People v. Linzey , 112 Mich. App. 374 ( 1981 )

112 Mich. App. 374 (1981) 315 N.W.2d 550

PEOPLE
v.
LINZEY.

Docket No. 49887.

Michigan Court of Appeals.

Decided December 2, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David E. McClernan, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

Terrance P. Dignan, for defendant on appeal.

Before: T.M. BURNS, P.J., and D.E. HOLBROOK, JR., and K.B. GLASER,^[*] JJ.

PER CURIAM.

Following a jury trial, defendant was found guilty on two counts of armed robbery, but mentally ill, MCL 750.529; MSA 28.797. He was sentenced to a term of from 3 to 20 years in prison and appeals as of right.

Defendant raises six allegations of error which will be dealt with seriatim. The facts will be discussed as necessary.

Defendant first contends that the trial court erred by instructing the jury, over objection, on the verdict of guilty but mentally ill. The trial court was required by statute to give the instruction on guilty but mentally ill where evidence was presented by defendant supporting a defense of insanity. MCL 768.29a; MSA 28.1052(1). Defendant argues that this statute is unconstitutional in that it encourages compromise verdicts, depriving him of liberty without due process of law contrary to Const 1963, art 1, § 17. Another panel of this Court addressed this issue in People v Thomas, 96 Mich. App. 210, 221; 292 NW2d 523 (1980), and stated:

"The language of the statute imposes a duty on trial judges to use this instruction where the evidence warrants it. While trained professionals may better understand the distinction between a not guilty by reason of insanity verdict and a guilty but mentally ill verdict, MCL 768.36; MSA 28.1059 offers sufficient guidance in this respect."

As in that case, there is no evidence here that the jury was misled into returning a compromise verdict or was improperly instructed, and we find no error.

Defendant next contends that the failure of the Department of Corrections to provide psychiatric treatment in conformity with MCL 768.36(3); MSA 28.1059(3) mandates reversal of his conviction. Since the affidavits containing the allegations are not part of the official trial record, the issue is not reviewable by this Court. The proper remedy for defendant is to proceed by writ of mandamus against the Department of Corrections if psychiatric treatment fails to materialize. People v Tenbrink, 93 Mich. App. 326, 331; 287 NW2d 223 (1979).

Furthermore, while there is no doubt that a sentencing judge may, prior to sentencing, look into the resources available to provide psychiatric treatment, we know of no requirement that he do so. People v McLeod, 407 Mich. 632; 288 NW2d 909 (1980).

Defendant contends that it was error for the trial court to instruct the jury, sua sponte, as to the consequences of a verdict of not guilty by reason of insanity. This same argument was addressed and rejected in Thomas and Tenbrink. The analyses and holdings in those cases apply equally here. Furthermore, defendant failed to object to the instruction, and we find no manifest injustice.

Defendant next takes the position that finding him mentally ill necessarily precludes a finding that he had the specific intent necessary for a conviction of armed robbery. In People v Bruce Ramsey, 89 Mich. App. 468, 471-472; 280 NW2d 565 (1979), a similar question was raised with respect to a first-degree murder charge and was rejected, the Court stating:

"It does not necessarily follow that a person with a ``substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life', MCL 330.1400(a); MSA 14.800(400a), is incapable of deliberation and premeditation."

The same rationale applies here.

Defendant is confusing the definition of mental illness with the defense of diminished capacity which is included in the definition of insanity set forth in MCL 768.21a; MSA 28.1044(1). See People v Mangiapane, 85 Mich. App. 379; 271 NW2d 240 (1978). It does not follow that being mentally ill as defined by the Mental Health Code necessarily means that the person has diminished capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

Defendant also contends that the trial court erred by permitting a prosecution witness to testify, where the witness had consulted with the prosecutor as to another witness's testimony after the court had ordered sequestration. This issue was addressed in People v Stanley, 71 Mich. App. 56, 62; 246 NW2d 418 (1976), in which a panel of this Court ruled:

"The exclusion of witnesses from the courtroom is within the discretion of the trial judge, People v Dickerson, 62 Mich. App. 457; 233 NW2d 612 (1975). So too is the ordering of the sequestered witnesses not to discuss the evidence while outside the courtroom. Langel v United States, 451 F2d 957 (CA 8, 1971), United States v Chiarella, 184 F2d 903 (CA 2, 1950), rev'd on other grounds 341 U.S. 946; 71 S. Ct. 1004; 95 L. Ed. 1370 (1951). We question the efficacy of a sequestration order, however, if the witnesses are not ordered not to discuss the evidence.

* * *

"Failure to so caution the witnesses, however, does not constitute reversible error absent abuse of discretion in ruling on a request for such a warning."

Here, as in Stanley, the trial court was not asked to caution the witness against discussing the evidence, and, since there was no violation of the sequestration order, there was no abuse of discretion in permitting the witness to testify.

The final issue raised by defendant on this appeal is whether failure to obtain a report from the Center for Forensic Psychiatry before sentencing a defendant found to be guilty but mentally ill to a prison term constitutes error. Our interpretation of subsections (3) and (4) of MCL 768.36; MSA 28.1059 shows that it was not. The intent of the Legislature is the primary consideration. Dussia v Monroe County Employees Retirement System, 386 Mich. 244, 248; 191 NW2d 307 (1971).

The Michigan Supreme Court construed subsection (4), in connection with a due process argument, as requiring such a report. McLeod, supra, 658. Subsection (4) specifically requires that where a defendant is placed on probation "under the jurisdiction of the sentencing court", the trial judge must make treatment a condition of probation "upon recommendation of the center for forensic psychiatry".

The absence of the above-emphasized language in subsection (3), which provides for those defendants "committed to the custody of the department of corrections" to "undergo further evaluation and be given such treatment as is psychiatrically indicated", is significant. The obvious intent of the Legislature was to assure that in each case a defendant is evaluated so that appropriate treatment may be provided. When a defendant is committed to the Department of Corrections, expertise for evaluation and treatment is readily available, and the department is required to utilize such expertise for the defendant's benefit. However, when a defendant is to be released on probation, such expertise is not necessarily available. Subsection (4) mandates that an evaluation from the Center for Forensic Psychiatry be obtained in order to assure that the trial judge will know of the mental condition of the defendant and will make a better informed probation tenure.

We find no error. Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.