*1 234 385 Miсh of Appeals for the Court was error it Therefore, of damages. to the question trial limit new it must be estab be reached, can Before issue statutes, violated these that defendants lished proximate cause resulting negligence Schrotenboer Vaas v. (1951), injury. of plaintiff’s these latter Furthermore, quеs 650. 329 Mich and as should of fact such tions are questions re-trial. Martiniano v. submitted to the jury Mich 680, Booth 687. (1960), of the trial court and the Court of The judgments trial are and a new granted. reversed Appeals Neither neither having completely party prevailed, shall have costs. party T. G. T. E. Swain- Kavanagh, Brennan, Adams, T. M. Kav- with JJ., concurred and Williams, son C. J.
anagh, J., did this case. not sit Black, PEOPLE v. BANES Opinion of the Court Bight 1. Criminal Law —Constitutional Law — to Bemain Silent —Warning Bights. Warning given by police officer who say anything police custody did that he not have to required warning officer or the men him was not of defendant’s absolute constitutional to remain silent. Beferences for Points in Headnotes seq. 2d, 29 Am Jur et [1-3] Evidence § [4, 2d, 21 Am Jur Criminal Law 354. 5] § Banes Eight Law —Constitutional Law — to Counsel —Criti- Criminal op Proceedings Psychiatric Stage Examination —Evi- ical — dence. psychiatrists’ testimony, based on Admission *2 defendant, insanity preju- of received defense was rebuttal dicial error violated defendant’s constitutional stage proceedings at a critical where his counsel, psychiatrists’ began, for made before the he, a specifically denied and as result of such denial not having fully rights, been informed as to his constitutional sub- psychiatric examination; mitted to he had been admitted to hosiptal, diagnosis by psychiatrists a state under the same there; discharged hospital while and was from the five months before his arrest. Opinion
Dissenting Brennan, Black and T. JJ. E. Witnesses—Psychiatric Criminal Examination —Evi- 3. Law — Bight to Counsel. dence — psychiatrist The a in rebuttal a of offered of defense insanity psychiatrist is the admissible where examined of having oppor- without the defendant defendant tunity attorney prior to consult with an to the examination. Confession—Psychiatrists. 4. Criminal Law — psychiatric purpose A examination is not conducted for of obtaining and a made to defendant’s confession confession psychiatrist prove guilt. would be inadmissible to Psychiatric 5. Constitutional Law —Criminal Examina- Law — tion —Medical Examination. any that a medical examination fact of and, may dialogue involve between the doctor defendant prisoner significant is no more under the Amendment Fifth serving prisoner may than the his meals involve fаct dialogue jailer; psychiatrist some with the concerned is not with truth says; what concerned of defendant significance says medical what the looking perception admissions for of fact reality (US Const, 5). Am from Appeal Court of Division B. Appeals, 3, B. J., P. Burns, Fitzgerald and T. GKKavanagh, Mich 234 385 Opinion op the Court W. Kalamazoo, Raymond Fox, affirming JJ., Term October (No. 1970. Submitted October May 4,1971. Docket No. Resubmitted 52,189.) Decided Term 1971. 1971.) July (No. April Certiorari de- August 27, denied Rehearing Court Supreme February nied the United States 22, 1972.
13 Mich reversed. App Lee convicted Larry first-degree Ranes was Defendant to the Court of appеaled Ap- murder. Affirmed. Defendant appeals. Reversed peals. for new trial. and remanded Robert Frank J. A. Kelley, Attorney General, and Donald A. Burge, Derengoski, Solicitor General, for the people. Prosecuting Attorney, *3 Eugene Field, for defendant. arrested before just Ranes was Larry
Adams, after several 1964, telling people June midnight On the schoolteacher Smock. Gary he had killed to four Ranes confessed police station, to way priest. Shortly He asked to see killings. other and alone after he met talked arriving station, at with a for an hour. there- priest Immediately about to an right infоrmed that he had after, was Sergeant right Lutz. Ranes waived this attorney by He was admitted he committed murder. He between and 4 on June arraigned 5,1964. a.m. to an right of his attor- judge was advised by one. Following not want ney again said he did arraignment, complete his formal confession recorded a court reporter.
