People v. Blocker

• Decision Date: 07 April 1975
• Docket Number: No. 22,22
• Citation: 393 Mich. 501,227 N.W.2d 767
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold Ray BLOCKER, Defendant-Appellant. 393 Mich. 501, 227 N.W.2d 767
• Court: Michigan Supreme Court

Page 767

227 N.W.2d 767

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

No. 22.

393 Mich. 501, 227 N.W.2d 767

Supreme Court of Michigan.

April 7, 1975.

John Jeffrey Long, Asst. Pros. Atty., Berrien County, St. Joseph, for plaintiff-appellee.

State Appellate Defender Office by Stuart M. Israel, Asst. Defender, Detroit, for defendant-appellant; Arnold Borish, Research Assistant.

Before the Entire Bench.

T. G. KAVANAGH, Chief Justice.

Defendant was convicted of unlawfully driving away an automobile and sentenced to 4--5 years in prison. His appeal to the Court of Appeals made three assertions of error: 1) the judge's jury instructions were defective, 2) the trial court did not resolve the issue of defendant's competence to stand trial, 3) the sentence was improper. The Court of Appeals found no error on the first two questions but modified the sentence.

Defendant appeals the decision of the Court of Appeals on the first two questions.

We affirm the Court of Appeals.

ISSUE I. COMPETENCY TO STAND TRIAL

Prior to trial on July 29, 1971, defendant through his attorney, filed the following motion:

'NOTICE OF INSANITY DEFENSE AND MOTION TO HAVE DEFENDANT EXAMINED BY TWO PSYCHIATRISTS IN SUPPORT OF INSANITY DEFENSE.

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

'Now comes the above-named Defendant, Arnold Ray Blocker by his attorney, Gary G. Hosbein of the firm of Seymour, Seymour, and Conybeare, and moves the Court for permission to have the Defendant examined by two psychiatrists, Charles E. Payne, M.D. and Girard Rooks, M.D., or two other competent psychiatrists, and further to have the psychiatrists so chosen to be used as expert witnesses upon the trial of the above-entitled cause, and that the expense of such examination and the appearance of said psychiatrists at the trial be paid by the County of Berrien, State of Michigan, and said Motion is made for the following reasons:

'That the Defendant's attorney, Gary G. Hosbein, of the firm of Seymour, Seymour and Conybeare, is so informed and so believes, that after conversing with and observing the defendant with regard to the criminal charge, UDAA, 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 of a proper defense on his behalf. The Motion set forth above is based upon information, observation and brief alone.'

On the same day that the motion was filed, the following order issued from the circuit court:

'At a session of said Court, held in the Court House in the City ofSt. Joseph in said County on the 28th day of July, 1971.

'PRESENT: Honorable Chester J. Byrns, Circuit Judge.

'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, and it appearing that the prosecutor does not oppose to the granting of an Order for preliminary psychiatric evaluation.

'IT IS HEREBY ORDERED if the defendant is bound over to the Circuit Court that Riverwood Mental Health Clinic or one well-qualified physician and psychiatrist is hereby appointed and commissioned by this Court to examine said defendant to determine the issue of the defendant's sanity, as aforesaid, and to report their findings to the prosecuting attorney and the defendant's defense counsel, Gary G. Hosbein of the firm of Seymour, Seymour & Conybeare. IT IS FURTHER ORDERED that the expense of said examination be paid by the County of Berrien, State of Michigan.'

It appears from reading the motion and the order, that although the defendant asked for examination by 'two psychiatrists, Charles E. Payne, M.D. and Girard Rooks, M.D., or two other competent psychiatrists' the court's order 'that Riverwood Mental Health Clinic or one well-qualified physician and psychiatrist is hereby appointed and commissioned by this Court to examine said defendant to determine the issue of the defendant's sanity, as aforesaid . . .' was intended to be and was apparently accepted as a grant of defendant's motion.

The report from the Riverwood Clinic was made to the attorneys as directed and no request for hearing, objection, or other reference to defendant's competency is thereafter to be found in the record.

