People v. Spry

• Decision Date: 30 March 1977
• Docket Number: 28787,Docket Nos. 28189
• Citation: 74 Mich.App. 584,254 N.W.2d 782
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary King SPRY, Robert Michael Spry, and David Milatz, Defendants-Appellants. 74 Mich.App. 584, 254 N.W.2d 782
• Court: Court of Appeal of Michigan — District of US

Page 782

254 N.W.2d 782

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary King SPRY, Robert Michael Spry, and David Milatz Defendants-Appellants.

Docket Nos. 28189, 28787.

74 Mich.App. 584, 254 N.W.2d 782

Court of Appeals of Michigan.

March 30, 1977.

Rehearing Denied May 6, 1977.

Released for Publication June 21, 1977.

[74 MICHAPP 586] Eugene S. Hoiby by Robert J. Kanter (Spry and Spry), Daniel A. Burress, Livonia (Milatz), for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Maura Corrigan, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

[74 MICHAPP 587] Before KELLY, P. J., and KAUFMAN and WALSH, JJ.

WALSH, Judge.

Defendants appeal from orders of the Wayne County circuit court denying their motions to withdraw their guilty pleas.

On December 15, 1974, at approximately 3:00 a. m. the defendants, together with Thomas Roberts, ¹ were driving in Edward Hines Park in the City of Westland when they pulled behind a parked car. The men approached the car, knocked on the windows, announced that they were Westland city police, and demanded that the man and woman inside the vehicle exit. When the man stepped outside, Robert Spry threw him against the car, took his wallet, confiscated the money, and returned the wallet. The man attempted to hit Spry but was struck by both Spry and David Milatz. Gary Spry and Thomas Roberts, meanwhile, took the complainant to the defendants' car where Spry unsuccessfully attempted to rape her. While Gary Spry was assaulting the complainant, his brother entered the complainant's car, found her purse and took approximately $10 from it. After driving around with the complainant for awhile the defendants and Roberts dispersed and the complainant was released.

All of the defendants were initially charged with rape. ² Gary Spry was also charged with gross indecency. ³ On February 13, 1975, Robert Spry and David Milatz pled guilty to the charge of unarmed [74 MICHAPP 588] robbery ⁴ and Gary Spry pled guilty to the charges of assault with intent to rape ⁵ and assault with intent to rob unarmed ⁶. On March 31, 1975, Robert Spry was sentenced to a prison term of 10 to 15 years. The same day Gary Spry was sentenced to a prison term of 6 to 10 years on the charge of assault with intent to rape and 10 to 15 years on the charge of assault with intent to rob unarmed. David Milatz was sentenced on April 1, 1975, to a prison term of 8 to 15 years.

On appeal the Sprys contend that the trial court erred in failing to order that they be committed to the forensic center for psychiatric examination and in failing to conduct a competency hearing. Gary Spry alleges that the court erred in accepting his plea without first advising him of the possibility of an intoxication defense, and all three defendants challenge the sufficiency of the factual basis supporting their pleas.

I

On February 3, 1975, defense counsel filed motions requesting that both Gary and Robert Spry be committed to the forensic center in order to evaluate their competency to stand trial. The motions were scheduled to be heard on February 11, 1975. ⁷ On that date, however, the prosecutor and defense counsel entered into negotiations which culminated in defendants' pleas to reduced charges [74 MICHAPP 589] two days later. No further mention was made of the motions. According to defendants' appellate counsel at the hearing on defendants' motion to withdraw their pleas, the motions for forensic examinations had been withdrawn following the plea negotiations.

Defendants now allege that the trial court erred in failing to commit them for psychiatric evaluation upon the filing of defense counsel's motions. The people respond that a trial court is only required to order a forensic exam upon some showing of incompetency and contend that defendants, having failed to present the motions to the trial court, abandoned the issue.

The statute and court rule covering competency to stand trial contain conflicting provisions regarding a trial court's duty to order a forensic examination upon the motion of defense counsel. M.C.L.A. § 767.27a; M.S.A. § 28.966(11), provides in relevant part:

"(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." (Emphasis supplied.) ⁸

GCR 1963, 786.1 permits a defendant to raise the issue of his competency at any time prior to trial [74 MICHAPP 590] by written motion. GCR 1963, 786.2 reserves to the trial court the right to raise the issue during trial. According to GCR 1963, 786.3:

"If defendant is the moving party, the court shall order the defendant committed to a diagnostic facility certified by the department of Mental Health for the performance of forensic psychiatric evaluation for a period not to exceed 60 days from the date of the commitment order." (Emphasis supplied.)

