that a defendant who insanity cooperate psychiatric raises an defense examina- relating presenting tions or defense be barred from insanity light of evidence is not too harsh a sanction in of overriding policy protecting integrity considerations of insanity providing parties the evidence of and the court with a compe- fair and accurate evaluation of the defendant’s tency (MCL responsibility to stand trial and criminal 768.20a[4]; 28.1043[1][4]). MSA

Dissenting Opinion Levin, J. Insanity — — Psychiatric — 3. Criminal Law Defenses Examina- tions. A defendant has fundamental witnesses to Mich 271 Court upon conditioned defense not be establish a which self-incrimination; right against of the constitutional surrender thus, insanity requirement who an raises voluntarily cooperate psychiatric examiner or be with a defense insanity presenting is unconstitutional evidence of barred offering any precludes it defendant from extent probative he to a court- unless submits (US Const, VI, XIV; psychiatric Ams examination ordered 1, 768.20a[4]; 28.1043[1][4]). MCL MSA Const art §§ General, Louis J. Kelley, Attorney Frank J. Hunter, III, R. Caruso, Fred General, Solicitor Malinowski, J. and Leonard Prosecuting Attorney, General, the plaintiff. Attorney Assistant Bell, Spe- Fred E. (by Defender Appellate State Bretz, Defender, and Ronald J. As- Assistant cial Defender) for the defendant. sistant Cavanagh, J.

I Larry jury Defendant was convicted 28.548, 750.316; murder, MCL MSA first-degree killing for the imprisonment and sentenced life wife, the basis Kelly. common-law Bobbie On of his during ex- of his failure to aminations, granted the prosecutor’s the trial court relating pretrial motion bar evidence insanity defense. trial,

At the time of 28.1043(1)(4) stated: fully cooperate "The in his examina- defendant shall personnel psychiatry center for forensic by

tion and fense and failure the independent for the by any other examiners de- cooperate, and prosecution. If he fails to of the court at a is established to the satisfaction trial, hearing prior to shall be barred defendant Opinion op the Court presenting testimony relating to his at trial the case.”1 granted following We leave2 determine the (1) application preclusion issues: provision whether of the 28.1043(1)(4) 768.20a(4); MCL MSA unconstitutionally infringed on defendant’s (2) defense, whether unconstitutionally vague. questions. answer no to both We

II troopers 12, 1978, On November two state were They called to the defendant’s trailer home. were Kelly’s brother, met outside formed the Bobbie who in- troopers lay that his sister dead inside. troopers inside, the Once dent’s of the encountered the dece- parents According and the defendant. to one troopers, relatively defendant seemed calm. speech always However, defendant’s was not un- occasionally spoke derstandable, and he he what "spirits” referred to as room.” When one of the who "not were

troopers asked defendant happened allegedly Bobbie, what defendant re- sponded, Thursday.” it, "I I did think it was on policeman gave defendant his Miranda warn- ings, During and arrested him. ride police post, troopers state defendant instructed the to tell the media that he killed Bobbie. upon stipulation,

Prior to trial and was ordered committed to the Center Forensic Psychiatry compe- to determine whether he was tent to stand trial extent of his criminal responsibility possibility due to the of mental ill- alleged ness at the time offense._ As 1983 PA amended 1. The amendment § made certain changes change minor which do not the result reached here. 418 Mich 894 the Court Dr. staff psychologist Center met with

Defendant testi- Dr. Stock 1979. February on Stock Harley hearing that competency pretrial the initial fied at the exam- cooperate during failed the defendant fill out defendant refused For example, ination. refused and questionnaire, history the forensic How- notification form. consent sign the informed releasing past form his ever, sign a defendant did they he was informed medical records after Defen- defense. insanity for his be needed would jail informing signed also a document dant to Dr. response In physical complaints. his about his related initial defendant questioning, Stock’s However, "got defendant psychiatric history. past his when about up” and "clammed asked sick” leading alleged crime. Defendant up actions in the treat- emergency to lie down allowed was interview until he calmed down. The ment room resumed, of his gave and account defendant his Dr. Stock con- on Bobbie died. day actions as much only providing was cluded defendant thought in his best as was information defendant interests. sec-

Defendant similar behavior at a exhibited 22, 1979. Ac- February ond examination held on Dr. formal cording testimony Stock’s and his interact report, completely refused to Dr. Stock with at that time. Defendant would give any socio-cultural refused history, undergo psychological testing. prosecution later moved testi any to bar possible defendant’s on

mony regarding prior basis his failure to at 28.1043(1)(4). examinations. MCL The trial court at ordered one final examination the Center.

