People v. Spry , 74 Mich. App. 584 ( 1977 )

74 Mich. App. 584 (1977) 254 N.W.2d 782

PEOPLE
v.
GARY SPRY
PEOPLE
v.
ROBERT SPRY
PEOPLE
v.
MILATZ

Docket Nos. 28189, 28787.

Michigan Court of Appeals.

Decided March 30, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training & Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

Eugene S. Hoiby, for Gary and Robert Spry.

Daniel A. Burress, for David Milatz.

Before: M.J. KELLY, P.J., and N.J. KAUFMAN and D.F. WALSH, JJ.

D.F. WALSH, J.

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 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 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 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. MCLA 767.27a; MSA 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 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 NW2d 327 (1972), People v Doerfer, 46 Mich. App. 662; 208 NW2d 521 (1973), People v Mowrey, 63 Mich. App. 676; 235 NW2d 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 NW2d 289 (1972), People v Leffew, 58 Mich. App. 533; 228 NW2d 449 (1975). We conclude that a recent trilogy of Michigan Supreme Court decisions, People v Blocker, 393 Mich. 501; 227 NW2d 767 (1975), People v Lucas, 393 Mich. 522; 227 NW2d 763 (1975), People v Parker, 393 Mich. 531; 227 NW2d 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. 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: ``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, MCLA 767.27a(3); MSA 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 NW2d 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 NW2d 713 (1976).

In People v Parker, supra, the defendant argued that his referral to a non-certified facility by the 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. People v Doerfer, 46 Mich. App. 662; 208 NW2d 521 (1973)." 393 Mich. at 540-541; 227 NW2d at 779 (1975). (Emphasis supplied.)

See also, People v Blocker, 393 Mich. 501, 511-515; 227 NW2d 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 negotiations were conducted that day and, according to appellate counsel, the motions were thereafter withdrawn. Having failed to raise the issue of their competency, defendants cannot fault the trial court for failing to initiate proceedings for a determination of the matter.^[9] True, as argued by defendants, neither a defendant who may be incompetent nor his counsel may waive a determination as to the defendant's capacity. Pate v Robinson, supra, People v Lucas, 47 Mich. App. 385; 209 NW2d 436 (1973), People v Walker, 65 Mich. App. 207; 237 NW2d 252 (1975). The instant situation, however, is distinguishable.

In Pate, defense counsel raised the issue of the defendant's capacity by presenting substantial evidence at trial that the defendant was then incompetent. The cited decisions of this Court concern the ability of a defendant to waive a hearing regarding his competency after his return from the forensic center or a diagnostic facility. In those cases, referral for a forensic examination, under MCLA 767.27a(3); MSA 28.966(11)(3), itself represents an initial determination that a bona fide doubt exists as to the competency of the accused. The case at bar involves a preceding step, that is, a decision on the part of the defense as to whether to raise an incompetency claim. The issue is not properly one of waiver as the defendants, until presentation of some evidence of their incompetency, had no right to invoke the procedure outlined by statute and court rule for adjudication of the issue. People v Blocker, supra.

II

GCR 1963, 785.7(3)(a) requires that a trial court question a defendant and establish a factual basis for his guilty plea. On appeal, the standard to be applied in determining the adequacy of a factual basis for his guilty plea. On appeal, the standard to be applied in determining the adequacy of a factual basis is whether a trier of fact could properly convict on the facts as stated by the defendant. A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury on the facts admitted by the defendant. The fact that an exculpatory inference could also be drawn is immaterial. Guilty Plea Cases, 395 Mich. 96; 235 NW2d 132 (1975), People v Haack, 396 Mich. 367; 240 NW2d 704 (1976).

On appeal David Milatz contends that his testimony at the plea taking proceeding demonstrates none of the requisite elements of unarmed robbery. Robert Spry alleges only that the facts admitted do not indicate that the money was taken in the complainant's presence.

The elements of robbery unarmed are: (1) the felonious taking of any property which may be the subject of larceny from the person or presence of the complainant, (2) by force and violence, assault or putting in fear, (3) while not armed with a dangerous weapon. People v Tolliver, 46 Mich. App. 34; 207 NW2d 458 (1973). In pleading to the charge Milatz admitted that he knew that the person who took the money from the complainant's purse did so with the intent to steal it and conceded that he himself intended to share in the money. Granted, standing alone, the statement would not support his plea. Milatz ignores, however, his admitted participation in the entire series of events which occurred the night of the crime.

