People v. Blocker

• Decision Date: 22 February 1973
• Docket Number: No. 3,Docket No. 13202,3
• Citation: 206 N.W.2d 229,45 Mich.App. 138
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold Ray BLOCKER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 229

206 N.W.2d 229

45 Mich.App. 138

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold Ray BLOCKER, Defendant-Appellant.

Docket No. 13202.

Court of Appeals of Michigan, Division No. 3.

Feb. 22, 1973.

Leave to Appeal Filed March 1, 1973.

Released for Publication April 19, 1973.

Leave to Appeal Granted Sept. 17, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and J. H. GILLIS and T. M. BURNS, JJ.

J. H. GILLIS, Judge.

Defendant was convicted by a jury of unlawfully driving away an automobile, M.C.L.A. § 750.413; M.S.A. § 28.645.

At preliminary examination defense counsel filed notice of an intent to claim an insanity defense and moved for the appointment of psychiatrists to examine defendant. Pursuant to the court's order, results of the examination were sent to defense counsel and the prosecuting attorney.

At trial, defense counsel made no mention of the defense of insanity. On appeal, defendant claims the notice of insanity and motion for psychiatric assistance required a commitment for forensic evaluation to determine his competency at the time of trial. We disagree.

It is our determination that the defense motion was made pursuant to M.C.L.A. § 768.20; M.S.A. § 28.1043, which sets out pretrial notice requirements regarding the intention to rely on a theory that a defendant was insane at the time of the offense rather than pursuant to M.C.L.A. § 767.27a; M.S.A. § 28.966(11), which sets out the procedure for forensic commitment to determine competency at trial. This conclusion is based on the language of the motion and defense counsel's actions during trial.

The motion provided defendant would offer 'testimony to establish his insanity at the time of the alleged offense', and requested the assistance of court-appointed psychiatrists to aid in the preparation of the defense. The report was filed two weeks before trial. Defense counsel had ample opportunity to raise the issue in opening statement, by the presentation of witnesses, and closing argument. He chose otherwise. The mere assertion of such a defense does not entitle defendant to jury consideration. Kregger v. Bannan, 170 F.Supp. 845 (E.D.Mich.1959). Failure to present competent proof at trial forecloses any appellate consideration of the merits of the defense. See People v. Minton, 25 Mich.App. 225, 181 N.W.2d 282 (1970). Similarly, we do not feel the defense motion for psychiatric assistance requested along with the notice of intention to rely on an insanity theory required forensic commitment and evaluation.

Although defendant now urges that because other language included in the motion suggests a request for commitment his motion should be so construed, close examination of the pleadings and the trial court's order indicate the overall intent was to raise the defense and not demand forensic evaluation. The language of the statute, M.C.L.A. § 767.27a, supra, and GCR 1963, 786, while liberally construed to effectuate its purposes, ¹ has never required automatic commitment. In People v. Williams, 38 Mich.App. 370, 382, 196 N.W.2d 327, 333 (1972), Judge O'Hara wrote:

'(W)hen prior-to trial a motion raising the issue of incompetence is made, commitment to a diagnostic facility will be mandated only if a sufficient showing of mental incompetency is made by the moving party, or when other evidence is before the court which raises a bona fide doubt as to the defendant's mental competency to stand trial.'

No such showing was made below.

Defendant next argues the trial court's jury instructions distinguishing the elements of unlawfully driving away an automobile, M.C.L.A. § 750.413; M.S.A. § 28.645, from the lesser included offense of unlawful use of an automobile, M.C.L.A. § 750.414; M.S.A. § 28.646, were unclear.

The difference between the two offenses is clear; unlawfully driving away an automobile first requires that the possession of the vehicle be taken unlawfully from the owner. People v. Smith, 213 Mich. 351, 353, 182 N.W. 64 (1921). Unlawful use of an automobile requires only that the use of a vehicle, lawful possession of which has already been obtained, be illegal. See People v. Smith, Supra; United States v. One 1941 Chrysler Brougham Sedan, 74 F.Supp. 970 (E.D.Mich.1947); People v. Ryan, 11 Mich.App. 559, 561, 161 N.W.2d 754 (1968).

The trial court explained that distinction to the jury. Upon completion of the reading of the charges to the jury, both the prosecutor and defense attorney expressed satisfaction. The jury requested clarification. The trial court again explained the difference in the offenses. Defense counsel again made no objection. We are convinced no error occurred. See GCR 1963, 516.2.

