In Re Ricks , 167 Mich. App. 285 ( 1988 )

167 Mich. App. 285 (1988) 421 N.W.2d 667

IN THE MATTER OF RICKS

Docket No. 91550.

Michigan Court of Appeals.

Decided March 21, 1988.

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 Larry L. Roberts, Assistant Prosecuting Attorney, for petitioner.

Juvenile Defender (by William E. Ladd), for respondent.

Before: MacKENZIE, P.J., and M.J. KELLY and L.P. BORRELLO,^[*] JJ.

MacKENZIE, P.J.

On July 31, 1985, petitioner filed a petition in the probate court alleging that respondent committed an act the nature of which constituted the felony of assault with intent to commit murder, MCL 750.83; MSA 28.278. The petition requested the court to take jurisdiction of respondent, apparently pursuant to MCL 712A.2(a)(1); MSA 27.3178(598.2)(a)(1), which provides:

Except as otherwise provided in this section, the juvenile division of the probate court shall have:

(a) Exclusive original jurisdiction superior to and regardless of the jurisdiction of any other court in proceedings concerning any child under 17 years of age found within the county:

(1) Who has violated any municipal ordinance or law of the state or of the United States.

At the time the petition was filed, respondent was sixteen years old. He was detained at the Wayne County Youth Home following the alleged assault.

When the petition was authorized, both petitioner and respondent's counsel requested a psychological evaluation of respondent. The juvenile court referee recommended ordering such an evaluation to be performed by the Wayne County Clinic for Child Study. On August 15, 1985, respondent's attorney filed a notice of insanity defense, accompanied by a request that respondent be referred to the Center for Forensic Psychiatry for evaluation. The presiding judge denied the request for evaluation at the adult forensic center, but ordered evaluation by the Clinic for Child Study. Additionally, respondent was granted his request for an independent psychiatric forensic evaluation.

An adjudicatory hearing was conducted on September 24, October 9, and October 10, 1985. Following petitioner's case in chief, respondent presented the expert testimony of clinical psychologist Dr. William Nixon, who conducted the independent evaluation of respondent. He testified that respondent suffered from a paranoia disorder and that this disorder fell within the legal definition of mental illness. Further, in Nixon's opinion, at the time of the assault respondent was unable to resist his homicidal impulse and was unable to see the wrongfulness of his action. Clinic for Child Study psychologist Dr. Charles Rooney testified as petitioner's rebuttal expert witness. According to Rooney, respondent suffered from a schizoid personality disorder but was able to differentiate between right and wrong.

On October 15, 1985, the juvenile court referee found that respondent, while suffering from mental illness, was not insane. The referee then found respondent guilty but mentally ill and ruled that he came within the provisions of the juvenile code. Disposition immediately followed. Respondent was committed to Boys Training School, which would "attempt to work with this young man for purposes of getting him medication, as well as any type of therapy that could be brought in from Hawthorne [sic] Center by a therapist."

Respondent filed a petition for review on October 21, 1985. Judge Y. Gladys Barsamian denied the petition on February 19, 1986. Responding to several issues raised by respondent, Judge Barsamian ruled that: (1) the court did not err in failing to follow MCL 768.20a; MSA 28.1043(1), governing procedure when an insanity defense is raised, because the insanity defense does not apply in juvenile cases; (2) the guilty but mentally ill verdict, MCL 768.36; MSA 28.1059, does not apply in juvenile cases, but the referee did not intend respondent to come within that statute; and (3) the referee had adequate information upon which to make his dispositional decision. Respondent now appeals from each of these determinations as of right. We affirm.

Respondent contends that Judge Barsamian erred in concluding that the insanity defense is inapplicable to juvenile proceedings. We find it unnecessary to address the issue on these facts. If, as respondent maintains, the defense is available in juvenile court, there was no error at the adjudicatory proceeding. Respondent presented evidence regarding his sanity, argued the question, and received a ruling. We agree with the referee and the presiding judge that the evidence was sufficient to support a finding of respondent's legal sanity. The evidence of respondent's actions both before and immediately after the assault strongly suggested that he was able to conform his conduct to the law and that he appreciated the wrongfulness of his actions. If, on the other hand, Judge Barsamian correctly concluded that the insanity defense has no application in juvenile proceedings, reversal still would not be warranted. Judge Barsamian's ruling did not deny respondent due process. As respondent's counsel stated more than once at the February 19 hearing, the essence of respondent's theory of the case was that he lacked the requisite intent to commit the charged offense. Obviously one need not raise the question of sanity in order to claim lack of evidence of intent. Here, respondent offered his theory and it was rejected. Judge Barsamian's ruling did not deprive respondent of his theory.