The case proceeded to trial on October 20, 1971, and the insanity defense was not pursued.

On appeal defendant asks us to set aside his conviction and grant him a new trial, asserting that the issue of defendant's competence was raised and not decided and hence, he claims, the trial was invalid.

Defendant argues that his motion for psychiatric examination and the statement therein of defense counsel that he believes '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 . . .' raised the issue of defendant's competence.

Conceding this to be true does little for defendant's position. The court granted his motion and from aught that appears in the record, settled counsel's fears. Certainly no more was said of it and no evidence was adduced to support the notion of defendant's incompetence.

The issue of competence can only be raised by evidence of incompetence. In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the United States Supreme Court said at 385, 86 S.Ct. at 842:

'We believe that the evidence introduced on Robinson's behalf entitled him to a hearing on this issue. The court's failure to make such inquiry thus deprived Robinson of his constitutional right to a fair trial.' ¹

Our statute, M.C.L.A. § 767.27a(3); M.S.A. § 28.966(11)(3), embodied the same thought: 'Upon a showing that the defendant may be incompetent to stand trial, the court shall . . .' (emphasis added).

Our Court Rule GCR 1963, 786, provides the procedure for raising and settling the issue formally, but it is the Evidence of incompetence that establishes the defendant's rights.

If there be Evidence of incompetence, the issue must be decided. This is true whether the court rule is followed or not, or indeed if the evidence appears before, during or after the trial. Neither the failure to follow the court rule or the failure to hold a hearing ipso facto entitles a defendant to new trial.

Here, where No evidence of incompetence was adduced at the trial or is proffered at this time, no reason is made out to disturb the verdict. See People v. Lucas, 393 Mich. 522, 227 N.W.2d 763 (1975), decided today, for the appropriate procedure for presenting such evidence post trial.

ISSUE II. JURY INSTRUCTIONS

Defendant was charged with violating M.C.L.A. § 750.413; M.S.A. § 28.645 which reads:

'Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.'

The trial judge instructed the jury that they could find defendant guilty of the lesser included offense of unauthorized use of an automobile proscribed by M.C.L.A. § 750.414; M.S.A. § 28.646 which reads:

'Any person who takes or uses without authority any motor vehicle without intent to steal the same, or who shall be a party to such unauthorized taking or using, shall upon conviction thereof be guilty of a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years or by a fine or (of) not more than 1,000 dollars: Provided, That in case of first offense the court may in its discretion reduce the punishment to imprisonment in the county jail for a term of not more than 3 months or a fine of not more than 100 dollars: Provided further, That the provisions of this section shall be construed to apply to any person or persons employed by the owner of said motor vehicle or any one else, who, by the nature of his employment, shall have the charge of or the authority to drive said motor vehicle if said motor vehicle is driven or used without the owner's knowledge or consent.'

He explained the elements of each crime and sought to express the subtle difference between them. After deliberating for over an hour the jury asked for restatement of the distinction. The court obliged.

Defendant concedes the instructions were essentially correct, but urges they were unintelligible to a lay jury. We are not persuaded from our reading of the instructions and explanation that an attentive jury could not make out the difference in the statutes.

We find no error.

Affirmed.

LEVIN, COLEMAN and FITZGERALD, JJ., concur.

SWAINSON, Justice.

Defendant-Appellant Arnold Ray Blocker was jury convicted in Berrien County Circuit Court of the crime known as unlawfully driving away an automobile. M.C.L.A. § 750.413; M.S.A. § 28.645. He was sentenced to serve a term of four to five years imprisonment.

Prior to trial on July 29, 1971, appellant, through his attorney, filed the following motion:

'NOTICE OF INSANITY DEFENSE AND MOTION TO HAVE DEFENDANT EXAMINED BY TWO PSYCHIATRISTS IN SUPPORT OF INSANITY DEFENSE

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

'Now comes the above-named Defendant, Arnold Ray Blocker by his Attorney, Gary G....