People v. Wright

430 N.W.2d 133, 431 Mich. 282

Opinions

Cavanagh, J.

Defendant asserts that, contrary to Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981), he was not properly informed that he had a Fifth Amendment privilege against self-incrimination and a Sixth Amendment right to counsel at his presentence psychiatric examination. We hold that defendant’s Fifth and Sixth Amendment rights were adequately protected by the procedures followed by the trial court and the Detroit Recorder’s Court psychiatric clinic. We thus uphold the Court of Appeals affirmance of defendant’s conviction.

BACKGROUND

Following a jury trial in Recorder’s Court, defendant was convicted of second-degree murder. At the end of trial in the presence of counsel, the trial judge ordered the defendant to be examined in the Recorder’s Court psychiatric clinic prior to sentencing. Neither defendant nor his counsel objected. The examining psychologist concluded that defendant was assaultive, antisocial, and posed a high risk to the community. At sentencing, the trial judge referred to these findings and sentenced defendant to forty to seventy years’ imprisonment. In addition to other issues raised in the Court of Appeals, defendant asserted noncompliance with Estelle v Smith, supra, in which the United States Supreme Court held that when the results of a psychiatric examination are used in determining the nature and severity of a convicted defendant’s sentence, the defendant’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel attach. The Court of Appeals affirmed defendant’s conviction in an unpublished opinion without discussing Estelle.

We granted leave to appeal limited to the issue whether the psychiatric examination was improperly conducted in violation of defendant’s Fifth Amendment right against self-incrimination. 426 Mich 864 (1986). Although not included within our order granting leave, we will also discuss the alleged violation of defendant’s Sixth Amendment right to counsel, which was briefed by both parties.

Before discussing the Estelle holding and the present issues, it is helpful to summarize the three types of psychiatric examinations which are typically performed at forensic psychiatric clinics, and the importance of the one involved here.¹ When a defendant’s competency to stand trial is questioned, a competency examination is given to determine his mental state at the time of trial to assure that he understands the charges against him and can knowingly assist in his defense.² When a defendant pleads not guilty by reason of insanity, a criminal responsibility or sanity examination is given to determine the defendant’s mental state at the time of the offense.³

In Michigan, the results of competency examinations may not be used at trial as evidence of a defendant’s guilt, obviating Fifth Amendment concerns regarding self-incrimination.⁴ Also, a defendant must submit to, and participate in, a criminal responsibility examination before being allowed to present an insanity defense at trial.⁵ Statements made during that examination are not admissible on any issue other than the defendant’s mental illness or insanity at the time of the alleged offense.⁶ The Estelle Court confirmed that the Fifth Amendment right to remain silent is not implicated when the results of the competency and sanity examinations are used for their intended purposes:

[T]he interview with Dr. Grigson [the examining psychiatrist] cannot be characterized as a routine competency examination restricted to ensuring that respondent understood the charges against him and was capable of assisting in his defense. Indeed, if the application of Dr. Grigson’s findings had been confined to serving that function, no Fifth Amendment issue would have arisen.

Nor was the interview analogous to a sanity examination occasioned by a defendant’s plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity éxamination conducted by the prosecution’s psychiatrist. [451 US 465.]

The third type of psychiatric examination is the postconviction presentence evaluation, which is either court-ordered or requested as part of the presentence investigative process to determine the defendant’s character traits for purposes of sentencing. In Michigan, the Legislature has expressly provided for the preparation of a presentence investigation report in § 14 of the Code of Criminal Procedure:

(1) Before sentencing any person charged with a felony, . . . the probation officer shall inquire into the antecedents, character, and circumstances of the person, and shall report in writing to the court. [MCL 771.14(1); MSA 28.1144(1).]

Implicit within § 14 is the option of having a psychiatric examination performed during the presentence investigation. MCL 771.14(7); MSA 28.1144(7). This is the type of examination which was performed in the present case.

