People v. Parney, Docket No. 27098

• Citation: 253 N.W.2d 698,74 Mich.App. 173
• Decision Date: 03 March 1977
• Docket Number: Docket No. 27098
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Junior Laverne PARNEY, Defendant-Appellant. 74 Mich.App. 173, 253 N.W.2d 698
• Court: Court of Appeal of Michigan — District of US

Page 698

253 N.W.2d 698

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Junior Laverne PARNEY, Defendant-Appellant.

Docket No. 27098.

74 Mich.App. 173, 253 N.W.2d 698

Court of Appeals of Michigan.

March 3, 1977.

Rehearing Denied April 11, 1977.

Released for Publication June 2, 1977.

[74 MICHAPP 174] James R. Neuhard, State App. Defender by Chari K. Grove, Asst. State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lawrence L. Hayes, Jr., Pros. Atty., James B. Parker, Chief Asst. Pros. Atty., Donald L. Sanderson, Asst. Pros. Atty., for plaintiff-appellee.

[74 MICHAPP 175] Before D. E. HOLBROOK, P. J., and ALLEN and RILEY, JJ.

PER CURIAM.

As a result of plea negotiations between the prosecution and defense counsel, defendant Junior Laverne Parney, originally charged with first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, pled guilty at his arraignment to second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549, for the shooting death of his estranged lover, Ms. Elizabeth Kurtz. Prior to this plea, defense counsel waived the reading of the information and the second-degree murder statute. The circuit court accepted the proffered plea and later sentenced defendant to a 30- to 45-year term in prison.

I.

Initially, defendant charges that the lower court erred in permitting a social worker to determine his competence to stand trial. The prosecutor responds that defendant waived this error by his subsequent plea of guilty. See People v. Nagle, 59 Mich.App. 345, 229 N.W.2d 446 (1975) and People v. Miller, 62 Mich.App. 495, 233 N.W.2d 629 (1975). Based on our Supreme Court's recent pronouncement in People v. Alvin Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), we reject the prosecutor's contention.

In Alvin Johnson, Justice Williams, writing for the Court, observed:

"(I)t is clear that the United States Supreme Court, while recognizing that certain rights of defendant may be waived by a subsequent plea of guilty, does not say [74 MICHAPP 176] that is true of all rights. Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state's interest in punishing the defendant, or the state's authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right." 396 Mich. at 443-444, 240 N.W.2d at 739. (Footnotes omitted.)

Unquestionably, the state is powerless to undertake a criminal prosecution of an incompetent defendant:

"A defendant who is determined incompetent to stand trial shall not be proceeded against while he is incompetent." M.C.L.A. § 330.2022(1); M.S.A. § 14.800(1022)(1).

We believe that this right of a defendant to avoid prosecution while incompetent is one "grounded in the due process clause" and in the foregoing statute. Hence, under Alvin Johnson, ¹ supra, defendant's later guilty plea did not waive the alleged error arising from the prior competency determination. Accordingly, we proceed to the merits of this appeal.

[74 MICHAPP 177]

II.

Defendant assails the lower court's ruling at a competency hearing held on September 30, 1975, which permitted, over objection, Ms. Constance Fortin, a social worker employed at the Center for Forensic Psychiatry, to testify and to submit a written report, dated September 23, 1975, regarding defendant's competence to stand trial. This evaluation by Ms. Fortin was the second competency determination involving defendant undertaken by the Forensic Center. The first was performed on July 2, 1975, by a psychiatrist, Dr. Robert Bort, at circuit court behest to determine whether defendant could stand trial on two prior charges, carrying a concealed weapon and felonious assault with a firearm. These earlier charges arose out of a confrontation between defendant and his now deceased paramour, Ms. Kurtz, at her home. According to his admissions at the plea-taking, defendant, while out on bond on the weapons charges, returned to Ms. Kurtz's home, quarreled with her, fatally shot her, and then unsuccessfully attempted to take his own life.

