People v. Thomas, Docket No. 78-5256

• Decision Date: 17 March 1980
• Docket Number: Docket No. 78-5256
• Citation: 96 Mich.App. 210,292 N.W.2d 523
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billie Gene THOMAS, Defendant-Appellant. 96 Mich.App. 210, 292 N.W.2d 523
• Court: Court of Appeal of Michigan — District of US

Page 523

292 N.W.2d 523

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billie Gene THOMAS, Defendant-Appellant.

Docket No. 78-5256.

96 Mich.App. 210, 292 N.W.2d 523

Court of Appeals of Michigan.

March 17, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 213] Thomas A. Bengtson, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter Houk, Pros. Atty., Michael G. Woodworth, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BEASLEY and CYNAR, JJ.

BEASLEY, Judge.

Defendant, Billie Gene Thomas, was convicted by a jury of first-degree murder but mentally ill. ¹ After being sentenced to life imprisonment with eligibility for psychiatric treatment, if appropriate, ² he appeals as of right, claiming there are seven issues.

On August 7, 1977, defendant's estranged wife, Dixie Mae Thomas, was shot to death. On August 23, 1977, defendant was arrested and charged with her premeditated murder.

Immediately prior to commencement of preliminary examination on September 7, 1977, counsel [96 MICHAPP 214] for defendant moved to adjourn the preliminary examination and to refer defendant to the Center for Forensic Psychiatry for evaluation as to whether he was competent to stand trial. The district judge denied defendant's motion. After preliminary examination, defendant was bound over for trial for murder in the first-degree, as charged. In circuit court, defendant renewed his motion regarding competency for trial and, on September 30, 1977, an order was entered referring defendant to the Center for Forensic Psychiatry. Pursuant to recommendations from the center, defendant was adjudicated incompetent to stand trial on December 23, 1977, but, subsequently, on September 13, 1978, was determined competent to stand trial. On the latter date, September 13, 1978, defendant moved to remand for a second or further preliminary examination, which motion was denied.

On appeal, defendant claims error occurred in the two rulings, (1) denial on September 7, 1977, by the district judge of his motion to be referred to the Forensic Psychiatry Center for evaluation as to competency, and (2) denial on September 13, 1978, by the circuit judge of his motion to remand to the district court for a further or second preliminary examination. He urges that these two rulings deprived him of a meaningful preliminary examination, of effective legal counsel at the preliminary examination and timely diagnostic evaluation by the Forensic Center of competency to stand trial.

The issue of competency to stand trial may be raised at any time before trial. ³ A defendant who is determined incompetent to stand trial may not [96 MICHAPP 215] be proceeded against while incompetent. ⁴ When the issue of competency is raised, the trial court must address the issue. ⁵ When counsel for defendant moved for psychiatric evaluation prior to preliminary examination, the magistrate questioned his own authority to conduct a commitment hearing and order commitment. The cases are ambiguous on this proposition. ⁶

In People v. Matheson, ⁷ prior to the preliminary examination, by stipulation of the parties, the circuit court ordered defendant committed to the Forensic Center for a competency evaluation. No case law expressly addresses the issue of whether a magistrate, upon a showing that defendant may be incompetent to stand trial, may order a competency evaluation. The case law, applicable statutes and court rule speak of the trial court only.

In actual practice, a division of opinion exists as to whether a district judge has the power to make a finding of possible incompetency and a referral to the Forensic Center for evaluation and recommendation. Some district judges are making such referrals, and the Forensic Center is accepting such referrals and making evaluation and recommendation upon which district judges are conducting hearings and making determinations regarding competency for trial.

We find nothing in the statutes or case law expressly prohibiting referrals to the Forensic Center by a district judge. We believe that there is [96 MICHAPP 216] good reason for empowering the district judge to entertain the issue of competency for trial where the issue is raised. It tends to speed up the full criminal process by encouraging prompt, early referral to the Forensic Center where a situation demands it. Unless the district judge may make such a referral and determination, there is an inevitable delay in either awaiting a circuit court referral to the Forensic Center and subsequent determination of competency or in the district judge proceeding to hear such matters as may be before him at the risk of later reversal on the basis of incompetency to stand trial.

The prosecutor argues and the magistrate adopts the reasoning that the preliminary examination plays a limited role in the criminal justice system. In People v. Bellanca, ⁸ the Michigan Supreme Court stated:

"In Michigan the preliminary hearing is a judicial proceeding designed to establish probable cause that a crime has been committed and probable cause to believe the accused committed it. It is a critical stage of our criminal process."

As the preliminary examination is considered to be a "critical stage", counsel must be provided to represent an indigent defendant at the preliminary examination. Defendant argues that the inability to assist counsel in his defense because of his mental incompetence actually means that this defendant was not present at this critical stage of the criminal proceeding against him. While this is, perhaps, an unusual or exaggerated way to put it, the fact is that a defense to a criminal charge is sorely handicapped if defendant is unable to assist in his own defense.

[96 MICHAPP 217] Article 1, § 20 of the 1963 Michigan Constitution provides that:

"In every criminal prosecution, the accused shall have the right * * * to be confronted with the witnesses against him; * * * to have the assistance of counsel for his defense * * *."

The Bellanca court read that provision as according a defendant the same assistance of counsel contemplated in the Sixth Amendment to the United States Constitution. That right was considered by the United States Supreme Court in Coleman v. Alabama, ⁹ wherein the Court observed:

"Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail." ¹⁰

To be truly effective in a practical sense (as distinguished from effective in the "constitutional minimum" sense), counsel must be properly prepared[96 MICHAPP 218] for cross-examination of the people's witnesses. This entails some minimal communication with the defendant.

On the other hand, this Court has recognized the narrow scope of the preliminary examination:

"The preliminary examination is a screening process to test the substance of the State's allegations against the accused as a basis for further proceedings against him. It is not a trial and should be as brief and to the point as the nature of the charge and the intricacies of the matter will permit, but not at the abuse of its two-fold purpose to determine whether or not the offense was committed and whether or not probable cause exists to believe that the defendant was guilty of the commission of that crime." ¹¹

However limited the scope of the preliminary examination is considered to be, the fact remains that it is a critical stage of the criminal proceeding. We, therefore, conclude that, where there is evidence of incompetency prior to the preliminary examination and counsel for defendant requests a determination of competency to stand trial, the examining magistrate should halt preliminary proceedings against a defendant and refer the defendant to the Center for Forensic Psychiatry for evaluation and recommendation. Upon receipt of the written report and recommendation, the district judge should conduct a hearing and make a determination of competency. Unless this procedure is followed, serious question may arise as to whether defendant's right to confront witnesses and assist in his or her own defense has been violated.

As the rule announced today applies to future [96 MICHAPP 219] preliminary examinations, we must determine whether, under the facts of this case, denial of defendant's motion prior to preliminary examination for determination of competency and/or denial of defendant's motion for a second, or supplemental, preliminary examination, require reversal of the conviction and remand for further proceedings and a new trial. In making our determination, we must examine events subsequent to the preliminary examination and defendant's commitment. We conclude that, under these facts, any error that may have occurred was not of such a magnitude as to require reversing the conviction and remanding for a new trial.

The facts indicate that testimony was taken at the preliminary examination on September 7 and 8, 1977, and defendant was bound over on an open charge of murder. On September 30, 1977, the circuit court...