Assuming, arguendo, that the insanity defense applies in juvenile proceedings, respondent argues that under MCL 768.20a; MSA 28.1043(1) the probate court erred in ordering his evaluation at the Wayne County Clinic for Child Study rather than the Center for Forensic Psychiatry. Respondent cites no cases and we have found none directly on point. Analogous to the instant case, however, is People v Lucas, 393 Mich. 522, 527-528; 227 NW2d 763 (1975). In Lucas, the Court fashioned a remedy for when the trial court fails to comply with procedural requisites surrounding the determination of competency to stand trial. The Court stated:

As we said in [People v Blocker, 393 Mich. 501; 227 NW2d 767 (1975)], failure to follow a statute or court rule respecting competency determination does not ipso facto entitle a defendant to a new trial. Evidence substantiating incompetency-in-fact must establish that there is a violation of rights before a new trial will be ordered. [Lucas, supra, p 528. Emphasis added.]

Here, respondent's rights were not violated by the decision to have the Clinic for Child Study perform an evaluation. As Judge Barsamian noted, respondent needed mental health treatment as soon as possible, not the delay of many months which would result from referral to the Center for Forensic Psychiatry. Moreover, the Center for Forensic Psychiatry is an adult facility; both the juvenile code and the court rules governing the juvenile division of the probate court contemplate that juvenile detainees will not be exposed to adult detainees. Finally, while there may exist a difference of opinion as to whether the Clinic for Child Study was better equipped to evaluate respondent, that difference of opinion does not amount to a violation of rights. There was no error.

Again assuming, arguendo, that the insanity defense and the procedures set forth at MCL 768.20a; MSA 28.1043(1) apply to juvenile proceedings, respondent further argues that the court erred in permitting Dr. Rooney to testify as an expert on the issue of criminal responsibility. We disagree. In People v Hawthorne, 293 Mich. 15; 291 N.W. 205 (1940), five justices agreed that psychologists are included among those competent to testify on the issue of sanity. Accord: People v Drossart, 99 Mich. App. 66; 297 NW2d 863 (1980), lv den 410 Mich. 892 (1981). People v Hardesty, 139 Mich. App. 124; 362 NW2d 787 (1984), lv den 424 Mich. 878 (1986), app dis ___ US ___; 106 S. Ct. 3269; 91 L. Ed. 2d 560 (1986), upon which respondent relies, dealt with the qualifications of a particular psychologist and cannot be read as disqualifying all clinical psychologists as experts on the issue of sanity.

Whether witnesses are sufficiently qualified to render expert opinions rests within the sound discretion of the trial court, and that court's decisions will be reversed only for an abuse of discretion. People v Beckley, 161 Mich. App. 120, 124-125; 409 NW2d 759 (1987), citing People v Barr, 156 Mich. App. 450; 402 NW2d 489 (1986). In the instant case, Dr. Rooney testified that he was a licensed psychologist, that he had been employed at the Clinic for Child Study since 1980, that he had evaluated approximately 250 young men "for [the] purpose of psychiatric evaluation" and had testified in court forty to fifty times regarding evaluation of youngsters who had appeared in juvenile court, and that he was a professor of psychology at Wayne State University from 1973 to 1979. Although this was his first examination on criminal responsibility, Dr. Rooney was aware of the requirements of the law and had considered the reports and evaluations of three psychiatrists, Dr. Harold Wright of Hawthorn Center, Dr. Dexter Fields of Northland Clinic, and Dr. Barry Miller, when evaluating respondent. As Judge Barsamian noted, the Clinic for Child Study specializes in dealing with children in contrast to the Center for Forensic Psychiatry which deals with adults. Moreover, as Judge Barsamian noted, respondent is hardly in the position to challenge petitioner's expert since respondent was given an opportunity for independent evaluation and, rather than choosing a forensic psychiatrist, he also chose a clinical psychologist. We find no abuse of discretion.