After a one hour interview with defendant, Dr. Bort concluded that defendant was fully competent to stand trial on the weapons charges; the psychiatrist emphasized, however, that defendant:

"may have a psychotic process which is in remission because of his current treatment with moderate doses of antipsychotic medication, namely, Mellaril and Stelazine. Additional diagnoses include habitual excessive drinking and (facial) tic. Whether or not the patient has a schizophrenic process which is precipitated by his alcoholism would in part depend upon additional background history not currently available from this patient. Therefore, the diagnoses at this time must remain quite tentative." (Emphasis added.)

[74 MICHAPP 178] Dr. Bort's written report was admitted at the September 30, 1975, competency hearing.

The testimony elicited from Ms. Fortin at the September 30th hearing reveals that she holds a masters degree in social work from the University of Michigan with emphasis in psychiatric casework; that she interned for eight months as an "Outreach worker" preparing mental patients for hospital release; that she worked for two years as a "Medical Social Worker" in a medical facility dealing with the psychosocial problems of disabled patients; that she interned, as part of her masters program, for unspecified periods with a community mental health program in Washtenaw County and with Mt. Carmel Hospital in Detroit. Ms. Fortin further testified that her present job description was that of forensic social worker; and that she had been employed at the Forensic Center for less than three months and had interviewed approximately 13 other persons prior to defendant. She also admitted that her training differed from that required of a psychiatrist; that she was not qualified to discern or evaluate medically rooted psychological problems; that in the course of a 1 1/2 hour interview with defendant she undertook "a mental status exam" of defendant, "observing (his) behavior(,) * * * appearance, * * * mood, affect, thought content, thought process, judgment (and) insight". To complement these tests she was given a checklist drafted by two doctors at the Forensic Center which described a spectrum of psychiatric ills. Ms. Fortin also indicated that she had briefly discussed defendant's situation with a staff doctor at the Forensic Center.

From defendant personally and from an unidentified person at the jail where defendant had been held, Ms. Fortin learned that defendant was taking[74 MICHAPP 179] medication to reduce anxiety and was under the influence of these drugs during the interview. She stated, however, that it did not occur to her that this medication would have affected defendant's reactions to her questions at the interview.

After cautious and thorough review of the record, we believe the lower court abused its discretion and thereby erred reversibly in qualifying Ms. Fortin as an expert capable of determining defendant's competence to stand trial on the murder charge. People v. Skowronski, 61 Mich.App. 71, 79-80, 232 N.W.2d 306 (1975). Further, we disagree with People v. Lamont Crawford,66 Mich.App. 581, 239 N.W.2d 670 (1976), to the extent it holds that any member of the Forensic Center staff, under M.C.L.A. § 330.2026; M.S.A. § 14.800(1026), may determine a defendant's competence to stand trial. Implicit within M.C.L.A. § 330.2026, we believe, is the assumption that the "personnel" of the Forensic Center chosen "to perform examinations relating to the issue of incompetence to stand trial" must be minimally qualified to do so. ² Other than the fact of her employment with the Forensic Center, we glean no evidence from the record which shows Ms. Fortin to be equipped to determine whether defendant "is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner". M.C.L.A. § 330.2020(1); M.S.A. § 14.800(1020)(1). While she denominates[74 MICHAPP 180] herself a "forensic" social worker, her recorded background is bereft of any indication that she is experienced in the application of psychiatric knowledge to the processes of law. Doubtless psychosomatic ailments and other organic problems can play a significant role in assessing a defendant's competence to stand trial, and doubtless Ms. Fortin by her own admission is unqualified to make such an assessment. Nor is she qualified to decide the effects defendant's medication had upon his answers to her questions or upon his general competence. Compare M.C.L.A. § 330.2020(2); M.S.A. § 14.800(1020)(2).

Four additional grounds buttress our conclusion that the lower court committed reversible error in qualifying Ms. Fortin as an expert on competence:

1. When one collates Dr. Bort's written evaluation of July 2, 1975, with Ms. Fortin's report of September 23, 1975, one notes a striking similarity of language that cannot be attributed to mere coincidence. ³ Ms. Fortin acknowledged at the September 30, 1975, hearing that at the prosecutor's request she utilized Dr. Bort's notes and written report as an aid in her evaluation of defendant. However, we...