One who aids and abets the commission of a crime is chargeable as a principal. MCLA 767.39; MSA 28.979, People v Palmer, 392 Mich. 370; 220 NW2d 393 (1974). An aider and abettor is one who encourages, counsels or assists another in the commission of a crime with the intention of rendering such help and with the knowledge that the criminal act is contemplated. People v Penn, 70 Mich. App. 638; 247 NW2d 575 (1976). Under the statute, each accomplice is equally liable for the actions of the others when operating in concert. People v Dykes, 37 Mich. App. 555; 195 NW2d 14 (1972). In the present case Milatz admitted that on the night in question he, together with Roberts and the Sprys, approached the complainant's car and demanded that the complainant and her boyfriend exit. Milatz further testified that when the man resisted Robert Spry he struck the man and searched his wallet for money. Thereafter, money was taken from the complainant's purse.

The theft of the complainant's money was part of a common criminal enterprise in which defendant Milatz was an active participant. As such, he is chargeable with Gary Spry's forcible removal of complainant from the area of her car and Robert Spry's theft of the money from her purse which Spry admitted he removed with the intent to steal. As unarmed robbery is a specific intent crime, People v Dupie, 395 Mich. 483; 236 NW2d 494 (1975). Milatz, to be liable as an aider and abettor, must have either had the requisite intent or aided and abetted knowing that the actual perpetrator had the required intent. People v Poplar, 20 Mich. App. 132; 173 NW2d 732 (1969), People v Sharp, 57 Mich. App. 624; 226 NW2d 590 (1975). The facts admitted by Milatz establish both his participation and knowledge.

The argument of Robert Spry that the factual basis for his plea fails to demonstrate that the money was taken from the complainant's presence is similarly without merit. Recently, in People v Beebe, 70 Mich. App. 154, 159;245 NW2d 547 (1976), this Court stated:

"``A thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.'" [Quoting from Commonwealth v Homer, 235 Mass 526; 127 N.E. 517 (1920).]

In the present case, complainant, if she had not been forcefully removed to the defendants' car, would have retained the money.

III

Gary Spry argues that the facts admitted by him to support his plea to the charge of assault with intent to rob unarmed fail to indicate that he had the requisite intent.

The elements of assault with intent to rob unarmed are: (1) an assault with force and violence, (2) an intent to rob, (3) while unarmed. People v Sanford, 65 Mich. App. 101; 237 NW2d 201 (1975). Specific intent has been defined as the subjective desire or knowledge that the prohibited result will occur. People v Lerma, 66 Mich. App. 566; 239 NW2d 424 (1976). In the case at bar, Spry initially sought to plead guilty to the charge of unarmed robbery. During the course of describing his involvement Spry stated that he was unaware that either the complainant or the man accompanying her were robbed until after the money was taken. He subsequently testified, however, that the intent of the parties to perpetrate the unarmed robbery was with his knowledge. The prosecutor thereafter sought to add an additional charge of assault with intent to rob and defendant Spry testified that while he kept the complainant occupied in the car, his brother robbed her. From this testimony a trier of fact could have inferred that defendant Gary Spry assaulted the complainant, not only with the intent to rape, but with the subjective desire and knowledge that in doing so he was furthering the commission of the robbery.

IV

The final issue is Gary Spry's contention that the trial court improperly accepted his plea in failing to first advise him of the possibility of an intoxication defense. The argument is completely devoid of merit. GCR 1963, 785.7(1)(a).

Affirmed.

Judge KAUFMAN concurs in result only.

NOTES

[1] On February 13, 1975, Thomas Roberts pled guilty to the charges of unarmed robbery and assault with intent to rape and was sentenced on April 1, 1975, to prison terms of 10 to 15 years and 6 to 10 years, respectively. Roberts' appeal is not presently before this Court.

[2] MCLA 750.520; MSA 28.788, repealed by 1974 PA 266; MCLA 750.520a et seq.; MSA 28.788(1) et seq. effective April 1, 1975.

[3] MCLA 750.338b; MSA 28.570(2).

[4] MCLA 750.530; MSA 28.798.

[5] MCLA 750.85; MSA 28.280, repealed by 1974 PA 266; MCLA 750.520a, et seq.; MSA 28.788(1), et seq., effective April 1, 1975.

[6] MCLA 750.88; MSA 28.283.

[7] The lower court record does not contain a notice of hearing scheduling the matter for that date. At the hearing on defendants' motion to withdraw their pleas, however, the prosecutor and appellate counsel agreed that a hearing was set for February 11 and the trial court acknowledged the existence of a motion praecipe.

[8] Repealed by 1974 PA 258; MCLA 330.1001 et seq.; MSA 14.800(1) et seq., effective August 6, 1975, MCLA 330.2102; MSA 14.800 (1102). Presently, see MCLA 330.2020 et seq.; MSA 14.800 (1020) et seq.

[9] The defendants do not allege that sufficient evidence was presented to the trial court to require the court to raise the issue sua sponte.