People v. Gasco, Docket No. 52427

• Decision Date: 03 December 1982
• Docket Number: Docket No. 52427
• Citation: 326 N.W.2d 397,119 Mich.App. 143
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard Eugene GASCO, Defendant-Appellant. 119 Mich.App. 143, 326 N.W.2d 397
• Court: Court of Appeal of Michigan — District of US

Page 397

326 N.W.2d 397

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard Eugene GASCO, Defendant-Appellant.

Docket No. 52427.

119 Mich.App. 143, 326 N.W.2d 397

Court of Appeals of Michigan.

Submitted Jan. 8, 1982.

Decided June 24, 1982.

Released for Publication Dec. 3, 1982.

[119 MICHAPP 144] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Keith J. Schuiteman, Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for the People.

Kim Robert Fawcett, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before CAVANAGH, P.J., and BRONSON and BEASLEY, JJ.

PER CURIAM.

Following a jury trial in the Newaygo County Circuit Court, defendant was found to be guilty as charged of first-degree criminal sexual conduct. M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e). Defendant was sentenced to serve a term of from 60 to 90 years' imprisonment.

We are constrained to agree with defendant's assertion that the trial court's erroneous instructions on sanity left defendant without a viable defense and reluctantly reverse his conviction. The trial court gave the following instructions, taken from CJI 7:8:02A:

"A person is also legally insane if, as a result of mental illness or mental retardation, that person in that situation and in his condition lacked substantial [119 MICHAPP 145] capacity or ability to conform his conduct to the requirements of the law which he is charged with violating.

* * *

"Correspondingly, a person is legally sane if, despite mental illness or mental retardation, that person possesses substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law he is charged with violating." (Emphasis added.)

While the CJI definition of legal insanity correctly states the law, the CJI definition of legal sanity is erroneous. The court's instructions on legal sanity allow the jury to find defendant criminally responsible if it concluded that: (a) he knew the difference between right and wrong; or (b) he could conform his conduct to the requirements of the law. In fact, pursuant to M.C.L. Sec. 768.21a(1); M.S.A. Sec. 28.1044(1)(1), defendant would be legally sane only if both (a) and (b) were true. CJI 7:8:02A, and the trial court, should have used "and" instead of "or" in the definition of legal sanity.

Where both correct and incorrect instructions are given, it is presumed that the jury followed the incorrect charge. People v. Pace, 102 Mich.App. 522, 535, 302 N.W.2d 216 (1980), and cases cited therein.

The prosecution, conceding that the instructions in issue were erroneous, nonetheless asserts that defendant's failure to object precludes reversal on this basis. ¹ However, where an instructional error [119 MICHAPP 146] relates to a basic and controlling issue in the case, we will reverse upon the basis of manifest injustice. People v. Neumann, 35 Mich.App. 193, 196, 192 N.W.2d 345 (1971). Thus, in Neumann, a case factually analogous to the instant one, we reversed defendant's conviction where, absent objection, the court's charge conveyed the impression that defendant had to establish the insanity defense beyond a reasonable doubt. This reversal came about even though the trial court had also given correct instructions on the burden of proof.

The prosecution relies on People v. Crawford, 89 Mich.App. 30, 279 N.W.2d 560 (1979), lv. den. 409 Mich. 914 (1980), and People v. Ritsema, 105 Mich.App. 602, 307 N.W.2d 380 (1981), both cases in which the same instructional error was made without objection, and this Court found no manifest injustice. In Crawford, the trial court had charged the jury that, if it found defendant was mentally ill, it could only return verdicts of guilty but mentally ill, not guilty by reason of insanity or not guilty. Since defendant was simply found to be "guilty", the Court reasoned that the erroneous instruction could not have prejudiced the defense. Crawford, supra, 89 Mich.App. at 36, 279 N.W.2d 560. In the instant case, however, the court's instructions informed the jurors that if they found defendant mentally ill, but not insane, they might return a verdict of guilty but mentally ill. The court's instructions in this case left the jury with discretion to either find him guilty but mentally ill or guilty, as it chose. Thus, the verdict of guilty does not preclude the possibility that the jury thought defendant was mentally ill. As such, the Crawford harmless-error analysis is inapplicable to this case. In Ritsema, this Court simply cited to the earlier Crawford decision in finding that the error did not require reversal. Particularly[119 MICHAPP 147] in view of the fact that the Court in Ritsema gave absolutely no guilty but mentally ill instructions, we believe that the decision rendered was unsound, at least on the grounds given.

We also note that in the case of People v. Morris, 92 Mich.App. 747, 285 N.W.2d 446 (1979), lv. den. 408 Mich. 919 (1980), this Court reversed defendant's conviction where the trial court gave an instruction on legal sanity patterned after CJI 7:8:02A. While defense counsel did object in Morris, the trial court also gave a supplemental charge correctly stating the definition of legal sanity. Nonetheless, this Court held that reversal was required. In People v. Girard, 96 Mich.App. 594, 293 N.W.2d 639 (1980), involving a different problem with the jury instructions on insanity, we declined to apply the Crawford analysis, supra, and reversed despite the lack of an objection. See, also, Neumann, supra.

We do not believe the improper instructions here can be deemed harmless. The defense psychiatric witness acknowledged that he believed defendant could distinguish right from wrong. It was this witness's opinion, however, that defendant could not conform his conduct to the requirements of the law. In light...