People v. Wright

431 Mich. 282 (1988) 430 N.W.2d 133

PEOPLE
v.
WRIGHT

Docket No. 78396, (Calendar No. 1).

Supreme Court of Michigan.

Argued October 7, 1987. Decided September 8, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Criminal Division, Research, Training and Appeals, and Olga Agnello, Assistant Prosecuting Attorney, for the people.

Carl Ziemba for the defendant.

CAVANAGH, J.

Defendant asserts that, contrary to Estelle v Smith, 451 U.S. 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

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 The Court of Appeals affirmed defendant's conviction in an unpublished opinion without discussing Estelle.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 examination conducted by the prosecution's psychiatrist. [451 U.S. 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 sentencing 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 U.S. 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 U.S. 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 U.S. 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 U.S. 465.]

Under the above circumstances, the Estelle Court held that defendant should have received warnings, pursuant to Miranda v Arizona, 384 U.S. 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 U.S. 475.

Relying on Miranda, the Estelle Court held:

[A]bsent 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 470, n 14. Emphasis added.]

The Estelle Court held that the defendant was not afforded his right to counsel^[16] because his attorneys were not notified in advance that the pretrial competency examination would also encompass the issue of their client's future dangerousness:

[R]espondent 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 U.S. 471.]

In fact, there was some doubt that counsel had ever been informed of the competency examination itself. 451 U.S. 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.

BOYLE, J. (concurring in part and dissenting in part).

I

We are asked to decide in this case whether one who has been convicted of a crime and is remanded to undergo a psychiatric examination as part of the presentence investigation must be given Miranda^[1] warnings under the rule announced in Estelle v Smith, 451 U.S. 454; 101 S. Ct. 1866; 68 L. Ed. 2d 359 (1981). While not included in this Court's order granting leave to appeal, we are also asked to decide whether defendant possessed a Sixth Amendment right to the assistance of counsel during the presentence psychiatric examination. The majority concludes that while the Fifth Amendment privilege against self-incrimination attaches at a psychiatric examination when ordered as part of a presentence investigation, the defendant's rights were adequately protected in this case, notwithstanding the absence of Miranda warnings.

I agree with the majority that no Fifth Amendment violation is present in this instance, and therefore concur in that result.^[2] Assuming arguendo that the Sixth Amendment advance notice to counsel requirement applies to presentence postconviction psychiatric interviews, I agree that the record does not support the claimed violation of that rule.

A

The United States Supreme Court has determined that the applicability of the Fifth Amendment right against self-incrimination turns on two subsidiary questions — the nature of the statement or admission involved, and the exposure to defendant that admission into evidence of the statement or admission would invite. In re Gault, 387 U.S. 1, 49; 87 S. Ct. 1428; 18 L. Ed. 2d 527 (1967). Foregoing this analysis, however, the majority proceeds on the bare assumption that the defendant possessed a Fifth Amendment right against self-incrimination at a psychiatric examination used for sentencing purposes, while openly acknowledging that the factors prompting the Smith Court to find the Fifth Amendment applicable in that case are not present here.

While I agree that a convicted defendant retains a Fifth Amendment privilege not to incriminate himself during a presentence interview with regard to activity unrelated to the crime for which he has been convicted,^[3] I cannot agree with the majority's assumption that the Fifth Amendment applies to the use of a defendant's interview with a psychiatrist bearing only on the potential range of a legislatively determined sentence. Unlike Smith, this is neither a situation in which the question of the penalty to be imposed was to be resolved in an evidentiary proceeding, nor a situation in which the defendant was compelled to submit to the psychiatric evaluation. Nor is this a situation like that in Smith, where the defendant was unaware that the psychiatrist was obtaining evidence that would be used against him for another purpose and in a different context than the limited function of the psychiatric examination. Indeed, as the Court noted in Smith, "if the application of Dr. Grigson's findings had been confined to serving that function, no Fifth Amendment issue would have arisen," Estelle v Smith, supra, p 465.