At 4:30 a.m., Dr. Clarence M. Medical Schrier, Superintendent State Hospital, Kalamazoo was called and requested to make ex- amination of Ranes. Dr. Schrier asked Initially, v. Banes Opinion Coubt have Banes to him brought later in the morning. Shortly thereafter, he called back and said he would come to the police station to examine Banes at a.m. Dr. Schrier brought Clinical Director of the Kalamazoo State Dr. Hospital, William Decker, with him for the diagnosis. About six months earlier, Banes had been admitted to the hospital and Dr. Schrier had diagnosed him as a “sociopathic personality.” рrior
Just the psychiatric examination at the police station, Banes stated to an assistant prose- cuting “You have attorney, mentioned something about an I think attorney, maybe better have one.” The assistant prosecuting attorney denied his request, stating that no magistrate would be availablе until 9:30 a.m. appoint attorney. Drs. Schrier and Decker proceeded to conduct a two- hour psychiatric examination of Banes. A petition for the appointment of an Banes was filed just noon before June order of appoint- ment signed at p.m. 1:11 on that date, and appointed counsel reached ultimately and notified at 1:30 p.m. on June
At Banes’ defense was trial, not guilty by insanity. reason of Drs. Schrier and Decker testi fied for the prosecution that Banes was sane. De fendant’s attorney argued their unsuccessfully should not be allowed since it had been obtained in violation of Fifth defendant’s Amend ment right against self-incrimination Sixth his to counsel as set forth in Esco Amendment *4 bedo v. Illinois US (1964), 1758, 12 378 478 S Ct (84 L Ed 2d 977).
Banes was convicted of first-degree murder. On appeal, the Court of Appeals affirmed an opinion by Judge whom B. B. Judge Fitzgerald, Burns Kavanagh concurred. Justice T. G. dissented. (13 Mich 234 385
238 Cotjkt Opinion op the (381 leave tо appeal. granted Mich We App 182.) at the 1970 Octo case argued Mich 793.) new two Justices ber Due term. presence resubmitted. It case was ordered on the Court, April term 4, at the 1971 on argued May was again 1971. testimony by psychiatrists, the admission of
Did of defendant after he based their examination requested legal but before he had received and consti- rights violate his constitutional counsel, tute prejudicial error? 436, (86 384 US S Arizona
If Miranda v. (1966), applied, ALR3d 974) 10 2d 694, L Ed 1602, Ct terminate a lawyer defendant’s he had a him until interrogate the state’s “If the individual him. to advise lawyer appointed interrogation attorney, an that he wants states Miranda, is present.” must until an cease Johnson Miranda is not retroactive. pat 1772, S New Ct (86 US Jersey (1966), Escobedo Miranda only 882), applied L 2dEd commenced after where the trials have cases 13, June June announced, decisions were 1966, trial Septem- Ranes’ respectively. began Escоbedo question ber 1964. The is whether compels the result. same that case,
Escobedo dealt with a confession. In Court Goldberg Justice opinion written 491): stated (pp 490, hold, therefore, where, here,
“We investigation is longer general no into inquiry crime unsolved to focus on begun partic- has ular suspect been into suspect, police has taken out a of interro- custody, police process carry gations itself to eliciting incriminating lends has statements, suspect been requested *5 v. Banes Opinion op the Court lawyer, opportunity with his to consult an denied effectively police him warned of his have not and the right remain silent, constitutional absolute accused ‘the Assistance Counsel’ denied of has been Amendment to the Consti- of the Sixth in violation tution upon by obligatory States as ‘made Wainwright Amendment,’ Gideon Fourteenth no elicited at and that statement US [1963], 372 interrogation may during police be used against trial.” him at criminal present had been taken into case, Banes
In the police process police custody, carried out of eliciting interrogations incrimin- that itself to lent requested ating and the defendant statements, lawyer. opportunity to consult with denied an people he warned of his The contend that remain The silent. absolute constitutional Michigan Sergeant Carl Lutz W. of Police follows: State is as * * * holding entry upon And into “A. sitting I there and Defendant Banes was room, my and intro- extended hand him, walked over to Michigan Sergeant myself Lutz from the duced Headquarters. I then at Fifth District State Police remaining were with who him to the men introduced I talk I to him that wanted to me at time. said this had admitted to I had been informed that he to him, Sergeant he had committed the murder Duncan that investigating, I told were the case that we incumbent him that before he did so that it was upon just exactly him to what his me to advise rights I him be. first all told that he would say needn’t a word to me unless he so desired, anything I him if further did, advised he say he would or the men who with me to me were particular might at and could be this time used against him in I the event of court action. further pres- told he be him that could advised Mich Opinion the Court and at the same desired, аn if lie so ence of him need thought attorney.” time told Lutz was that Sergeant given by warning *6 to him anything say not have to did the defendant of his the warning was not him. It or the men which silent remain to right constitutional absolute claim of the peo It Escobedo. is by is required to analogous this case is situation in that ple 394 US Cupp (1969), Frazier that in case 2d that 684) 22 L defend Ed (89 S Ct of coun the assistance ant was denied therefore tell had to his Frazier, begun the defendant sel. In I better get “I think had when he story stated, I am to going get before talk more. lawyer any I am in now.” The officer into trouble more than “You be in more trouble any can’t repliеd simply, than and the now,” questioning are session you in Frazier It is be noted that to proceeded. when for a law questioning begun request was made. This is stressed the United States yer by Supreme Court its opinion: * * * “ it possible questioning is offi- cer remark not petitioner’s request took as cease but as a interrogatiоn merely passing matter, comment. Petitioner did not pursue context, In questions. continued this answering we cannot find the denial in Escobedo.” which was found so crucial “I said: think Banes case, Larry In the present request one.” His have I had better maybe began. before the made counsel was we can dеnied specifically Larry denial, such as result of conclude only that, to his been informed not having fully Banes, to the rights, submitted constitutional in Escobedo (p 492): It stated examination. v. Panes Opinion op the Court hold “We that when the from only process shifts investigatory accusatory its focus is on —when the accused and purpose its to elicit a confes- sion —our adversary system begins and, operate, under the circumstances the accused here, must be permitted to consult with his lawyer.”