Deciding the appropriate sentence for a convicted criminal is perhaps the most critical stage of a successful criminal prosecution. The information gathered during the state’s presentence investigation is usually heavily relied on by the sen- fencing judge, hence its importance cannot be overemphasized.⁷

In Estelle, the Supreme Court held that the prosecution’s use of certain psychiatric testimony at the sentencing phase of the defendant’s murder trial violated his Fifth and Sixth Amendment rights. In that case, the defendant was convicted of first-degree murder in Texas and was sentenced to death. At the time of the defendant’s trial, Texas law required two jury proceedings to impose the death penalty: one to decide guilt and one to determine the penalty. Following conviction in the guilt phase, the state had the burden of proof on three questions in the penalty phase. If the jury answered the questions affirmatively, the judge was bound to impose the death penalty. Of these three inquiries, the one at issue in Estelle was the defendant’s future dangerousness. The examination which produced the objectionable information was a pretrial competency examination which had been routinely ordered by the judge because the defendant faced the death penalty. The examining psychiatrist, however, was also called as a witness during the penalty phase where he testified extensively regarding the defendant’s sociopathic character and future dangerousness. The jury answered the "future dangerousness” question and the other two questions affirmatively, and the defendant was sentenced to death.

FIFTH AMENDMENT ISSUE

The Estelle Court held that because the psychiatric examination was used in determining the nature and severity of defendant’s sentence, his Fifth Amendment right attached at the examination:

The essence of this basic constitutional principle is "the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” [451 US 462.]

We agree with the defendant in the present case that he, too, had a Fifth Amendment right to remain silent at his presentence psychiatric examination. It is not relevant that the defendant’s examination occurred prior to trial in Estelle and after trial here. Both examinations were used in determining the severity of the defendant’s sentence, which was what the Estelle Court focused on:

Just as the Fifth Amendment prevents a criminal defendant from being made " 'the deluded instrument of his own conviction,’ ”... it protects him as well from being made the "deluded instrument” of his own execution.

We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. [451 US 462-463.]

The Estelle Court rejected the state’s argument that, like voice and handwriting exemplars, lineups, and blood samples, the defendant’s statements were not used for their testimonial content:

Dr. Grigson’s diagnosis, as detailed in his testimony, was not based simply on his observation of respondent. Rather, Dr. Grigson drew his conclusions largely from respondent’s account of the crime during their interview, and he placed particular emphasis on what he considered to be respondent’s lack of remorse. [451 US 464.]

As in Estelle, defendant’s statements in the present case were testimonial in nature. The examining psychologist relied on the content of defendant’s statements to draw several conclusions about him, including that he was prone to act out in an aggressive manner, and that he was a high social risk to the community.⁸_

The Estelle Court concluded that defendant Smith’s Fifth Amendment right had not been adequately protected because the defendant was not advised that the results of the competency examination would be later used by the state in seeking the death penalty:

The state trial judge, sua sponte, ordered a psychiatric evaluation of respondent for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent. [451 US 465.]

Under the above circumstances, the Estelle Court held that defendant should have received warnings, pursuant to Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), that he had a right to remain silent and that any statement he made could be used against him at a sentencing proceeding.

In Miranda, the Court was concerned with protecting a suspect’s Fifth Amendment right against self-incrimination under "inherently compelling pressures,”⁹ and thus specified mandatory warnings to alert the suspect of his rights. At the time of a suspect’s arrest, he is without counsel, usually without knowledge of the precise limits of the potential charges he faces, and without knowledge of the information which the police have to implicate him in criminal activity. In these circumstances, and in light of the history showing frequent abuses of a prisoner’s rights, the Supreme Court in Miranda adopted a prophylactic rule: precise warnings of specific rights must be given and clear waivers of those rights obtained, before a prisoner can be interrogated. 384 US 475.

Relying on Miranda, the Estelle Court held:

[AJbsent other fully effective procedures, a person in custody must receive certain warnings before any official interrogation, including that he has a "right to remain silent” and that "anything said can and will be used against the individual in court.”

The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. [451 US 466-467. Emphasis added.]

Defendant asserts that the requirements of Estelle must be strictly followed in any psychiatric examination which is considered in determining the severity of a defendant’s sentence. However, the emphasized portions of the above quotation, and the following footnote, suggest otherwise:

Of course, we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination. [451 US 469, n 13.]

Defendant’s examination constituted custodial interrogation in one sense because he was being questioned while in custody. However, such questioning was not tantamount to the custodial interrogation which troubled the Miranda Court, where defendants were subjected to "incommunicado interrogation ... in a police-dominated atmosphere” without being warned of their rights to remain silent or to the assistance of counsel. 384 US 445. In the present case, defendant was questioned by the psychologist after having had the assistance of counsel throughout trial. We can presume that the defendant’s attorney had already counseled defendant and informed him of his right against self-incrimination. Similarly, the considerations which led the Estelle Court to find that "inherently compelling pressures”¹⁰ were at work on the defendant in that case are absent here.* ¹¹

First, the information in Estelle was obtained during a competency examination. That type of examination is ordinarily not used to provide information for sentencing, and in fact the defendant in Estelle was not informed that his competency examination would be used for such purpose. Here, the information was obtained from a presentence examination which was clearly conducted to evaluate the defendant’s character exclusively for sentencing purposes. Moreover, at the examination the psychologist preceded the evaluation by reading the following information to defendant:

I am one of several examiners of the Psychiatric Clinic of Recorder’s Court who will examine and talk to you. We must give to the Court a report of our findings and possibly an option or a recommendation.