Dr. Stock received the aid of a second staff psychologist at defendant’s third examination. Opinion of the Court However, discus- meaningful all efforts initiate fruitless. Dr. Stock concluded that proved sion volitional, wholly behavior was defendant’s competent to stand This that defendant was trial. on partly ability was based defendant’s conclusion legal ap- forms that to differentiate between interests, to be in his best and those that peared However, unwilling Dr. Stock initially did not. was regarding a formal conclusion defendant’s to make offense, at of responsibility criminal the time the the exam- complete since he was unable clinical conclusion, pressed ination. When for a Dr. Stock recommended that the defendant be adjudicated However, criminally responsible for his actions.3 at pretrial hearing the final held competency May on 1979, 29, Dr. Stock testified that he did not have like, all the information that he would and that opinion might his have been altered on the basis of further information. trial

The court found defendant competent granted stand trial. It prosecution’s also mo- tion, and barred defendant from offering evidence of insanity at trial.

Although defendant was not allowed to offer trial, he at insanity, testified and the trial court felt that the issue had been implicitly raised through the defendant’s mannerisms and at actions trial. Accordingly, in- jury was 3"Based on through the information available to this clinician data, clinical there is the the interviews and collateral this clinician not feel does enough convincing opinion clear and evidence to offer an that mentally legally day defendant was either ill or insane on the alleged is, cooperate enough crime. That the defendant refused to multiple clinical examinations so that this clinician have an would adequate opinion base of supporting information in order to form an exculpability. Therefore, above, opinion based on the it is the of this defendant, certified forensic Larry Hayes, examiner that was mentally legally neither day ill alleged nor insane on the of the crime and it adjudicated criminally responsible recommended that he be 2, for his actions.” Responsibility, May Forensic on Criminal 1979. 421 Mich Opinion of the Court legal sanity between on distinction structed jury also instructed was mental illness. possible they verdicts: four could return that mentally guilty by guilty guilty, ill,4 reason not but insanity, guilty. and not guilty jury verdict, defen- returned a imprisonment. The to life was sentenced dant Court unpublished Appeals in an conviction affirmed opinion. People Hayes, per curiam 47321). (Docket April 13, 1981 No. decided Ill argues preclusion sanction Defendant 768.20a(4); MSA in MCL vio- found right process due his Sixth Amendment lates present Const, VI, XIV; Const a defense. US Ams question 1963, 1, §§ 17, There is art 20. no consti- defendant has a state and federal criminal tutional Although defense. 1, § defendant, Const art asserted provides: right any "A suitor in of this state has the to court suit, proper in own prosecute or defend his either his person attorney.” or an witnesses, right testimony to and "The offer the to attendance, plain if in terms compel necessary, their is defense, present right present right to to prosecu- version the facts as well as the may defendant’s jury the truth so it decide where lies. tion’s prose- right to an accused has the confront Just as purpose challenging their for the cution’s witnesses 4 application propriety only of the court’s address here the trial We 28.1043(1)(4). 768.20a(4); currently We that we are MSA note of MCL addressing guilty mentally constitutionality ill of the but verdict. (1979), 468; gtd App

People Ramsey, Iv 414 89 280 NW2d 565 v Mich (1982). Mich 864 People v op the Court right present testimony, he has the his own wit- fundamen- right to establish a defense. This nesses Washington Texas, tal element of due process of law.” 14, 19; 1920; US 87 S L Ct 18 Ed 2d (Emphasis supplied.) attempts that other We note to address the constitutionality preclusion sanctions, of similar specifically involving statutes, those alibi notice review, direct have evaded and have been decided grounds. on nonconstitutional See v Mer- (1976), ritt, 67, 71, 76; 238 NW2d 31 cases cited therein.

