PEOPLE v PATE
Docket No. 52116
Michigan Court of Appeals
Submitted April 7, 1981. Decided August 19, 1981.
108 Mich App 802
The prosecutor‘s questions, while improper, constituted only harmless error. One of the witnesses ultimately testified for the prosecution, and the questions regarding the other witness were withdrawn, and the jury was given a curative instruction. The objectionable questions were few in number, and no further comment was made by the prosecutor during his closing or rebuttal arguments.
Affirmed.
Cynar, P.J., concurred. He would note that under the circumstances of the case the trial court, in its discretion, could have allowed the prosecutor to cross-examine the defendant relative to his failure to call an indorsed, insanity defense witness. He also would affirm.
OPINION OF THE COURT
- CRIMINAL LAW — NOTICE OF ALIBI OR INSANITY DEFENSE — STATUTES.
A defendant who fails to give notice of his intention to call a witness in support of his defense of alibi or insanity may be precluded from calling the witness (
MCL 768.21 ;MSA 28.1044 ). - CRIMINAL LAW — WITNESSES — ALIBI DEFENSE — INSANITY DEFENSE — PROSECUTORIAL COMMENT.
A prosecutor may question a defendant relative to his filing of a
notice of alibi only after the defendant actually has put forth an alibi defense; but a prosecutor is not permitted to comment upon or to question the defendant relative to his failure to call a witness listed on his notice of intention to assert an insanity defense.
CONCURRENCE BY CYNAR, P.J.
- CRIMINAL LAW — WITNESSES — INSANITY DEFENSE — PROSECUTORIAL COMMENT.
A trial court, in its discretion, may permit a prosecutor to comment upon a defendant‘s failure to call an indorsed, insanity defense witness where warranted by the circumstances of the case.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
W. B. Raymer, P.C., for defendant.
Before: CYNAR, P.J., and BRONSON and D. F. WALSH, JJ.
PER CURIAM. Following a jury trial in the Washtenaw County Circuit Court, defendant was convicted of assault with intent to commit murder and armed robbery contrary to
That defendant committed the offenses for which he was convicted was not seriously at issue during trial. Instead, the real issue for the jury‘s determination was whether defendant was legally responsible at the time of the incident.
Katherine Model, the 62-year-old victim, was awakened on July 22, 1974, at approximately 12:45
Defendant replied that he had come for her money and told her that he was carrying a knife. Defendant then stabbed her two or three times in her left shoulder. The victim subsequently told him that the money was in a vanity drawer. At this point, defendant turned on a light and thus enabled the complainant to identify him. After she told defendant that she knew him, he turned off the light and stabbed her repeatedly. Defendant placed his forefingers in the victim‘s vagina and told her she would be dead before he left the house. He then placed a pillow over her head, and she passed out.
The sole issue raised on appeal is whether the prosecutor deprived defendant of a fair trial by a series of questions implying that defendant was “hiding doctors” who would have testified that he was sane. Defense counsel objected to these questions which concerned Drs. Westerberg and Carron, and the following colloquy ensued outside the presence of the jury:
”The Court: You may proceed.
”Mr. Thompson: Your Honor, briefly stated, the basis of my objection is as follows. Dr. Carron, it is correct, that it is a matter of public record, that Dr. Carron‘s name was listed on a piece of paper that I filed as a possible witness. But one thing Mr. Freedman apparently conveniently forgot is that on no certain terms had Dr. Carron ever spoken to the defendant or did not see the defendant. I think the question is prejudicial, and I ask that the prosecutor be reprimanded for it.
”Mr. Freedman: I asked the question, and all he had to do was say no. Secondly, all I asked him was if he
was aware that Dr. Carron was listed. This is a matter of public record and as the defendant in this case, I am asking him if he‘s aware of the fact that Dr. Carron was listed as one of the possible witnesses that may be called in response. ”The Court: Why would this be material, counsel? He says he doesn‘t remember if he knows Dr. Carron.
”Mr. Freedman: I would say why it‘s important is simply this. As I have stated on the record, when this trial started before the jury was selected, I had been given three pieces of paper with names of doctors who might possibly be called for the insanity defense in this case. It is my belief, your Honor, and I would say this on the record outside the hearing of the jury, that the defendant is shopping around for a doctor. He‘s shopping around for a doctor who is going to testify to what he wants to hear. I think they finally found one, and he should know because he is the defendant that there have been many other doctors that they have listed, that they have listed on the top that these doctors may testify, and I want the jury to know throughout this trial —
”The Court: The court will sympathize with you, but why is it material? Counsel said that Dr. Carron never examined the defendant. Why is it material?
”Mr. Freedman: It‘s material because I think the defense is hiding doctors. The reason Dr. Carron did not examine this individual is Dr. Carron said he would be glad to examine the individual if —
”The Court: That‘s not before the court.
”Mr. Freedman: In the issue of insanity, we have been given information that they may testify and now we are being told they are not going to testify, and I think it‘s very relevant the jury should know this.