Once more assuming, arguendo, that the insanity defense and the procedures set forth in the Code of Criminal Procedure apply to juvenile proceedings, respondent also contends that the court erred in permitting Dr. Rooney's rebuttal testimony since petitioner did not file a notice of rebuttal. See MCL 768.20a; MSA 28.1043(1) and MCL 768.21; MSA 28.1044. Respondent is correct that petitioner did not file a notice of rebuttal and that the statutory sanction for failure to comply with the notice requirement is the exclusion of the rebuttal evidence. We do not agree, however, that the error mandates reversal. The purpose of the notice requirement is to prevent surprise at trial. People v Williams, 107 Mich. App. 798, 800; 310 NW2d 246 (1981), rev'd on other grounds 413 Mich. 940 (1982). In the instant case, respondent had actual notice not only of the fact that Dr. Rooney would be testifying but also of the content of his testimony. Respondent's expert, Dr. Nixon, testified that he had read Dr. Rooney's report. Counsel for respondent stated on the record that he had a copy of Dr. Rooney's report. Thus, we find the error harmless. The Supreme Court's reversal of Williams, supra, does not compel a different result. The Supreme Court's reason for reversal of Williams was not that the trial court permitted testimony in violation of MCL 768.21; MSA 28.1044, but rather that the "trial court erred by calling as its own expert a witness who was, in fact, a prosecution witness." 413 Mich. 940.

Respondent also argues that the guilty but mentally ill statute has no applicability in a juvenile proceeding. Because Judge Barsamian agreed with respondent on this point, we decline to review the question. Furthermore, the record supports the judge's observation:

When a case comes to this court basically the verdict is does this child come within the jurisdiction of the court. And we usually say it comes within the provisions of the Code. So we don't go into all the other kinds of verdicts that might be handed down by an adult criminal court.

I think what I heard Referee Weberman say on that occasion, even though he might have verbalized it as guilty but mentally ill, I think what he said is that he found that the respondent was mentally ill. I don't think there was a question about that. All the professionals said that this young man was mentally ill. But what he was saying was that even though he was mentally ill at the time he committed this crime or this offense, he did have the prerequisite [sic] intent.

And as we all know, while people may be mentally ill today, they are not mentally ill twenty-four hours a day. They can make wills and do many other things because mental illness is of such a nature that it comes and it goes. And in fact if I recollect correctly, it was indicated by the professional this child could act quite normally and not be detected as being severely mentally ill.

So basically what Referee Weberman was saying, yes, he's mentally ill but at the time he committed this crime he had the intent. And I think that given [the] testimony [that] was presented to him that that was not an inappropriate finding on his part. That there was testimony beyond a reasonable doubt that all the elements of the offense with [sic] which this child was found guilty had been established. And I don't see that I have to send it back to him for a new verdict. I having listened to the tape, I think all the evidence was there. I think, as the lower court has indicated, yes, respondent was mentally ill but he was sane at the time he committed the offense.

The referee did not err in taking jurisdiction in this case.

Respondent also argues that he was denied a fair hearing because he was not on notice of the possibility of a guilty but mentally ill verdict at the adjudicatory hearing and that the verdict constituted an impermissible compromise. Because we agree with Judge Barsamian that the referee's decision to take jurisdiction of the minor did not actually amount to a statutory "verdict" of guilty but mentally ill, we need not address these issues.

Finally, respondent claims that the referee abused his discretion in committing respondent to the Department of Social Services without full inquiry into the grounds for disposition. Again, we defer to the well-reasoned ruling of Judge Barsamian and adopt it as our own:

I think what happened in this case was that through all the pretrial conferences and the reports, and in fact the hearing as it progressed through a variety — a number of days, I think that I would agree with the referee that he did not need to continue this matter, and there is no prerequisite in the law or the court rules that require that. He felt on that occasion that he had more than ample evidence in terms of what needed to be done here, and that's what he did.

