J. W. Fitzgerald, J.
On May 4, 1971, a shooting incident occurred which resulted in defendant’s jury conviction of assault with intent to do great bodily harm less than the crime of murder.
This conviction was reversed by the Court of Appeals on the ground that the trial court, having
sua sponte
raised the issue of defendant’s competency,
did not comply with the statute and court rule provisions which require the issuance of an order to show cause why defendant should not be committed to an approved diagnostic facility for psychiatric evaluation. Following the Court of Appeals denial of the people’s application for rehearing, we granted leave to appeal.
On July 23, 1971, prior to trial, Judge Geraldine Bledsoe Ford, on her own motion, referred defendant to the Recorder’s Court Psychiatric Clinic for a pretrial competency evaluation. A report dated July 30, 1971, indicated that defendant was competent to stand trial. The clinic responded to two subsequent referrals of defendant to the clinic by Judges Elvin L. Davenport and Robert L. Evans by providing them with copies of the July 30 report. The record does not disclose why the subsequent referrals were made. Upon review of this examination report, Presiding Judge Evans declared defendant competent to stand trial.
The matter for resolution is more clearly stated by setting forth the pertinent statute and court rule together with the positions advanced by the parties. MCLA 767.27a; MSA 28.966(11) provides:
"(1) A person accused of a crime who is incompetent to stand trial shall not be proceeded against while he is incompetent. A person is incompetent to stand trial within the meaning of this section if he is incapable of understanding the nature and object of the proceedings against him, of comprehending his own condition in reference to the proceedings, or of assisting in his defense in a rational or reasonable manner.
"(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. The commitment shall be for a period not to exceed 60 days. Within that period the center or other facility shall prepare a diagnostic report and recommendations which are to be transmitted to the committing court.”
GCR 1963, 786 states:
".1 The issue of a defendant’s competence to stand trial as defined in PA 1966, No 266 may be raised at any time before trial by a written motion to commit the defendant to the department of mental health.
".2 The issue of defendant’s competence to stand trial may be raised during trial only by the trial court on its own motion.
".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.
".4 If the motion is not made by the defendant, the court shall order the defendant to show cause why he should not be committed to an approved 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.
".5 When a defendant has been committed to an approved diagnostic facility certified by the department of Mental Health for the performance of forensic psychiatric evaluation, the motion to commit the defendant to the department of Mental Health shall stand adjourned pending receipt of the diagnostic report and recommendation of the facility.
".6 Where the issue of a defendant’s competence to stand trial is raised during the trial by the court, the
trial of the cause shall be continued or a mistrial declared as the court shall in its discretion deem appropriate.
".7 If upon the hearing on the motion the defendant shall be adjudged incompetent to stand trial, he shall be committed to the department of Mental Health pursuant to PA 1966 No 266, and the pending criminal proceedings against such defendant shall stand adjourned until the further order of the court.” (Adopted May 15, 1969.)
The people contend that the issue of competency was never raised and that there is no showing or even claim that the defendant was in fact incompetent at the time of trial.
Defendant maintains that his referral to the Recorder’s Court Psychiatric Clinic by the trial judge raised, or at least established that there was sufficient evidence to raise, the issue of competence. Properly raised, then, the issue of competency to stand trial was not resolved in compliance with the statute and court rule provisions since the judgment of uncertified psychiatric clinics was substituted for that of approved centers for forensic psychiatry or certified diagnostic facilities.
The issue thus becomes whether the trial court can,
sua sponte,
order and properly consider the results of a psychiatric examination conducted by the Recorder’s Court Psychiatric Clinic as a preliminary measure in determining whether there is sufficient showing that defendant may be incompetent to stand trial. We think the procedure followed in the instant case was proper and does not contravene any of the statutory or court rule provisions cited earlier.
Engaging the professional assistance of the Recorder’s Court Psychiatric Clinic is not tantamount to a substitution of the clinic’s judgment for that
of a certified diagnostic facility. Barring any patently abnormal behavior by the defendant, the information before the trial court may not be adequate to make a determination whether it has been shown that defendant may be incompetent to stand trial. Indeed, the very purpose for conducting a preliminary psychiatric examination is to assist the court in making this initial determination. A distinction should be drawn between those preliminary procedures which assist the trial court in determining whether a showing has been made that defendant may be incompetent and the subsequent orders which should issue when a showing has been made.
Defendant did not raise the issue of competency. He did not make a motion to be committed to the Department of Mental Health (GCR 1963, 786.1). He did not offer any evidence on his motion for a mistrial that he was in fact incompetent to stand trial. The report of the psychiatric clinic was to the contrary — defendant has made no attempt to refute it. He does not even now assert that he was in fact incompetent.
