People v. Grant

Citation520 N.W.2d 123,445 Mich. 535
Decision Date12 July 1994
Docket NumberNo. 14,No. 96686,96686,14
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Andre Lamont GRANT, Defendant-Appellee. Calendar
CourtSupreme Court of Michigan

RILEY, Justice.

The issue in this case involves the question whether a trial court's failure to give a preliminary instruction before an offer of testimony on insanity, as required under M.C.L. § 768.29a(1); M.S.A. § 28.1052(1)(1), requires automatic reversal. We conclude that it does not. Moreover, we find that defendant failed to preserve the error for appellate review. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the jury's verdict.


Defendant was charged and thereafter convicted of first-degree murder 1 and possession of a firearm during the commission of a felony 2 following a jury trial. The trial court sentenced defendant to mandatory life without parole for the murder conviction and to a two-year term for the felony-firearm conviction.

Before trial, defendant gave notice of his intent to assert the defenses of legal insanity and diminished capacity. By order of the court, defendant's competence to waive his Miranda 3 rights was assessed by a clinical psychologist. Later, defendant moved the court for the appointment of an independent psychiatrist to determine his criminal responsibility and the possibility of diminished capacity at the time of the killing. Defendant asserted a combination of longstanding mental problems, which allegedly included the hearing of voices that told him what to do, and drug and alcohol abuse on the date of the killing constituted legal insanity or, at the least, a diminished capacity that negated the intent element of murder.

Immediately preceding jury voir dire on the first day of trial, the court denied defendant's motion to suppress his confession for lack of capacity to understand his Miranda rights. Next, the prosecutor reminded the court that defendant had filed a notice of insanity defense. 4 Accordingly, the court incorporated this possibility in its voir dire of the jury. After the prosecution rested its case and the court denied a motion for directed verdict, defense counsel indicated defendant's intent to testify regarding the defenses of legal insanity or diminished capacity. 5 Defendant testified to long-term drug abuse, to hearing voices during stressful periods, and to having ingested drugs and alcohol on the date of the shooting. 6

In rebuttal, the prosecutor offered the testimony of the clinical psychologist who had conducted the independent examination of defendant's criminal responsibility or diminished capacity. After the close of proofs, the court instructed the jury regarding intoxication as a defense to a specific intent crime, 7 mental illness, 8 mental retardation, 9 legal insanity, 10 a mixture of intoxication and mental illness or retardation as a defense, 11 and the guilty but mentally ill verdict. 12 The instructions were in substantial compliance with the applicable Michigan Criminal Jury Instructions. 13 A unanimous jury convicted defendant of first-degree murder and of illegal possession of a firearm during a felony.

Defendant appealed his conviction on two grounds. First, he asserted that the failure to give a preliminary jury instruction on insanity was error requiring reversal. Second, he alleged error in the trial court's denial of his motion for directed verdict concerning whether he could be guilty of first-degree murder where his own confessions, the only direct evidence offered on the point, could not establish an intent to rob the decedent before the shooting.

Relying on the mandatory language of M.C.L. § 768.29a(1); M.S.A. § 28.1052(1)(1) and on People v. Mikulin, 84 Mich.App. 705, 270 N.W.2d 500 (1978), the Court of Appeals reversed defendant's conviction because of the trial court's failure to give a preliminary jury instruction on the issue of insanity. The Court of Appeals also held that defendant's second issue did not "independently require reversal." 14 Unpublished opinion per curiam, decided May 12, 1993 (Docket No. 138577).

This Court granted the prosecutor's application for leave to appeal. 15


M.C.L. § 768.29a(1); M.S.A. § 28.1052(1)(1) provides:

If the defendant asserts a defense of insanity in a criminal action which is tried before a jury, the judge shall, before testimony is presented on that issue, instruct the jury on the law as contained in [M.C.L. § 330.1400a; M.S.A. § 14.800(400a) ] and [M.C.L. § 330.1500(g); M.S.A. § 14.800(500)(g) ] 16 and in [M.C.L. § 768.21a; M.S.A. § 18.1044(1) ] of chapter 8 of this act. [Emphasis added.]

Clearly, this statutory language directs our courts to instruct on the definitions of mental illness, mental retardation, and legal insanity immediately before the commencement of testimony on insanity in a jury trial. See Achtenberg v. East Lansing, 421 Mich. 765, 770, 364 N.W.2d 277 (1985) ("When the language of a statute is clear, courts must apply it as written"). Furthermore, use of the term "shall" rather than "may" indicates mandatory rather than discretionary action. Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 612 and n. 7, 321 N.W.2d 668 (1982); Matheson v. Secretary of State, 170 Mich.App. 216, 219, 428 N.W.2d 31 (1988).

It cannot be gainsaid that the purpose behind M.C.L. § 768.29a(1); M.S.A. § 28.1052(1)(1) is other than to establish the framework of an insanity defense in the minds of the jury before testimony begins, in light of the highly technical and esoteric nature of testimony, especially expert testimony, that often obtains in matters of insanity. The statute's clear language evidences the purpose to ensure that the preliminary instruction is given in all cases and not simply when a trial court believes that it would be useful. See Achtenberg, Browder and Matheson, supra. Indeed, the mandatory nature of the preliminary instruction language has already been recognized. See People v. Cramer, 201 Mich.App. 590, 593, 507 N.W.2d 447 (1993); People v. Girard, 96 Mich.App. 594, 596, 293 N.W.2d 639 (1980); Mikulin, supra, 84 Mich.App. at 708, 270 N.W.2d 500.

Accordingly, we agree with the Court of Appeals that the failure to give the preliminary instruction on insanity was error regardless of defendant's failure to request it. In fact, the prosecutor does not argue that this did not constitute some form of error. However, whether this error required automatic reversal of defendant's conviction as the Court of Appeals held is another question.

We conclude that the failure to give a preliminary instruction on insanity does not require automatic reversal for several reasons. First, automatic reversal would come into direct conflict with M.C.L. § 769.26; M.S.A. § 28.1096, which orders that judgments or verdicts shall not be reversed absent a miscarriage of justice. Automatic reversal would presume a miscarriage of justice, and this presumption is far from evident in the terms of M.C.L. § 768.29a(1); M.S.A. § 28.1052(1)(1). Second, other important concerns such as proper final instructions to the jury are the subject of harmless-error analysis and are therefore not susceptible to automatic reversal. 17 Absent a clear legislative directive, we cannot consider the preliminary jury instruction involved here to avoid the more generalized requirement that no judgment or verdict may be reversed absent a miscarriage of justice. Third, rules of automatic reversal are disfavored. People v. Mosko, 441 Mich. 496, 502-503, 495 N.W.2d 534 (1992). Finally, the error at issue in this case does not resemble cases that have historically been the subject of automatic reversal in the federal system. Thus, we are unable to discern any state or federal basis for treating errors surrounding M.C.L. § 768.29a(1); M.S.A. § 28.1052(1)(1) any differently than the myriad of trial errors subject to harmless error analysis. For these reasons, we overrule the Mikulin decision.


Guidelines for correcting trial errors are described in three places: M.C.L. § 769.26; M.S.A. § 28.1096, MCR 2.613, and MRE 103(a) and (d). 18 The specific terms differ in each source, and courts appear to have used them interchangeably. It is therefore important to determine whether there are any substantive differences in the terms as used.

M.C.L. § 769.26; M.S.A. § 28.1096 provides:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [Emphasis added.]

Similarly, MCR 2.613(A) provides:

An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [Emphasis added.] 19

Finally MRE 103, which applies only to evidentiary matters, states:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent...

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