Part of the totality of the circumstances of this case which cannot be ignored is the fact that Larry Panes was admitted to the Kalamazoo State Hospi- tal on December 24, 1963. While there, under diagnosis Drs. Schrier and Decker. Dr. Decker wrote, “While in the service the taunts of barracks companions and the theft of a five-cent bag potato were chips sufficient reasons to justify an attempt with butcher knives to remove the causal irritant, if necessary, by murder.” from the
Larry discharged Banes was Kalamazoo *7 Hospital State January 6, Five months at a.m., 4:30 Dr. Schrier received a call from later, the prosecutor and to agreed see Banes. He asked that he be to his office. Dr. Schrier brought testi- fied: “I back in bed and got it hit me as suddenly to had haрpened, what and called back and stated that I down to the him at jail to visit o’clock.” Dr. Schrier Dr. Decker with brought him.
In holding that the admission of the testimony by the psychiatrists was error and prejudicial violated defendant’s constitutional to under counsel circumstances of case, this it must be stressed that such dеcision is based upon the fact defendant was refused counsel at a critical of the stage pro ceedings. We in not, do this consider case, when it may be appropriate for a person accused of crime to undergo examination an at insanity hearing pursuant to CL 1948, § as 767.27, amеnded (Stat 385 Mich by Bkennan, Dissenting Opinion T. E. J. 28.967),* possibly Ann 1954 Rev discovery § judge. order of the trial Under proceedings by when case, circumstances of this the defendant re we are convinced that quested counsel, should have been honored in order that defendant might have the benefit of his own ad legal counsel’s vice with regard to any psychiatric examinations he might thereafter situation here undergo. The is much same when a as defendant to required a show-up submit to must be yet afforded guarantee fairness ensuing proceeding. reversed. conviction
The Court of Appeals remanded to trial aside аnd the case is is set a new court for trial. J.,
T. M. C. Swainson Wil- Kavanagh, concurred with J. JJ., Adams, liams, If T. E. we are to (dissenting). Brennan, pronounce rule of law voice here, merely a visceral reaction to the instant we case, ought state the question as abstractly possible: offered re- of a psychiatrist the testimony
Is where inadmissible insanity a defense of buttal of defendant without examined the the psychiatrist to consult having opportunity the examination? prior I say the answer should be no. * PA This section was amended No effective June *8 provided alleged part: 1961. It in person may represented by who “Suсh insane be
may appear part proceedings, and cross-examine the take the produce testimony witnesses and witnesses and for and on behalf person.” of such repealed by current The section was provisions relating and PA No 266. Eor the psychiatric examination, MCLA 767.27a see §§ (Stat Supp Ann 767.27b 1971 Cum 28.966 §§ 28.966[11] [12]). v. Ranes Dissenting Opinion by T. E. Brennan, psychiatric
The examination is not conducted for purpose obtaining of the defendant’s confession. would, psychiatrist A confession made to a be in- prove guilt. admissible confession-sweating tactics The which Miranda detailed have not been medicаl associated with examinations. professional
The doctor’s as to his opinion question sanity upon on the his of is based observation of defendant. any medical exam- that a fact The dialogue may involve be- ination of prisoner doctor no more tween the significant under Fifth Amendment than thе serving prisoner may fact that meals his involve dialogue jailer. some with the psychiatrist is not concerned truth says; of what the defendant concerned with significance says. what medical the defendant looking The doctor is not for of fact but admissions perception reality. what value Of the adviсe be? of counsel Would counsel tell the defendant to refuse to be examined? Could not the doctor examine the de- anyway? lawyer fendant a Would how advise questions convey were to be answered so as best to impression insanity? lawyers If were com- petent psychiatrists incompetent to do so, would testify.
I would affirm. J., concurred the result.
Black, T. G. Kavanagh, J., did sit in this case.