People v. Howe

503 N.W.2d 749, 200 Mich. App. 221

• Court: Michigan Court of Appeals
• Decided: June 21, 1993
• Docket: Docket 146551
• Status: Published

Opinions

Shepherd, J.

Defendant appeals by leave granted from the denial of his motion to quash a subpoena and dismiss a charge of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). Defendant argues that the prosecutor improperly issued a defective subpoena to defendant’s therapist, who produced defendant’s medical records to the prosecutor.

Defendant allegedly raped his sixteen-year-old girl friend and then threatened to kill himself, but the girl friend talked him out of it. After his arrest, his retained defense attorney referred him to Dr. Chase, a psychologist, for therapeutic purposes (defendant was suicidal), but not for a determination of defendant’s sanity.

After his arraignment and preliminary examination, defendant filed his notice of insanity defense on February 1, 1991, in accordance with MCL 768.20a; MSA 28.1043(1). On June 17, 1991, defendant was examined at the Center for Forensic Psychiatry by Dr. Lemmen. On July 16, 1991, defendant filed his notice to secure an independent examination by Dr. Dixon, a psychiatrist, to evaluate his sanity for purposes of trial. Defendant did not reference Dr. Chase on the notice of insanity defense, only Dr. Dixon.

On September 5, 1991, the prosecutor subpoenaed Dr. Chase, seeking defendant’s medical records including all notes, reports, and any other writings pertaining to defendant’s treatment and examination. Dr. Chase indicated to the police officer serving the subpoena that his contact with defendant was for therapeutic purposes and not for purposes of trial. Dr. Chase would not have provided the documents but for the subpoena. When the subpoena was served, defendant’s attorney was on vacation. When he returned, he objected to the subpoena and moved to suppress it and the use of any information resulting from it.

On November 8, 1991, defendant moved to dismiss the charges or suppress the use of any information gained from the records. Defendant argued that Dr. Chase was not listed on his notice of insanity defense and that the information in the reports was inadmissible under the psychologist-client and attorney-client privileges unless he waived them. The court criticized the prosecutor’s method of procuring the information, but determined that the information was discoverable and admissible because defendant filed a claim of insanity defense.

The trial court acknowledged that the methods used by the prosecutor in obtaining the records were improper. The prosecutor unilaterally issued a subpoena without giving notice to opposing counsel and obtained the records before counsel had an opportunity to move to quash the subpoena. The trial court indicated that because the material subpoenaed would have been discoverable anyway, the improperly obtained documents would not be suppressed. We do not address the propriety of the prosecutor’s actions given our holding that the documents were not discoverable under the statute relied upon by the prosecutor and the trial court.

MCL 768.20a; MSA 28.1043(1) provides in relevant part:

(3) The defendant may, at his or her own expense, or if indigent, at the expense of the county, secure an independent psychiatric evaluation by a clinician of his or her choice on the issue of his or her insanity at the time the alleged offense was committed. The defendant shall notify the prosecuting attorney at least 5 days before the day scheduled for the independent evaluation that he or she intends to secure such an evaluation. The prosecuting attorney may similarly obtain independent psychiatric evaluation. A clinician secured by an indigent defendant shall be entitled to receive a reasonable fee as approved by the court.

(6) Upon conclusion of the examination, the center for forensic psychiatry or the other qualified personnel, and any independent examiner, shall prepare a written report and shall submit the report to the prosecuting attorney and defense counsel.

This is the statute upon which the court and the prosecutor relied for the argument that no harm was done by obtaining the documents improperly because, in any event, the material was discoverable under this statute. If the material is not discoverable under this statute, there would have to be some other basis for allowing the discovery to go forward given the psychologist-patient privilege established in MCL 333.18237; MSA 14.15(18237). That statute gives a general unqualified privilege with regard to confidential information acquired from an individual consulting a psychologist in a professional capacity that is necessary to enable the psychologist to render services.

Defendant claims, and it is not controverted, that Dr. Chase was engaged by defense counsel immediately after counsel was retained because defendant appeared to be suicidal. The question to be addressed is whether Dr. Chase qualifies as an independent evaluator for purposes of MCL 768.20a; MSA 28.1043(1).

Subsection 3 of the statute, MCL 768.20a(3); MSA 28.1043(1)(3), provides that a defendant may, at personal expense, or if indigent, at the expense of the county, secure an independent evaluation of the defendant’s sanity by a clinician of the defendant’s own choice. Subsection 6, MCL 768.20a(6); MSA 28.1043(1)(6), provides that at the conclusion of this evaluation, the Center for Forensic Psychiatry, other qualified personnel, and the independent examiner shall prepare a report that shall be submitted to the prosecuting attorney and defense counsel. We conclude that it is this report that must be submitted under the statute and not information from every psychiatrist or psychologist with whom a defendant has consulted or received psychiatric or psychological counseling. Subsection 6 in referring to "the examination” can only be making reference to the examination that took place under subsection 3. That examination is one that the defendant or the prosecutor may seek with regard to the insanity issue. If the examination is sought by the defendant, under subsection 3 the county must pay for it if the defendant is indigent. It can hardly be argued that the county is required to pay for general psychiatric counseling for a defendant during the pendency of a case where the defendant or his counsel believes that the defendant requires treatment because he is suicidal. From this we conclude that the only kind of evidence that is discoverable under the statute is the kind of evidence for which the county would have to pay if the defendant were indigent. In short, the statute provides for a specific type of examination for a specific reason and it is only evidence from that examination that is discoverable under the statute.

The prosecutor relies upon People v Sorna, 88 Mich App 351; 276 NW2d 892 (1979), for the proposition that the information subpoenaed in this case was discoverable under the statute. Reliance on Sorna is misplaced. In Sorna, both the defendant and the prosecutor complied with the statute by obtaining an order of the court for an independent psychiatrist to evaluate the defendant’s sanity. Later, after the defendant was convicted, he challenged the constitutionality of the statute with which he had previously complied. Sorna holds that the statute is constitutional. Sorna does not address whether documents from a treating psychologist, as opposed to an independent examiner appointed under the statute to render a report regarding the defendant’s sanity, are discoverable.

Because the prosecutor claimed to proceed under the statute and obtained information that was not discoverable thereunder, the trial court should have granted the motion to suppress. The prosecutor and the trial court have not argued or held that there is a broad general discovery provision under which this information could have been received and we need not rule on that issue. On remand, the prosecutor may seek discovery by following proper procedure under provisions of law contained in cases, statutes, or court rules other than the statute in question here, as long as lawful means are employed and proper notice is given to defendant to enable him to raise objections before the court in advance of trial. In any event, the trial court must proceed on the assumption that the information is not discoverable under the statute in question in this case.

Reversed and remanded for further proceedings consistent with this opinion.

Marilyn Kelly, J., concurred.