People v. Murphy, Docket No. 78-4489

• Decision Date: 06 October 1980
• Docket Number: Docket No. 78-4489
• Citation: 299 N.W.2d 51,100 Mich.App. 413
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary T. MURPHY, Defendant-Appellant. 100 Mich.App. 413, 299 N.W.2d 51
• Court: Court of Appeal of Michigan — District of US

Page 51

299 N.W.2d 51

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary T. MURPHY, Defendant-Appellant.

Docket No. 78-4489.

100 Mich.App. 413, 299 N.W.2d 51

Court of Appeals of Michigan.

Oct. 6, 1980.

Released for Publication Dec. 9, 1980.

[100 MICHAPP 414] James R. Neuhard, 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 MICHAPP 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 MICHAPP 416] record fails to establish that the prosecution met its burden of proving sanity beyond a reasonable doubt.

The trial judge permitted the prosecution to question the police officers about defendant's silence at the time of his arrest on the theory that there was some indication that defendant was not insane. This was error. People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973). However, in viewing defendant's admission of all of the elements of the crimes alleged except his sanity, we do not consider this reversible error.

Defendant further contends that it was reversible error to admit into evidence certain photographs of the victim, a blood-stained sheet, some carrots and a ketchup bottle, the latter two items having been used in the sexual attacks. In view of defendant's admissions, these exhibits have little, if any, probative value and they should not have been admitted. People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973).

The defendant's failure to object to prosecutorial comments during closing argument eliminates the necessity of appellate review.

We find that it was error for the assistant prosecutor to question the defendant's mother-in-law on her awareness of the defendant's heroin addiction. People v. Walker, 86 Mich.App. 155, 272 N.W.2d 222 (1978).

In light of the Supreme Court's recent opinion in People v. McLeod, 407 Mich. 632, 288 N.W.2d 909 (1980), we find defendant's arguments concerning the...