People v. Bailey , 175 Mich. App. 743 ( 1989 )

175 Mich. App. 743 (1989) 438 N.W.2d 344

PEOPLE
v.
BAILEY

Docket No. 98826.

Michigan Court of Appeals.

Decided March 20, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Don W. Atkins, Principal Attorney, Appeals, for the people.

State Appellate Defender (by Gail Rodwan), for defendant on appeal.

Before: WEAVER, P.J., and SULLIVAN and R.A. BENSON,^[*] JJ.

R.A. BENSON, J.

Following a bench trial, defendant was convicted of first-degree premeditated murder, MCL 750.316; MSA 28.548, first-degree felony murder, MCL 750.316; MSA 28.548, and kidnapping, MCL 750.349; MSA 28.581. He was sentenced to imprisonment for life for the first-degree premeditated murder conviction and for a period of from sixty to ninety years for the kidnapping conviction. Defendant was not sentenced on the felony murder conviction. He appeals as of right. We affirm in part and reverse in part.

I

Defendant's convictions arose from the abduction and strangulation of a fourteen-year-old boy. Defendant did not contest the charged acts, and the sole defense theory was that defendant was not guilty by reason of insanity.

Defendant's psychiatric expert diagnosed defendant to be suffering from pseudopsychopathic schizophrenia, a condition exacerbated when defendant was sexually abused by his psychiatrist at the Northville Regional Psychiatric Hospital. According to the expert witness, defendant sometimes thought he was someone else and at the time of the murder thought he was killing himself. The trial court allowed defendant's expert to conduct an in-court mock "mental status examination" of defendant similar to the one upon which the expert had formulated his diagnosis. During the mock examination, defendant took the witness stand, under oath, and was questioned by his psychiatric expert. As agreed by the parties and the court, the prosecutor was then permitted to cross-examine defendant after cross-examination of defendant's expert. Later, on direct examination, defendant testified that he was killing himself when he strangled the victim.

II

On appeal, defendant argues that the conduct of his expert witness violated his due process rights to a fair trial and to present a defense, and that he was deprived of the effective assistance of counsel. We disagree.

Unlike the prosecution's expert witnesses, defendant's expert based his opinion solely upon his mental status examination of defendant, rejecting other data as unhelpful. This being so, an in-court demonstration of this diagnostic technique was of some assistance to the trier of fact in assessing the expert's testimony. The admission of such demonstrative evidence is a matter for the sound discretion of the trial judge. People v Chimovitz, 237 Mich. 247, 251; 211 N.W. 650 (1927). We find no abuse of discretion here.

Defendant's right to present a defense was not infringed upon. Defendant's participation in simulated psychoanalysis did not serve as a substitute for direct examination. The purpose of the mock examination was to demonstrate the basis for the schizophrenia diagnosis. The prosecutor's cross-examination of defendant served to discredit the medical opinion of defendant's expert, not defendant's responses during the mock examination. Defendant elected a bench trial; hence it is unlikely that the trier of fact considered the evidence for anything other than the purpose for which it was offered. See People v Fisher, 87 Mich. App. 350, 358; 274 NW2d 788 (1978).

Defendant received a fair trial. The fact that defendant's expert formed his opinion on the basis of a single interview with defendant resulted from the expert's deliberate rejection of other data, not from lack of preparation. Although his diagnosis was phrased in outdated terminology, the diagnosis was not medically unrecognized. We do not find the expert's flamboyance and use of provocative language to be behavior so bizarre as to turn defendant's trial into a sham or mockery. Nor did the weight of the foregoing irregularities make defendant's trial inconsistent with fundamental principles of liberty and justice. See People v Rosales, 160 Mich. App. 304, 312; 408 NW2d 140 (1987), lv den 429 Mich. 861 (1987).

Defendant was not denied the effective assistance of counsel. The decision to call defendant's expert was one of trial strategy. This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight. People v Barnett, 163 Mich. App. 331, 338; 414 NW2d 378 (1987).

III

We find merit in defendant's argument that his multiple convictions for first-degree premeditated murder, first-degree felony murder and the predicate felony of kidnapping violate constitutional prohibitions against double jeopardy. People v Wilder, 411 Mich. 328, 342; 308 NW2d 112 (1981); People v Sparks, 82 Mich. App. 44, 53; 266 NW2d 661 (1978), lv den 411 Mich. 1050 (1981). Accordingly, defendant's first-degree felony murder conviction is vacated.

Defendant's convictions for first-degree premeditated murder and kidnapping are affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.