”The Court: What does it have to do with his insanity or lack of insanity? We are not testing the sanity of his attorney. We are testing the insanity of him. His counsel can list anybody he wants to. The law requires that he list anybody that he might possibly call. It doesn‘t say who examined him or why is it material in this case as to what his attorney does?
”Mr. Freedman: I would assume that what his attor-
ney does is an extension of the defendant, and I would assume the defendant knows. ”The Court: Do you have any law on that? There is nothing before the court —
”Mr. Freedman: Well, the defense attorney is the legal spokesman for the defendant, and he, the defendant, is not an attorney, so he hires an attorney to do what you feel is best for him, and I have to assume that the defendant knows that these people have been listed.
”The Court: Why do you assume that? I‘m sorry. Maybe I have lost you, Mr. Freedman. Is there some law on this?
”Mr. Freedman: Well, what you are saying is that anything that the defense attorney does that the defendant is not auspicious of —
”The Court: No, the court isn‘t saying that. The court is asking you. I am not saying anything. I am asking you a question, is there any law that says that? Listen, counsel!
”Mr. Freedman: Your Honor, I will withdraw the question.”
When the jury returned to the courtroom, the trial judge gave a curative instruction telling the jury to disregard anything said about a list of witnesses.
A notice of alibi and a notice of insanity are in many ways similar.1 The purposes behind the re-
Despite the similarities between notices of alibi and insanity, there are also significant differences between the natures of these defenses which lead us to conclude that a prosecutor may not permissibly comment upon or question a defendant about his failure to call a witness listed on the notice of insanity. Unlike the situation with an alibi witness, it will often be difficult for a defendant to know whether a particular psychiatrist listed on the notice of insanity will testify on his behalf. An alibi is a defense turning on the presentation of specific verifiable facts. A defendant usually will have no difficulty in ascertaining who can and who cannot corroborate his alibi. The insanity defense
Another difference between the two defenses is that while it is almost always advantageous to call every witness who can testify that defendant was not at the scene of the crime when it was committed, the same is not true of psychiatric witnesses. Where several experts might be prevailed upon to testify for a defendant, differences in the individual mental health professional‘s expertise, experience, approach, and views toward mental illness may make it inadvisable to call all. There may be differences in viewpoint between the psychiatrists which defense counsel may not wish to come before the jury, fearing that these differences might lead the jury to reject the insanity defense because defendant‘s experts cannot agree on the exact nature of the illness, even though agreement exists on the issue of defendant‘s legal insanity. Some experts are more open to attack on the basis of credibility than others. The defense may wish to avoid presenting a witness likely to be discredited in fear that it will jeopardize the whole defense. While there will be concerns about particular alibi witnesses’ credibility, the more subjective nature of the insanity defense intensifies this problem.
To summarize, we do not believe that the defendant‘s failure to call a particular psychiatrist listed on his notice of insanity is relevant to the issue of whether he is really insane. The failure to call a listed witness does not make it less probable that defendant was insane when the crime was committed. See
Despite the foregoing, we are convinced that the error was harmless for a number of reasons. First, Dr. Martha Westerberg actually ultimately did testify for the prosecution.3 Second, the questions concerning Dr. Carron‘s absence were withdrawn, and the jury was specifically told to disregard them. Third, the number of objectionable questions were few. Finally, the prosecutor did not comment in his closing or rebuttal arguments on defendant‘s failure to call the witnesses in question.
Affirmed.
PEOPLE v PATE
Docket No. 52116
Michigan Court of Appeals
CYNAR, P.J. (concurring).
CYNAR, P.J. (concurring). While concurring to affirm, I am compelled to write separately. Far too many words are written on whether the prosecutor deprived defendant of a fair trial by questioning defendant about witnesses that were not called but who had been endorsed concerning the defense of insanity.
During trial, defendant took the stand in his own behalf and on cross-examination was asked if he recalled talking to “Dr. Westberg [sic]“. Defendant did not recall doing so. Defendant was also asked if he knew that “Dr. Westberg” was endorsed as a possible witness on the defense of insanity. Before defendant could answer, defense
This writer observes that a Dr. Westerberg, but not a Dr. Westberg, was endorsed.
Arguments were heard in the absence of the jury, and the court determined that evidence of possible insanity defense witnesses who were endorsed but not called was immaterial. The court instructed the jury to disregard anything said about a list of witnesses.
Had the trial court ruled otherwise, it would not have been an abuse of discretion based on the record before us. The purpose of adversary advocacy at times is defeated when cross-examination as proposed here unrealistically is confined or restricted to so narrow a limitation as to reduce the effectiveness of the truth-seeking process.
Notes
“Whenever a defendant in a criminal case not cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibi on behalf of the defendant, or of the insanity of such defendant either at the time of the alleged offense or at the time of trial, such defendant shall at the time of arraignment or within 10 days thereafter but not less than four days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and the names of witnesses to be called in behalf of such defendant to establish such defense known to him at that time. Names of other witnesses may be filed and served before or during the trial by leave of the court and upon such conditions as the court shall determine.”