*1 Posby 219 PEOPLE v POSBY Rapids. August 6, at Decided 177992. Grand Docket No. Submitted 30, 1997, at 9:00 A.M. December guilty mentally first-degree ill of mur- L. was found but Chester Wilder, jury Court, T. J. Circuit Kurds in the Washtenaw der denying appealed, alleging in defense that the trial court erred He stop taking request his to have the defendant at trial counsel’s days only antipsychotic allow the defendant for three medication jury testify the the so that could observe while unmedicated of stand as he was at the time the shoot- on the witness only disputed ing, issue for the in an state. The unmedicated sanity the at was the defendant’s at time determine trial offense. Appeals Court of held:
The request. denying in The defendant’s convic- The court erred the remanded for a new must be and the matter must be tion reversed trial. present a constitutional defense 1. The defendant’s liberty were to be free from his interest statutoiy right
implicated. to a trial does not out- The state’s constitutionally liberty weigh the based interest. proved of the medication 2. It was not that the administration protecting policy state the the state’s essential would advance finding in that around him. The court erred those presentation on the witness defendant failed to show that approximated his while unmedicated state would have stand in an mental state at the time only request for The to be free from medication three 3. implicate question defend- did not accommodated and during already competency that had been decided the trial ant’s ruled, original response to the defendant’s when the trial court request to be removed from the medication unlimited trial, essen- of the medication advanced the administration dining competency policy maintaining the defendant’s tial state the trial. 227 Mich outweigh prejudice 4. An essential state interest did not allowing testify occurred not the defendant while
unmedicated.
Reversed and remanded. *2 J., dissenting, involuntary stated that the adminis- Jr., Holbrook, tration of the defendant’s medication advanced the essential state policies maintaining competency during protect- of the and trial ing safety the of the defendant and those around him. The defend- ant failed to show that his while demeanor unmedicated would approximated have his demeanor at the time of the The jury was informed of the effects of on the medication the defend- ant, jury’s insanity therefore the the evaluation of defense not rest did on undisclosed behavioral alteration but was the result anof informed consideration of the defendant’s altered continuing behavior. The state’s in essential interest the trial and maintaining safety outweighed the of and the defendant others the insanity presenting through defendant’s interest of evidence the demeanor on witness stand. The conviction should be affirmed. — — Involuntary op 1. Criminal Law Law Constitutional Administration Drugs. Antipsychotic liberty involuntary A defendant has a interest in freedom from the antipsychotic drug, pro- of administration an and that interest is by Amendment; tected Due the Process Clause of the Fourteenth satisfy process pretrial the setting state can due in a trial or involv- ing involuntary antipsychotic drug administration of an where prosecution demonstrates, finds, and the trial court that treat- antipsychotic medically appropriate and, ment with medication is considering alternatives, less intrusive is essential for the defend- safety others; justify ant’s might own or the the state also medically appropriate, involuntary treatment with adjudication establishing that it not could obtain an guilt by using of the defendant’s or innocence less intrusive means. — — 2. Criminal Law — Speedy Involuntary Law Constitutional Trial Drugs. op Antipsychotic Administration liberty A criminal defendant’s interest to free be from the antipsychotic drug protected by administration of an the Due outweighs Process Clause of the Fourteenth Amendment and statutory right (MCL 768.1; 28.1024). state’s to a MSA Kelley, Attorney Frank J. General, Thomas L. Casey, General, Solicitor Brian L. Mackie, Prosecut- King, Assistant Attorney, David A. Senior and
ing Attorney, people. for the Prosecuting Lyle Marshall), N. (by Appellate Defender State Posby, propria persona, for L. and Chester appeal. Jr., and Jan- P.J., Holbrook, Cavanagh, Before: sen, JJ. trial, defendant Following