Now, I have to say, you know, you go into resources and all those issues about whether there was a compromise, et cetera. The reality is that because we committed this young man to the Michigan Department of Social Services does not mean he's precluded from treatment for his mental problem. I think what the Department of Mental Health was saying, yes, this youngster has a problem and is mentally ill, but he needs to be treated, but we do not have the facilities that are physically secure to prevent him from escaping or leaving the premises, and so we do not have a physical plant with which to maintain this youngster.

However, what the referee found was that there are resources in the juvenile justice system by commitment to the Department that would enable this youngster to be securely detained as well as receive treatment for his mental condition, and it was on that basis that he then committed to the Department. So that having been found guilty he then made disposition which he felt was appropriate in light of the condition of this child, and also in light of the concern for public safety. Therefore, I think that the information and the argument that you have made would not cause me to say that the referee acted inappropriately in this case....

Affirmed.

M.J. KELLY, J., concurred.

L.P. BORRELLO, J. (concurring).

While I concur in the result, I would affirmatively hold that due process mandates the application of the insanity defense to proceedings in juvenile court. The majority does not address this issue directly; however, the majority correctly points out that in this case, irrespective of what the probate judge held, the respondent did present evidence regarding his sanity, argued the question, and received a ruling. Thus the respondent was not deprived of his due process defense. Despite the fact that in this case there was no violation of respondent's due process rights, I believe this Court should go on record that in Michigan the insanity defense is applicable to proceedings in juvenile court.

The defense of insanity has long been a part of the common law of this state. People v Girard, 96 Mich. App. 594, 597; 293 NW2d 639 (1980). Support for the conclusion that due process mandates the application of the insanity defense in juvenile proceedings can be found in decisions of the United States Supreme Court.

In In re Gault, 387 U.S. 1; 87 S. Ct. 1428; 18 L. Ed. 2d 527 (1967), the United States Supreme Court found that "[t]he essential difference between Gerald's case (the juvenile involved) and a normal criminal case is that safeguards available to adults were discarded in Gerald's case. The summary procedure as well as the long commitment was possible because Gerald was 15 years of age instead of over 18." Id. at 29. The Court then stated:

A proceeding where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. [Id. at 36.]

Three years after Gault, the United States Supreme Court decided In re Winship, 397 U.S. 358; 90 S. Ct. 1068; 25 L. Ed. 2d 368 (1970). The Court held:

In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault — notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, "that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process ... the case against him must be proved beyond a reasonable doubt." 24 NY2d at 207; 247 NE2d at 260. [Id. at 368.]

Decisions of this Court indicate that procedural questions for juveniles are determined by analogy to procedures for adults. In In the Matter of Sylvester Wilson, 113 Mich. App. 113; 317 NW2d 309 (1982), lv den 419 Mich. 870 (1984), the question before the Court was whether, at the adjudicative phase, the juvenile court may accept, over the prosecutor's objection, a valid plea in confession to a lesser included offense to the offense charged in the petition. Id. at 120. This Court found that the holding in Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115; 215 NW2d 145 (1974), i.e., that a circuit judge does not possess supervisory power over the prosecutor, applied to juvenile proceedings. Wilson, supra at 121. This Court stated:

We believe this holding is applicable to the present case. Juvenile delinquency proceedings are not criminal or adversary in nature. MCL 712A.1; MSA 27.3178(598.1), JCR 1969, 1.3. Nonetheless, the procedures for invoking juvenile court jurisdiction in cases where a child is alleged to have committed a criminal act are closely analogous to the adversary criminal process. It is the prosecutor who generally initiates the formal proceeding by filing a petition. See JCR 1969, 4.1, MCL 764.27; MSA 28.886. Proper notice to the affected parties is required. MCL 712A.12; MSA 27.3178(598.12), JCR 1969, 7.2. In cases where the child is taken into custody and not released to his parents or guardian, there must be a preliminary hearing within 48 hours. JCR 1969, 4.2. At the preliminary hearing, the court must, inter alia, read to the child the allegations in the complaint or petition and explain the nature of the proceeding. JCR 1969, 4.2(B)(3)-(5). Functionally speaking, the procedure at the preliminary hearing corresponds closely to the initial arraignment in the instance of an adult offender.

