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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CHARLES FACKELMAN, Defendant-Appellant.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED JULY 28, 2011 STATE OF MICHIGAN SUPREME COURT

No. 139856

BEFORE THE ENTIRE BENCH MARKMAN, J. Defendant was found guilty but mentally ill of home invasion, felonious assault, and felony-firearm, charges that resulted from an altercation he had with Randy Krell, the man who defendant believed had caused the death of his teenage son, Charlie, in an episode of road rage. Defendant perceived Krell to have been unremorseful about his role in the tragedy and antagonistic towards defendant's family during subsequent legal proceedings in which Krell was convicted of only a misdemeanor for his involvement in Charlie's death. The only issue at defendant's trial was whether he was legally insane at the time of the incident. The prosecutor's expert witness opined that he was not, while

defendant's expert opined that he was. Although these expert witnesses were the only doctors who testified at defendant's trial, their opinions regarding defendant's sanity were not the only expert opinions before the jury. Rather, defendant's jury was repeatedly told about the diagnosis of a third expert who was conspicuously absent from defendant's trial-- a psychiatrist unaffiliated with either the prosecution or the defense, and the only doctor to have examined defendant within days of the incident, who, in a report that was reviewed by the other experts but never authenticated and offered into evidence, diagnosed defendant as suffering from "[m]ajor depression, single episode, severe without psychosis." We conclude that the use of this powerful, tiebreaking diagnosis as substantive evidence of defendant's sanity compromised his constitutional right to be confronted with the witnesses against him. Accordingly, we reverse the judgment of the Court of Appeals, vacate defendant's convictions, and remand for further proceedings. I. FACTS AND PROCEEDINGS On June 16, 2006, defendant's teenage son, Charlie, was killed in an automobile accident. Defendant describes the accident as a road rage incident, in which a car driven by Randy Krell allegedly engaged in a high-speed chase that resulted in the crash of another car in which Charlie was a passenger, killing Charlie and rendering another teenage passenger in the same car a paraplegic. The drivers of both vehicles were charged with vehicular manslaughter. The driver of the car in which Charlie was a passenger pleaded guilty to a lesser offense and apologized to defendant's family. Krell opted to go to trial, claiming his innocence. He was convicted of negligent homicide, a misdemeanor, and was sentenced to six months in jail and probation. During the

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proceedings, defendant perceived Krell as insulting and antagonizing to his family. Krell never apologized. According to his relatives, friends, and colleagues, defendant experienced a significant change in his mood and behavior after Charlie was killed. Defendant saw a psychologist and was prescribed an antidepressant (Prozac) and an antianxiety medication (Xanax). On March 27, 2007, defendant watched his son's school baseball team play what would have been the first game of Charlie's varsity season. Witnesses described defendant as depressed and uncommunicative at the time. There were several indications that he was thinking of suicide. The next day, defendant drove to Krell's house with a gun. Krell testified that he saw defendant get out of his car with a gun in his hand and that defendant pointed the gun at his chest and said that the two men had to talk. Krell ran across the street to the home of a neighbor, Thomas Williams, who let Krell in. Defendant kicked in the door and told Williams, "I'm not here for you" but for "him." Krell ran out the back of the house. Someone else called 911. Defendant left in his car and drove to his mother's home in Toledo, Ohio, where he hid the gun in a register and then left. The police and defendant's family and friends looked for defendant after he left Williams's house. Attorneys who had represented defendant's family were also involved in the search and were in frequent contact with the Monroe County Prosecutor and the police. Eventually, a family friend found defendant at a gas station, approximately 20 miles away near Toledo, Ohio, and drove him to Flower Hospital in Toledo. Defendant was arrested en route to the hospital. One of the lawyers arranged for defendant's

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admission to the hospital and declined to allow the police to interview him because of his condition. Defendant was taken to a crisis center, where he spent the night. The next day, defendant was admitted to the psychiatric intensive care unit at Flower Hospital. There, he was examined by Dr. Agha Shahid, who prepared a threepage report on defendant's psychiatric condition on March 30, 2007, two days after the incident. Defendant was prescribed Seroquel, an antipsychotic medication, and remained at Flower Hospital for approximately two weeks. Defendant claimed to have little recollection of what he did on the day of the incident. He remembered sitting in his car at work in the morning, crying. Witnesses saw defendant curled up in a fetal position in his car, rocking back and forth. The next thing he remembered was a red plastic couch at the crisis center in Toledo. He did not remember going to his mother's home, he did not remember the first couple days of his hospitalization, and he did not remember being interviewed by Dr. Shahid. Defendant was charged with first-degree home invasion, MCL 750.110a(2), two counts of felonious assault with a dangerous weapon, MCL 750.82, and felony-firearm, MCL 750.227b. He claimed that he was legally insane at the time of the incident on March 28, 2007. The prosecutor presented the expert testimony of Dr. Jennifer Balay, a psychologist who examined defendant at the Michigan Center for Forensic Psychiatry in May 2007. Dr. Balay said that defendant was mentally ill, but she did not think that he was legally insane at the time of the offense. Specifically, she concluded that defendant "was not psychotic at anytime during this depression." Defendant presented the expert testimony of Dr. Zubin Mistry, a clinical psychologist who interviewed defendant on September 4, 2007. Dr. Mistry disagreed with Dr. Balay's assessment. He testified that 4