Jansen, J. murder, mentally first-degree ill of but guilty found 768.36; MSA 28.548, MCL 750.316; MSA MCL imprisonment was sentenced life 28.1059, appeals Defendant possibility parole. without a new trial. and remand for as We reverse right. death John shooting This case concerns *3 Kemink, an Dr. oto- M.D., June 1992. Kemink, was shot nose, doctor), and throat laryngologist (ear, University room at the killed in an examination and undisputed was Clinic. It Michigan Otolaryngology sole and Dr. Kemink. The shot killed that defendant sanity time the at the at trial was defendant’s issue was that Dr. Kemink believed shooting. Defendant per- (Dr. Proctor) to another doctor conspiring with defendant. would kill operation a brain form had previ- Dr. Proctor believed that Defendant also Dr. and that nerve,” his “balance ously damaged him to Dr. betrayed by referring him Kemink had conspiracy this “bring wanted to Proctor. Defendant be harmed. patients no other to so that light” trial agreed who testified at expert witnesses All the and not based were delusional beliefs that defendant’s reality. 227 Mich only disputed The issue for the to determine sanity was defendant’s at the time of the offense. criminally respon- Defendant asserted was that he not legally for sible Dr. Kemink’s death because he was expert insane at the time the Four wit- trial; nesses testified at three testified on defendant’s prosecution’s behalf and one the testified on behalf. Farley, Ph.D., Gail testified on defendant’s behalf. Her diagnosis “paranoid was that from defendant suffered persecutorial disorder,” delusional and she testified capacity recognize that defendant did not have the wrongfulness the of his conduct was and unable to Haynes, conform his conduct the law. Jack Ph.D., testified on defendant’s behalf. He testified that persecutory defendant suffered from delusional disor- capacity der that defendant did not have the fully realistically appreciate wrongfulness the Haynes his conduct. Dr. concluded that defendant require- was unable to conform his conduct to the legally ments of the law and that defendant was Stephen insane when he killed Dr. Kemink. Cook, M.D., also testified on defendant’s behalf. Dr. Cook paranoid concluded that defendant suffered from disorder, delusional that defendant did not have capacity killing substantial to know that Dr. Kemink wrong, capacity and that defendant lacked conform his conduct to the law.
William Decker, M.D., testified on behalf of prosecution. agreed mentally He that defendant was shooting, ill at the time of but stated that defend- capacity appreciate wrongfulness had ant *4 doing of what he was and that defendant had the capacity requirements to conform his conduct to the Dr. of the law. Decker believed that defendant was shooting and that the legally time of at the sane nothing shooting delu- do with defendant’s had that he Dr. Decker stated Rather, sional disorder. out of Dr. Kemink killed believed that betrayal feeling response anger in Dr. Kemink. he had the trust mentally guilty ill of but found defendant The appeal significant first-degree issue murder. The This issue was defendant. raised second issue pretrial initially a motion. as trial court raised in the requested defend- discontinuance counsel Defense perphenazine. William medication, ant’s Sherry M.S.W.,testified at Hansen, Yaroch, M.D., pretrial hearing. he had testified that Dr. Yaroch explained prescribed perphenazine He defendant. person’s normalize tends to that this medication people given thinking have disordered who and is explained thinking. has delu- that defendant He also thinking reduce tends to and the medication sional Although thinking. part medi- of defendant’s it allowed delusions, not eliminate cation does organized generally in his more to become thinking. testified was taken off if defendant
Dr. Yaroch he matter of before medication, it would be a disorganized. Dr. Yar- become delusional would competent to not be defendant would stated that och to assist in his not be able and would stand trial properly off his medication. if he was taken defense say man- what sort of for certain Dr. Yaroch could not removed if defendant would occur ifestations that his illness medication, but stated from his ability would lessen. function and his worsen thinking delusional more would become Defendant’s *5 224 227 Mich op Opinion the Court probably he and less rational and would not be able competent throughout remain if he trial was taken agreed Dr. off his medication. Yaxoch that a mild effect, has sedative but that it necessary large was not for defendant to consume quantities taking of while water it.