The trial court’s referral of defendant to the psychiatric clinic does not tend to establish defendant’s incompetency. The offense was a particularly ruthless one. Defendant was charged with shooting his victim at point-blank range, once in the arm and once through the mouth. The court may have been impressed with the brutal nature of the assault and ordered an examination as a precautionary measure for the purpose of informing itself on the general issue of defendant’s mental and emotional stability.
In practice, courts frequently refer defendants to a non-certified facility or a private psychiatrist before the competency hearing is conducted with
out 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. See
People v Doerfer,
46 Mich App 662; 208 NW2d 521 (1973). Copies of the report should be sent to defendant’s lawyer and the prosecutor as well as to the court.
That the trial court sought to make an informed decision about Parker’s possible incompetency, in the circumstance that he was not deprived of his liberty, was not improper. And that the court, having dispelled whatever doubts it may have had about his competency, proceeded to trial without "show causing” and "committing” him, is not grounds for ordering a new trial.
Our decision of course is without prejudice to defendant’s filing a delayed motion for a new trial asserting that he was incompetent when he was convicted. A delayed motion for a new trial can always be filed at any time on leave granted by the trial court. For the future, the procedural remedy set forth in
People v
Lucas, 393 Mich 522; 227 NW2d 763 (1975), also decided today, will apply.
The Court of Appeals is reversed and defendant’s conviction reinstated.
T. G. Kavanagh, C. J., and Levin and M. S. Coleman, JJ., concurred with J. W. Fitzgerald, J.
Williams, J.
(to affirm).
This case brings before the Court issues relating to competency to stand trial — the applicable statute, court rule, and trial court procedure. The record raises three issues on appeal:
1. May a trial court
sua sponte
without a show-cause hearing commit a defendant for forensic psychiatric evaluation?
2. May a trial court commit a defendant for forensic, psychiatric evaluation to other than a "diagnostic facility certified by the department of mental health”?
3. May a trial court declare a defendant competent to stand trial, once the question of his competency has been raised, without an adversary hearing?
All three questions are answered in the negative. The Court of Appeals is affirmed.
I.
Facts.
The facts and the applicable statute and court rule involved in this appeal are well and fully set forth in my Brother J. W. Fitzgerald’s opinion.
II.
Is Commitment for Psychiatric Evaluation Without Notice and Hearing Legal?
Commitment to a psychiatric facility, whether it follows as a result of a temporary competency order or referral, or as a result of civil or criminal involuntary commitment proceedings, is a deprivation of liberty. No such deprivation is permissible unless the demands of due process are met, at minimum the requirements being adequate notice and opportunity for hearing.
Cf. Bell v Wayne County General Hospital,
384 F Supp 1085 (ED Mich, 1974);
Specht v Patterson,
386 US 605; 87 S Ct 1209; 18 L Ed 2d 326 (1967);
Jackson v Indiana,
406 US 715; 92 S Ct 1845; 32 L Ed 2d 435 (1972);
McNeil v Director, Patuxent Institution,
407 US 245; 92 S Ct 2083; 32 L Ed 2d 719 (1972)._
GCR 1963, 786.4 makes explicit provision for the due process requirements of notice and hearing when the trial court
sua sponte
raises the issue of defendant’s potential incompetency to stand trial:
".4
If the motion
[to commit the defendant to the department of mental health]
is not made by the defendant, the court shall order the defendant to show cause
why he should not be committed to an approved 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 added.)
Consequently, trial court
sua sponte
psychiatric referral without opportunity for a hearing, as in the instant case, is a clear violation of Rule 786.4 as well as a denial of individual liberty proscribed by the constraints of due process.
Appellant suggests that trial courts have the discretionary authority to
sua sponte
refer defendants to unlicensed psychiatric clinics in order to determine whether or not action under Rule 786.4 is in order,
i.e.
trial courts need not comply with 786.4 in the first instance:
"Appellant takes the position that the trial court, under some circumstances, may not wish to proceed to trial without first referring the defendant to the court’s clinic psychiatrist for a preliminary examination to see if there is any indication that such a defendant should be referred for diagnostic study for a report on his competency or incompetency to stand trial.”
The trial court’s commendable effort to educate itself about the particulars of defendant’s competency is appreciated. However, the problem is that the trial court cannot infringe upon defendant’s
liberty without concomitant consideration of defendant’s due process rights.
Rule 786.4 was carefully drafted to protect individual rights and liberties while at the same time recognizing the state’s interests in providing a fair trial and protecting incompetents. The use of a procedure which, in effect, creates a new class of competency referrals, short-circuiting Rule 786.4 and the demands of due process cannot be sanctioned by this Court.
Accordingly, we answer the first question posed in the negative. Commitment for psychiatric evaluation of competency may not take place without, at the least, notice and opportunity for a hearing.
III.