The Clinic serves only as an adviser to the Court and cannot determine the outcome of your case.

The examiner then asked defendant whether he understood what he had been told and whether he was willing to proceed. Defendant responded "Yes” to both questions.¹² Thus, unlike the defendant in Estelle, defendant here knew as he spoke what his answers would be used for.

Second, the examination in Estelle was used by the state to prove one of the three elements required to obtain the death penalty. The Estelle Court repeatedly focused on Texas’ unique system and the fact that the defendant faced the death penalty.¹³ In the present case, the information appeared to be used generally to reach a fair prison sentence. There were no elements which the state needed to prove beyond a reasonable doubt, which the examination might have helped it do.

The real teaching of Miranda, and Estelle’s application of it, is not a rigid formula, but that the Fifth Amendment must be protected.¹⁴ It would exalt form over substance to say under the facts of the present case that defendant’s Fifth Amendment right was violated. The examiner’s explanation of the purpose and potential use of the examination, and the inquiry whether defendant was willing to proceed, adequately protected that right.

We emphasize that the absence of uncounseled and coercive interrogations of the kind which called for precise warnings in Miranda and Estelle does not negate the continued existence of a Fifth Amendment right against self-incrimination. For example, no one would deny that, under the Fifth Amendment, a defendant on trial has a right to remain silent. Yet it has never been argued that failure to give explicit Miranda warnings before he testifies would require reversal of a testifying defendant’s conviction. Therefore, while we conclude that precise Miranda warnings were not required in the present case to protect defendant’s right against self-incrimination, we nonetheless hold that such right attaches at a court-ordered psychiatric examination used for sentencing purposes.¹⁵

SIXTH AMENDMENT ISSUE

As stated earlier, we did not grant leave on the Sixth Amendment issue raised by defendant. Assuming arguendo that the Sixth Amendment right to counsel recognized in Estelle applies to the present defendant, we find no violation of that right.

In Powell v Alabama, 287 US 45, 57; 53 S Ct 55; 77 L Ed 158 (1932), the United States Supreme Court held that a defendant has a Sixth Amendment right to counsel at all critical stages of criminal proceedings. The Estelle Court determined that the defendant had a Sixth Amendment right to the assistance of counsel before submitting to the psychiatric examination:

[R]espondent’s Sixth Amendment right to counsel clearly had attached when Dr. Grigson examined him at the Dallas County Jail, and their interview proved to be a "critical stage” of the aggregate proceedings against respondent. [451 US 470.]

The Court clarified in a footnote that it was not holding that the defendant had a right under the Sixth Amendment to have counsel present during the examination:

[T]he issue before us is whether a defendant’s Sixth Amendment right to the assistance of counsel is abridged when the defendant is not given prior opportunity to consult with counsel about his participation in the psychiatric examination. . . .

Respondent does not assert, and the Court of Appeals did not find, any constitutional right to have counsel actually present during the examination. In fact, the Court of Appeals recognized that "an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination.” [Smith v Estelle] 602 F2d [694], 708 [CA 5, 1979], [451 US 470, n 14. Emphasis added.]

The Estelle Court held that the defendant was not afforded his right to counsel¹⁶ because his attorneys were not notified in advance that the pretrial competency examination would also encompass the issue of their client’s future dangerousness:

[Respondent was denied the assistance of his attorneys in making the significant decision of [sic] whether to submit to the examination and to what end the psychiatrist’s findings could be employed. [451 US 471.]

In fact, there was some doubt that counsel had ever been informed of the competency examination itself. 451 US 471, n 15.