Sherry Hansen, defendant’s chief clinician at the Psychiatry Center for Forensic where defendant was being held, stated that she had been defendant’s chief only becoming clinician for week. one Before defend- clinician, ant’s chief Hansen did have contact with quite long period length a defendant “for time.” of The time was not stated. had not Hansen observed sleepy, defendant to be appeared and she that stated during day to be alert active the evening hours. Hansen did state that defendant com- plained “tranquilized,” being to her he was that that sleepy he felt 2:00 in afternoon, until the and that he needed to have a clear mind to defend himself in court. pretrial
The trial court denied defendant’s motion to be removed from medication and following findings: made the overriding Court finds that there is an State interest [T]he maintaining competency of the Defendant in this case any outweighs might that he have to be absent pendency of this trial. that, previously, The Court note would this trial was September scheduled at time which the issue of competency the Defendant’s beginning arose after the ultimately adjourned. trial and the trial given testimony The Court believes that of Doctor Yaroch, especially testimony that, Yaroch —or Mr. in his view, the would Defendant not be able to maintain his com- petency throughout trial, to stand trial if this he were to be People Opinion the Court likely grant- medication, result of that the from removed to, again, start be ing motion would the defense adjournment mid-trial. of the trial in an and result Defendant, certainly right, a as does have The grant the motion this mater and trial on Therefore, right. the motion restrict be to denied. appeal, that he not contend defendant does
On *6 throughout from medication have been free should argues the trial court Rather, defendant trial. request denying at counsel’s second defense erred taken off trial to have defendant to tes- to allow defendant for three medication jury tify observe so that the could while unmedicated mental stand in his true on the witness requested be that defendant counsel state. Defense Friday, beginning on a from his medication removed for the week- remain off the medication and that he Monday, Monday. following defend- On until the end placed testify, back on his then be would ant request made this so Defense counsel medication. on the witness could observe defendant that the words, state. In other in an unmedicated stand jury to observe defendant counsel wanted the defense shooting, in an the time of as he was state. unmedicated denying narrow second, more
In defense counsel’s request discontinued to have defendant’s following: days, the trial court stated for three testimony given wit- is denied. The The motion clearly indicates that beginning of this trial at the nesses Defendant removed incompetency occur were the from his medication. 227 Mich
Opinion Court fact, testimony, days, In if I recall the doctor’s within two certainly incompetent. he would be He indicated that there telling long is no how it would be—or how soon it could be. case-by-case It perhaps could —would be on a basis and so, correctly even within an hour or if I recall the doctor’s testimony. already
The Court has balanced the interest of both the Defendant and the and finds still that the interest in having any this outweighing case move forward is far inter- having est to the Defendant his medication removed at this time, particularly by any- where showing there has been no presentation one that the of the Defendant off of his medi- approximate cation would what he was like at the time of any There hasn’t been evidence to that. We don’t know at point time, testimony this based on the given. that’s been I’m satisfied that the —to the extent that the doctor’s tes- timony certainty incompetency as to the and the absence any testimony any testimony long as to how it would take competent to render him again outweighs inter- [the] ests argued deny Defendant as thus far. So I will motion.
We hold that
the trial court erred in refusing to
grant defense counsel’s
request
limited
that defendant
*7
be taken off
antipsychotic
medication for three
days so that
testify
he could
in an unmedicated state.
question
This
really implicates defendant’s right
to
present a defense. A criminal defendant
has
state
and federal constitutional
right
present
a defense.
Const 1963,
1,
art
13; US Const,
VI,
§
Ams
XIV; Peo-
ple v Hayes, 421
Mich
278;
This issue is also
by
controlled
the United States
Supreme Court’s decision in Riggins v Nevada, 504
127;
US
1810;
S Ct
We also note that there was no evidence, findings, regard trial court no made with to whether perphenazine the administration of was essential for safety the sake of defendant’s own or the of others. Therefore, it cannot be stated that the invol- untary administration of to defendant policy protecting advanced the essential state safety of defendant and those around him. There is absolutely no evidence in the record that defendant pose a risk to himself or if others taken off the medication and the trial court did not use this as a denying request reason in defendant’s to be removed from the medication.