Can Potentially Incompetent Individuals be Committed to Uncertiñed Psychiatric Facilities?
The crux of this second question posed is whether trial courts must fully comply with Rule 786.4 in situations like the one at bar, for 786.4 undeniably calls for commitment "to an approved diagnostic facility certified by the department of mental health” following a "showing” satisfying the trial court that defendant "may” be incompe
tent (MCLA 767.27a[3]; MSA 28.966[11] [3]) and that commitment for evaluation is warranted.
We agree with appellee that the trial court judgment that psychiatric referral is necessary is a judgment that defendant
may
be incompetent to stand trial within MCLA 767.27a; MSA 28.966(H).
As a result, holding a show-cause hearing under Rule 786.4 is mandated. That the court actually thought defendant might be incompetent is further buttressed in the instant case by the fact that defendant was referred on subsequent occasions by the court to Recorder’s Court Psychiatric Clinic. Certainly these referrals, all connected with the same proceedings, reflect a judicial conclusion, at the very least, that defendant "might” be incompetent to stand trial.
We concur in the holding of the Court of Appeals:
"The court having raised the issue of defendant’s competency to stand trial, was obligated to issue an order for the defendant to show cause why he should not be committed to an approved diagnostic facility for a psychiatric evaluation and to hold a hearing to determine the defendant’s competency.” 46 Mich App 562, 565.
Accordingly, we answer the second question posed in the negative. The judgment of the trial
court that psychiatric referral for evaluation of defendant’s competency to stand trial was necessary was a judgment that defendant "might” be incompetent to stand trial. As a result, a show-cause hearing should have been held and, assuming the defendant advanced no compelling reasons why he should not be so committed, temporary commitment
to a certified facility
for psychiatric evaluation of competency should have been ordered under Rule 786.4.
IV.
Can a Defendant Be Declared Competent Without Benefit of an Adversary Hearing?
Upon receiving the report on defendant from the Recorder’s Court Psychiatric Clinic, Presiding Judge Evans entered the following docket journal entry on August 13, 1971:
"Report received from psychiatric clinic. Court finds defendant able to stand trial and so orders.”
Subsequently, in denying defense counsel’s motion for mistrial based on the competency determination procedure, Judge Poindexter relied,
inter alia,
on the clinic determination of competency:
"The Court:
Before the jury returns, Mrs. Ritter, there are two motions — you made two motions for mistrial — one of them relates to the possibility that the defendant might be insane.
"The court has checked the file in the interim and finds that according to the file there has been no motion to refer the defendant to Ionia; neither has there been any notice of defense of insanity in this case and
when the defendant was referred to the Recorder’s Court Clinic the report was made that
[sic]
was of sound mind and able to stand trial.
"The Court will deny your motion.” (Emphasis added.)
The question which arises from this record is whether this determination of competency could be lawfully reached without giving defendant an opportunity for an adversary hearing? We hold that it could not.
The court rule involved clearly contemplates a hearing. GCR 1963, 786.5 reads as follows:
".5 When a defendant has been committed to an approved diagnostic facility certified by the department of mental health for the performance of forensic psychiatric evaluation, the motion to commit the defendant to the department of mental health
shall stand adjourned pending receipt of the diagnostic report .and recommendation of the facility. ”
(Emphasis added.)
GCR 1963, 786.7 reads:
".7
If upon the hearing on the motion
the defendant shall be adjudged incompetent to stand trial, he shall be committed to the department of mental health pursuant to PA, 1966, No 266, and the pending criminal proceedings against such defendant shall stand adjourned until the further order of the court.” (Emphasis added.)
As noted in Section II of this opinion,
supra,
Rule 786.4 requires a show-cause hearing prior to temporary commitment for competency evaluation. Such a hearing is held, the court rule indicates, under the aegis of a "motion to commit the defendant to the department of mental health”. Rule 786.5 indicates that should the 786.4 hearing result in an order, of competency evaluation commitment, "the motion to commit the defendant to the department of mental health shall stand ad
journed pending receipt of
diagnostic report and recommendation of the
facilityRule 786.7 then picks up the thread, "[i]f upon hearing the motion”. This indicates that after the diagnostic report is received there must be a motion to determine competency or incompetency. Obviously a hearing cannot be held teleologically with only one result in mind as that would not be hearing but a farce. The hearing is to determine the truth whether the defendant is or is not competent and the diagnostic report is only evidence and not necessarily conclusive evidence. Rule 786 is elliptical in describing in Rule 786.7 what happens when the defendant is found incompetent without also in that or another subsection describing what happens if the defendant is found competent. However, in the case of competency, unlike incompetency, there is no question what happens next; there is only one possibility and that is to go to trial. In any event, once there has been a motion to test defendant’s competency, either competency or incompetency cannot be declared except after an adversary hearing.
