PEOPLE OF MI V JEROME COREY PAHOSKI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2008
Plaintiff-Appellee,
v
No. 272906
Wayne Circuit Court
LC No. 06-004634-01
JEROME COREY PAHOSKI,
Defendant-Appellant.
Before: Gleicher, P.J., and O’Connell and Kelly, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
I concur with the majority’s determination that the trial court properly refused to give
defendant’s requested self-defense jury instruction. I also agree that the trial court abused its
discretion by failing to grant defendant an adjournment in which he could secure
neuropsychological testing. However, I respectfully disagree with the remedy selected by the
majority because it permits the trial court to deny defendant an opportunity to pursue an insanity
defense.
The majority concludes that “reversing defendant’s convictions and sentences outright is
not a remedy that is justified by the circumstances.” Instead, the majority holds that before
granting defendant a new trial, the trial court must first determine whether the
neuropsychological testing results “support Dr. Miller’s tentative insanity theory.” Rather than
affirming defendant’s convictions and permitting the trial court to decide whether the test results
merit a new trial, I would adhere to the procedure established by this Court in People v Shahideh,
277 Mich App 111, 121-122; 743 NW2d 233 (2007). Consistent with Shahideh, I believe that
the trial court should afford defendant an opportunity to undergo neuropsychological testing, and
then should permit defendant and his counsel to decide whether a triable issue exists concerning
defendant’s sanity at the time of the charged offense. Id. at 120. If defendant decides to present
an insanity defense, I would require the trial court to vacate his convictions and hold a new trial,
in accordance with the procedure outlined in Shahideh, which notably did not invest the trial
court with the discretion to reject a proposed insanity defense that the defendant and his counsel
deemed “triable.” Id. at 120-121; see also MCR 7.215(J)(1).
I disagree with the majority’s determination that the trial court should conduct an
evidentiary hearing after completion of the testing “to determine if defendant was, in fact, denied
his right to present an insanity defense or if the defense was properly barred.” Under the
circumstances presented here, the decision whether to present an insanity defense should reside
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solely with defendant. In my view, the trial court may not properly determine whether the
neuropsychological testing results warrant an insanity plea or “verify” defendant’s insanity
theory.
The remedy chosen by the majority rests on its opinion that the trial court may deny
defendant an insanity defense because of poor cooperation on defendant’s part. According to the
majority, Dr. Miller’s report “suggested that defendant was less than cooperative,” and a “trial
court’s finding that a defendant is less than ‘fully’ cooperative in the testing requires the trial
court to bar presentation of the insanity defense.” In my view, however, the majority and the
trial court clearly misinterpret Dr. Miller’s concern that defendant could not “provide any useful
information concerning his mental state or his behavior at the legally relevant time,” as
defendant’s failure to cooperate. Dr. Miller did not characterize defendant’s behavior as
uncooperative, but instead hypothesized that defendant “may be psychologically blocking access
to these memories or may be avoiding talking about his actual symptoms or thought processes.”
The absence of clarity regarding defendant’s behavior precipitated Dr. Miller’s request for the
neuropsychological testing. Further, Dr. Daigle’s final report states that defendant eventually
completed all testing and exams necessary for Daigle to conclude that “neither the statutory
criteria for mental illness nor the requirements for legal insanity have been satisfied.” Dr.
Daigle’s ability to render a definitive conclusion regarding defendant’s sanity distinguishes this
case from People v Hayes, 421 Mich 271; 364 NW2d 635 (1984), in which our Supreme Court
held that a defendant’s failure to cooperate with a forensic examination may preclude his ability
to present an insanity defense, pursuant to MCL 768.20a(4).
Because defendant here complied with MCL 768.20a, in my view the trial court has no
role to play in defendant’s decision whether to pursue an insanity defense, and the court thus
may not restrict his right to present an insanity defense based on the court’s own interpretation of
the neuropsychological test results.
Psychiatry is not, however, an exact science, and psychiatrists disagree
widely and frequently on what constitutes mental illness, on the appropriate
diagnosis to be attached to given behavior and symptoms, on cure and treatment,
and on likelihood of future dangerousness. Perhaps because there often is no
single, accurate psychiatric conclusion on legal insanity in a given case, juries
remain the primary factfinders on this issue, and they must resolve differences in
opinion within the psychiatric profession on the basis of the evidence offered by
each party. [Ake v Oklahoma, 470 US 68, 81; 105 S Ct 1087; 84 L Ed 2d 53
(1985).]
I would hold that if defendant seeks a new trial after completing the neuropsychological
testing, the trial court must honor defendant’s election, vacate his convictions and sentences, and
conduct a new trial.
/s/ Elizabeth L. Gleicher
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