People v. Sargeant

D. E. Holbrook, Jr., J.

The defendant was charged with breaking and entering with the intent to commit a larceny, MCLA 750.110; MSA 28.305. The defendant filed an insanity defense. However, on February 22, 1974, a jury rejected it and he was convicted. Defendant was sentenced to from 6 years 8 months to 10 years in prison. Defendant appeals by leave granted on a motion for a delayed appeal.

The defendant does not dispute the basic facts of the case. During the early morning hours of June 1, 1973, the police were called to a tool and die shop. When they arrived at the scene they discovered a broken window and found the defendant inside the building attempting to leave by the front door. He was carrying a can of beer and a briefcase at the time. In his confession he admitted that he intended to take the briefcase, and a television set and radio that were found nearby, from the building.

On direct examination the prosecutor questioned the police officers who were at the scene how the defendant acted or appeared at the time of his arrest. The first officer testified that the defendant appeared "normal”. Defendant objected to this conclusion. In response, the trial court limited the officer to testifying as to what he observed. When the question was asked of the second police officer defendant again objected for the same reason that the prosecutor was trying to introduce lay opinion testimony concerning defendant’s sanity. At this point the prosecutor countered by arguing that he was attempting to lay the foundation for the introduction of defendant’s confession. It was the prosecutor’s contention that this was necessary, since there had been an indication that the defendant had been drinking, to show that he had the faculties to make a voluntary confession.¹

To establish the defendant’s insanity, four expert witnesses were called. The first two witnesses testified that they had examined the defendant in 1952 when he was nine years old. They stated that at that time the defendant had shown signs of severe emotional disturbance and that he lived in a fantasy world. Defendant’s third witness was the chief psychologist in the reception diagnostic center at Jackson prison. He stated that he interviewed the defendant in 1968 and that although the defendant knew right from wrong he could not resist the impulse to commit a crime. Defendant’s fourth expert witness was a psychiatrist who briefly examined the defendant before trial six months after the crime had been committed. This doctor testified that in his opinion this breaking and entering was related to defendant’s mental illness and that the defendant could not resist behaving as he did. Each of these witnesses was thoroughly cross-examined by the prosecution. Defendant also introduced, by stipulation of the prosecutor, a list of 52 crimes that the defendant had committed in the past 25 years.²

Defendant’s only meritorious issue on appeal concerns the characterization made by the police officers that he was "normal”. He claims that these characterizations were lay opinion testimony on the issue of his sanity without a proper foundation as required by People v Cole, 382 Mich 695; 172 NW2d 354 (1969). However, we do not need to enter the dispute between the various panels of this Court as to the precedential value of People v Cole, supra, since we conclude that the officer’s testimony was not lay opinion testimony concerning the defendant’s sanity. Compare People v Alsteens, 49 Mich App 467; 212 NW2d 243 (1973), with People v Thompson, 30 Mich App 142; 186 NW2d 4 (1971).

From the beginning of the trial and until some evidence is introduced to the contrary, the defendant is presumed to be sane. People v Woody, 380 Mich 332, 338; 157 NW2d 201 (1968), People v Garbutt, 17 Mich 9, 22; 97 Am Dec 162 (1868), People v Livingston, 57 Mich App 726, 732; 226 NW2d 704 (1975). This presumption attaches to the defendant no matter what notice the prosecution has that the defendant will present an insanity defense. Although the prosecution is always required to prove the defendant sane beyond a reasonable doubt, until some evidence is introduced to show that the defendant is insane, the presumption of sanity satisfies the prosecution’s burden of proof. People v Krugman, 377 Mich 559, 563; 141 NW2d 33 (1966), People v Livingston, supra. In fact, the prosecution has a duty not to introduce evidence on the issue of the defendant’s sanity until after the defendant has. People v Williams, 218 Mich 697, 700; 188 NW 413 (1922), People v Plummer, 37 Mich App 657, 659; 195 NW2d 328 (1972).

Since no evidence was introduced during the prosecution’s case-in-chief tending to show that the defendant was insane, the prosecution had no reason to introduce the policemen’s testimony as evidence that the defendant was sane. This is true even though the prosecutor mistakenly argued that since the issue of insanity had been raised, he needed to rebut it. The trial court properly corrected him that the issue was not raised until there was evidence introduced on the subject. Although this mistaken belief might show the intent of the prosecution to use these statements by the police officers as lay opinion testimony, several factors militate against such a reading.

First, the trial court corrected the prosecutor’s mistaken belief during the testimony of the first police officer and the prosecutor continued to ask similar questions. We will not presume that an attorney as an officer of the court will deliberately ask improper questions after he has been corrected by the trial court. Second, when the defendant objected during the questioning of the second police officer, the prosecutor stated that the questions were necessary to establish the voluntariness of the defendant’s confession since there was testimony that the defendant had been drinking.

Furthermore, a fair reading of the objectionable questions asked both officers in the context of their testimony convinces us that the questions did not imply any opinion of the police officers as to the defendant’s sanity. In addition the trial court took pains to insure that the jury would not draw the wrong inferences from the officers’ testimonies following the defendant’s objections. It made the first officer clarify that he was talking about the defendant’s physical appearance when he mentioned the word "normal”. It also made sure that the second officer was referring to the defendant’s sobriety, not sanity.

However, the defendant argues that even if the police officer’s testimony was not an expression of lay opinion concerning the defendant’s sanity, it acquired that character when the prosecutor referred to it as such to "rebut” the testimony of the defendant’s experts. There he said,

"Now match that [the testimony of the defendant’s experts] up against the testimony of police officers who actually observed the defendant on the night and during the commission of the crime. Now these are people that you can see when they testified as to how he acted, you can see for yourself because as I stated earlier, opinion evidence is worth nothing more or nothing less than any other witness who takes the stand.”

We note, however, that no objection was made at that time. Hence, the issue of the statement’s appropriateness is not properly before us. Any error appearing in the statement clearly could have been rectified by the trial court if a timely objection had been made and a curative instruction requested. People v McLendon, 51 Mich App 543; 215 NW2d 742 (1974). Although we do not intimate that it could, this comment by the prosecutor certainly does not make the police officer’s testimony into lay opinion testimony of the defendant’s sanity. It is not necessary to strain to do it either since the prosecution discharged its burden of proving defendant’s sanity beyond a reasonable doubt by its cross-examination of the defendant’s expert witnesses. People v Fisk, 62 Mich App 638; 233 NW2d 684 (1975), cf. People v Finley, 38 Mich 482, 485-486 (1878).

We find no error. Affirmed.

1 A Walker hearing (People v Walker [On Rehearing], 374 Mich 331; 132 NW2d 87 [1965]) was held at this point. After the hearing the trial court admitted the confession into evidence during the testimony of the officer who secured the confession.

2 Among these were 36 cases of breaking and entering, 12 escapes from custody, and 4 cases of destruction of property.