Although right present a defense is a process, fundamental element of due it is not an right. comply absolute The accused must still with procedure "established rules of and evidence de signed reliability to assure both fairness in the guilt ascertainment of and innocence.” Chambers Mississippi, 410 US 93 S L 1038; Ct (1973). Although Ed 2d 297 right Chambers involved the behalf, witness on one’s we own above-quoted equally believe that the limitation is applicable Furthermore, the instant statute. although

specifically concerned with the determinations of competency responsibil trial stand and criminal ity, clearly designed it is a statute to assure both reliability fairness and in the ultimate verdict. persuaded argument We are also there is no constitutional assert insan- ity Texas, defense. See Powell v US (1968) (Marshall, 20 L 2d Ed J.: "Nothing could be less fruitful than this Court impelled defining to be into some sort terms”); Note, test constitutional see also compelled psychiatric Fifth Amendment and ex- Implications Smith, aminations: of Estelle v 50 Mich op the Court Legislature has 275, The L R Wash Geo illness, MCL of mental definitions created 330.1400a; 14.800(400a), insanity, MCL MSA 28.1044(1). 768.21a; Since these definitions MSA Legislature’s by statute, limita- the were created tions of they apply the which circumstances within questions necessarily raise constitutional do not proportions. 28.1043(1)(4), 768.20a(4); MSA In MCL give clearly Legislature’s intent to discre- it the is court determine whether to trial to tion barred on the basis of a failure should be defense cooperate. to initially urges adopt a flat

Defendant us against preclusion proscription in- of evidence of (CA sanity. Davis, 639 See States F2d 239 United 1981). prevented Davis, court two In trial testifying their defense witnesses from because provided to the were not on the list names prosecution pursuant witness pretrial discovery order. Davis held the Sixth Amendment court prevented the exclusion of the two witnesses’ testi- mony discovery solely as a sanction to enforce supra, p Davis, or 243. rules orders. proscription inappropri a flat

We believe that is ate here. MCL is pretrial discovery comparable order Da "discovery orders vis. Davis court noted designed surprise, prevent protect the not to are integrity sought presented.” the evidence be Although purpose requiring in notice of Id. prevent insanity to assert tent the defense of is surprise, People App Giuchici, (1982), involved here NW2d clearly designed statute protect integrity

to also coop regarding defense. Full required. parties Only then will both eration evaluation and the court have a fair and accurate 281 v Opinion op the Court competency to stand trial and of the defendant’s responsibility. criminal acknowledged the Davis court that an

Even overriding pre- policy justify consideration could a overriding that clusion sanction. We believe policy consideration exists here. People Martin,

In 192 (1971), (1972), cert den 408 NW2d US 929 pleads guilty by a we held that defendant who not reason of must submit himself to an by people’s experts examination the trial court. as ordered

Similarly, we find here that an overriding policy consideration exists which forms mandatory a reasonable basis for the statute’s In bar. Michigan, presents once the defendant prosecution insanity, required prove is sanity beyond defendant’s a reasonable doubt. Peo- ple Murphy, Mich 331 NW2d 152 particularly This burden is difficult to meet in the insanity unique Indeed, context of an defense. we have noted that the of the characteristics insan- require ity defense the defendant be evalu- probed expert. Martin, ated and a medical supra, p cooperation 427. Since the defendant’s process, preclusion essential to the of testi- mony on the basis of failure to is not proscription too harsh a sanction. The flat advanced supra, inappropriate Davis, in is therefore here. requests adopt alternatively The defendant us to balancing approach noted in similar one 1984). (CA Goldsmith, Fendler v F2d comply There, the accused failed to with state discovery required him criminal rule which provide prosecution with addresses of certain applied witnesses. The trial court the rule’s sanc- prevented testify- tion, and those witnesses ing. argued Fendler that the sanction violated his Sixth Amendment a defense. Rele- 421 Mich Opinion of the Court es- balancing approach vant factors under Fendler of less poused include effectiveness sanctions, of the importance precluded severe the amount of testimony, prejudice witness’ prosecution, forced on the and whether surprise Fendler, supra, p wilful. 1187. the violation was Fendler’s balancing are persuaded We First, approach appropriate here. mandates preclusion if non-cooperation is established to the trial court’s Second, even the Fendler court recog- satisfaction. that preclusion appropriate nized sanctions were the of integrity when the evidence was threatened: preclusion "In those cases testimony by where permitted, defense is it usually witnesses because the integrity of the evidence involved has been threatened. involving In seques- cases defense violations of witness orders, example, may preclude tration for courts the testifying testimony witnesses involved from if their See, was sequestration. e.g., tainted the lack of States, Holder v United 150 US 37 L Ed (CA (1893); Wainwright, Braswell v 463 F2d 1148 1972). rules, hand, Discovery on the other have no probative effect on the value of otherwise admissible noted, evidence. 'discovery As the Fifth Circuit has designed prevent orders are surprise, protect not to integrity sought presented.’ the evidence to be Davis, 639 F2d at 243.” 728 F2d 1186. As compliance noted previously, with MCL 28.1043(1)(4) 768.20a(4); MSA is essential of the integrity evidence of insanity. defen- dant is required to fully cooperate so that examining psychologist can accurately determine the defendant’s competency to stand trial criminal responsibility at the time of the offense. Here, Hayes’ lack of cooperation prevented a defin- itive conclusion regarding his responsibil- criminal Opinion op the Court integrity ity.5 When, here, of the evidence of as preclusion threatened, sanction is warranted. that MCL therefore hold We infringe unconstitutionally does present a defense. We

