People v. Lawless

• Decision Date: 09 November 1984
• Docket Number: Docket No. 70550
• Citation: 357 N.W.2d 724,136 Mich.App. 628
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Keith LAWLESS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 724

357 N.W.2d 724

136 Mich.App. 628

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Keith LAWLESS, Defendant-Appellant.

Docket No. 70550.

Court of Appeals of Michigan.

Submitted April 18, 1984.

Decided Aug. 20, 1984.

Released for Publication Nov. 9, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Pros. Atty., and Rosemary A. Gordon, Asst. Pros. Atty., for the People.

Peter Jon Van Hoek, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Before SHEPHERD, P.J., and BEASLEY and CAPRATHE, ^* JJ.

BEASLEY, Judge.

Defendant, Richard Keith Lawless, was convicted by a jury of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to serve not less than four nor more than 15 years in prison for armed robbery and the mandatory consecutive two year felony-firearm term. Defendant appeals as of right.

First, defendant argues that it was error for the prosecutor, in rebuttal argument, to misstate the disposition of a defendant found not guilty by reason of insanity. The issue of disposition was first raised by defense counsel in closing argument:

"It is a rare case. In this case, ladies and gentlemen, unlike other cases--it is not permissible to argue other cases, but what you will hear in this case and what you won't hear in any other type of case and what makes it rare is, you will get an instruction by Judge Kaufman on disposition. What is the effect of a verdict of 'not guilty by reason of insanity'? What will happen? What will happen is, it is not going to be any getaway. When you have made the decision, and you will have to live with it, you will go home, go about your business. I will go about my business. The prosecution will go on to case after case. Richard Lawless will go to a mental hospital. I believe this case is about help. I also believe, ladies and gentlemen, if you have any doubt--and I believe reasonable doubt remains--that you should go for help. You will be given that opportunity by the instructions. * * *

"I am not going to ask for a compromise verdict on this case. I don't think a compromise verdict is going to help Richard Lawless. I will ask for 'not guilty by reason of insanity,' and if you arrive at this decision, he will go to a hospital, where he belongs."

The prosecutor, on rebuttal, made the following remarks:

"He brings up an interesting point, ladies and gentlemen, and I can speak with you, ladies and gentlemen, because he brought it up: The disposition. If you find the defendant not guilty by reason of insanity, the Court has jurisdiction only to hold him in a mental health facility for sixty days, and then they are free to let him go and walk the streets a free man, unless they find him a danger to people or society; but they are not claiming that. They are claiming temporary insanity at the time of the commission of the offense. * * *

"So, by law, if you find the defendant guilty by reason of insanity, the State can hold him only sixty days, and they have to let him go. He is a free man. This is not a case of help, demanding help. This is a case of justice. You swore you would be able to find the defendant guilty if you find he committed the crime, which the defendant said he did; and, secondly, on the issue of temporary insanity at the time the offense was committed, whether or not he was legally insane at the time of the commission of the offense or whether he was guilty but mentally ill at the time of the commission of the offense. So don't think that if you find him not guilty by reason of insanity he is going to be locked up in an insane asylum for the rest of his life. Uh-uh. Sixty days, then he walks."

In People v. Cole, ¹ a majority of the Michigan Supreme Court held that, where the insanity defense has been raised, the jury must be instructed concerning the consequences of a not guilty by reason of insanity verdict if the defendant or the jury so requests. In the within case, the trial judge gave the following instruction:

"If you find that the defendant committed the act but was not criminally responsible at the time, then he is not guilty by reason of insanity. If you make such a decision, the defendant will be immediately committed to the custody of the Center for Forensic Psychiatry for evaluation of his present mental condition and such further medical and legal proceedings as are then deemed necessary."

