People v. Walker

D. F. Walsh, J.

I agree with Judge Lesinski that the defendant’s conviction must be reversed on the grounds that the trial court abused its discretion in not allowing an adjournment so that the prosecution could be given the formerly required four-day notice of an insanity defense.

However, I disagree with the conclusion that the procedure followed in the trial court relative to the competency hearing was reversibly erroneous.

It is well settled that a defendant who may be incompetent to stand trial cannot knowingly and intelligently waive his right to have the court determine his competency.¹ It is not improper, however, for a defendant who is represented by counsel to waive the presence of the examining psychiatrist at the competency hearing and to consent to the admission of the report of the forensic center as evidence at the hearing.² As I read the record, that is what happened in this case.

The pertinent portion of the waiver signed by the defendant reads as follows:

"I, Willie Edward Walker, being the defendant in the above entitled cause, having been arraigned therein on the charge of (1) RA (2) assault W/I and having been referred to the Forensic Center for psychiatric evaluation and written report having been filed by_ and_finding me competent to stand trial, I do hereby in open court voluntarily waive and relinquish my right to a competency hearing at which testimony is taken. ” (Emphasis supplied.)

In my judgment this is not a waiver of defendant’s right to a competency hearing but a waiver of his right to have the examining psychiatrist appear in court to testify and his right to call his own witnesses to give rebuttal testimony. Supporting this conclusion is the following entry found on the file jacket used in the trial court.

"Dec 1, 1972

Deft waives Doctor’s testimony. Court Finds That Defendant is Able to Stand Trial and So Orders * * * .

"Hon Joseph A Gillis” (Emphasis supplied.)

Based on the foregoing I find no improper waiver of competency hearing in this case. The defendant was represented by counsel. He was given a comprehensive psychiatric evaluation by a psychiatrist at the Center for Forensic Psychiatry at the Ionia State Hospital. A detailed report of the center’s findings was made to the court. The report concluded that the defendant was competent to stand trial. The defendant’s counsel had an opportunity to evaluate the report and apparently decided not to contest the findings and that nothing would be gained by requiring the psychiatrist to appear at the hearing in order to give his testimony in person. Accordingly defendant waived his right to have the doctor appear and his right to call witnesses to give rebuttal testimony. The court thereupon considered the report, which was apparently the only evidence submitted, and determined the defendant to be competent to stand trial.

This hearing satisfies the requirements of the applicable statute. MCLA 767.27a; MSA 28.966(11).

Reversed and remanded.

V. J. Brennan, J., concurred.

1 Pate v Robinson, 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966), People v Lucas, 47 Mich App 385; 209 NW2d 436 (1973).

2 The statute makes specific provision that the report of the forensic center shall be admissible in evidence at the competency hearing.

"The certificate and psychiatric report shall be admissible as evidence in the [competency] hearing, but not for any other purpose in the pending criminal proceedings.” MCLA 767.27a(6); MSA 28.966(H)(6).