People v. Foster, Docket No. 69257
| Decision Date | 07 January 1985 |
| Docket Number | Docket No. 69257 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phenoy Adeline FOSTER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Atty., for the people.
George S. Buth, Grand Rapids, for defendant-appellant on appeal.
Before HOLBROOK, P.J., and MAHER and HOEHN *, JJ.
Defendant appeals by leave granted from a jury conviction of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581. She was sentenced to serve a term of 5 to 20 years' imprisonment.
Defendant was charged with kidnapping Joshua VanDyken on February 29, 1980. VanDyken testified that, as he was walking home from school, defendant grabbed him, threatened him with a knife, and forced him into her house. There, defendant bound VanDyken's hands and feet. After some time, VanDyken was able to free himself and escape. Defendant was later interviewed by a police officer. During this interview, as testified to by the officer, defendant had explained that she felt that if she took two white boys off the street, held them and called Channel 8, she could reach Minister Louis Forkind, who in turn could be of assistance to two of her sons who were incarcerated.
Defendant testified at the trial and admitted "detaining" VanDyken. On cross-examination, she admitted having picked up VanDyken, having carried him into her house, and having tied his hands and feet. She again stated that she had done this to get in touch with Minister Forkind. Defendant's theory of the case, presented through her own testimony and that of experts and lay witnesses, was that defendant had been legally insane and mentally ill on February 29, 1980. Defendant was found guilty.
On appeal, defendant first raises a number of issues involving the trial court's instructions to the jury on the definition of insanity. The trial court twice read CJI 7:08:02A as it existed prior to February, 1983 (CJI 7:8:02A, Supp. 2/83). In its first reading, however, the court instructed the jury that "a person is legally insane if, despite mental illness, that person possesses substantial capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law she is charged with violating". (Emphasis supplied.) The mistaken use of "insane" for "sane" was later corrected when the jury requested that the trial court "define the four verdicts". We believe that the trial court sufficiently corrected this mistake, especially in light of defense counsel's failure to object to the error, so that, by itself, this error would not warrant reversal.
Defendant argues, however, that this error combined with another error to confuse the jury as to the law on insanity. On both occasions on which the trial court read the jury instructions on insanity, the court read CJI 7:08:02A as it was written at the time of trial. This instruction stated:
As has been found in a number of cases, this instruction correctly defines legal insanity, but incorrectly defines legal sanity. See People v. Gasco, 119 Mich.App. 143, 145; 326 N.W.2d 397 (1982), lv. den. 414 Mich. 951 (1982), and cases cited therein. The instruction on legal sanity permits the jury to find defendant criminally responsible if the jury concludes that defendant either knew the difference between right and wrong or could conform her conduct to the requirements of the law. However, in Michigan, a criminal defendant is sane only if she is shown to satisfy both requirements, i.e., she possesses substantial capacity to appreciate the wrongfulness of her conduct and to conform her conduct to the requirements of the law. People v. Martin, 386 Mich. 407, 418; 192 N.W.2d 215 (1971); People v. Morris, 92 Mich.App. 747, 749; 285 N.W.2d 446 (1979), lv. den. 408 Mich. 919 (1980).
Generally, where both correct and incorrect instructions are given, this Court will presume that the jury followed the incorrect charge. People v. Pace, 102 Mich.App. 522, 535; 302 N.W.2d 216 (1980). However, in People v. Crawford, 89 Mich.App. 30; 279 N.W.2d 560 (1979), held in abeyance (on other grounds) 414 Mich. 876 (1982), and People v. Ritsema, 105 Mich.App. 602; 307 N.W.2d 380 (1981), panels of this Court found that where CJI 7:08:02A was given without objection by the defendants, manifest injustice did not result. Plaintiff urges us to follow these cases, while defendant argues that People v. Gasco, supra, in which the Court found reversible error despite the failure to object, represents the better reasoned approach. After carefully reviewing the record, we find that People v. Crawford, supra, is directly applicable to the facts of this case, and we therefore affirm on this ground.
As in the cases mentioned above, there was no objection to the erroneous instruction. Thus, this Court will only reverse if it finds manifest injustice. People v. Neumann, 35 Mich.App. 193; 192 N.W.2d 345 (1971). In this case, unlike the situation in Gasco, the facts strongly suggest that the instructional error did not contribute to the guilty verdict. The primary factor, as in Crawford, is the fact that the trial court's instructions required the jury to determine whether or not defendant was guilty but mentally ill before the jury could find defendant guilty. In this case, the court instructed the jury to first decide whether or not the prosecution had proven that defendant was not mentally ill. If the jury found that the prosecution had proven this, the jury was to decide whether defendant was innocent or guilty. If, however, the jury concluded that the prosecution had failed to prove that defendant was not mentally ill, the jury was to consider if defendant was legally insane. If the jury decided that defendant was not legally insane, it was then to consider whether or not defendant was guilty but mentally ill. Thus, the jury could only have found defendant guilty under these instructions if it concluded that the prosecution had proven defendant was not mentally ill or if it had decided that defendant was not even guilty but mentally ill. Although mental illness and insanity are separate defenses with different consequences, a finding of insanity must necessarily include a finding of mental illness:
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