on a defendant’s approaches reject Fendler, taken Davis and preclu- in the context. The as unworkable appropriate statute is an sion sanction protecting integrity, accuracy, means credibility insanity.

of evidence of IV argues the statute is un- Defendant also vague. appropriate constitutionally test to be applied in Woll v to this issue was enunciated Attorney General, 297 NW2d (1980): challenged vagueness on the

"A be statute grounds that it overbroad, impinging First Amendment free- "—is on

doms, or pro- provide fair notice of the conduct "—does not scribed, or it unstructured "—is so indefinite that confers to determine on the trier of fact unlimited discretion whether an offense has been committed.” 16, 20, Howell, fn 238 396 Mich See NW2d (1976), citing Grayned City of Rock-

148 ford, 104, 108-109; 2294; 33 L Ed 408 US (1972). 222 2d does not assert his

Since the defendant rights violated, the first First Amendment were inapplicable. ground in Woll is 5 3. See footnote Mich op the Court 768.20a(4);

We do read MCL MSA 28.1043(1)(4) vacuum, in a but look to the entire text of the statute to determine requi whether York, exists. See Winters v New certainty site 507, 518; (1947); L US S Ct Ed 840 Co, Campbell, Joslin v Wyant & Cannon Foundry (1960). 420, 426; 359 Mich 102 NW2d 584 When possible, ever courts should construe statutes such a manner as to render them constitutional. Bohn Lumber Products Co v Michigan Public Ser Comm, vice 26 NW2d 875 below, For the reasons set forth we hold 28.1043(1)(4) 768.20a(4); that MCL MSA is not unconstitutionally vague.

A provides The statute fair notice of the conduct proscribed. We find that gives statute a person of ordinary intelligence "a reasonable opportunity prohibited, know what so that he may act accordingly.” Grayned, supra. Here, the "conduct proscribed” is conduct interferes with the appointed psychologist’s ability to perform a statu torily mandated duty. MCL 768.20a(6); MSA 28.1043(1)(6) requires the psychologist to render a professional opinion regarding a sanity defendant’s at the time alleged offense was committed. quite clearly informs the defendant that non-cooperation will bar the defendant’s attempt evidence of insanity.

By choosing to assert defense, this a defendant elects to undergo the requisite exami- nation. The necessity of full cooperation logically follows from such election, it is not at all unreasonable to charge a defendant with notice of such a requirement. Hayes op the Court apparent

It is from the record before us that proscribed Hayes had fair notice of the conduct. Hayes coop- Dr. that the failure to Stock informed of an erate would bar evidence defense. Hayes The trial court admonished on each occa- sending him back for further sion before evalua- Although the defendant tion. stated that he was cooperating ability, to the extent of his the trial non-cooper- court had "no doubt” that defendant’s ation was voluntary. agree Appeals the Court of

We with that one of the relevant circumstances is whether a defen- non-cooperation is in dant’s illness.6 We can think of certain situations where the failure to insanity fact caused mental

cooperate truly will be a result of situations, or mental illness. In those our reasoning that the decision to assert the defense is understanding cooperation made with the required protects does not follow. The statute de- by requiring situations, fendants in those an inde- pendent hearing solely to determine whether the cooperated. fully However, such the situation before us. This record demonstrates Hayes’ non-cooperation was selective vol- untary. circumstances,

Under these we find that proscribed. had fair notice of the conduct In this case, such conduct included defendant’s refusal to Appeals opinion The Court of stated: 'cooperate’ "The term " has been defined as follows: operate 'to act or work with another or others to a common end: jointly together: produce jointly ... to act . . . .’ effect Webster’s 1970). Dictionary, p (Unabridged, Third New International judgment, 'cooperate’ clearly "In our the term has a understood meaning. nothing vague requirement There is about that a fully cooperate request conducting Defendant psychiatric with the it is the function of the of those statute, evaluation. Under the cooperated trial court to determine whether the Defendant has within particular the circumstances of a case. that one of We note capability partici- relevant circumstances is a Defendant’s mental pate process.” in the examination Mich Opinion of the Court testing, psychological submit questions regarding and to answer prior his mental state to his note, however, wife’s death. We that the statute requires non-cooperation to be established to to hearing prior the trial court’s satisfaction at a specific prohibited Therefore, trial. what conduct is case-by-case must be determined on a basis.

