People v. McSwain

Decision Date19 February 2004
Docket NumberDocket No. 241275.
Citation259 Mich. App. 654,676 N.W.2d 236
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rosemarie McSWAIN, also known as Rose Marie-Jeanette McSwain, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

John L. Grace, III, Grand Rapids, for the defendant on appeal.

Before: WHITBECK, C.J., and SMOLENSKI and MURRAY, JJ.

WHITBECK, C.J.

The prosecution appeals by leave granted the trial court's grant of defendant Rosemarie McSwain's motion for relief from judgment. The central issue in this case is whether McSwain was competent to stand trial for murder in 1988. Because we conclude that the trial court abused its discretion on the basis of a series of clear errors in the factual findings supporting its determination that McSwain was not competent, we reverse.

I. Basic Facts And Procedural History
A. McSwain's Conviction

Following a seven-day trial in October 1988, in which fifty witnesses testified, a jury convicted McSwain of first-degree premeditated murder1 and possession of a firearm during the commission of a felony.2 The prosecution's theory of the case was that McSwain, a prostitute, shot and killed one of her customers because he refused to pay her for services. The defense theory of the case was misidentification and alibi. There is no indication in the record of any question concerning McSwain's mental capacity.

At the trial in 1988, Leveta Stewart testified that McSwain and a male fitting the victim's description came to her apartment on April 19, 1988. According to Stewart, McSwain asked her if "they could use a room." Stewart testified that she let McSwain and the victim use her bedroom. After fifteen to twenty minutes, McSwain and the victim came out of the room. Stewart testified that McSwain

told the guy that he had wasted her time bringing her up there because they had agreed on whatever they agreed on. He's supposed to have gave [sic] her $50, and she told him that it was for him wasting her time. She said he was going to give her something for wasting her time, and that it was going to be his ass or hers....

* * *

At that time the man was saying he didn't have any money. He said he didn't have any money or whatever else he said, which I didn't understand.
So Rose had went [sic] in her purse and pulled out a gun, and she put it on his privates.

Stewart testified that after McSwain placed the gun on the victim's penis, she stated that "[s]he was going to blow his nuts off." Stewart stated that she took the gun away from McSwain, putting it in McSwain's purse. Stewart further stated that as McSwain and the victim left, McSwain stated that "she was going to blow his head off...." Stewart testified that she took McSwain's comment as a joke, because she did not know McSwain to be a violent person.

Margaret Gillis testified that as she left work on April 19, 1988, she noticed a car with a man and a woman sitting inside who fit the description of the victim and McSwain, and that they appeared to be talking. As Gillis walked toward her car, she heard a noise that might have been a car backfiring. When Gillis reached her car approximately twenty seconds later, she heard a second sound that sounded the same as the first. Gillis said that she then saw a car rolling backward down the street with "the passenger door open wide, and this man in the car in the driver's side." As the car rolled closer to her, she saw "the man from behind the steering wheel ha[d] blood trickling from down the right side of his face." The car eventually came to a stop when it hit a telephone pole. Gillis went back inside her place of work to call 911.

Dr. Stephen Cohle, a forensic pathologist, performed an autopsy on the victim and determined that the cause of death was a gunshot wound to the head and a gunshot wound to the right arm and chest. Dr. Cohle testified that the first bullet entered through the victim's right upper eyelid and was most likely fired from a range of six to twelve inches. The second bullet passed through the victim's right arm and into the right side of the chest, ultimately stopping in the victim's aorta.

Three of McSwain's cellmates at the Kent County jail testified that she had confessed to the murder. Carmen Williams testified that McSwain first claimed that she did not kill the victim, but later stated that she "didn't mean to do it...." Sequita Eaves testified that she overheard McSwain say she "didn't mean to do it." Linda Nusbaum testified that she heard McSwain say that she "didn't mean to—for it to happen and that she was sorry...."