In my view, Smith does not compel the conclusion that the Fifth Amendment applies to statements made by a defendant in this context. While in an abstract sense it is correct to state that the Fifth Amendment is always applicable to prohibit "use by the prosecution in its case in chief only of compelled testimony," Oregon v Elstad, 470 U.S. 298, 306; 105 S. Ct. 1285; 84 L. Ed. 2d 222 (1985), the Court's approach in Smith illustrates that the relevant inquiry requires an examination of the government's obligation in the circumstances presented. Thus, the Court in Smith answered the question "whether the Fifth Amendment privilege is applicable in the circumstances of this case," id., p 461, by looking to the use made of the statements and concluding that if the government uses compulsory examination to gather evidence against a defendant, the government is obligated to advise the defendant that he has "a constitutional right not to answer the question put to him." Id., p 467.

Absent further guidance, the conclusion I draw from Smith is that while the protection of the Fifth Amendment privilege does not disappear merely because the respondent's statements were uttered in the context of a presentence psychiatric examination, id., p 465, neither does the fact that defendant made statements during the psychological examination automatically include them within the reach of the Fifth Amendment. Whether the Fifth Amendment applies depends upon the nature of the statement or admission and the exposure which it invites. Thus, if the issue here were whether a psychologist who obtained information at a presentence examination that the defendant had admitted the commission of another crime could testify on the issue of guilt at the defendant's trial for that crime, Smith might well compel the answer that the Fifth Amendment is applicable. In my judgment, however, Smith does not compel the conclusion that the Fifth Amendment applies to every postconviction interview.

B

In concluding that the Fifth Amendment applied to the facts presented in Smith, the Supreme Court looked to several distinct factors. First, the Court assessed the gravity of the decision to be made at the penalty phase of the prosecution and concluded that the Fifth Amendment was applicable at a capital-sentencing hearing.

Next, rejecting the state's claim that defendant's communications to Dr. Grigson were nontestimonial, the Smith Court considered the fact that the state, in seeking the death penalty, used as evidence detailed descriptions of statements made by defendant to the state's psychiatrist during the course of a pretrial competency examination. These statements were offered to prove to the jury the defendant's future dangerousness during the penalty phase of the proceeding. The Court viewed as dispositive the fact that "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 U.S. 464. Because the prognosis as to defendant's future dangerousness rested on the defendant's own recitation of the details of the crime, and because these statements were used as direct evidence against the defendant during the penalty phase of the proceeding, the Fifth Amendment was implicated.

Finally, the Court acknowledged "the[] distinct circumstances" of the case, 451 U.S. 466, noting that the trial judge, sua sponte, had ordered the psychiatric examination.

By contrast in the instant case, as the majority properly notes, the facts found by the Smith Court to mandate the observance of Fifth Amendment rights are simply inapposite to those found here.

First, we do not operate under a bifurcated trial system in which the state must prove certain facts beyond a reasonable doubt to secure a desired sentence in a contested adversarial context.^[4] Thus, it cannot be said that information given by the defendant provided evidence against him that reduced the government's burden to shoulder the load.

Second, the purpose of the instant examination was limited to assistance in the sentencing decision. By contrast, as the Court observed in Smith, Dr. Grigson's examination had not been restricted to serving the neutral purpose of determining defendant's competency to stand trial, in which case, "no Fifth Amendment issue would have arisen." Id., p 465. However, "[w]hen Dr. Grigson went beyond simply reporting to the court on the issue of competency and testified for the prosecution at the penalty phase on the critical issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting." Id., p 467. In this case, Mr. Crenshaw's examination contained no reference to the details of the instant crime or any other criminal activity by defendant.^[5] Rather, his evaluation served only as a neutral psychological profile based on the defendant's family background, school, and work history, and the results of a battery of psychological testing. Mr. Crenshaw did not become an agent for the state securing disclosures to be used against the defendant for a purpose of which the defendant was unaware. His only function was to provide his findings to the trial judge and this was the only use made of his report.

Finally, the defendant was not compelled to submit to this examination, and was not subject to any legal sanctions, such as the threat of contempt, had he chosen to remain silent. The very fact that the defendant was informed of the examination by the trial judge during formal proceedings, was provided with the Recorder's Court "Consent to Examination" form explaining the purpose of the examination and the role of the examiner, and was asked whether he understood and was willing to proceed prior to his participation underscores the noncoercive nature of the examination. The defendant's interview was not compelled and thus is not within the Smith proscription that a defendant may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.