The issue of whether the statute or court rule prevails has divided this court. Some panels have held that a trial court is obligated to order a forensic examination only upon a showing of the defendant's incompetency to stand trial. People v. Sherman Williams, 38 Mich.App. 370, 196 N.W.2d 327 (1972); People v. Doerfer, 46 Mich.App. 662, 208 N.W.2d 521 (1973); People v. Mowrey, 63 Mich.App. 676, 235 N.W.2d 23 (1975). Others have held that the filing of a motion by defendant itself requires commitment of the accused for psychiatric evaluation. People v. Howard, 37 Mich.App. 662, 195 N.W.2d 289 (1972); People v. Leffew, 58 Mich.App. 533, 228 N.W.2d 449 (1975). We conclude that a recent trilogy of Michigan Supreme Court decisions, People v. Blocker, 393 Mich. 501, 227 N.W.2d 767 (1975); People v. Lucas, 393 Mich. 522, 227 N.W.2d 763 (1975); People v. Parker, 393 Mich. 531, 227 N.W.2d 775 (1975), cert. den., 423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975), indicates that the right of an accused to a forensic examination is conditioned upon some showing of incompetency to stand trial.

In People v. Blocker, supra, defense counsel moved that the defendant be examined by psychiatrists in order to determine his competency to stand trial and the feasibility of an insanity defense.[74 MICHAPP 591] The trial court granted the motion, ordering that the defendant be examined at a local clinic. The clinic's report was sent to the attorneys in the case and no further reference was made to the matter. The defendant argued before the Supreme Court that he was entitled to a new trial since the issue of his competency had been raised but never decided by the lower court. The Supreme Court rejected the argument:

"The issue of competence can only be raised by evidence of incompetence. In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the United States Supreme Court said at 385, 86 S.Ct. (836) at 842: 'We believe that the evidence introduced on Robinson's behalf entitled him to a hearing on this issue. The court's failure to make such inquiry thus deprived Robinson of his constitutional right to a fair trial.'

"Our statute, M.C.L.A. 767.27a(3); M.S.A. 28.966(11)(3), embodied the same thought: 'Upon a showing that the defendant may be incompetent to stand trial, the court shall * * * ' (emphasis added).

"Our Court Rule GCR 1963, 786, provides the procedure for raising and settling the issue formally, but it is the evidence of incompetence that establishes the defendant's rights." 393 Mich. at 508-510, 227 N.W.2d at 769. (Footnotes omitted.)

See also, People v. Lucas, supra. While the Blocker opinion appears to be directed at the failure of the trial court to conduct a competency hearing following referral to a clinic, rather than ordering a psychiatric examination initially, it stresses the necessity that evidence of incompetency be presented in order to invoke the procedure prescribed by statute and court rule. People v. Stripling, 70 Mich.App. 271, 245 N.W.2d 713 (1976).

In People v. Parker, supra, the defendant argued that his referral to a non-certified facility by the [74 MICHAPP 592] trial court on its own motion raised the issue of his competency which the trial court then improperly resolved by failing to commit the defendant to the forensic center or an approved diagnostic facility. In upholding the trial court's actions, the Supreme Court stated:

"In practice, courts frequently refer defendants to a noncertified facility or a private psychiatrist before the competency hearing is conducted without violating their due process or self-incrimination rights. These represent proper sources of information which a court may consider when determining whether to raise formally the issue of defendant's competency or when it conducts a hearing to determine whether it has been 'shown' that defendant 'may be' incompetent. See People v. Doerfer, 46 Mich.App. 662, 208 N.W.2d 521 (1973)." 393 Mich. at 540-541, 227 N.W.2d at 779 (1975). (Emphasis supplied.)

See also, People v. Blocker, 393 Mich. 501, 511-515, 227 N.W.2d 767, 770-772 (1975) (Swainson, J., dissenting). Defendants, therefore, were not entitled to a forensic examination upon filing petitions but were required to demonstrate their incompetency. We need not, however, decide whether such a showing was made as defendants never called upon the lower court to decide the issue.

As previously mentioned, defendants' motions for forensic examinations were scheduled to be heard on February 11, 1975, but plea...