Moreover, it is critical to understand that counsel’s
request
second
was limited because the trial court
already
had
ruled that the
administration
medication to defendant
policy maintaining
advanced the essential state
competency during
However,
trial.
coun-
request
sel’s second
accommodated this issue of com-
petency.
disputes
compe-
No one
that defendant participate
tent to
in his defense while he was on the
medication. Indeed, counsel stated that defendant had
cooperated with him and aided him in defendant’s
taking
Thus,
defense.
defendant off the medication
only
testify
for
three
so that he could
in an
implicate
question
unmedicated state did not
*9
already
trial. Defendant had
competency
have
in
defense and there would not
been
assisted
his
contrary
the trial
any
adjournments needed,
further
to
because defendant would then be
ruling,
court’s
immediately
testify-
after
administered the medication
that defendant
Further,
there was no evidence
ing.
any-
to himself or
presented
would have
risk
had he been taken off the medication for
one else
days.
attempt
pres-
it was counsel’s
Rather,
three
on the witness stand in his true mental
ent defendant
jury in making
state to aid the
its difficult factual
sanity.
defendant’s
regarding
determination
with
court’s
Further,
disagree
ruling
we
the trial
presentation
had not shown
his
that defendant
that
the witness stand while in an unmedicated state
state at the time
approximated
would have
mental
Hardesty,
App
See
139 Mich
124, 145;
(a
highly questionable light signifi- Of cance, Supreme following: Court stated the persuaded allowing that We also are [the defendant] testimony
present expert about the effect of Mellaril [an antipsychotic drug] nothing on his demeanor did to cure the possibility testimony, that the substance of his own counsel, comprehension at were interaction with or his compromised by of Mellaril. Even if forced administration Supreme expert . . . the Nevada Court was testi- mony jurors demeanor allowed to assess [the defendant’s] fairly, unacceptable prejudice remained. . . . an risk might finding
. . . Because the record contains no support a conclusion that administration of 227 Mich necessary accomplish an medication was essential state policy, however, saying we have no basis for that the sub- probability prejudice justi- stantial of trial this case was pp [Riggins, supra, fied. 137-138.] Moreover, holding really not Hardesty does illness, solely that mental recognize insanity, or is not demeanor, an issue of but also has to do with thought processes. fact, In our Mental Health recognizes Code impairment that mental illness includes an of thought. Specifically, MCL 330.1400a; MSA 14.800(400a) defines mental illness as “a substantial disorder of thought significantly impairs or mood which judg- ment, behavior, capacity recognize reality, or abil- ity cope ordinary with the demands of life.” *10 (Emphasis added). by experts This was noted at example, Farley trial. For Dr. people testified that with delusional disorders primary problem have a with thinking reasoning. Farley and Dr. also testified: anti-psychotic medication and it has
[Defendant is] affected him. quite long Posby
It’s been a while since I’ve Mr. seen and quite so some of the alterations in his demeanor are strik- ing to me. capable telling story calm,
He was much more in a monotone, way. if and kind of flat sort of myself him, very When Dr. Cook saw he was ener- gized, quickly very irritated, moved from a calm state to a angry, pounding-on-the-table kind of state. appears calmer, logical
So he much somewhat more in thinking past. symp- than he inwas So some of the toms of his mental illness have come under control of the treatment. may that, affect, difficult,
And because of it make it for psychotic him to remember some of his based ideas and wishes. better, gotten may have, for- genuinely because he’s
So he angry was so at Dr. gotten reasons he the delusional light. important bring to this Kemink and felt it so is explained Dr. Cook Additionally, of this medica- The side effects “major tranquilizer.” sedated, drow- making people somewhat tion include difficulty in initi- blurry dry mouth, and siness, vision, that he noticed Dr. Cook also testified ating urinating. to the presentation defendant’s a difference between Dr. had interviewed jury and when Cook before trial. any find record, of the we cannot
On the basis prejudice the trial outweigh essential state interest testify in allowing that occurred not to a “right The state’s while unmedicated. an essential state interest trial” does not constitute Indeed, there was prejudice this case. justifying adjournment because defense counsel no threat of medication for a defendant be off his requested that only testify allow defendant limited time and however, prejudice, unmedicated. The risk of while testimony there significant because could thought processes demeanor and by taking perphenazine. altered been, were, have Kennedy Justice prejudice was noted This risk p 142: Riggins, supra, concurring opinion in his behavior, proceedings, stages the defendant’s At all *11 responses, manner, expressions, or facial and emotional impression absence, to make an overall their combine powerful fact, impression that can have the trier of an If takes of the trial. influence on the outcome great did, have a stand, Riggins his demeanor can as credibility persuasiveness, on the bearing and on his sympathy. degree . . . to which he evokes 232 227 Mich 219