B give We further find that the statute does the trier of fact unstructured and unlimited discre impermissible tion to determine whether conduct supra. Woll, occurred. Legislature The mere fact that up left this determination to the trial necessarily court does not mean that the statute is unconstitutionally vague. Considering the statute meaning whole, as a we think its is clear. The requires cooperation necessary statute the full psychologist proper allow the to conduct a evalua opinion regarding tion and reach an either defen insanity, dant’s illness, mental or mental retarda 28.1043(1)(6). tion. MCL argues virtually Defendant that there is no act compliance beyond being that is attack for less fully cooperative. Furthermore, than points perceived

to a lack of minimal standards or guidelines govern law enforcement. See Kolen- Lawson, der v US 75 L Ed 2d applied vagueness In Kolender, the Court required per- doctrine to a criminal statute that provide sons who loiter on the streets to "credible and reliable” identification.7 The Court held that 7 "Although the doctrine focuses both on actual notice to citizens arbitrary enforcement, recognized recently we have important aspect vagueness notice, more the other doctrine 'is not actual but principal requirement element of the doctrine —the that a Court vague because unconstitutionally the statute was failing to enforcement encouraged arbitrary it must do to suspect describe what sufficiently the statute. satisfy

Kolender from the distinguishable Amendment nor the the First Neither case.8 Further involved here. of movement to freedom do more, law enforcement dangers arbitrary here, only the statute into since play not come charged has been with after an accused operates appellant cases the statutes Unlike crime. 28.1043(1)(4) has noth cites, 768.20a(4); MSA official’s decision with a law enforcement ing to do a crime. charge person with encourages the statute Defendant asserts sanction preclusion the arbitrary enforcement of guidelines govern legislature law enforcement.’ minimal to establish 1242; 556, 574; Goguen, L 2d 605 39 Ed 415 US 94 S Smith [v guide- (1974)]. lines, legislature provide such minimal the fails to Where sweep permit may [that] 'a standardless a criminal statute pursue personal prosecutors, juries policemen, their and to allows predilections.’ Id., Ct, 575; at 94 S at 1248. 647(e), presently the state drafted and construed "Section as courts, determining suspect has to what a contains no standard for requirement provide satisfy a 'credible and in the do order complete such, virtually vests reliable’ identiñcation. As the statute suspect police whether the in the hands of the to determine discretion go way permitted on his has the statute and must be satisBed individual, police probable whom to arrest. An the absence of cause probable has suspicious cause to believe think but do not have crime, public streets to continue to walk committed a is entitled stop happens any police 'only who at the whim of officer’ 647(e). Birmingham, City 382 Shuttlesworth v individual under § 211, 87, 90; 213; here Our concern 86 S a 15 L Ed 2d 176 US 'potential arbitrarily suppressing upon First Amend- is based ment liberties . . . .’ implicates 647(e) addition, Id., 91, Ct, § 86 S at 213. In at to freedom of the constitutional consideration 1113, 1118; Dulles, 2 S Ct 78 movement. See Kent v 357 US 500, State, (1958); Aptheker Secretary US 461 US 357- 505- L Ed 2d 1204 506; (1964).” 1659, 1663-1664; 84 Ct 12 L Ed 2d S (Emphasis supplied.) 358. 88, Alabama, 97-98; distinguish 310 US likewise Thornhill v We (1940), City 736; Papachristou Jackson- 84 L Ed 1093 and S Ct ville, (1972), on similar 2d 110 31 L Ed US grounds. 421 Mich 271 Opinion op the Court on the basis of the individual whims of the psy- chologist However, and trial judge. we do not agree that gives statute unstructured unlimited discretion to determine the existence of non-cooperation. Instead, the statute allows trial court to make such a determination on the basis of the psychologist’s written report and testi- mony, as well as the court’s personal observations. The psychologist required to submit a detailed analysis, substantiate any conclusions that Here, failed to cooperate. Dr. both Stock and the trial judge great went lengths to assure themselves the defendant failed to cooperate. The defendant was examined on three separate occasions.

