People v. Cole ( 1968 )

8 Mich. App. 250 (1967) 154 N.W.2d 579

PEOPLE
v.
COLE.

Docket No. 633.

Michigan Court of Appeals.

Decided November 27, 1967. Leave to appeal granted February 13, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Edward G. Henneke, Assistant Prosecuting Attorney, for the people.

Milliken & Magee, for defendant.

Leave to appeal granted February 13, 1968. See 380 Mich 757.

McGREGOR, J.

Johnnie L. Cole was tried and convicted of second-degree murder. CL 1948 § 750.317 (Stat Ann 1954 Rev § 28.549). He was sentenced for 35 to 50 years and now appeals.

Factually, the case involves another senseless homicide. Cole was awakened one morning and told that a man from the Consumers Power Company was shutting off the electric power to the Cole home. Cole dressed, picked up his revolver, and went out to talk to the Consumers Power man. After a brief conversation, Cole raised his gun and shot the man several times. Cole then went back into his house and either called the sheriff himself or had some one in his family make the call and reported the killing. Sheriff's deputies who responded to the call testified that Cole was cooperative and related what had occurred in an even, unemotional manner.

Cole had no prior criminal record. His standing in the community was very good and he was very active in church functions and religious fraternal organizations. He did have a record of mental illness; he had been honorably discharged from the armed services for psychiatric reasons and was receiving a veteran's administration disability pension. Cole underwent periodic psychiatric checkups in connection with his VA pension and had received such an examination 4 days prior to the shooting. The examining psychiatrist concluded that Cole was then in a state of moderate remission from his previous schizophrenic reactions but that he might act irrationally under stress. At trial, the defense produced two additional expert witnesses who testified that Cole had psychiatric disabilities. Cole's main defense was insanity. The testimony of the three expert witnesses raised the insanity question squarely for jury consideration.

Appellant Cole raises several questions on appeal. The first of these involves some 17 questions which defense counsel proposed for the voir dire examination. The court refused to propound 12 of these questions to the prospective jurors. By the provisions of GCR 1963, 511.3 the examination of prospective jurors may be conducted by the court or the attorneys. Further, a "large discretion is vested in the trial court as to the scope of examination of jurors on their voir dire." People v. Rose (1934), 268 Mich 529, 531. The purpose of the voir dire examination is to enable the attorneys to elicit such information as to develop a rational basis for the exercise of challenges for cause or peremptory challenges. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 465. The questions asked of the prospective jurors by the court enabled defense counsel to develop an adequate basis for the exercise of challenges.

Basically, the 17 questions submitted to the court by defense counsel were designed to derive four types of information from the prospective jurors. The most vital of these groupings was designed to elicit information as to whether any of the jurors was predisposed against the defense of insanity and further, whether there was distrust of psychiatric testimony. The court, however, did question the jurors as to whether any of them had any bias against the defense of insanity. Another grouping of proposed questions sought to elicit what verdict they would return if there was any doubt as to Cole's sanity. This the jurors were asked by the court. Further, defense counsel sought to question the prospective jurors as to what effect testimony concerning Cole's reputation would have on them. The court's refusal to ask this question was not reversible error. Finally, counsel requested that the jurors be asked what their verdict would be if the evidence were equally balanced. Refusal by a court to ask this question is not error unless some prejudice is shown to have resulted. People v. Lockhart (1955), 342 Mich 595; People v. Allen (1958), 351 Mich 535. Cole has made no showing of prejudice. Further, the jurors were asked whether they would follow the usual presumptions, which presumptions would encompass the answer to the proposed question. We find no reversible error in the voir dire examination.

Counsel for appellant questions whether there was sufficient evidence before the jury to find the appellant guilty beyond a reasonable doubt. The main point of appellant's evidentiary argument seems to be that the people introduced no expert testimony to rebut the psychiatric testimony offered in Cole's defense. Since sanity is the normal human condition, a defendant is presumptively sane until some contrary evidence is introduced to rebut this presumption. When, however, evidence is introduced which raises the sanity issue, the burden of proof shifts to the prosecution to prove the defendant was sane beyond a reasonable doubt. People v. Garbutt (1868), 17 Mich 9. It does not follow, however, that sanity must be proved by expert witnesses or that expert opinions must be rebutted by expert testimony. See Vial v. Vial (1963), 369 Mich 534, 536. In the record before us, there is testimony from which the jury could find that the appellant was sane at the time the homicide was committed. This being the case, the expert opinion evidence introduced by the defense was not controlling. People v. Krugman (1966), 377 Mich 559. The question of Cole's sanity was a disputed fact question for the jury to decide and we cannot say their finding in this regard was without factual support.