defendant was legally insane at the time of the offense, concluding that defendant had experienced a "major depressive episode with psychotic features" or a "brief reactive psychosis." Both Dr. Mistry and Dr. Balay reviewed Dr. Shahid's report in making their determinations regarding defendant's mental state. As the first witness presented by defendant, Dr. Mistry provided the requisite testimony needed for defendant to raise his insanity defense. Dr. Mistry testified that Dr. Shahid's report was one of many sources he had reviewed in reaching his opinion that defendant was legally insane at the time of the incident.1 In his direct testimony, he never referenced Dr. Shahid's diagnosis, never discussed any other doctor's diagnosis, and testified only as to his own diagnosis. On cross-examination, the prosecutor's questioning of Dr. Mistry was largely focused on Dr. Shahid, bringing out details about Dr. Shahid's professional credentials
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Dr. Mistry explained: You'll typically interview the individual, extensively observing their behaviors, their mannerisms, their patterns of behavior. You'll talk to individuals involved as witnesses and oftentimes you will talk to spouses, et cetera, people familiar with their functioning and their level of functioning. You'll do an assessment of their pre-morbid functioning, which is the way that they responded and functioned in a time frame . . . prior to the event you're dealing with. . . . You'll review medical records from individuals who have been treating, practioners, hospital records. You'll also review any prior records of . . . mental conditions. You'll take some family history as to mental conditions. And you do a broad range of assessment of the individual. . . . * * * I reviewed records from Flower Hospital, Dr. Shahid's records, Dr. Indurti had provided some records. . . . [And] at least a couple of other counselors.

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("He's an M.D., psychiatrist, correct?") and Dr. Shahid's prior relationship to Dr. Mistry ("Do you know Dr. Shahid?" "You respect his opinion, correct?"). At the end of this cross-examination, the prosecutor squarely placed Dr. Shahid's diagnosis before the jury: Q. At the end of that report did you read Dr. Shahid's diagnosis? A. Yeah. Q. You read where it says major depression, single episode,-A. Yes. Q. -- severe, without psychosis? A. Yes. Q. But you don't agree that the Defendant did not have a psychosis, do you? A. No. My opinion is different as to the diagnosis. The prosecutor later referred to Dr. Shahid's report in his examination of his own expert, Dr. Balay, again referring to Dr. Shahid's diagnosis, and asking if Balay agreed with Dr. Shahid's diagnosis. She answered yes. He also repeatedly mentioned

Dr. Shahid and his diagnosis in closing arguments, telling the jury that "it's real important to look at what Dr. Shahid had to say, even though he did not testify here before you."2 Defense counsel did not object to the questioning of the witnesses on the basis of Dr. Shahid's report and diagnosis or to the prosecutor's arguments. In addition, the prosecutor also referred to Dr. Shahid in the following excerpts from his closing arguments: Dr. Shahid is the one at Flower Hospital who talked to [defendant] the day after this happened . . . . And . . . Dr. Shahid wrote a report that became a very important part of what Dr. Balay later did as far as her report is concerned. . . .
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The jury found defendant guilty but mentally ill of the charged offenses. He was sentenced to 45 months to 20 years in prison for the home invasion conviction, 1 to 4 years for each of the felonious-assault convictions, and 2 years for the felony-firearm conviction. Defendant appealed in the Court of Appeals and moved for an evidentiary hearing regarding his claim of ineffective assistance of counsel.3 The Court of Appeals granted defendant's motion. Following an evidentiary hearing, the trial court denied defendant's motion for a new trial. The Court of Appeals affirmed. People v Fackelman,

unpublished opinion per curiam of the Court of Appeals, issued August 27, 2009 (Docket No. 284512). The court rejected defendant's challenges to the use of Dr. Shahid's report at his trial, concluding that the prosecutor had proceeded properly in his use of the report in all instances except in his direct examination of Dr. Balay and that defendant could not show outcome-determinative prejudice with respect to that error. We granted defendant's application for leave to appeal. People v Fackelman, 486 Mich 907 (2010).

* * * Dr. Shahid was told a lot of things about what happened . . . by [defendant]. . . . And Dr. Shahid reached the conclusion at the end [of] his examination that [defendant] was depressed, he had severe depression, but that there was no psychosis involved. . . . * * * And I submit to you from what you've heard from Dr. Mistry, from what you've heard from Dr. Balay, and the references you've heard to Dr. Shahid's report . . . .
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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II. STANDARD OF REVIEW Whether the admission of Dr. Shahid's opinion regarding defendant's mental state violated defendant's Sixth Amendment right of confrontation is a question of constitutional law that this Court reviews de novo. People v Jackson, 483 Mich 271, 277; 769 NW2d 630 (2009). III. ANALYSIS A. RIGHT OF CONFRONTATION The Confrontation Clause of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." US Const, Am VI. Since its birth as a state, Michigan has also afforded a criminal defendant the right to "be confronted with the witnesses against him," adopting this language of the federal Confrontation Clause verbatim in every one of our state constitutions. Const 1839, art 1,

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