The jury found McSwain guilty of first-degree murder and felony-firearm, and she appealed as of right to this Court, raising six issues, none of which related to McSwain's mental capacity. This Court affirmed McSwain's convictions in an unpublished opinion per curiam.3 The Michigan Supreme Court denied leave to appeal.4

B. McSwain's Motion For Relief From Judgment

In August 1998, McSwain moved for relief from judgment pursuant to MCR 6.500 et seq. She claimed, for the first time, that there "has been newly discovered evidence that [she] is affected by Multiple Personality Disorder, was so affected at the time of the crime and at the time of the trial, and is in need of highly specialized and intensive treatment." She claimed that this information was not available to her trial counsel for the purpose of preparing a defense. She asked that the judgment of sentence be set aside pursuant to MCR 6.500 et seq., because she "was incompetent to stand trial; she was not available to consult with her attorney and help him prepare a defense, even though it is now evident that self-defense was available to justify the killing." She stated, "It is also probable that the core personality was not present for a portion, or for all, of the trial." Citing MCR 6.508(D)(1) and (2), she stated that she "could not have presented evidence of multiple personality disorder because it was not available to her at the time of trial; it is newly discovered evidence, and may be raised at this time."

Citing Rogers v. Howes,5 McSwain asserted in her motion that, because MCR 6.500 created a procedural bar that was not firmly established and regularly followed at the time of her conviction, there was no need for her to show cause and prejudice. Alternatively, she asserted that she was permitted to raise her claim under the general requirements for relief found at MCR 6.508(D), noting in a footnote and citing MCR 6.508(D)(3)(b), that the court may waive the good cause requirement if it concludes there is a significant possibility that the defendant is innocent. Finally, she asserted that she was actually innocent of the charges stating that "she, Rosemarie McSwain, did not commit them; whatever alter [meaning alternative personality] did commit them was acting in self-defense" and that under these circumstances "the good cause requirement can be waived."

C. The Evidentiary Hearing
1. Overview

The trial court held an evidentiary hearing on McSwain's motion for relief on October 2 and 3, 2000. McSwain presented five witnesses in addition to herself: Thomas Parker, her trial counsel at her 1988 trial; Debra Carratoni, her cellmate; Dr. Greeley Gregory Miklashek, a practicing psychiatrist at Forest View Hospital in Grand Rapids; Dr. Steven Miller, director of the Michigan Institute for Forensic-Clinical-Neuro Psychology; and Ms. Leslie Pielack, a certified social worker and licensed professional counselor at Lake Orion Psychological Services. The prosecution presented one witness: Dr. Arthur Marroquin, the assistant director of the evaluation center at the Center for Forensic Psychiatry.

In her opening statement at the evidentiary hearing, counsel for McSwain indicated that "what we're really talking about here is whether Rosemarie McSwain had a fair trial, and it's my contention that there is no way she had a fair trial" because she "did not have executive function at the time of the killing" and that one of her alternative personalities "came out in a moment where it was perceived self-defense was necessary, and this was a self-defense killing." Counsel indicated that "there was no competency at the time of the trial, and as the Court knows, that is a claim that can be brought up anytime, that is constitutional in nature, it is absolutely fundamental, it is not governed by Michigan court rules or statutes, it is U.S. Supreme Court constitutional law."

The prosecution took a different view. In his opening statement, the prosecutor stated that the issue was whether McSwain could carry her burden of showing that she was not competent to stand trial at the time of the trial or "[whether] she would have been able to prevail [using] an insanity defense." The prosecutor emphasized that the evidentiary hearing on McSwain's motion for relief from judgment was not for the purpose of making "an inquiry as to whether or not 12 years later someone can conclude that there may have been a self-defense claim available."

Much of the testimony at the evidentiary hearing concerned dissociative identity disorder, formerly known as multiple personality disorder.6 In 1987, the American Psychiatric Association classified multiple personality disorder as a dissociative disorder.7 In 1994, multiple personality disorder was renamed dissociative identity disorder,8 which is characterized by "[t]he presence of two more distinct identities or personality states that recurrently take control of the individual's behavior accompanied by an inability to recall important personal information that is too extensive to be explained by ordinary forgetfulness."9

2. Testimony Of Thomas Parker

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