Defense counsel requested the trial court to charge the jurors on the defense of insanity in accord with the Durham rule (Durham v. United States [CA DC, 1954], 94 App DC 228 [214 F2d 862, 45 ALR2d 1430]), whereby an accused is not criminally responsible if his unlawful act is the product of a mental disease or defect. Whatever may be the appeal of the Durham test of legal insanity, we feel constrained to uphold the long-settled Michigan tests. The charge given the jury was in accord with that approved in People v. Durfee (1886), 62 Mich 487, 493:

"If, by reason of disease, the defendant was not capable of knowing he was doing wrong in the particular act, or if he had not the power to resist the impulse to do the act by reason of disease or insanity, that would be an unsound mind;"

thus, a mind not criminally responsible. We may speculate that the Supreme Court may some day adopt the Durham rule or return to the "incapability of criminal intent" test set out in People v. Garbutt (1868), 17 Mich 9. See People v. Krugman (1966), 377 Mich 559. However, we are not free to act on this speculation and alter the long approved Durfee test.

The final issue raised on appeal revolves around the question of whether the jury should have been informed of the disposition of the defendant if he was found not guilty by reason of insanity. The statute, CL 1948 § 766.15c (Stat Ann 1954 Rev § 28.933[3]),^[*] provides in part:

"Any person, who is tried for the crime of murder and is acquitted by the court or jury by reason of insanity, shall forthwith be committed by order of said court to a State hospital for the criminally insane for the remainder of his natural life."

Defense counsel requested that he be allowed to state the law in his argument to the jury and further requested that the jury be instructed in accord with the provisions of the law. Both requests were denied. The jurors, after a period of deliberation, submitted a question to the court seeking instruction on the disposition of the defendant if found not guilty by reason of insanity. The court informed the jury that it could not answer the question.

We find no reversible error in this part of the case. Michigan is firmly committed to the position that the jury's duty is to determine the truth from the evidence presented and to communicate their determination to the court in the form of a verdict. Post-verdict consequences should not enter into the jurors' deliberations. People v. Warner (1939), 289 Mich 516. Jurors are not informed of the possible punishment that may be meted out by the court upon the return of a guilty verdict. The reason for this prohibition is that the jury's sole function is to determine the truth, and consideration of the consequences of their verdict can only hamper and confuse their deliberations. This rationale applies with equal force to the present case. Knowledge of the post-verdict disposition of the defendant Cole, if found not guilty by reason of insanity, could not have aided the jury in determining whether Cole was insane or not at the time the homicide was committed. The court's refusal either to instruct on this point or to allow counsel to state it in argument was not reversible error.

Affirmed.

J.H. GILLIS, J., concurred with McGREGOR, J.

T.G. KAVANAGH, P.J. (dissenting).

"Will a verdict of not guilty by reason of insanity insure the defendant of immediate release without further treatment in an institution?" asked the jury.

"I am sorry, I cannot answer this question," responded the trial court.

For the reasons set forth in the opinions of the United States Court of Appeals for the District of Columbia in Lyles v. United States (1957), 103 App DC 22 (254 F2d 725) and Catlin v. United States (1957), 102 App DC 127 (251 F2d 368), the court should have answered the question by quoting the statute applicable to that circumstance (CL 1948, § 766.15c [Stat Ann 1954 Rev § 28.933(3)]).

The case of People v. Warner, supra, cited in the majority opinion correctly states the law as to punishment for a crime, but that is not what the jury asked.

Equating the provisions of the cited statute with punishment is a totally repulsive concept. As said by the supreme court of Nevada in Kuk v. State (1964), 80 Nev 291, 300 (392 P2d 630, 634):

"A verdict of not guilty by reason of insanity means neither freedom nor punishment. It does mean that the accused will be confined in a hospital for the mentally ill until he has recovered his sanity and will not, in the reasonable future, be dangerous to himself or others."

My Brother's suggestion that "post-verdict consequences should not enter into the jurors' deliberations" expresses a lofty ideal to which we may all subscribe. It is ingenuous, however, to suppose that anticipated consequences do not enter jurors' deliberations and to base a rule of law on such supposition is dangerous.

To do a little evil to accomplish a great good is a temptation as old as Eve. To find an innocent person guilty to protect society, alas, may appear to some as a fair bargain, but it is the old temptation nonetheless.

Here the fear in the mind of the jury stands stark in its question. The virtue of its verdict could not have been assured without instruction in the law to allay that fear and to permit deliberation in confidence based on knowledge.

To refuse the requested information and to accept this verdict so tainted is a miscarriage of justice.

I would reverse and remand for a new trial.

NOTES

[*] CL 1948, § 766.15c was repealed by PA 1966, No 266. For present relevant statutory provisions, see PA 1927, No 175, ch 7, §§ 27a, 27b, as added by PA 1966, No 266 (Stat Ann 1966 Current Material §§ 28.966[11], 28.966[12]). — REPORTER.