Underscoring the importance of the purpose to which compelled disclosures are ultimately put, the Court has recently observed in Buchanan v Kentucky, 483 U.S. 402, 425, n 21; 107 S. Ct. 2906; 97 L. Ed. 2d 336 (1987), that if upon being adequately advised, a defendant expresses his desire to refuse to answer any questions, a pretrial competency examination can still proceed "upon the condition that the results would be applied solely for that purpose," cf. Estelle v Smith, supra, p 468. Thus, as the Court observed in Smith, the proper conduct and use of competency examinations are not frustrated, but the state must make its case on future dangerousness in some other way.

The clear import of those statements for the case at hand is that Smith precludes the use of statements "compelled" for one purpose as evidence in another proceeding against the defendant. The Fifth Amendment right in question is the right to decline to undergo a custodial inquiry in which defendant's statements will be used for incriminatory purposes. It should follow that the statements in issue here which were obtained for a valid purpose and used solely for that nonevidentiary purpose do not implicate the Fifth Amendment.

It thus appears that the rule of Smith that the Fifth Amendment applies to preclude the use of compelled disclosures as evidence against a defendant is simply inapplicable in this instance. The facts leading that Court to conclude that the Fifth Amendment was applicable are not found here. The majority has offered no justification for the conclusion that the defendant had a Fifth Amendment privilege in this circumstance.

An examination of the cases dealing with Smith claims resulting from postverdict, presentence interviews or examinations reveals that only in the instance where a state agent sought a confession concerning additional criminal activity for which the defendant might have been prosecuted was the Fifth Amendment privilege deemed applicable. See Jones v Cardwell, 686 F2d 754, 756 (CA 9, 1982) (defendant was instructed by the court that he had no choice but to answer a probation officer's questions); Arnett v Ricketts, 665 F Supp 1437, 1444 (D Ariz, 1987) (Miranda warnings were required before questioning concerning details of other crimes).

It is clear from the record here that the defendant was not questioned concerning other crimes for which he might have been prosecuted. His complaint centers on the trial judge's consideration of the conclusion contained in the psychiatric report that defendant demonstrated an assaultive personality. The rule found in Jones and Arnett is, therefore, not applicable to this appeal.^[6]

Smith does not command us to constitutionalize the sentencing process by applying Miranda Fifth Amendment jurisprudence to all presentence information received by the trial judge. In Smith, the defendant was examined only to determine his competence, but the state later used the psychiatrist's testimony at the penalty phase of the proceedings. The Court held "these distinct circumstances," 451 U.S. 466, which included the fact that the defendant had not raised any issue of competency and had been given no notice that the results could be used against him at the sentencing phase, had denied the defendant his Fifth Amendment rights.

The Court's holding was specific and limited:

A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. [Id., p 468.]

Moreover, the Court carefully noted that it was not holding 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," id., p 469, n 13.

Smith does not dictate the result in this case.

II

Assuming, arguendo, that the defendant enjoyed a Fifth Amendment privilege during the psychiatric evaluation, I cannot agree with the majority conclusion that defendant's rights were not violated. I would not reach the question whether the full panoply of the prophylactic warnings required by Miranda must be given in this situation. I would conclude without reaching that question that if the Fifth Amendment is applicable to the use of a postsentence psychological interview for sentencing purposes, defendant would at a minimum, be entitled to a warning of his right to remain silent, failing which a resentence must be ordered.

It is clear on this record that the defendant's statements were not involuntary as that term is historically defined in Fifth Amendment jurisprudence.^[7] The defendant was informed by the sentencing judge while in the presence of counsel that he was to undergo a presentence investigation and psychiatric examination. By contrast, in the typical Miranda situation, the defendant is not afforded the opportunity to consult with counsel prior to the custodial interrogation. See United States ex rel Bachman v Hardy, 637 F Supp 1273 (ND Ill, 1986). It is the inability to seek the advice of counsel, to prepare for the possibility that the examiner may attempt to elicit privileged information, coupled with the pressures of the custodial environment, that triggers the need for the Miranda warnings. In this case, however, while defendant was obviously in custody at the time of the presentence examination, he was afforded ample notice and nearly two weeks to consult with counsel prior to his participation. Further, defendant was not under court order to cooperate with the examining psychiatrist, yet freely chose to do so after reviewing the "Consent to Examination" form prior to the examination which explained the purpose of the examination and asked whether he was willing to proceed.

