People v. Hammack

• Court: Court of Appeal of Michigan
• Citation: People v. Hammack, 63 Mich.App. 87, 234 N.W.2d 415 (Mich. App. 1975)
• Decision Date: 11 August 1975
• Docket Number: Docket No. 18230
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Lee HAMMACK, Defendant-Appellant.
• Writing for the Court: D. E. HOLBROOK, Jr.

Page 415

234 N.W.2d 415

63 Mich.App. 87

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Lee HAMMACK, Defendant-Appellant.

Docket No. 18230.

Court of Appeals of Michigan.

Aug. 11, 1975.

Released for Publication Nov. 3, 1975.

Washtenaw County Public Defender by V. Carl Shaner, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and D. E. HOLBROOK, Jr., and O'HARA, ^* JJ.

D. E. HOLBROOK, Jr., Judge.

Defendant was convicted by a jury on November 29, 1972, of rape, M.C.L.A. § 750.520; M.S.A. § 28.788. He was sentenced to 25 to 40 years in prison. He now appeals as of right.

The defendant did not dispute the fact that a rape had been committed or that he had committed it. In fact, defense counsel did not cross-examine the complainant. Defendant's defense was that he was insane at the time the offense was committed. His entire defense consisted of the testimony of two psychiatrists. All the issues that the defendant raises on appeal concern the trial court's handling of his insanity defense.

Defendant contends that it was prejudicial error for the trial judge to permit the prosecutor to present two rebuttal witnesses who were not indorsed on the information. Following the examination of the defense's second psychiatrist, the prosecution presented two young women. Each testified that the defendant attempted to pick her up in a manner similar to that in which he later that day successfully convinced the complainant into driving him out of a shopping center. Then at knife-point he bound the complainant, and over the course of the next several hours, he raped her four times.

M.C.L.A. § 767.40; M.S.A. § 28.980 requires the prosecutor to indorse, on the information, all known witnesses. It also imposes on the prosecutor a continuing duty to attempt to indorse all witnesses as they become known to him. This requirement has been tempered, however, and only requires the prosecutor to indorse res gestae witnesses. People v. Keywell, 256 Mich. 139, 239 N.W. 288 (1931); People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973). At the time of trial, M.C.L.A. § 768.20; M.S.A. § 28.1043 did not require the prosecution to give defendant any notice of who its rebuttal witnesses would be when the defendant raised either an insanity or alibi defense. ¹ Consequently, the defendant was only entitled to notice that the prosecution intended to call these two witnesses if they were res gestae witnesses.

Thus, the first question is, were these two women res gestae witnesses? There are two basic reasons for requiring that the prosecutor indorse all res gestae witnesses. One is to allow the defendant to know who is to be called so that he may investigate and prepare for cross-examination. People v. Quick, 58 Mich. 321, 322, 25 N.W. 302 (1885). Two is to require that the prosecutor present the entire res gestae of the crime. Hurd v. People, 25 Mich. 405 (1872); People v. Harrison, supra.

In the present case the two women were not witnesses to any part of the crime. They merely testified about the defendant's actions that occurred eight to nine hours before the res gestae began. Their testimony was not necessary to make out any of the elements of the crime of rape since intent is not one of the elements. People v. Phillips, 385 Mich. 30, 187 N.W.2d 211 (1971).

The first reason for requiring the indorsement of res gestae witnesses also implies rebuttal witnesses should be indorsed. People v. Rose, 268 Mich. 529, 256 N.W. 536 (1934); People v. McGillen #1, 392 Mich. 251, 220 N.W.2d 677 (1974). Because of the nature of these two women's testimony the prosecutor was not certain that he would need to call them prior to knowing the type of insanity defense that the defendant would use. In Michigan there are two prongs to the insanity defense: the traditional M'Naghten Rule, 'whether the defendant knew what he was doing--whether it was right or wrong'; and secondly, if he did, did he have the will power to resist the impulse occasioned. People v. Martin, 386 Mich. 407, 418, 192 N.W.2d 215, 220 (1971), Cert. den., 408 U.S. 929, 92 S.Ct. 2505, 33 L.Ed.2d 342 (1972); People v. Durfee, 62 Mich. 487, 29 N.W. 109 (1886). If the defense psychiatrists had said that the defendant did not know right from wrong, the women's testimony would not have been material. But although the defense psychiatrists said that the defendant did know right from wrong, one of them had stated that he did not have the power to control himself. The women's testimony was relevant to show that defendant's conduct was not a sudden impulse, but a continuing course of conduct. The jury could infer that the defendant had planned the rape, since during the course of a day he made at least two other attempts to pick up women before his successful attempt.