It also should be noted that the Center for Foren- sic Psychiatry is an independent branch of the government. state parties Both have the option of obtaining independent examination. The statute requires full cooperation at these inde- pendent examinations, as well as any occurring at Thus, the Center. the statutory scheme is intended not only protect and benefit public, but also to benefit the defendant by providing for a full and fair determination of competency to stand trial and of criminal responsibility.

Under statute, the trial court’s discretion is sufficiently structured to avoid the constitutional challenge for vagueness.

V The defendant’s right present constitutional defense was not Furthermore, violated. preclu- sion sanction of 768.20a(4); MCL MSA is not unconstitutionally vague. Defendant’s con- viction is affirmed.

Williams, C.J., Ryan, Brickley, Boyle, and JJ., concurred Cavanagh, with J. Hayes v Dissenting Opinion Levin, J. (dissenting).

Levin, right J. The constitutional de- a criminal case to fense1 not be conditioned on surrender may right against self-incrimination.2 his constitutional holds that a defendant be majority precluded presenting any relating evidence if the he sanity the issue of trial court finds that cooperated has not in a examina- fully by personnel tion conducted of the Center Psychiatry.3 impermissible Forensic effect of to impose this decision is a trade-off of fundamen- rights; tal constitutional a defendant required right if relinquish speak to decline to he wishes to exercise the respond with com- petent probative an element charged offense.

I Defendant Larry Hayes charged was with first- degree murder.4 He filed notice of his intent offer an insanity defense. The circuit ordered judge him to the committed Center for Psychia Forensic to determine try his to stand trial and competency the extent of his criminal because of responsibility of mental possibility illness at the time of the offense. The forensic pretrial examiner testified at competency hearings that Hayes cooper refused to that, therefore, ate and there was insufficient evi dence to support a finding that was men ill tally or legally insane at the time of the offense. 1963, 1, 13, 20; Const, VI, Const applicable art §§ US Am Texas, Washington Amendment; states under the Fourteenth 14; (1967). 1920; US 18 L Ed 2d 1019 Const, V, applicable Const art US Am § to the states Amendment; Malloy Hogan, under the Fourteenth 378 US 84 S Ct 12 L Ed 2d 653 28.1043(1)(4). 3 MCL 750.316; MSA 28.548. Mich Dissenting Opinion by Levin, J. seeking prosecutor filed a motion bar presenting testimony relating .5 alleged insanity judge granted his motion6 The circuit Hayes "present and was not allowed to [his] version of the facts”7 on the issue of his people, sanity. lay Several witnesses for the how concerning testimony Hayes’ ever, offered behavior probative and statements that would be of his sanity insanity or at the time of the offense. The jury guilty returned a verdict of and the Court of Appeals affirmed. provided: At the time trial the statute fully cooperate by person- "The defendant shall in his examination psychiatry by any indepen- nel of the center for forensic and other prosecution. cooper dent examiners for the defense and If he fails to ate, and that failure is established to the satisfaction of the court at a trial, hearing prior testimony relating presenting the defendant shall be barred from insanity to his at the trial of the case.” MCL 28.1043(1)(4). 768.20a(4);MSA by provide: The statute was amended 1983 PA 42 to fully by "The defendant shall in his or her examination personnel psychiatry qualified of the center for forensic or other

personnel, by any independent other examiners for the defense prosecution. cooperate, If he or she fails to and that failure is trial, hearing prior established to the satisfaction of the court at a presenting relating testimony the defendant shall be barred from insanity (Changes emphasized.) his or her at the trial of the case.” prohibited "offering any The order the defendant from evidence as insanity any to the defense of trial held in this matter.” The order, defendant testified at trial. Consistent with the he offered no testimony concerning sanity because the circuit Nevertheless, insanity. jury his or insanity judge was instructed on had been raised felt that the issue implicitly by the defendant’s mannerisms and actions at trial. jury insanity negate instruction on did not the defendant’s Psychiatric claim that his a defense had been denied. diagnoses only mannerisms, expres- based on the observation of facial sions, speech patterns, may and the like differ from those based on Smith, the verbal content of communications. See Estelle v 451 US 454, 464, 8; (1981). professional fn 101 S Ct 68 L Ed 2d 359 If diagnoses may factors, vary depending jury’s on such so too finding dard. sanity on the defendant’s under the reasonable doubt stan- 7 Washington Texas, 388 US 18 L Ed 2d 1019 Dissenting Opinion Levin, J.

