Certified Question, In re

• Citation: 425 Mich. 457,390 N.W.2d 620
• Decision Date: 05 August 1986
• Docket Number: Docket No. 78017
• Parties: In re Certified Question; Paul D. DUFFY, Jr., Petitioner, v. Dale FOLTZ, Warden, Respondent. 425 Mich. 457, 390 N.W.2d 620
• Court: Supreme Court of Michigan

Page 620

390 N.W.2d 620

In re Certified Question; Paul D. DUFFY, Jr., Petitioner, v. Dale FOLTZ, Warden, Respondent.

Docket No. 78017.

425 Mich. 457, 390 N.W.2d 620

Supreme Court of Michigan.

Argued May 7, 1986.

Decided Aug. 5, 1986.

[425 MICH 459] Arthur J. Tarnow, Detroit, for petitioner.

John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, Timothy A. Baughman, Principal Atty., Research, Training and Appeals, Detroit, for respondent.

RILEY, Justice.

This matter comes before this Court pursuant to a question certified by the United States Court of Appeals for the Sixth Circuit. ¹

1] The question this Court has agreed to answer is whether sanity is an element of the crimes of rape and kidnapping as defined by Michigan law. We hold that sanity is not an element of these crimes and that insanity is a burden-shifting affirmative defense, placing the burden of going forward with evidence of insanity on the defendant. The defendant having done so, the burden of going forward, with evidence of defendant's sanity beyond a reasonable doubt, shifts to the prosecution. ²

FACTS

In 1974, the petitioner was convicted by a jury of rape, M.C.L. Sec. 750.520; M.S.A. Sec. 28.788, and kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, upon a plea of not guilty and not guilty by reason of insanity. On his appeal as of right, the Court of Appeals affirmed his conviction, rejecting his claim that the evidence presented at trial was insufficient to establish his sanity beyond a reasonable doubt, but modified the sentence in conformity with People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972). People v. Duffy, 67 Mich.App. 266, 240 N.W.2d 771 (1976). This Court denied a request for review on September 29, 1976.

The petitioner subsequently filed an application for leave to file a delayed motion for new trial which was denied by the trial court July 9, 1982. On November 17, 1982, the Michigan Court of Appeals denied petitioner's application for delayed appeal for lack of merit in the grounds presented, and, on September 21, 1983, this Court denied petitioner's application for leave to appeal. People v. Duffy, 417 Mich. 1100.19 (1983).

The petitioner then proceeded to federal district court where he filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254. Petitioner alleged, inter alia, that under the circumstances presented sanity became an element of the crimes charged and that the jury could not, on the evidence, find beyond a reasonable doubt that he was sane and, therefore, his conviction violated federal due process guarantees. In a memorandum opinion dated December 6, 1984, United States District Judge Charles W. Joiner denied the petition. As to the sufficiency of the evidence argument, Judge Joiner found that the petitioner had not presented a question of federal constitutional law because, under Michigan law, sanity was not an "essential element" of the crimes of rape and kidnapping. (Citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 [1979] ).

The petitioner appealed Judge Joiner's denial of a writ of habeas corpus in the Sixth Circuit Court of Appeals, wherein a divided court, citing People v. Murphy, 416 Mich. 453, 331 N.W.2d 152 (1982), ruled that under Michigan law sanity is an element of the crimes of rape and kidnapping and, thus, the conviction was reviewable on federal grounds upon the petitioner's filing for a writ of habeas corpus. Duffy v. Foltz, 772 F.2d 1271 (CA 6, 1985). The dissenting Sixth Circuit Court Judge, like the United States District Court Judge, concluded that sanity was not an element of these crimes. A petition for rehearing en banc was subsequently filed with the Sixth Circuit Court by the Attorney General of Michigan on behalf of respondent Foltz. A majority of that court voted to rehear the matter en banc and, later, to certify the question involved as a question of Michigan law. On March 14, 1986, this

                Court accepted the request to answer the certified question. 3  424 Mich. 1206, 384 N.W.2d 7
                

DISCUSSION

Petitioner was convicted of rape under M.C.L. Sec. 750.520; M.S.A. Sec. 28.788, ⁴ and kidnapping under M.C.L. Sec. 750.349; M.S.A. Sec. 28.581. These statutes provide:

"Any person who shall ravish and carnally know any female of the age of 16 years, or more, by force and against her will, or who shall unlawfully and carnally know and abuse any female under the full age of 16 years, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years, or if such person was at the time of said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life. Such carnal knowledge shall be deemed complete upon proof of any sexual penetration however slight."

