People v. Drossart

• Decision Date: 23 July 1980
• Docket Number: Docket No. 46289
• Citation: 99 Mich.App. 66,297 N.W.2d 863
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven DROSSART, Defendant-Appellant. 99 Mich.App. 66, 297 N.W.2d 863
• Court: Court of Appeal of Michigan — District of US

Page 863

297 N.W.2d 863

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven DROSSART, Defendant-Appellant.

Docket No. 46289.

99 Mich.App. 66, 297 N.W.2d 863

Court of Appeals of Michigan.

July 23, 1980.

Released for Publication Nov. 5, 1980.

[99 MICHAPP 68] Gary L. Olsen, Escanaba, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Steven L. Pence, Pros. Atty., Mary C. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before MacKENZIE, P. J., and BRONSON and ALLEN, JJ.

[99 MICHAPP 69] ALLEN, Judge.

On November 29, 1978, defendant was found guilty by a jury of criminal sexual conduct in the third degree, but mentally ill. M.C.L. § 750.520d(1)(a); M.S.A. § 28.788(4)(1)(a). He was sentenced to a prison term of seven to fifteen years.

Prior to trial on the charged offense, defendant filed a notice of intent to claim an insanity defense. On the morning of trial, defense counsel moved to prevent the prosecutor from asking any questions of the expert witnesses calling for their opinions of the defendant's sanity or insanity. Defense counsel acknowledged that the experts could "help to determine whether or not there is a thought disorder or whether or not behavior is affected". However, counsel claimed that the experts' testimony would have to cease at that point because their giving an opinion of the defendant's sanity would invade the province of the jury by "requesting the person on the stand to give a legal opinion and also the ultimate issue". The trial judge denied the motion stating that "(t)he Court rule specifically provides for an expert giving an opinion, even though that opinion invades the province of the jury and it goes to the ultimate issues in the case".

During the trial, defendant called as his expert witness a psychiatrist, Dr. Paul Lucas. After describing his examination procedures, Dr. Lucas testified that defendant suffered from a hyperactive condition due to a "minimal degree of brain dysfunction" that was organic in origin. As a result, defendant had a condition of "thought disorder" resulting in impaired judgment and behavior. In addition, defendant's thinking and behavior was described as impulsive and with poor controls which meant that he had "difficulty in controlling his behavior and his responses to stimuli and his thinking". Dr. Lucas testified that one effect of [99 MICHAPP 70] these conditions was that defendant was "unable to conform to the requirements of the law". Dr. Lucas also testified that the terms "sane" and "insane" are not medical or psychiatric terms.

On cross-examination by the prosecutor, Dr. Lucas testified that defendant could "tell right from wrong" by having the substantial capacity to appreciate the wrongfulness of his conduct. However, defendant did "not necessarily" have the ability to conform his conduct to the requirements of the law. When the witness was asked if he had formed an opinion "as to the Defendant's criminal responsibility" on the day of the crime, defense counsel objected on the ground that the prosecutor was asking for an opinion on "a question of law that this gentleman is not an expert on". The objection was overruled by the trial judge who, after ascertaining that the witness was familiar with the legal definition of "insanity", asked the witness if he had an opinion on whether the defendant was insane on the day of the crime. Dr. Lucas testified that the defendant did suffer from a mental illness or defect and that as a result of this defect, the defendant was insane because he lacked a capacity to conform his conduct to the requirements of the law.

In rebuttal, the prosecution offered the testimony of Dr. Newton Jackson, a clinical psychologist at the state Forensic Center in Ann Arbor. After describing his examination procedures as they related to his court ordered evaluation of the defendant, the witness testified that the defendant did not suffer from thought disorder or mood disturbance, and, thus, in his opinion, was not mentally ill at the time of the alleged offense. When asked if he had an opinion whether defendant knew right from wrong or whether he [99 MICHAPP 71] "lacked substantial capacity to conform his conduct to the requirements of the law", Dr. Jackson responded:

"(T)he definition of legal insanity, first indicates that the defendant must be mentally ill, to be legally insane. Then as a result of that mental illness, unable to appreciate the wrongfulness of his conduct or unable to conform his conduct to the law. In my opinion, this defendant was not mentally ill at the time of the alleged offense. It is possible that due to intoxication he may not have been aware of the wrongfulness or he may not have been able to control himself, but that is not due to mental illness, and therefore in my opinion, the defendant was not legally insane at the time of the alleged offense."

On cross and redirect examination, Dr. Jackson explained his opinions in detail.

