People v. Sorna

• Decision Date: 05 February 1979
• Docket Number: Docket No. 77-2549
• Citation: 88 Mich.App. 351,276 N.W.2d 892
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jules V. SORNA, Defendant-Appellant. 88 Mich.App. 351, 276 N.W.2d 892
• Court: Court of Appeal of Michigan — District of US

Page 892

276 N.W.2d 892

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jules V. SORNA, Defendant-Appellant.

Docket No. 77-2549.

88 Mich.App. 351, 276 N.W.2d 892

Court of Appeals of Michigan.

Feb. 5, 1979.

Released for Publication March 29, 1979.

[88 MICHAPP 355] Mark J. Glazer, Birmingham, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Lawrence J. Bunting, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

CAVANAGH, Judge.

Defendant was charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. Upon the filing of the required notice, defendant interposed a defense of insanity. Defendant petitioned for and was granted the appointment of an independent psychiatrist to evaluate his insanity, pursuant to M.C.L. § 768.20a; M.S.A. § 28.1043(1). The prosecutor also requested appointment of a psychiatrist to evaluate the defendant on behalf of the People, also on the authority of this statute. A copy of this evaluation was to be filed with the defense. Subsequently, the trial court, upon motion and argument by the People, likewise ordered the defendant to furnish to the prosecution any written psychiatric report prepared by the defense psychiatrist. The trial court conditioned its order on the defendant's decision to proceed with the insanity defense. The respective reports were exchanged, although defendant's psychiatrist did not testify nor did the prosecutor use the defense psychiatric report at trial. Defendant was found "guilty but mentally ill" of the charged offense after a jury trial, and appeals by right.

[88 MICHAPP 356] Defendant raises four claims of error on appeal. The first three errors assigned by defendant concern issues pertaining to defendant's insanity defense and the jury's verdict of guilty but mentally ill.

He argues first, that the statutory provision (M.C.L. § 768.20a; M.S.A. § 28.1043(1)), requiring submission to the prosecutor of any independent psychiatric report prepared for the defense violates the attorney-client privilege. He contends further that the trial court improperly conditioned its order to submit the report upon the defense decision to proceed with an insanity defense, thereby offending equal protection and due process. Defendant next attacks the constitutionality of M.C.L. § 768.36; M.S.A. § 28.1059, which permits the jury to find a defendant who has pled insanity "guilty but mentally ill". He argues that the statute itself creates an irrational classification violative of equal protection, and that it is unconstitutional as applied because the Department of Corrections lacks the capacity and is not providing the appropriate psychiatric treatment for mentally ill inmates such as defendant. In this regard, he also argues that the required instruction concerning the disposition of a defendant convicted under M.C.L. § 768.36; M.S.A. § 28.1059, misled the jury concerning the availability of treatment and created the risk of a compromise verdict on the issue of the defendant's insanity and consequent criminal responsibility.

Defendant relies on the holding of People v. Hilliker, 29 Mich.App. 543; 185 N.W.2d 831 (1971), to support his first contention that the trial court's order permitting prosecution access to the defense psychiatric report violated the attorney-client privilege. Hilliker found a violation of this privilege in the trial court's failure to exclude testimony of a [88 MICHAPP 357] defense psychiatrist called by the prosecution, as well as the evidence of his written psychiatric report.

However, the defendant's reliance on Hilliker ignores the statutory development in the use of psychiatric reports since that decision. The Legislature, in enacting M.C.L. § 768.20a; M.S.A. § 28.1043(1) carefully circumscribed the use of independent psychiatric reports in cases where insanity is in issue "Statements made by the defendant to personnel of the center for forensic psychiatry or to any independent examiner during an examination shall not be admissible or have probative value in court at the trial of the case on any issues other than his mental illness or insanity at the time of the alleged offense."

The finding of a violation of the attorney-client privilege in Hilliker depended heavily on the particular use to which the psychiatric evidence was put. The prosecutor introduced those portions of the defense psychiatrist's written conclusions which concerned his very damaging opinion of the defendant's truthfulness and recall of the offense, apart from any opinion on the defendant's mental health. The use of these reports condemned in Hilliker is likewise impermissible under the statute. We therefore do not find Hilliker to be controlling on this question.