In the present case, defendant asserts that he and his counsel were not given sufficient notice of the presentence examination and, hence, that defendant was denied assistance of counsel prior to participating in the examination. Defendant’s claim is not supported by the record, however. The trial court ordered the examination in the presence of defendant and his counsel. The examination was held nearly two weeks later. This period of time afforded defendant ample opportunity to consult with his counsel prior to the examination. If defendant did not recognize such opportunity, it can be assumed, at the very least, that his counsel did. The facts which prompted the Estelle Court to find that the defendant’s Sixth Amendment right was violated are not presented here. Further, we decline to review defendant’s vague assertion that he had a right to have counsel present in the examining room. He relies exclusively on Estelle in asserting that right, and, as noted above, Estelle did not reach that issue.¹⁷

While we affirm the Court of Appeals result, we do not adopt its rationale.¹⁸ Defendant’s conviction is affirmed.

Levin, Brickley, and Archer, JJ., concurred with Cavanagh, J.

Footnotes

1

Although this opinion and Estelle use the term "psychiatric” examination, our holding also applies to presentence examinations performed by psychologists and other mental health professionals.

2

In Michigan, see MCL 330.2020 et seq.; MSA 14.800(1020) et seq. See also MCR 6.106.

3

In Michigan, see MCL 768.20a; MSA 28.1043(1).

4

MCL 330.2028(3); MSA 14.800(1028)(3).

5

MCL 768.20a(4); MSA 28.1043(1)(4). See People v Martin, 386 Mich 407, 428; 192 NW2d 215 (1971). For the Sixth Circuit’s treatment of a Fifth Amendment claim under Estelle in the context of a sanity examination, see Watters v Hubbard, 725 F2d 381, 384 (CA 6, 1984).

6

MCL 768.20a(5); MSA 28.1043(1)(5). See, e.g., People v Jacobs, 138 Mich App 273, 276; 360 NW2d 593 (1984).

7

See, generally, 3 ABA Standards for Criminal Justice (2d ed), Sentencing Alternatives and Procedures, 18-5.1 to 18-5.6, pp 18-332 to 18-418.

See also People v Lee, 391 Mich 618, 635; 218 NW2d 655 (1974) (the presentence report is widely regarded as an effective method of supplying information essential to an informed sentencing decision); People v Brown, 393 Mich 174, 181; 224 NW2d 38 (1974) (a convicted felon may not waive the mandatory use of a presentence report at sentencing); People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980) (a defendant must be resentenced when a reasonably updated presentence report is not used); People v Grier, 152 Mich App 129, 134; 393 NW2d 551 (1986), lv den 425 Mich 878 (1986) (a defendant has a right to be resentenced when his sentence is based upon inaccurate information in the presentence report); People v Harvey, 146 Mich App 631, 636; 381 NW2d 779 (1985) (a sentencing court must respond to a defendant’s allegations of inaccuracies in a presentence report); People v McKeever, 123 Mich App 533, 541; 332 NW2d 596 (1983), lv den 417 Mich 1100.9 (1983) (a defendant may not be sentenced on the basis of the presentence report prepared for another offense).

8

It has been suggested, in discussing pretrial evaluations, that to consider statements made during clinical evaluations to be nontestimonial is "to deny the reality of the clinical endeavor”:

Certain aspects of the clinical evaluation are clearly "nontestimonial” as that term has been defined by the Supreme Court. For example, part of the clinical assessment may consist of a physical examination. The clinical opinion may also rely, to some extent, on the defendant’s mannerisms, facial expressions, attention span, speech patterns, and other behavioral characteristics that manifest themselves during the evaluation. These physical traits are analagous [sic] to writing or voice exemplars, and compelled disclosure would probably not be considered violative of the Fifth Amendment even if they proved incriminating.

The bulk of the typical clinical assessment, however, consists of verbal communication between the evaluator and the defendant.

[E]ven when his goal is solely to reach conclusions about the defendant’s mental state, the clinician depends upon the meaning of the defendant’s statements, not upon their form. ... To use the Court’s wording in Estelle, almost every clinical evaluation relies heavily on the "substance” of the defendant’s statements. To exempt the defendant’s verbal disclosures during a pretrial clinical evaluation from Fifth Amendment scrutiny on the ground that they are nontestimonial would be to deny the reality of the clinical endeavor. [Slobogin, Estelle v Smith: The constitutional contours of the forensic evaluation, 31 Emory L J 71, 85-87 (1982).]

The above comments are even more apt regarding the type of evaluation in the present case. Examinations used to gather information which will be considered in imposing a sentence are more testimonial and potentially incriminating in nature than statements used solely to evaluate a defendant’s mental state.

9

384 US 467.

10

451 US 467.

11

Compare Jones v Cardwell, 686 F2d 754, 756 (CA 9, 1982).