At the close of the trial, the trial judge instructed the jury that they were the sole and exclusive judges of the facts and that it was their duty to determine which witnesses to believe. The jury was told that if the evidence was capable of more than one interpretation, they should accept the one more favorable to defendant. The jury was also charged with determining whether the defendant was sane or insane at the time of the offense. Detailed definitions and the elements of the terms "mental illness" and legal "insanity" were also explained to the jury. In addition, the judge indicated that several factors were important in determining whether defendant was insane at the time of the crime, aside from the testimony of the expert witnesses: the existence of a brain dysfunction, the effect of defendant's living environment, and his actions at the time of the alleged offense. Defense counsel did not object to the jury instructions.

[99 MICHAPP 72] During jury deliberations, the jury requested that the trial court provide them with a definition of the term "mentally ill". This request was fulfilled. The jury returned a verdict of guilty but mentally ill. Defendant appeals as of right.

Defendant claims that the trial court committed reversible error in permitting, over his objection, introduction of the testimony of the expert witnesses relating to their opinions of whether the defendant was mentally ill and insane at the time of the charged offense. Defendant does not contest the qualifications of the witnesses as experts in the field of mental diseases or that they had knowledge and skills peculiar to experts rather than to lay persons. Nor does he dispute that facts relating to defendant's alleged insanity required expert interpretation or analysis. MRE 702, Dep't of Natural Resources v. Frostman, 84 Mich.App. 503, 505, 269 N.W.2d 655 (1978). Rather, defendant argues that, while an expert witness may give his opinion on a matter even though it pertains to an ultimate issue of fact (MRE 704), he may not give his opinion on ultimate conclusions of law.

The reasons given by defendant for objecting to this type of opinion evidence are stated in his brief as follows:

"The opinions constituted conclusions of law, and allowing an expert to testify to such conclusions invades the function of the jury * * *.

"Compounding the Court's error was its permission to allow that expert to comment on Michigan law. Prior to giving his opinion, Mr. Jackson commented on the legal definition of insanity in Michigan. * * * This tesitmony made the witness more influential with the jury. He usurped the function of the Judge."

[99 MICHAPP 73] In short, the issue presented is whether the expert witness's opinion testimony is incompetent because it addresses a question of law, thereby invading the province of the judge and jury.

Both the expert and lay witness may express their opinions on the mental condition of the accused at the time of the charged offense, although, in the latter case, the witness must base his opinion on "the facts and circumstances within (his) own knowledge". People v. Cole, 382 Mich. 695, 707, 172 N.W.2d 354 (1969).

"A witness who is qualified as an expert on the subject of insanity may state his opinion of a person's mental condition upon the basis of observation, a hypothetical question, or the testimony of other witnesses." 3 Wharton, Criminal Evidence (13th ed.) § 609, pp. 173-174.

People v. Hawthorne, 293 Mich. 15, 291 N.W. 205 (1940); People v. Crawford, 66 Mich.App. 581, 239 N.W.2d 670 (1976); 23 C.J.S. Criminal Law § 867c, 31 Am.Jur.2d, Expert & Opinion Evidence § 86. Opinion evidence of this sort is not objectionable merely because it embraces an ultimate issue of fact to be decided by the jury. MRE 704, Commonwealth v. Marshall, 364 N.E.2d 1237, 1242 (Mass.1977); Smith v. State, 265 Ind. 283, 354 N.E.2d 216 (1976); Williams v. State, 265 Ind. 190, 199, 352 N.E.2d 733 (1976); Commonwealth v. Knight, 469 Pa. 57, 70-75, 364 A.2d 902 (1976); United States v. Scavo, 593 F.2d 837, 843-844 (CA8, 1979); United States v. Milton, 555 F.2d 1198 (CA5, 1977); United States v. Erskine, 588 F.2d 721, 722 (CA9, 1978). Compare, United States v. Milne, 487 F.2d 1232, 1234-1235 (CA5, 1973); United States v. Chandler, 393 F.2d 920, 926, fn.17 (CA4, 1968); Washington v. United States, 129 U.S.App.D.C. 29, 31, 390 F.2d 444 [99 MICHAPP 74] (1967), see Saltzburg & Redden, Federal Rules of Evidence Manual (2d ed.), (1980 Supp.), Rule 704, p. 183, see generally McCormick, Evidence, § 12, pp. 26-28, 7 Wigmore, Evidence, §§ 1920, 1921.

It is important to note, therefore, that a qualified witness may testify that the accused is suffering from a mental condition involving "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life", M.C.L. § 330.1400a; M.S.A. § 14.800(400a). In addition, the opinion rule does not...