Thus, the defendant was under no threat of legal sanction such as perjury or contempt for his failure to participate. When asked to participate, defendant surely had to weigh the possibility that his statements would aid the examiner in formulating an opinion as to his character, which in turn would become part of the presentence report for the sentencing judge to review. However, when offered the option to forego the examination, defendant freely chose to proceed. Defendant's statements were voluntary and not compelled in violation of the Fifth Amendment. See United States v Barragan, 793 F2d 1255, 1260 (CA 11, 1986); United States v Jones, 640 F2d 284, 288 (CA 10, 1981).

This analysis does not end the inquiry, however. If the Fifth Amendment applies and the examination at issue constituted "custodial interrogation,"^[8] the question for resolution is whether the failure to provide the prophylactic rules developed to protect the right requires exclusion of the report at sentencing. The majority proceeds, at least implicitly, on the assumption that the psychological examination was custodial interrogation, yet finds no violation of defendant's rights because the "inherently compelling pressures" typical of those prompting Miranda warnings are not found in this case. If the majority's assumption is true concerning the custodial character of the psychological examination, I would conclude that defendant's rights were not adequately protected.

To be sure, the United States Supreme Court has observed that Miranda warnings are not of constitutional dimension, but rather a means to protect fundamental rights.^[9] The Court has, however, albeit in dicta, recently observed in the context of evaluating rights attendant to a competency hearing when the trial judge has doubts about a defendant's mental condition, see Pate v Robinson, 383 U.S. 375; 86 S. Ct. 836; 15 L. Ed. 2d 815 (1966), that "the Fifth and Sixth Amendments would mandate that [defendant] be allowed to consult with counsel and be informed of his right to remain silent." Buchanan v Kentucky, supra, 483 U.S. 402, n 21. In this case it is clear that defendant was afforded the opportunity to consult with counsel, but it is equally clear that he was not told of his right to remain silent. Were I satisfied that the Fifth Amendment applied to the examination at issue and that the examination constituted custodial interrogation, as the majority plainly assumes, it would appear that the defendant's sentence should be vacated notwithstanding the precautions taken prior to the questioning.

III

Defendant further claims that Estelle v Smith, supra, requires us to conclude that his Sixth Amendment right to the assistance of counsel was violated. Estelle v Smith establishes that defense counsel must be given advance notice of a pretrial competency hearing where the results may be used as evidence on the issue of future dangerousness in a death-penalty proceeding. Defendant in this case acknowledges that counsel was given actual advance notice of the presentence psychiatric interview. Assuming that the Sixth Amendment advance notice holding in Smith applies to a postconviction presentence interview, I agree with the majority that defendant has failed to present any Sixth Amendment claim of error on this record.

Specifically, the defendant here contends that the Sixth Amendment mandates a) that the defendant and his trial counsel be informed that "defendant would be interviewed by a member of the clinic" and b) that counsel be present during the interview. As to the former contention, the defendant does not claim that counsel did not receive actual advance notice that an evaluation would be made. The defendant focuses on the adequacy of notice, asserting that counsel was not advised when the defendant would be interviewed or that the report would be based on a personal interview with the defendant, rather than a profile drawn from other sources. Because the defendant in this case is not claiming that counsel was not given advance notice that the examination was to be conducted, but, rather, contests the adequacy of the notice, we have no occasion to resolve the question as to whether the Sixth Amendment Smith holding applies in this case.^[10]

I would conclude that, assuming arguendo that defendant enjoyed a Sixth Amendment right to advance notice to counsel of the examination,^[11] no violation of such right occurred. The defendant and his counsel received actual notice of the examination, and it appears that the Sixth Amendment does not require counsel's presence during the examination.^[12]

CONCLUSION

I agree with the majority that the defendant has failed to demonstrate a denial of either his Fifth or Sixth Amendment rights. I disagree with the majority to the extent it assumes that the Fifth Amendment right against self-incrimination is applicable in this context. I also agree that we need not reach the merits of the question whether the Sixth Amendment requires advance notice to counsel of a presentence psychiatric examination.

I would affirm the decision of the Court of Appeals.