First, M.C.L. § 768.20a; M.S.A. § 28.1043(1) specifically authorized the exchange of psychiatric reports which occurred in the case at bar. The limitations on their use contained in the statute reflect the Legislature's intent to facilitate a complete exploration of the mental state of the defendant in the interest of public justice and yet avoid the violation of attorney-client privilege criticized in Hilliker.[88 MICHAPP 358] See United States v. Carr, 141 U.S.App.D.C. 229, 437 F.2d 662, 663 (1970).

Secondly, the common-law attorney-client privilege is not immune from development by case law or modification by statute. Nor do any constitutional impediments appear to exist to prevent the Legislature from either providing for a specific exemption in cases where the defendant's insanity is in issue or to so limit the use of psychiatric reports so as to avoid the issue of privilege. Under either view of the statute, it is obvious that the Legislature, in permitting the limited use of psychiatric reports, struck a balance between any possible prejudice to the defendant and the strong "interest of the State in accurate fact-finding by its courts". United States v. Smith, 425 F.Supp. 1038, 1054 (E.D.N.Y., 1976), Aff'd without opinion, 556 F.2d 556 (C.A.2, 1977). United States v. Albright, 388 F.2d 719 (C.A.4, 1968); Pope v. United States, 372 F.2d 710, 720-721 (C.A.8, 1967).

Defendant stresses a variety of tactical disadvantages which may result if he is required to furnish the report of "any independent examiner" to the prosecution, including chilling of defendant-psychiatrist communication and discouragement of defense counsel exploration of the insanity issue by gathering a variety of medical opinions. This position ignores the fundamental purpose of a criminal trial: the fair ascertainment of the truth. People v. Johnson, 356 Mich. 619, 621, 97 N.W.2d 739 (1959); People v. Aldridge, 47 Mich.App. 639, 646, 209 N.W.2d 796 (1973). A necessary concomitant of this goal is a reasonable balancing of advantages and a lessening of a vehemently adversary climate at trial. We view M.C.L. § 768.20a; M.S.A. § 28.1043(1), as a legislative encouragement of this purpose.

[88 MICHAPP 359] Defendant also argues that because the trial court's order conditioned the defendant's obligation to submit the psychiatric report to the prosecution upon a decision to proceed with an insanity defense, he was deprived of equal protection of the law and due process.

The argument is without merit. M.C.L. § 768.20a(6)(a); M.S.A. § 28.1043(1) (6)(a) creates a procedure for the submission of psychiatric reports to the defense or prosecution which is automatically triggered by the filing of the insanity notice and request for an independent psychiatric examination, theoretically without the need for judicial intervention. Thus, the court did not order the defendant and his psychiatric expert to do anything more than what they and all similarly situated defendants were already obligated to do. Defendant's reliance on the rule in People v. Sargeant, 65 Mich.App. 691, 238 N.W.2d 175 (1975), to support his contention, is misplaced. Sargeant merely clarifies the required order of proof at trial on the issue of insanity in order to restrain prosecution attempts to raise the issue prematurely and should not be used to inhibit the reasonable exchange of psychiatric information prior to trial.

Nor does the order explicitly threaten the loss of defendant's insanity defense, as defendant asserts. It appears merely to provide defense counsel with an opportunity the statute itself does not offer to evaluate the contents of the report and its probable effect on the insanity defense before submission to the prosecutor.

Defendant also attacks the constitutionality of M.C.L. § 768.36; M.S.A. § 28.1059, which permits a jury to return a verdict of "guilty but mentally ill" in cases where a defendant has interposed the defense of insanity. Basically, he argues the statutory[88 MICHAPP 360] definitions of mental illness (M.C.L. § 330.1400a; M.S.A. § 14.800(400a)) and legal insanity (M.C.L. § 768.21a; M.S.A. § 28.1044(1)), are based upon substantially similar behavioral characteristics. Therefore, it is argued, it is irrational to consider a defendant found "mentally ill" criminally responsible for his acts while excusing one adjudged "legally insane" from a similar responsibility. Consequently, defendant asserts, this irrational classification violates equal protection.

This identical issue was raised before another panel of this Court in People v. Desi Jackson, 80 Mich.App. 244, 263 N.W.2d 44 (1977), a case which found no equal protection violation. We are persuaded that this view is essentially correct. Where a state discovers a need to make experimental classifications "in a practical and troublesome area", the...