II that a defendant who indi- provides The statute an intention to assert an defense is cates to submit to a examination required of the Center for Forensic personnel Psychiatry.8 provides further that the defendant The statute from may presenting testimony relating be barred cooperate to his if he fails to in insanity fully examination.9

A right The fundamental protects to remain silent an person against accused compul "testimonial sion” and "enforced communication.”10 In Estelle v Smith, 1866; 451 US 101 S Ct L68 Ed 2d 359 (1981), Supreme the United States Court held that Fifth Amendment bars the state from using at 11 a sentencing hearing the of a testimony psychia trist who conducted a court-ordered pretrial exam ination when the defendant was not informed of his right to remain silent.12 The Court rejected the - argument that in form a the examination and the tion received during the examination were not (cid:127) Id., testimonial. pp 463-465.

A defendant also has a right fundamental 8 28.1043(1)(2). 768.20a(2); MCL MSA 28.1043(1)(4). See fn 5. California, Schmerber v 384 US 16 L Ed (1966). 2d 908 testimony was used to establish the defendant’s "future dangerousness,” proof required of which was under the Texas statute predicate imposition as a penalty. of the death case, In the instant there is no indication in the record that right defendant was informed of his to remain silent before the appears, rather, examination. It the defendant was in formed that preclude failure to raising would him from insanity defense. 421 Mich Dissenting Opinion Levin, J. present a defense.13 It witnesses to establish generally the defendant is not a defense criminally responsible for his actions because of presumed;14 insanity. sanity of a defendant right a defense includes the competent presump- to rebut offer tion.15Such evidence need not be in the form of expert of might

testimony; presentation it include lay testimony16 medical records or dant’s own or the defen- testimony. This Court has held that give while a defendant who failed to notice of an might precluded offering alibi defense be from testimony persons support of other of such a precluded defense, he not himself be giving testimony. People Merritt, alibi 67; 238 NW2d 31 presenting

The statute bars the defendant from any testimony relating if he remains mandatory psychiatric silent at the examination. cooper- lifted, however, The bar is ates the if the defendant fully. preclusion The threat of an absolute insanity may defense induce some defendants to discuss the details of the offense with the foren- sic examiner.17 Those who refuse to do so will be 13 Texas, Washington 14, 19; 1920; v 388 US 87 Ct 18 S L Ed 2d (1967). 1019 14People 453, (1982). Murphy, 463; v 416 Mich 331 NW2d 152 15 introduced, insanity prosecution Once evidence of bears the establishing sanity beyond burden of People defendant’s a reasonable doubt. 453, (1982). Murphy, 463-464; v 331 NW2d 152 The Court declares particularly that since this burden is difficult in the insanity context of the is essential too cooperation defense and since the defendant’s psychiatric evaluation, preclusion testimony "is not Ante, p prosecution’s harsh a sanction.” 281. The need for cannot, however, justify outright evidence tal denial of a fundamen right. Further, necessity constitutional the rationale based on the cooperation of the applies only defendant’s for reliable evaluation expert psychiat where the defendant seeks to introduce testimony prosecution ric testimony. responsive expert and the seeks to offer part See B. Commonwealth, 753, 763-766; See Blaisdell v 372 Mass 364 NE2d (1977). Lefelt, See Compelled cooperation Pretrial mental examinations: v by Dissenting Opinion Levin, J. exercising right their constitutional penalized18 to remain silent. people proving bear the burden of beyond charged doubt element of the every

reasonable people charging offense.19 the defen- dant committed criminal offense assert implicitly that he was sane at the time it was committed. preclude The state may exercising his constitutional right to offer evidence on the of sanity/insanity issue because he refused to submit to an examination psychiatrist the state. employed by