RILEY, C.J., and GRIFFIN, J., concurred with BOYLE, J.

NOTES

[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 LJ 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 U.S. 467.

[10] 451 U.S. 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 U.S. 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 U.S. 249; 108 S. Ct. 1792; 100 L. Ed. 2d 284 (1988), where the Court adopted the harmless error rule of Chapman v California, 386 U.S. 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 evaluated 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.

[1] 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).

[2] Defendant has also attempted to raise claims under Const 1963, art 1, §§ 17 and 20. While observing that these claims extend outside this Court's order granting leave to appeal, we also note that defendant has not offered authority to support the argument that a different result should obtain under art 1, §§ 17 and 20 than under the Fifth and Sixth Amendments of the United States Constitution. Thus, we conclude that defendant's appeal lacks an independent state ground and proceed to address his federal claims. Michigan v Long, 463 U.S. 1032; 103 S. Ct. 3469; 77 L. Ed. 2d 1201 (1983).

[3] In People v DenUyl, 318 Mich. 645; 29 NW2d 284 (1947), this Court found that the privilege against self-incrimination under Const 1908, art 2, § 16 protects a witness in a state proceeding from testifying to facts which could lead to incrimination in a pending federal prosecution. Although preceding the United States Supreme Court's decision in Malloy v Hogan, 378 U.S. 1; 84 S. Ct. 1489; 12 L. Ed. 2d 653 (1964), which ruled the Fifth Amendment privilege against self-incrimination applicable to the states, DenUyl has been viewed as establishing that the privilege against self-incrimination applies when an appeal remains pending as to a conviction to which the statement would relate. See People v Giacalone, 399 Mich. 642, 644, n 3; 250 NW2d 492 (1977); People v Lindsay, 69 Mich. App. 720, 722-723; 245 NW2d 343 (1976); People v St Onge, 63 Mich. App. 16, 18; 233 NW2d 874 (1975); People v Thomas, 55 Mich. App. 368, 370; 222 NW2d 320 (1974).

Counsel for the defendant does not contend that the defendant made statements during the interview regarding the crime he had been convicted of, and we therefore have no occasion to consider whether the defendant retained a Fifth Amendment privilege as to the crime of which he had already been convicted.

[4] Further, we do not have capital punishment in this state, thus distancing the Smith rationale. The majority concludes that the Smith holding applies to noncapital proceedings. Ante, p 294, n 13. The courts have split on whether to limit Smith to capital sentencing cases, see, e.g., Baumann v United States, 692 F2d 565, 576 (CA 9, 1982); United States v Jones, 640 F2d 284, 288 (CA 10, 1981); cf. United States v Chitty, 760 F2d 425, 432 (CA 2, 1985).

[5] There has here been no allegation and no showing that the examining psychologist employed statements taken from defendant concerning the details of the crime when he compiled his evaluation for insertion in the presentence report to the trial judge.

[6] The Ninth Circuit soundly rejected this claim in Baumann v United States, 692 F2d 565 (CA 9, 1982). In Baumann, the defendant argued that an uncounseled interview with a probation officer for the purpose of constructing a presentence report constituted custodial interrogation requiring Miranda warnings. Rejecting the Smith analysis as factually inapposite, the Baumann court concluded that there was nothing of record to enable the court to find that the presentence interview in that case, or presentence interviews in general, "entail pressures at all similar to those `which the Miranda Court found so inherently coercive as to require its holdings.'" 692 F2d 577. To do so, the court found, "would be to apply a principle `broader than that required to implement the policy of Miranda itself.'" Id.

[7] In Michigan v Tucker, 417 U.S. 433, 441; 94 S. Ct. 2357; 41 L. Ed. 2d 182 (1974), the Court explained:

Before Miranda the principal issue in these cases was not whether a defendant had waived his privilege against compulsory self-incrimination but simply whether his statement was "voluntary." In state cases the Court applied the Due Process Clause of the Fourteenth Amendment, examining the circumstances of interrogation to determine whether the processes were so unfair or unreasonable as to render a subsequent confession involuntary. See, e.g., Brown v Mississippi, 297 U.S. 278 [56 S. Ct. 461; 80 L. Ed. 682] (1936); Chambers v Florida, 309 U.S. 227 [60 S. Ct. 472; 84 L. Ed. 2d 716] (1940); White v Texas, 310 U.S. 530 [60 S. Ct. 1032; 84 L. Ed. 1342] (1940); Payne v Arkansas, 356 U.S. 560 [78 S. Ct. 844; 2 L. Ed. 2d 975] (1958); Haynes v Washington, 373 U.S. 503 [83 S. Ct. 1336; 10 L. Ed. 2d 513] (1963). See also 3 Wigmore, Evidence (Chadbourn rev), § 815 et seq. Where the State's actions offended the standards of fundamental fairness under the Due Process Clause, the State was then deprived of the right to use the resulting confessions in court.