In People v. Szczytko, ² the Court addressed the propriety of comments by counsel concerning the disposition of a defendant found not guilty by reason of insanity. Although the Court held that neither counsel may comment during argument concerning the disposition of the defendant, the defendant's conviction was affirmed. In Justice Brennan's opinion, he found the error in the prosecutor's argument was rendered harmless because the trial judge restricted the prosecutor from further commenting, and properly instructed the jury concerning disposition of the defendant. ³

Both attorneys in the within case violated the prohibition against commenting during argument concerning the disposition of a defendant found not guilty by reason of insanity and, not only did the prosecutor improperly comment on disposition, he misstated the law when he failed to mention that defendant could be held for more than 60 days if he was found to be dangerous to himself or to public safety. However, no objection was raised concerning the prosecutor's comments on disposition, and his remarks were made only after defense counsel had opened the door by commenting on disposition. Furthermore, a curative instruction was given.

On appeal, while defendant argues that the instruction did not cure the error, he acknowledges that he had requested the short form instruction, CJI 7:8:07, which was given. He now argues that the trial court should have given the long form instruction, CJI 7:8:08, which more specifically describes disposition. We do not agree that only the long form instruction could have cured the error. We believe the curative instruction was adequate to render the error harmless.

It was also error for the prosecutor to tell the jury at the close of his argument that:

"I know you will do your civic duty and find the defendant guilty of armed robbery and guilty of possession of a firearm in the commission of a felony."

However, the evidence of defendant's guilt was considerable, and he did not object to the remark at trial. Accordingly, we do not find this brief remark to be grounds for reversal. ⁴

Defendant also failed to object to the second error he contends occurred at trial, when the prosecutor on cross-examination made reference to an examination of defendant by another psychiatrist who had found him sane:

"Q. [Prosecutor ]: Do you know whether or not any other psychiatrists were asked to interview this defendant?

"A. [Dr. Joel S. Dreyer ]: I don't know. I only saw a couple reports, from a Ph.D. and MSW.

"Q. Isn't is a fact that Dr. Danto examined the defendant and found him sane?

"A. I haven't seen that report, sir.

"Q. You haven't?

"A. No, I haven't.

"Q. Would that have any bearing on your opinion, the fact that Dr. Danto, a noted psychiatrist, would have found him legally sane?

"A. Well, Bruce and I work together--in fact, Bruce works for me at the clinic where I work--and we differ from time to time. He didn't have the same training I did and will often come for extra training, and would admit that here, in court."

It is improper for an attorney to argue or refer to facts not in the record that are from the attorney's personal knowledge. ⁵ The people concede that no evidence was presented that Dr. Danto had examined defendant. As the prosecutor notes, however, no reference to an examination made by Danto was brought up again. Where defendant did not object at trial to the questions and the trial judge instructed the jury that the questions which attorneys ask witnesses are not themselves evidence, we do not find reversible error.

Additionally, in this case, the prosecution offered expert testimony of a clinical, forensic psychologist that defendant was neither legally insane nor mentally ill. This testimony countered that of Dr. Dryer who was called by the defense. Thus, the reference to Dr. Danto, albeit improper, was, of minimal significance, if any, in the jury's deliberations.

Defendant also asserts that the failure of his trial counsel to object to the questions constitutes ineffective assistance of counsel. We do not believe this to be the case. Defense counsel could properly have refrained from objecting to the brief questions where an objection could have emphasized the testimony in the minds of the jurors and where no further reference was made to the testimony. ⁶

Third, defendant states that reversible error occurred on two occasions during the jury selection process when more than one peremptory challenge was exercised at the same time. GCR 1963, 511.6 provides:

"After a challenge for cause is sustained or a peremptory challenge exercised, another juror shall be selected and examined before further challenges are made. Such jurors shall be subject to challenge as are other jurors."

The Michigan Supreme Court disapproved of the "struck jury method" in People v. Miller ⁷ and held that a defendant is entitled to have a jury selected as provided by Rule 511.6. In Miller, the trial judge announced the procedure he would follow five weeks before trial, and the defendant objected before trial began. However, the "struck" method was used to select the jury. The Supreme Court held that where the selection process is challenged before it begins, a violation of the rule requires reversal even without a showing of prejudice.

Citing Miller, a majority of this Court held that reversal was required where a trial court used the "struck method" fo...