People v. Hilliker

• Decision Date: 20 January 1971
• Docket Number: No. 1,Docket No. 7990,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman G. HILLIKER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 831

185 N.W.2d 831

29 Mich.App. 543

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman G. HILLIKER, Defendant-Appellant.

Docket No. 7990.

Court of Appeals of Michigan, Division No. 1.

Jan. 20, 1971.

Released for Publication April 20, 1971.

Robert L. Coburn, Schmidt, Nahas & Coburn, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and LEVIN and PETERSON, ^* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant was charged with first-degree murder contrary to M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548) and was found guilty by a jury of the lesser included offense of manslaughter. ¹

On May 29, 1968, the defendant, who was temporarily residing at the Inn America Motel in Southgate, Michigan, encountered two out-of-town guests of the motel, Edward Bodway and Harry Hovis. They asked defendant to suggest some local night spots to visit that evening. He named several places, but declined their invitation to accompany them.

At about 2:30 a.m. the next morning, defendant was returning from an outing with some friends which entailed a considerable amount of drinking. As he was walking to his room he saw the deceased, Harry Hovis, standing in the open doorway of Room 14. The two men started a conversation; defendant spent several hours drinking with 'Harry' and 'Eddie' in their room.

During this time, Eddie went out to his car and brought back a .45-caliber pistol to show to defendant. Upon seeing it, defendant remarked that he had a .32-caliber Beretta in his room. They asked him to get it and shortly thereafter he went for the gun. From this point on there is conflicting testimony as to what actually occurred.

Edward Bodway testified that when defendant began shooting at a parked car with the Beretta, he became afraid and sought to leave. The motel manager said that Mr. Bodway awakened her and asked her to call him a cab. He informed her that there were two guns over there and 'someone was going to get hurt.' He then proceeded to the airport, ostensibly to catch a flight home.

Defendant stated that Eddie tried to leave several times, but was restrained by Harry. At one point, Harry fired the .45-caliber pistol into the wall when Eddie threatened to leave. These facts were denied by Eddie at trial.

In response to a call from the motel manager, the police arrived in time to hear several shots being fired. As they entered the hallway, they saw defendant walk out of Room 14 with the Beretta in his hand. He complied with their order to drop the gun and was arrested. Harry Hovis was found shot to death with the .45-caliber pistol.

Defendant interposed the defense of insanity. He stated that he didn't remember Eddie leaving the room or anything else concerning the balance of the evening.

Defendant raises four issues on appeal, one of which requires reversal.

Defendant's first contention is that the trial court committed prejudicial error in admitting the testimony and written report of Dr. William Gordon, a psychiatrist, into evidence. We agree.

The alleged inability of defendant to remember any of the details of the shooting caused defense counsel great difficulty in preparing for trial. As a result, Dr. William Gordon was employed to examine the defendant concerning his claimed amnesia and to assist in preparing a defense. At the Wayne county jail, Dr. Gordon interviewed the defendant for several hours and sumitted a report based on the interview. He also made the following written conclusions:

'I find no evidences of psychosis or major psychoneurosis. I believe this man does have a deep-seated character and behavior disorder. I also am of the opinion he knows much more about this offense than he cares to admit or acknowledge. I see no indication for administering sodium pentathol. I do believe a polygraph would be of some considerable interest. I personally would refrain from using any pentathol or intravenous drugs here because I feel this man is purposely and consciously withholding information and is not being open, honest and direct about what he does know about this offense.'

At the trial, the prosecutor's attempts to introduce parts of the report into evidence and to call Dr. Gordon as a protection witness were met with vigorous objection. After long argument on the record, the court ruled in favor of admitting the evidence. Thereafter, Dr. Gordon took the stand and gave very damaging testimony to the effect that defendant was feigning insanity. The court also permitted the prosecutor to question Dr. Gordon concerning the above-quoted conclusions in his report.

We are of the opinion that the testimony and report of Dr. Gordon ought to have been excluded on the ground that it falls within the scope of the attorney-client privilege. ²

The case of Lindsay v. Lipson (1962), 367 Mich. 1, 116 N.W.2d 60, is instructive. There, the plaintiff's attorney sought to have the plaintiff examined by a doctor in order to properly prepare for trial. When the defendant attempted to call the doctor to take the stand, plaintiff objected on two grounds: (1) the physician-patient privilege and (2) the attorney-client privilege. After dismissing the former contention, the court said:

'This brings us to the query whether under the situation presented the common law rule as to privileged communications between attorney and client applies here. This Court has in prior decisions been inclined for obvious reasons to give a somewhat liberal interpretation to said rule. People v. Pratt (1903), 133 Mich. 125, 94 N.W. 752, 67 L.R.A. 923, and decisions there cited. Doubtless such interpretation is essential to a proper protection of the rights of the client. Had Mrs. Lindsay possessed the requisite training and skill to make an accurate appraisal of her physical condition and to draw reasonable conclusions...