B Expert testimony offered on behalf of a defen- dant probative of his subject to cross- examination and impeachment. Accordingly, a de- fendant gives who notice of an insanity defense required be to submit to a psychiatric exami- if expert witness, he calls an nation so people can offer responsive expert with- testimony out delaying the trial to interview the defendant. If, however, decides, the defendant after submit- Amendment, (1972). and the Fifth 10 Am L Crim R The inducement cannot be excused on the basis that statements made to the examiner are admissible under MCL 28.1043(1)(5) only sanity insanity. Any to show or use of an involun- tary confession in a criminal trial is violative of the Due Process Clause, Arizona, Mincey 385, 398; 2408; v 437 US 98 S Ct 57 L Ed 2d (1978), error, and cannot constitute harmless v Malinski New York, 401, 404; 781; 324 US 65 S Ct 89 L Ed 2d 1029 18 Malloy Hogan, 1, 8; See 378 US 84 S Ct 12 L Ed 2d 653 17 L Ed 2d 574 (1964); (1967). Klein, Spevack 385 US right The denial of a constitutional as the —such present a penalty. compe defense —itself constitutes a Preclusion of insanity, moreover, tent evidence of effectively possibil eliminates ity responding presumption sanity and thus increases the imprisonment likelihood of mental regardless conviction and of the actual culpability Note, of the defendant. See preclusion sanc tion—A defense, violation of the constitutional a 81 (1972). 1342, Yale L J 1361 19 Winship, 358; (1970). In re 397 US 25 L Ed 2d 368 271 421 Mich 294 by Dissenting Levin, J. employed by psychiatrist

ting an examination expert by witness, state, to call an testimony people may psychiatrist state of the not offer the pretrial psy- for the the reason since facilitating no the trial —is chiatric examination — operative.20 longer supra, Smith, United States

In Estelle v holding Supreme Fifth Court, while against protects use of statements Amendment made indicated that compelled during psychiatric examination, may required "sanity examinations” permissible intro- the defendant seeks to be where "supporting psychiatric testimony.”21 his duce Both the Federal Rules own

of Criminal Procedure22 adopted recently American Bar Associa- and the provide that tion Standards for Criminal Justice23 failure during psychi- cooperate a court-ordered permits to exclude atric examination the court expert by testimony by the defen- witnesses offered expressly provide that dant. The ABA standards 20 1981) (submission (CA Estelle, 692, 5, See Battie v 655 F2d 702 of Fifth Amend examination does not constitute waiver privilege testimony of a ment unless defendant introduces mental Brown, 350, 365; expert); People 693 health NW2d (1976) (Levin, J., dissenting). introduces a defendant asserts the defense and "When supporting psychiatric may deprive testimony, his silence the State controverting proof.. only .” it has of his . Estelle effective means Smith, 68 L Ed 2d 359 US S Ct 12(d). FR Crim P adequate of defen "If the court determines that an evaluation alleged dant’s mental condition at the time of the precluded health or mental retardation not a result of defendant’s mental illness or mental court, testimony offered time of the at the time of the otherwise crime has been with the mental because defendant has refused professional, the refusal was and that retardation, discretion, may in its exclude the introduction at trial of by professional a mental health or mental retardation concerning defendant defendant’s mental condition at the alleged proof crime. of defendant’s mental condition Other and, alleged if crime be offered competent, such evidence should be admissible.” 1980) 7-3.4(c) (2d ed, (adopted ABA August Justice Standards Criminal 1984). Dissenting Opinion by Levin, J. proof the court should not exclude other of the defendant’s mental condition.24 consequence failing

If the of with a preclusion forensic examiner is limited to the of expert testimony defense, offered the consti- rights tutional a defense and remain necessarily infringed.25 silent are not A defendant might during compelled choose to remain silent psychiatric yet permitted examination and be competent expert evidence, offer mony, probative other than testi- insanity.

Ill is unconstitu- precludes tional to the extent it a defendant offering any probative evidence unless he submits to a court-ordered examination. present-

Because the defendant was barred from ing any probative insanity, his convic- tion should be reversed and the cause should be remanded for a new trial. J., concurred with

Kavanagh, Levin, 24 Id expressed preclusion expert 25 Theview has been even the testimony cooperate examinations: improper offered the defense is an sanction for failure to court-appointed psychiatrist. Lefelt, with a Pretrial mental Compelled cooperation Amendment, and the Fifth (1972); Note, Requiring Am Crim L R 431 a criminal defendant to government psychiatric submit to a examination: An invasion of the privilege against self-incrimination, 83 Harv L R 648

Case Details

Case Name: People v. Hayes

Court Name: Michigan Supreme Court

Date Published: Feb 1, 1985

Citation: 364 N.W.2d 635

Docket Number: 67551, (Calendar No. 1)

Court Abbreviation: Mich.