People v. Brown

Per Curiam.

Defendant was tried and found guilty by a jury of assault with intent to commit murder, MCLA 750.83; MSA 28.278, and was sentenced to 14 to 60 years in prison. He appeals as of right.

This action arises out of a March 10, 1972 shooting incident in which defendant allegedly shot his former girl friend twice in the head. Prior to trial, defendant filed a notice of insanity defense. At the prosecution’s request, the trial court ordered defendant to submit to an examination by the people’s psychiatrist, Dr. Clifford Keeler. The examination took place August 11, 1972.

However, defendant concluded that an insanity defense was not feasible, and instead sought to establish an intoxication defense. Defendant testified that he had been drinking and taking drugs continuously during the 12 hours before the shooting, and that, consequently, he did not remember any of the criminal acts he allegedly committed. In support of this claim a defense psychiatrist testified that he concluded from his examination of defendant that defendant had suffered from liquor and drug induced amnesia on March 10, 1972.

The prosecution then called Dr. Keeler as a rebuttal witness. He testified that defendant indicated to him during the court-ordered psychiatric examination that he had not been drinking or consuming drugs during the 24 hours preceding the shooting. Dr. Keeler further testified that he thought defendant’s inability to remember his criminal acts was a mental defense mechanism for coping with the situation.

Defendant contends that it was reversible error to permit Dr. Keeler to testify as to matters learned during the psychiatric examination, because he was ordered to examine defendant only with regard to the insanity defense and that defense was not asserted at trial. It is argued that to permit the prosecution to make use of this examination for a purpose other than that for which it was originally ordered violates defendant’s right against self-incrimination.

There is no authority to support defendant’s sweeping proposition. Admittedly, it has been held that,

"no statement made by an accused in the course of a court ordered examination shall be admitted in evidence on the issue of guilt at the accused’s trial.” People v Stevens, 386 Mich 579, 585; 194 NW2d 370, 373 (1972).

Stevens is mandated by the right against self-incrimination. However, neither this right, any other constitutional provision, nor public policy requires that we extend the ban on the use of statements from court-ordered psychiatric examinations to the situation in the instant case. The prosecution psychiatrist’s testimony was offered solely for the purpose of rebutting the defense’s claim that defendant was suffering from alcohol and drug induced amnesia at the time of the assault. His testimony went no further than was necessary to rebut that claim. Dr. Keeler did not testify about the commission of the crime; no statements of the defendant concerning the shooting were admitted into evidence. We hold that it was not error to allow the prosecution psychiatrist to testify in rebuttal to defendant’s claim of intoxication.

We have reviewed defendant’s other assignments of error and find them without merit.

Affirmed.