
112 Mich. App. 415 (1982)
316 N.W.2d 440
PEOPLE
v.
JURKIEWICZ.
Docket No. 50081.
Michigan Court of Appeals.
Decided January 19, 1982.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, *417 Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.
Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and M.J. KELLY and D.C. RILEY, JJ.
M.J. KELLY, J.
Defendant Gary Jurkiewicz appeals as of right his jury conviction for breaking and entering with intent to commit larceny. MCL 750.110; MSA 28.305. At the conclusion of defendant's trial, the jury returned with a verdict of guilty of the charged offense but mentally ill. The defendant raises a total of nine issues, only one of which merits discussion.
Defendant alleges that the trial court committed error requiring reversal when it permitted the prosecution, during its case in chief, to elicit opinion testimony from the arresting officer regarding the defendant's sanity. It is argued that the lower court should have excluded the officer's testimony since the prosecution failed to file a notice of rebuttal of the defense of insanity as required by MCL 768.20a(7); MSA 28.1043(1)(7). We agree.
If a prosecutor intends to rebut a properly noticed defense of insanity, MCL 768.20a(1); MSA 28.1043(1)(1), there must be filed, prior to trial, a notice of rebuttal conforming to the following statutory prerequisites:
"Within 10 days after the receipt of the report from the center for forensic psychiatry or within 10 days after the receipt of the report of an independent examiner secured by the prosecution, whichever occurs later, but not later than 5 days before the trial of the case, or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a *418 notice of rebuttal of the defense of insanity which shall contain the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal." MCL 768.20a(7); MSA 28.1043(1)(7).
The penalty for prosecutorial failure to comply with the above provision is statutorily provided in MCL 768.21(2); MSA 28.1044(2):
"If the prosecuting attorney fails to file and serve a notice of rebuttal upon the defendant as provided in section 20 or 20a, the court shall exclude evidence offered by the prosecution in rebuttal to the defendant's evidence relevant to a defense specified in section 20 or 20a. If the notice given by the prosecuting attorney does not state, as particularly as is known to the prosecuting attorney, the name of a witness to be called in rebuttal of the defense of alibi or insanity, the court shall exclude the testimony of a witness which is offered by the prosecuting attorney for the purpose of rebutting that defense."[1]
In this case, the prosecutor admittedly did not file a notice of rebuttal. Despite this procedural infirmity, the prosecutor posed the following direct examination question to the arresting officer during its case in chief:
"Q. (By Mrs. Morman [prosecutor]): Based on the hour to hour-and-a-half contact you had with Mr. Jurkiewicz on April 14, 1979, did you have an opinion at that time as to whether Mr. Jurkiewicz was mentally ill that evening, your own opinion, not as a psychiatrist?
"Mr. Traver [defense counsel]: Same objection, lack of foundation.
"The Court: You may proceed. The objection's been overruled.
*419 "A. At that time the defendant, Mr. Jurkiewicz, appeared normal to me in every way. I had no reason at all to believe that he was mentally ill in any way."
In People v Williams, 107 Mich App 798, 800; 310 NW2d 246 (1981), this Court recognized that the purpose of MCL 768.20a; MSA 28.1043(1) was to prevent surprise at trial. The prosecution's failure to comply with the statutory notice requirements necessitates exclusion of the proffered evidence. Id., 800. Although rebuttal evidence must be excluded if the statute is not complied with, the trial court has discretion to allow the prosecution to file a late notice of rebuttal. Id., 800. The trial judge may also call the rebuttal witness as its own expert pursuant to MRE 706. Id., 801.
In this case, the prosecution never filed a notice of rebuttal to defendant's insanity defense. Furthermore, the prosecutor did not request permission to file a late rebuttal notice, nor did the trial court call the officer as its own expert. The officer's testimony rebutting defendant's insanity defense completely surprised defendant and should have been excluded. The trial court erred when it allowed the officer to rebut defendant's insanity defense.
Reversed and remanded for a new trial.
D.C. RILEY, J., concurred.
V.J. BRENNAN, P.J. (dissenting).
I respectfully dissent. A fair reading of the whole statutory provision of MCL 768.20a, MSA 28.1043(1) leads me to conclude that this section is intended only to proscribe untimely rebuttal by expert psychiatric examiners. The key words are in reference to the clinical findings of either the personnel of the center for forensic psychiatry or any independent *420 "examiner". In short, this section contemplates the use of expert psychiatric witnesses being used to establish or rebut the issue of defendant's insanity. Hence, it is stated that timely disclosure be given of the witness "after the report of an independent examiner secured by the prosecution". It is the unfair surprise which flows from the untimely introduction of expert testimony that is precluded by MCL 768.20a(7); MSA 28.1043(1)(7).
"The purpose of the notice of rebuttal [MCL 768.20a(7); MSA 28.1043(1)(7)] is to give defendant notice that expert witnesses may be called and to aid the prosecutor in rebutting the defense of insanity. It is not to insure that the whole of the res gestae is produced and to protect the accused against the suppression of testimony favorable to him." People v Hamm, 100 Mich App 429, 436; 298 NW2d 896 (1980), lv den 411 Mich 888 (1981).
Thus, I am persuaded that this section was not intended to preclude the testimony of a res gestae witness who offered his opinion after having had ample opportunity to observe the behavior and appearance of defendant at the time of his arrest. He wasn't testifying as an expert but, rather, as to the circumstances surrounding the arrest. MRE 701, People v Alsteens, 49 Mich App 467, 472; 212 NW2d 243 (1973), lv den 391 Mich 826 (1974). Since the officer was an endorsed res gestae witness, the defendant was not unduly surprised or prejudiced by the fact that he testified or by the nature of the testimony. I would affirm the defendant's conviction of being guilty of the charged offense but mentally ill.
An examination of the record has not indicated error requiring reversal in the other issues raised by defendant.
NOTES
[1]  We note that this penalty for failure of a prosecutor to file the required notice of rebuttal of insanity applies with equal force to a prosecutor's failure to file a notice of rebuttal to the defense of alibi. MCL 768.20(2); MSA 28.1043(2).
