299 N.W.2d 51 (Mich.App. 1980), 78-4489, People v. Murphy

Docket Nº:Docket No. 78-4489.
Citation:299 N.W.2d 51, 100 Mich.App. 413
Opinion Judge:Before MAHER, P J, and BRONSON and QUINN, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary T. MURPHY, Defendant-Appellant.
Judge Panel:Before MAHER, P.J., and BRONSON and QUINN, [*] JJ.
Case Date:October 06, 1980
Court:Court of Appeals of Michigan
 
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Page 51

299 N.W.2d 51 (Mich.App. 1980)

100 Mich.App. 413

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Gary T. MURPHY, Defendant-Appellant.

Docket No. 78-4489.

Court of Appeals of Michigan.

October 6, 1980

Released for Publication Dec. 9, 1980.

Page 52

James R. Neuhard, [100 Mich.App. 414] State Appellate Defender, John A. Lydick, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter R. George, Pros. Atty., for plaintiff-appellee.

Before MAHER, P.J., and BRONSON and QUINN, [*] JJ.

[100 Mich.App. 415] QUINN, Judge.

A jury found the defendant guilty of breaking and entering an occupied dwelling with intent to commit a felony, but mentally ill, and guilty of first-degree criminal sexual conduct, but mentally ill. M.C.L. §§ 750.110, 750.520b(1)(f), 768.36; M.S.A. §§ 28.305, 28.788(2)(1)(f), 28.1059. He was sentenced and he now appeals.

The record discloses that there was a brutal physical attack and several horrible and bizarre sexual attacks on the victim by the defendant. It would be difficult to describe a more heinous offense, the facts of which defendant does not deny. In fact, in a pretrial motion in limine, defendant moved that the case go to the jury solely on the issue of insanity, admitting all other allegations contained in the information.

In presenting its main case, the prosecution was permitted, over objection, to elicit testimony of two police officers relating to the defendant's sanity. The limited opportunity that the officers had for observation of the defendant is disclosed by the records. Their testimony relating to the defendant's sanity should not have been admitted for two reasons. First, it was premature. Defendant was presumed sane until he introduced some contrary evidence. People v. Sargeant, 65 Mich.App. 691, 238 N.W.2d 175 (1975). Second, this testimony was admitted without a proper foundation because of the officers' lack of ample opportunity to observe the accused. People v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969), People v. Wright, 58 Mich.App. 735, 743-744, 228 N.W.2d 807 (1975).

Without the inadmissible testimony of the officers as to the defendant's sanity there is no evidence on this record that he was sane since the expert witnesses of both the prosecution and the defense testified that he was in fact insane. This [100...

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