People v. Kerridge, Docket No. 6145

• Court: Court of Appeal of Michigan
• Writing for the Court: FITZGERALD
• Citation: People v. Kerridge, 20 Mich.App. 184, 173 N.W.2d 789 (Mich. App. 1969)
• Decision Date: 25 November 1969
• Docket Number: Docket No. 6145,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harry James KERRIDGE, Defendant-Appellant

Page 789

173 N.W.2d 789

20 Mich.App. 184

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harry James KERRIDGE, Defendant-Appellant.

Docket No. 6145.

Court of Appeals of Michigan, Division No. 1.

Nov. 25, 1969.

Released for Publication Feb. 9, 1970.

Richard C. Tripp, Dearborn, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before FITZGERALD, P.J., and McGREGOR and BRENNAN, JJ.

FITZGERALD, Presiding Judge.

Defendant Kerridge was convicted in 1967 of robbery unarmed ¹ and sentenced to seven to fifteen years in prison. A motion for a new trial on meritorious grounds was filed and granted late that year. The new trial began in April, 1968, and the events during that trial are the subject of this appeal. Following his conviction on the second trial, he was again sentenced to seven to fifteen years in prison with credit for previously served time.

It became evident early in the second trial that the defendant's distrust of his attorney and his disdain for the court proceedings knew few bounds. He first informed his attorney that he was not ready for trial, but gave no reason why. When brought into the courtroom, he attempted to leave when his case was called. He repeatedly informed the court that he was not ready for trial without giving a reason and further stated, 'I am not going to stand trial.' It was at this point that his attorney suggested to the court that something was 'radically wrong' with defendant and the court called in the chief psychiatrist of the recorder's court to examine defendant as to his competency to stand trial.

Following the examination, the psychiatrist appeared in court, but the defendant remained nude in his cell where he had undressed himself. The court examined the psychiatrist who said that defendant was oriented for time, place, and person and that he was so far free from mental defects, and that he could aid and assist counsel and understand the nature of the charges pending against him if he wanted to. The physician further opined that even his last act of taking off his clothes was not a psychotic symptom, but an aggressive act in holding the court at bay.

Following the psychiatrist's testimony as to the defendant's competency, the court ordered the defendant dressed by force and strapped to a chair so that the trial could proceed. Defendant immediately began using vile, disruptive profanity and requested that a new attorney be appointed to represent him. The court ordered the trial to proceed and defendant shouted, 'Just tape my mouth up * * * I won't stand trial.' When the court suggested that he might have to be gagged, he declared, 'That's what you got to do.' As prospective jurors filed into the courtroom, defendant interrupted the proceedings by using abusive and profane language, compelling the court to excuse the prospective jurors and to cause the defendant to be gagged. Following a raucous jury selection in which defendant professed to be dissatisfied with all of them, the trial began. The gag was removed, and, following a lunch time break, the defendant apologized to the court for his behavior. For the afternoon session and the balance of the trial, defendant remained unshackled and ungagged.

Following conviction, and at time of sentence, defendant again apologized to the court for his outbursts, stating, 'At that time I was a little upset and nervous.'

On appeal, defendant challenges the shackling and gagging procedure; the method in which the psychiatric examination was conducted; the retention of his attorney by the trial court; and the admission into evidence of cigarettes and an aerosol can.

On his first assignment of error, we do not feel that the court was unjustified in ordering defendant restrained and gagged. By statute, a defendant cannot be tried for a felony in Michn. 1954 Rev. § 28.1026). Careful scrutiny of the record shows the trial judge acted properly. The record is replete with instances of hostility and abuse and other actions on the part of defendant whereby he was determined not to stand trial. He was uncooperative and tried to leave the courtroom on numerous occasions. He was gagged only during the short period he insisted upon shouting obscenities. Although we recognize this should be a last resort, the court's action here appears to have been justified. People v. Thomas (1965), 1 Mich.App. 118, 134 N.W.2d 352; People v. Duplissey (1968), 380 Mich. 100, 155 N.W.2d 850.

Defendant's most meritorious assignment of error concerns the question of whether he was in fact incompetent to stand trial. Defense counsel in his brief relies on M.C.L.A. § 767.27 (Stat.Ann.1954 Rev. § 28.967), which, alas, at the time of trial had been repealed by P.A. 1966, No. 266, effective March 10, 1967. The statute in effect at the time of this trial was M.C.L.A. § 767.27a (Stat.Ann.1969 Cum.Supp. § 28.966(11)), which provides in part as follows:

'(1) A person accused of a crime who is incompetent to stand trial shall not be proceeded against while he is incompetent. A person is incompetent to stand trial within the meaning of this section if he is incapable of understanding the nature and object of the proceedings against him, of comprehending his own condition in reference to the proceedings, or of assisting in his defense in a rational or reasonable manner.

'(2) The issue of competence to stand trial may be raised by the prosecuting attorney, defense counsel, by any interested person on leave of the court, or by the court on its own motion. The time and form of the procedure incident to raising the issue of competence shall be provided by court rule.

'(3) Upon a showing that the defendant may be incompetent to stand trial, the court shall commit the defendant in the criminal case to the custody of the center for forensic psychiatry or to any other diagnostic facility certified by the department of mental health for the performance of forensic psychiatric evaluation. The commitment shall be for a period not to exceed 60 days. Within that period the center or other facility shall prepare a diagnostic report and recommendations which are to be transmitted to the committing court.

'(4) Upon receipt of the diagnostic report and recommendations the sheriff shall immediately return the defendant to the committing court and the court shall immediately hear and determine the issue of competence to stand trial. The diagnostic report and recommendations shall be admissible as evidence in the hearing, but not for any other purpose in the pending criminal proceedings.'

Instead of a meticulous following of this procedure, the transcript shows the following:

'Mr. Harris: Is there any chance to refer him? Something is radically wrong with him.

'The Court: It may be best if I refer him to the clinic first. Call Doctor Wallaert! * * *

'The Court: * * * Now, as an afterthought of the Court, that I would call you down as the chief psychiatrist of the Recorder's Court and you examine him and see whether or not he is competent to stand trial. If he is competent to stand trial, we will go ahead; if he isn't, why we will take other action.

'Doctor Wallaert: All right, Sir.'

Later, after the examination, the following transpired:

'The Court: * * * The defendant is not here. The police officer has just informed me that the defendant undressed himself in the cell. He is completely nude at the present time.

'Doctor Wallaert: We can clear the Court of women and have the trial if he wants to have it that way.

'The Court: I...