12

There is no tape recording or transcript of the examination. In the appendix to its brief, the people provided a copy of the Recorder’s Court psychiatric clinic "Consent to Examination” form, which was used at defendant’s evaluation. Defendant has not challenged its accuracy.

13

A split of authority is developing at the federal level regarding Estelle’s applicability to noncapital sentencing proceedings. See n 6 of the dissent. The Sixth Circuit has not yet addressed that question, however. While the fact that the defendant faced the death penalty certainly heightened the Estelle Court’s concern over his Fifth Amendment right, we conclude that the right against self-incrimination recognized in Estelle also exists at noncapital sentencing evaluations. See, e.g., note, Fifth Amendment and compelled psychiatric examinations: Implications of Estelle v Smith, 50 Geo Wash L R 275, 295 (1982):

Although the Supreme Court did not venture beyond the context of a capital sentencing proceeding in Estelle, lower courts may justifiably rely upon Estelle in applying the fifth amendment to other sentencing procedures. Regardless of the crime committed, the state should be required to warn the defendant that his disclosures to the psychiatrist may lead to a longer sentence. The defendant should not be compelled to acquiesce in the psychiatric examination. Moreover, the sentencing judge should not be able to draw an adverse inference from the defendant’s failure to cooperate with the psychiatrist. This limitation on the use of psychiatric examinations is apparent from Estelle.

14

The warnings mandated by Miranda in themselves are not of constitutional dimensions. Michigan v Tucker, 417 US 433, 444; 94 S Ct 2357; 41 L Ed 2d 182 (1974).

15

Our holding today should not be read as diminishing the importance of receiving full Miranda warnings in situations which create the "inherently compelling pressures” discussed in Miranda and its progeny.

16

See Satterwhite v Texas, 486 US 249; 108 S Ct 1792; 100 L Ed 2d 284 (1988), where the Court adopted the harmless error rule of Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967), for reviewing Sixth Amendment claims under Estelle.

17

But see, People v Martin, supra at 429, where the Court considered this question in the context of a sanity examination.

18

In addressing the present issues, the Court of Appeals did not cite Estelle, but simply referred to it as one of “the federal cases relied upon by defendant . . . .” The Court relied on three of its cases in contravening Estelle and holding that a psychiatric interview is not an adversarial proceeding at which a defendant’s Fifth and Sixth Amendment rights attach: People v Burton, 44 Mich App 732; 205 NW2d 873 (1973), lv den 389 Mich 795 (1973); People v Vroman, 148 Mich App 291; 384 NW2d 35 (1985); People v Murphy, 146 Mich App 724; 381 NW2d 798 (1985).

People v Burton was decided prior to Estelle, and thus the Court of Appeals reliance on it in evaluating defendant’s post-Estelle claims was of marginal value. To the extent Burton conflicts with our holding today, it is overruled.

People v Vroman does conflict with Estelle, which it fails to cite when rejecting Fifth and Sixth Amendment claims almost identical to the present ones:

As opposed to a sentencing conference, a defendant’s presentence interview is not an adversarial proceeding, but a diagnostic and rehabilitative procedure. Accordingly, the right against self-incrimination or to have counsel present does not attach. . . . Likewise, psychiatric evaluation is a diagnostic procedure to which we believe the privilege against self-incrimination is not applicable. The purpose of the privilege is to assure that no one will be convicted upon his own coerced confession. . . . We do not believe that the privilege should be extended to clinical interviews which take place after a guilty plea has been entered and which have a purpose quite different from the determination of guilt. [148 Mich App 297. Emphasis added.]

The above language from Vroman conflicts with Estelle and our present holding, and to that extent it is overruled.

People v Murphy supports the Court of Appeals result, but not its analysis. The Murphy Court did not reject the notion that a defendant is entitled to his Fifth Amendment right against self-incrimination at a psychiatric examination, as does the Court of Appeals here. In Murphy, the defendant was evaduated at a presentence postconviction psychiatric examination in the Recorder’s Court, where he was apparently given a consent form similar to the one used in the present case. The Murphy Court found that the Fifth Amendment rights existed, that the defendant was adequately informed of them, and that he waived them:

[D]efendant signed a waiver form and agreed to proceed with the full knowledge that the court could be informed of the results of the interview. Considering these facts, we feel that defendant voluntarily waived his rights and that the trial court properly considered the psychiatric report at sentencing. [146 Mich App 728.]

We reject that portion of Murphy which distinguished Estelle from its facts because Murphy’s psychiatric evaluation occurred after he was convicted.