People v. Daniels

• Decision Date: 03 March 1986
• Docket Number: Docket No. 86290
• Citation: 149 Mich.App. 602,386 N.W.2d 609
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Theodore DANIELS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 609

386 N.W.2d 609

149 Mich.App. 602

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Theodore DANIELS, Defendant-Appellant.

Docket No. 86290.

Court of Appeals of Michigan.

Submitted Dec. 5, 1985.

Decided March 3, 1986.

Released for Publication: May 20, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph S. Filip, Pros. Atty., Brian E. Thiede, Chief Appellate Atty., for the people.

Jon R. Marcus, Jackson, for defendant-appellant on appeal.

Before CYNAR, P.J., and WAHLS and GRIBBS, JJ.

GRIBBS, Judge.

Defendant pled nolo contendere pursuant to a plea bargain to breaking and entering with intent to commit malicious destruction of property over $100. M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was sentenced to 2 1/2 to 10 years imprisonment. The trial court denied his motion to vacate the sentence. He appeals his sentence as of right. We affirm.

Defendant first contends that his sentence should be vacated because the sentencing court failed to follow M.C.L. Sec. 771.14(4); M.S.A. Sec. 28.1144(4), which requires that a court permit a defendant to review his presentence report prior to sentencing. This section of the statute provides:

"The court shall permit the prosecutor, the defendant's attorney, and the defendant to review the presentence investigation report prior to sentencing."

The record indicates that defense counsel reviewed the presentence report and had no additions or corrections to make. Afterwards, the sentencing court asked whether defendant had anything to say before sentence was pronounced, whereupon defendant stated that he did not. Defendant, however, contends that counsel's review of the report and the general inquiry of defendant by the sentencing court was insufficient because M.C.L. Sec. 771.14(4); M.S.A. Sec. 28.1144(4) specifically requires that a sentencing court (i.e. "the court shall ") ensure that a defendant has been allowed to review his presentence report. We reject defendant's interpretation of the statute. See People v. Love, 127 Mich.App. 596, 606-607, 339 N.W.2d 493 (1983), lv. gtd. 422 Mich. 856 (1985), and cases cited therein for rejection of analogous argument regarding GCR 1963, 785.12, now MCR 6.101(K). The statute merely requires that the court "shall permit " the defendant to review the presentence investigation report prior to sentencing. It does not require the court to verify on the record that the defendant has reviewed or been given the opportunity to review the presentence report prior to sentencing but, rather, prohibits the court from denying counsel or the defendant access to the report. There is nothing on the record in the instant case to indicate that the sentencing court prevented defendant from reviewing the presentence report. Moreover, defense counsel reviewed the report and acknowledged on the record that it was accurate and complete. Thus, on this record, we find that the sentencing court did not violate M.C.L. Sec. 771.14(4); M.S.A. Sec. 28.1144(4) and that defendant is not entitled to resentencing on this ground.

Defendant further contends that his sentence must be vacated because in sentencing defendant the sentencing court relied on psychiatric and psychological information obtained by the presentence investigator in violation of the physician-patient privilege, M.C.L. Sec. 600.2157; M.S.A. Sec. 27A.2157, and the psychologist-patient privilege, M.C.L. Sec. 333.18237; M.S.A. Sec. 14.15(18237). The sentencing court stated at sentencing that "group therapy at Beth Mosher has not helped this young man". This comment was apparently based on the following statement in the presentence investigation report:

"Probation records indicate prior to 1976, the defendant had been involved in group therapy at Beth Mosker and was described as having an unusual attachment towards women's clothing. He was described as disruptive and was removed from group therapy because of 'bizarre speech and problems'. The psychiatric file also indicated that defendant had definite violent tendencies and would not tell anyone what was on his mind." ¹

The information contained in the statement in the presentence report was not confidential information. Defendant himself admitted to the presentence investigator that he had a "fetish" for women's clothing, and defendant's estranged wife told the investigator that her husband had violent tendencies and had an extremely difficult time opening up and relating to others. In addition, it was defense counsel who focused on defendant's psychological history, who stressed that defendant had sought counseling, and who encouraged the court to consider defendant's psychological problems in sentencing. We find no error in the inclusion of or consideration of these statements at sentencing.

Defendant further argues that his interview by the presentence investigator violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. Defendant contends that prior to the interview he should have received a warning that his statements could be used against him in determining the length of the sentence, particularly because his plea was one of nolo contendere where guilt is not admitted. He also contends that prior to the interview he should have been advised of his right to counsel or, in the alternative, defense counsel should have been notified of the time and place of the interview. This Court has rejected similar arguments. In People v. Shively, 45 Mich.App. 658, 664-665, 206 N.W.2d 808 (1973), a nolo contendere plea case, this Court held that the preparation of a presentence report was not an adversary proceeding or a critical stage of the proceedings requiring a warning to the defendant of the privilege against self-incrimination or of the right to counsel's presence at the interview. In People v. Burton, 44 Mich.App. 732, 734-735, 205 N.W.2d 873 (1973), lv. den. 389 Mich. 795 (1973), a guilty plea case, this Court also held that prior to a presentence interview defendant was neither entitled to a warning of the privilege against self-incrimination nor entitled to counsel's presence at the presentence interview.

Defendant, however, relies upon Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), where the United States Supreme Court vacated the death penalty of defendant Smith because a psychiatrist's testimony regarding Smith's future dangerousness was admitted at the sentencing phase of a bifurcated capital murder prosecution where the jury was required to resolve the issue of Smith's future dangerousness in determining whether a death sentence would be imposed. The testimony admitted at the sentencing phase was based on the psychiatrist's court-ordered examination of Smith's competency to stand trial in the earlier guilt determination phase of the bifurcated case. The Supreme Court held that Smith's Fifth Amendment privilege against self-incrimination was denied when Smith was not warned prior to the pretrial psychiatric examination that he had the right to remain silent and that any statement he made could be used against him at the capital sentencing proceeding. The Court further held that Smith was denied his Sixth Amendment right to counsel because defense counsel was not notified in advance that the pretrial psychiatric examination would encompass the issue of Smith's future dangerousness. Since this was an issue at the capital sentencing proceeding, Smith was denied the assistance of counsel in deciding whether to submit to the examination and to what end the findings could be employed.

We do not find Estelle applicable to the instant case. Estelle was based upon the peculiarities of a bifurcated capital murder prosecution. In finding that defendant Smith's Fifth Amendment privilege against self-incrimination was implicated, the Court relied on the "distinct circumstances" of the case and the "gravity of the decision to be made at the penalty phase". 451 U.S. 463-466, 101 S.Ct. 1873-1874. The Court also cautioned that the Fifth Amendment concerns present in the case before it were "[not] necessarily presented by all types of interviews ordered or relied upon to inform a sentence determination". 451 U.S. 469, fn. 13, 101 S.Ct. 1876, fn. 13. In deciding that Smith's Sixth Amendment right to counsel had attached to the psychiatric interview, the Court found that the interview proved to be a critical stage of the aggregate proceedings and agreed with the United States Court of Appeals that the decision to be made by Smith in submitting to the interview was a life or death matter. 451 U.S. 470-471, 101 S.Ct. 1876-1877.

We find Estelle limited to the factual situation before the Supreme Court and factually distinguishable from the instant case. The case before us is not one where defendant and counsel were not informed that the presentence...