[8] It should be observed that there is an unargued and unresolved issue in this case whether the psychological interview was custodial interrogation and, if so, whether defendant made any inculpatory or exculpatory statements which the prosecution used against him absent Miranda warnings.

[9] In Michigan v Tucker, supra, pp 438-439, the Court concluded that incomplete Miranda warnings did not deprive the defendant of his Fifth Amendment privilege. In reply to custodial police questioning which had not included the required Miranda warning that defendant would be furnished counsel free of charge, defendant gave the police the name of an individual he had allegedly been with at the time of the crime. When contacted by the police, this person said defendant had left him earlier in the evening on the night of the rape, and provided the police with admissions made to him by the defendant. At trial defendant's own statements taken during interrogation were excluded, but the witness whose identity had been learned during the interview was allowed to testify that defendant had told him that the scratches on his face had been made by a "widow woman" who lived the next block over. As described by the Court, the issue was whether

proper regard for the privilege against compulsory self-incrimination requires, with limited exceptions not applicable here, that all evidence derived solely from statements made without full Miranda warnings be excluded at a subsequent criminal trial.... [W]e believe that the question thus presented is best examined in two separate parts. We will therefore first consider whether the police conduct complained of directly infringed upon respondent's right against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right. We will then consider whether the evidence derived from this interrogation must be excluded.

The Court noted that the Fifth Amendment right against compelled disclosure had been given broad scope, but concluded that the facts of the case as compared to the historical circumstances underlying the privileges "strongly indicate[] that the police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda." Id., p 444. The Court concluded that the respondent's statements could hardly be termed involuntary as that term had been defined in its decisions and also observed "[a]dditionally, there were no legal sanctions, such as the threat of contempt, which could have been applied to respondent had he chosen to remain silent. He was simply not exposed to `the cruel trilemma of self accusation, perjury or contempt.'" Id., p 445.

[10] The wisdom of the traditional view that the Court does not resolve constitutional issues unnecessary to a decision, People v Adams, 430 Mich. 679, 699; 425 NW2d 437 (1988), is particularly apropos here; the Sixth Amendment issue was not the subject of the order granting leave, and neither brief undertakes any significant analysis as to whether the Smith holding that the defense counsel must be given advance notice of such an examination applies, or whether, if error occurred, it was harmful. Satterwhite v Texas, 486 U.S. 249; 108 S. Ct. 1792; 100 L. Ed. 2d 284 (1988). The prosecution appears to concede the issue, and the defendant's brief does not dispute that notice was given. Having been informed of the purpose the examination would serve, "It can be assumed — and there are no allegations to the contrary, — " that defense counsel consulted with the defendant about the nature of the examination, Buchanan v Kentucky, supra, 483 U.S. 402.

[11] We note that this Court has never held that a criminal defendant enjoys the right to the assistance of counsel during postconviction proceedings. In People v Gonyea, 421 Mich. 462; 365 NW2d 136 (1984), three members of the Court found that the defendant possessed a right to counsel under Const 1963, art 1, § 20, during postsentencing proceedings.

[12] See United States v Byers, 239 US App DC 1; 740 F2d 1104 (1984); Baumann v United States, n 6 supra at 578; People v Daniels, 149 Mich. App. 602, 609; 386 NW2d 609 (1986); People v Vroman, 148 Mich. App. 291, 297; 384 NW2d 35 (1985); People v Shively, 45 Mich. App. 658, 664-665; 206 NW2d 808 (1973); People v Burton, 44 Mich. App. 732, 734-735; 205 NW2d 873 (1973). See also anno: Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination, 3 ALR4th 910, 920-925.