To hold otherwise would be to elevate the psychiatric report, standing alone, to an unimpeachable, dispositive status without giving the defendant opportunity to rebut. Not only is such a procedure not within the contemplation of Rule 786, it is in blatant disregard of due process. Again, as Section II of this opinion points out, deprivation of liberty through psychiatric commitment of any sort is an action which is clearly impermissible unless and until the demands of due process are met, at minimum the requirements being notice
and opportunity for an adversary hearing. The State of
Michigan, acting through the trial court under Rule 786.7, does not have the power to involuntarily confine an individual without first obtaining a judicial determination that confinement is warranted, such determination being surrounded by the constitutionally necessary procedural safeguards including an adversary hearing.
Cf. McNeil v Director, Patuxent Institution, supra.
Accordingly, we answer the third question posed in the negative. Trial courts may not declare a defendant competent to stand trial, or incompetent to stand trial for that matter, once the question of competency has been raised, without at the least, affording the defendant the opportunity for a full adversary hearing.
V.
Preliminary Trial Court Investigation Prior to Action Under GCR1963, 786.4.
As noted in Section II of this opinion,
supra,
appellant argues that trial courts must have some discretionary authority to make investigations
prior
to deciding whether Rule 786.4 action, including a show-cause hearing, is in order. Without such power, appellant contends, trial courts often will not have enough information before them to determine whether there has been a "showing” made within the dictates of MCLA 767.27a(3); MSA 28.966(H)(3) that "defendant may be incompetent to stand trial”. Appellant concludes:
"Defendant has rights and should not be summarily committed for diagnostic study unless there are factors indicating this is necessary.”
The implication is that failure to invest the trial court with preliminary investigatory powers before
mandating action under Rule 786.4 will result in needless commitment on many occasions.
Without question, appellant raises some good points. However, appellant misconceives the import of the term "showing” in MCLA 767.27a(3); MSA 28.966(H)(3) which reads in relevant part:
"(3)
Upon a showing
that the defendant may be incompetent to stand trial, the court
shall commit
the defendant * * * .” (Emphasis added.)
The "showing” referred to in the statute is
not
a "preliminary” showing that a Rule 786.4 "show cause” hearing is desirable, the reference is to the ultimate showing of possible incompetency mandating trial court commitment for evaluation.
Obviously, what appellant is talking about is not a "showing” under the statute. What he is talking about is information for the trial court to improve its personal judgment in determining whether to issue a motion
sua sponte
under Rule 786 to test defendant’s competency. What appellant is talking about is what inherent powers of investigation does the trial court possess prior to finding it desirable to initiate action itself under Rule 786.4?
We are sympathetic with the trial court’s concern. In our meetings with all the circuit judges earlier this year, this problem was constantly raised and much sincere concern shown. This matter concerns this Court too and the matter is under serious study.
The critical problem, even though the trial court is animated by a concern not to embarrass the defendant, is what can the trial court do effectively without colliding with the defendant’s constitutional rights. In this opinion we have seen that the court cannot informally commit defendant against his will for evaluation. We will not here go into the question of the validity of defendant waiving his rights. In short, most, if not all, avenues of information for the trial court to obtain information about the defendant’s competency through the defendant himself are limited to Rule 786 procedures.
Whether the trial court has unilateral access to persons other than the defendant to secure information, such as the defendant’s family or previously employed psychiatrists is a question not without some difficulties.
In short, this whole area is a prickly one that
requires very careful and deliberate consideration.
This Bench hopes to undertake that with its other partners in Michigan’s "one court of justice”.
VI.
Conclusion
We hold that no involuntary commitment for psychiatric evaluation of competency may take place without, at the least, notice and opportunity for a hearing.
We hold further that a trial court judgment that psychiatric referral for evaluation of competency is necessary is implicitly a judgment that defendant "might” be incompetent. Accordingly, the trial court must act under GCR 1963, 786.4 and hold a show-cause hearing on the court’s
sua sponte
motion to commit defendant for evaluation. Should the show-cause hearing bear out the trial court judgment that defendant "might” be incompetent, and, given no compelling reasons why defendant should not be so committed, the court should order temporary commitment for evaluation to a facility certified by the Department of Mental Health as provided by Rule 786.4.
We hold finally that trial courts may not declare a defendant competent to stand trial, or incompetent to stand trial, once the question of competency has been raised, without, at the least, affording the defendant the opportunity for an adversary hearing.
For these reasons, the trial court denial of defendant’s motion for mistrial due to improper
psychiatric referral was erroneous. Defendant did not receive the benefit of his due process rights. The trial court is reversed and this cause is remanded for new trial.
The Court of Appeals is affirmed.
T. M. Kavanagh and Swainson, JJ., concurred with Williams, J.