"Any person who willfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby or with intent either to cause such person to be secretly confined or imprisoned in this state against his will, or in any way held to service against his will, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years."

Nowhere within the statutory language defining these crimes is sanity stated as an element. Furthermore, this Court has never interpreted these statutes to include sanity as an element.

In People v. McDonald, 409 Mich. 110, 121, n. 9, 293 N.W.2d 588 (1980), we approved a trial court instruction on the elements of "rape" that did not include sanity as an element.

"The trial court gave the following instruction relative to rape:

" 'Now for the crime of rape, the prosecution must prove each of the following elements beyond a reasonable doubt.

" 'Now as used in this case, a male person perpetrates a rape if he engages in sexual penetration with a female person under circumstances in which force or coercion is used to accomplish the sexual penetration.

" 'As used in this case, sexual penetration means any intrusion however slight of a male penis into the genital opening of a female's body but emission of semen is not required.

" 'The term force and coercion means the actual physical force by the defendant or any action sufficient to create a reasonable fear of dangerous consequences.' "

Moreover, in People v. Wesley, 421 Mich. 375, 388-391, 365 N.W.2d 692 (1984), this Court construed the kidnapping statute, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, and, in stating the elements of the conduct prohibited by the statute, we did not list sanity as an element. Neither in the specific language of the rape and kidnapping statutes, nor in judicial interpretation of these statutes, has sanity been included as an element.

In addition, this Court, as well as the Michigan Court of Appeals, has determined insanity to be an affirmative defense. In People v. Martin, 386 Mich. 407, 425-426, 192 N.W.2d 215 (1971), this Court stated that "[i]n the light of our recent decision in People v. Cole, [382 Mich. 695, 172 N.W.2d 354 (1969) ], if the people are unable to obtain a psychiatric evaluation of defendant, a plea of not guilty by reason of insanity would practically compel a verdict of not guilty by reason of insanity since the people would have no means of meeting and overcoming this affirmative defense." (Emphasis added.) More recently, the Michigan Court of Appeals in People v. Walker, 142 Mich.App. 523, 525-526, 370 N.W.2d 394 (1985), also deemed insanity to be an affirmative defense.

"It is only when some evidence of a defendant's insanity is interjected into a case that the question arises as to who must carry the burden of proof regarding the insanity issue. Since we presume that a person is sane, one would expect that a defendant seeking to escape responsibility for criminal acts on the ground that he was insane at the time the criminal acts occurred would bear the burden of proof to establish his insanity. Usually, insanity is deemed to be an affirmative defense. In the majority of states, this is a rule, i.e., a defendant claiming insanity has the burden of proof to show his insanity.

* * *

"As previously indicated, the defense of insanity is essentially an affirmative defense, pled to avoid responsibility for criminal acts or, to use the terminology of proponents of the rule, to avoid the consequences of acts otherwise criminal." (Emphasis added.)

See also People v. Chamblis, 395 Mich. 408, 423, 236 N.W.2d 473 (1975), People v. Jordan, 51 Mich.App. 710, 717, 216 N.W.2d 71 (1974), and People v. Stoddard, 48 Mich.App. 440, 446-447, 210 N.W.2d 470 (1973).

The petitioner argues that Murphy, supra, is authority for concluding that sanity is an element that must be proved beyond a reasonable doubt. Petitioner points to the following language in Murphy, 463-464, 331 N.W.2d 152:

"A defendant in a criminal proceeding is presumed sane. Once any evidence of insanity is introduced, however, the prosecution bears the burden of establishing defendant's sanity beyond a reasonable doubt. People v Krugman, 377 Mich 559, 563; 141 NW2d 33 (1966), People v Garbutt, 17 Mich 9, 23 (1868). The prosecution does not argue that defendant failed to controvert the presumption of sanity. Thus, defendant's sanity at the time of the crime was as much an element to be proved by the prosecution beyond a reasonable doubt as the other statutory elements of the offenses charged." (Emphasis added.)

We believe, however, that petitioner misconstrues this Court's...