Although the women were never formally indorsed as witnesses, the defendant received the practical benefits that he would have received if they had been formally indorsed. The decision to allow the prosecution to add witnesses to the information at any time is within the trial judge's sound discretion. M.C.L.A. § 767.40; M.S.A. § 28.980. It is also true that the admissibility of rebuttal testimony rests within the sound discretion of the trial judge. People v. McGillen #1, supra, 392 Mich. at 268, 220 N.W.2d 677. We will not disturb the trial judge's decision unless there is clear abuse shown. People v. Utter, 217 Mich. 74, 185 N.W. 830 (1921). In the present case, although the trial judge offered defense counsel a continuance so that he could investigate the potential testimony of these witnesses, defense counsel waived the continuance and conducted a vigorous cross-examination of the two witnesses. We cannot say that the trial judge abused his discretion under either theory. We find no error in the admission of testimony of the rebuttal witnesses.

Defendant also argues that the trial court committed two errors concerning the admissibility of the testimony of the defendant's psychiatrists that warrant reversal. People v. Woody, 380 Mich. 332, 157 N.W.2d 201 (1968), specifically rejects defendant's first claim that it was error for the prosecutor to bring out, on cross-examination of a defense psychiatrist, defendant's prior criminal record. The criminal record is considered relevant if, as in this case, the psychiatrist relied on it in forming his opinion.

Defendant also argues that it was error for the trial court to refuse to admit into evidence two 1963 doctor's certificates stating that the defendant was mentally ill in 1963. ² In denying the defense's motion to introduce the two certificates the court said: 'The court is of the opinion that this would be pure hearsay, that this would cut off the right of the prosecutor to cross-examine witnesses produced by the defendant.' ³ Later the court also rejected a defense effort to introduce them indirectly by striking one of the defendant's psychiatrist's reference to them.

Defendant's first proposed use of these documents is clearly hearsay. They are out-of-court statements introduced to prove the truth of the matter stated. McCormick on Evidence (2d ed.), § 246, pp. 584--586. One of the reasons for the hearsay rule is that it is felt that cross-examination is necessary for the trier of the fact to accurately reflect on the credibility of the witness, and in the case of experts, the basis of their opinions. In Michigan, triers of fact are free to reject the opinions of the expert witnesses. Vial v. Vial, 369 Mich. 534, 120 N.W.2d 249 (1963); People v. English, 29 Mich.App. 36, 185 N.W.2d 139 (1970), Lv. den., 384 Mich. 823 (1971), see also People v. Martin, supra, 386 Mich. at 422, 192 N.W.2d 215.

On appeal defendant argues that the certificates are information on which one of the defense psychiatrists based his opinion. However, the attempt to introduce the certificates was made on direct examination, and GCR 1963, 605 provides:

'Questions calling for the opinion of an expert witness need not be hypothetical in form unless the judge, in his discretion, so requires. The witness may state his opinion and reasons therefor without first specifying data on which it is based, But upon cross-examination, he may be required to specify such data. The judge, in his discretion, may require that a witness, before testifying in terms of opinion or inference, be examined first concerning the data upon which the opinion or inference is founded. Testimony of expert witness in the form of opinions or inferences otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.' (Emphasis supplied.)

The function of delving into the facts that the expert relied on to form his opinion is to test the basis, not establish the basis, for the expert's opinion. The defendant has no need to establish the factual basis for the psychiatrist's opinion under the court rule. However, the certificates did more than just state facts, they stated conclusions. It is merely a method by which the defense attempted to get non-cross-examinable...