Dissent J. Holbrook, Jr., antipsychotic may drags The side effects of alter way prejudice demeanor in a that will all facets of the process implicated defense. Serious due concerns are when manipulates way. the State the evidence in this granted The trial court should have defense coun- request sel’s have defendant taken off testifying, for three before testify allowed defendant to in an unmedicated state so that the could observe the man- shooting (that ner he was at the time of the is, not on any antipsychotic medication). Accordingly, we reverse defendant’s conviction and remand for a new trial. remaining
We have reviewed defendant’s claims of any require error and do not find of those issues to unique reversal. Moreover, because those issues are to the trial, first we need not further address those appeal. issues in this
Reversed and remanded for a new trial. Cavanagh, P.J., concurred. (dissenting). respectfully I dis- Holbrook, Jr., J., Riggins
sent. In v Nevada, 127, 135; US 112 S Ct (1992), L 1810; 118 Ed 2d the United States Supreme pro- Court held that a state satisfies the due rights cess of a criminal defendant if it demonstrates antipsychotic that treatment of the defendant with medically appropriate considering medication is and, less intrusive alternatives, essential for the sake of safety the defendant’s own or the of others. may The state also establish that treat- medically ment with medication was appropriate where it can be shown that it could not adjudication guilt obtain an of the defendant’s or *12 People 233 v by J.
Dissent
Holbrook,
Jr.,
means. Id. Several
by
less intrusive
using
innocence
held,
in
Riggins,
this Court
years
before
137;
seemed had that defendant However, acknowledged he trial. in his defense attorney assist his very able to “been motion, trial court denied the this week.” The likely become would most that defendant finding couple if the incompetent within a noted that there The court further were discontinued. nonmedicated showing no that defendant’s had been time of his demeanor at the approximate state this issue has of review for the standard Although Riggins Supreme clarity, out with not been set not to be at while review was explained that, Court supra a scrutiny, Riggins, at of strict the level 227 Mich Dissent J. Holbrook, Jr., reviewing court must determine whether the record supports a conclusion that the administra- “necessary tion of medication was accomplish policy,” bring- an essential state such as ing competent timely defendant to trial in a manner maintaining or of the defendant or others, *13 Angus, Supp id. at 138. See also Woodland v 820 F (D 1993). 1497, Utah, involuntary the Here, administration of anti- psychotic medication to defendant advanced the policies maintaining essential state defendant’s competency during protecting safety trial and Riggins, supra; defendant and those around him. Hardesty, supra; Washington Harper, 210, 494 US (1990) (adminis- 226; 110 S Ct L 1028; 108 Ed 2d 178 tration of medication was meant person ensure that the incarcerated ceased to be a physical danger others). According to himself or William Yaroch, M.D., discontinuance of defendant’s becoming medication would result in defendant incompetent days. incompe- within a few A return to tency impede ability to assist in his likely adjournment defense, force of trial, and risk safety well-being of defendant and others. Indeed, Dr. Yaroch noted that when defendant was previously removed from his medication his delu- thinking spread sional from “the central delusion people injured about doctors and who his ears” to legal people people “the that were involved, to the jail, people.” a lot of other Thus, persons proximity defendant and those in closest jeopardized him would be if he were removed from relatively his medication, even for a short time. More- over, the record does not indicate that defendant’s People v by J.
Dissent
Jr.,
Holbrook,
insanity
probative evidence
presenting
interest
on the witness
manner and demeanor
through
him from
removing
served
would have been
stand
present evidence
failed to
Defendant
his medication.
his demeanor
to show that
pretrial hearing
at the
approximated
have
unmedicated would
while
fact,
In
it
shooting.
demeanor at
the time
presented at
from the evidence
appears
and acted like an ordi-
relatively
was
calm
just
nary person
before
after
on his
was also calm while
Apparently,
apprised
Further, because the
medication.
he was
examination that
defendant’s direct
of that
and the effects
currently taking medication
of his
jury’s
evaluation
him,
“
not rest on an
‘undisclosed
insanity defense did
the result of an
alteration,’ but was
behavioral
altered behav-
appellant’s
consideration of
informed
State,
ior.” Lawrence v
316;