The third issue raised questions the propriety of the consideration of juvenile records in passing sentence. There is currently a split of opinion in this Court concerning this issue. M.C.L.A. § 712A.23; M.S.A. § 27.3178 (598.23), which provides that juvenile court dispositions shall not be proper 'evidence' against an individual, is the source of the confusion.

People v. Coleman, 19 Mich.App. 250, 172 N.W.2d 512 (1969), held there was no prohibition in using such dispositions in sentencing since M.C.L.A. § 771.14; M.S.A. § 28.1144, requires an inquiry into the 'antecedents, character and circumstances' of a person about to be sentenced. In Coleman, this Court reasoned that such inquiry, to be true and complete, must include whatever reasonably obtainable juvenile record an accused may have. This Court stated:

'Only by examination of a complete report, containing any such record, can the court properly perform its duties; to determine whether 'defendant is not likely again to engage in an offensive or criminal course of conduct' and whether 'the public good does not require that the defendant shall suffer the penalty imposed by law' (MCLA 771.1; MSA 28.1131); and, if probation be granted, 'to fix and determine the period and conditions' thereof. (MCLA 771.2; MSA 28.1132).

'Nor does § 23 preclude examination of juvenile records for the purpose of sentencing. The express terms of the statutory prohibition bar only the use of prior juvenile dispositions as 'evidence'. Read in the light of its generally accepted meaning, 'evidence' connotes testimony and matters actually presented at trial. The post-conviction examination of juvenile records in order to impose a fair and just sentence is not a use of such records as 'evidence'.' People v. Coleman, Supra, 256, 172 N.W.2d 515.

This position maintained control of the issue until 1972 ² when another panel of this Court decided People v. McFarlin, 41 Mich.App. 116, 199 N.W.2d 684 (1972), leave granted, 388 Mich. 761 (1972). ³ The McFarlin interpretation favored a more expansive definition of 'evidence', and excluded juvenile records from sentencing considerations.

It is our feeling that the Coleman rule is better reasoned and therefore find no error in the trial judge's consideration of defendant's juvenile record in passing sentence.

Defendant was sentenced to a term of 4 years minimum to 5 years maximum in the State Prison of Southern Michigan. In People v. Tanner, 387 Mich. 683, 690, 199 N.W.2d 202, 204 (1972), the Michigan Supreme Court held that '* * * any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act'. ⁴ Accordingly, we order that the minimum sentence be reduced to 3 years and 4 months ⁵ and affirm.

T. M. BURNS, Judge (dissenting).

I cannot subscribe to the result reached by the majority.

Although defense counsel's motion for psychiatric evaluation of the defendant was not a masterpiece of draftsmanship and admittedly could have been drawn with more precision, its overall tenor nonetheless indicates that in addition to an expert opinion regarding the defendant's sanity at the time the alleged offense was committed, defense counsel sought a determination of the defendant's competency to stand trial. This is borne out by language contained in the motion, the order of the circuit court committing the defendant to a diagnostic facility, and the resultant diagnostic report issued after the defendant had been examined.

Defense counsel's motion reads in pertinent part:

'PLEASE TAKE NOTICE that the defendant in the above entitled cause proposes to offer in his defense testimony to establish his insanity at he time of the alleged offense and hereby gives notice of his intention to claim such defense.'

After requesting that two psychiatrists examine the defendant and testify a trial regarding the defendant's sanity, the motion continues:

'That the defendant's attorney * * * after conversing with and observing the defendant with regard to the criminal charge, UDAA, (unlawfully driving away an automobile, M.C.L.A. § 750.413; M.S.A. § 28.645) pending against said defendant, during the preparation for and course of the preliminary examination of said charge that said defendant may be experiencing emotional stress and strain which will Impair or even prohibit any meaningful participation in the preparation of a proper defense on his behalf.' (Emphasis added.)

From an examination of the circuit court's order committing the defendant to a diagnostic facility, it is patent that the court below treated the motion in question as requesting a determination of the defendant's competency to stand trial. The order states Inter alia:

'Upon reading and filing the defendant's motion praying for the examination of the defendant to determine whether or not said defendant is capable of understanding the nature and object of the proceedings against him, of comprehending his own condition in a rational and reasonable manner * * *.'

In compliance with the circuit court's order requesting a determination of the...