Where a request for waiver of juvenile court jurisdiction is filed, the court must conduct a hearing to determine whether there is probable cause to believe that the child committed the acts charged in the petition. MCL 712A.4(3); MSA 27.3178(598.4)(3), JCR 1969, 11.1(A). If the waiver request is denied, the matter proceeds to the adjudicative phase, at which the child has a right to a jury trial. JCR 1969, 8.1(A). The rules of evidence for a criminal proceeding and the standard of proof beyond a reasonable doubt apply. JCR 1969, 8.3(A). With the exception of the right to a public trial, the usual protections accorded adults in criminal prosecutions govern delinquency proceedings.

After a careful review of the statutes and court rules, we are convinced that, for purposes of deciding the issue at bar, the respective roles of the prosecutor and the court are functionally equivalent to adult criminal prosecutions. The juvenile court does not possess supervisory power over the prosecutor. Accordingly, we hold that the juvenile court may not, without the prosecutor's concurrence, accept a plea in confession to a lesser included offense to the offense charged in the petition. The people, represented by the prosecutor, are entitled to a determination of juvenile court jurisdiction based on the acts charged in the petition. [Id. at 121-123.]

Similarly, in In the Matter of Chapel, 134 Mich. App. 308, 314; 350 NW2d 871 (1984), a case of first impression, this Court found that People v Coles, 417 Mich. 523; 339 NW2d 440 (1983), the case which "sets a standard for sentence review," applies to juvenile criminal matters because "nothing in Coles exempts any court where the power to sentence exists." In In the Matter of Belcher, 143 Mich. App. 68; 371 NW2d 474 (1985), lv den 424 Mich. 863 (1985), the question was whether due process prohibits revocation of a juvenile's probation unless a violation of a condition of probation is proven beyond a reasonable doubt rather than by a preponderance of the evidence. This Court noted:

Although proceedings in juvenile court need not conform with all the requirements of a criminal trial, essential requirements of due process and fair treatment must be met. In re Gault, 387 U.S. 1, 30-31; 87 S. Ct. 1428; 18 L. Ed. 2d 527 (1967). Proof beyond a reasonable doubt is an essential requirement of due process and fair treatment in the adjudicative phase of a proceeding in which a juvenile is charged with an act which would be a crime if committed by an adult and faces possible confinement in a state institution. In re Winship, 397 U.S. 358; 90 S. Ct. 1068; 25 L. Ed. 2d 368 (1970). [Belcher, supra at 71.]

This Court then cited Gagnon v Scarpelli, 411 U.S. 778; 93 S. Ct. 1756; 36 L. Ed. 2d 656 (1973), wherein the Court stated that a probationer was not entitled to all the protections of a criminal trial because he had already been convicted of the crime. Belcher, supra at 71. This Court stated that in Michigan the standard of proof in adult probation revocation proceedings is proof by a preponderance of the evidence and there was no reason to impose a higher burden of proof in juvenile revocation proceedings, the status of a juvenile probationer being analogous to that of an adult probationer. Id. at 71-72.

MCR 5.922, effective January 1, 1988, states in pertinent part:

(B) Notice of Defenses; Rebuttal.

(1) Within 21 days after the juvenile has been given notice of the date of trial, but no later than 7 days before the trial date, the juvenile or the juvenile's attorney must file a written notice with the court and prosecuting attorney of the intent to rely on a defense of alibi, insanity, or diminished capacity, or a defense of mental illness negating an element of the alleged offense. The notice shall include a list of the names and addresses of defense witnesses.

(2) Within 7 days after receipt of notice, but no later than 2 days before the trial date, the prosecutor shall provide written notice to the court and defense of an intent to offer rebuttal to the above-listed defenses. The notice shall include names and addresses of rebuttal witnesses.

(3) Failure to comply with subrules (1) and (2) may result in the sanctions set forth in MCL 768.21; MSA 28.1044. [Emphasis added.]

I would hold that the insanity defense is applicable to juvenile proceedings.

NOTES

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