People v. Linzey

• Decision Date: 22 February 1982
• Docket Number: Docket No. 49887
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Bud LINZEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 550

315 N.W.2d 550

112 Mich.App. 374

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Bud LINZEY, Defendant-Appellant.

Docket No. 49887.

Court of Appeals of Michigan.

Submitted June 17, 1981.

Decided Dec. 2, 1981.

Released for Publication Feb. 22, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David E. McClernan, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

Terrance P. Dignan, Owosso, for defendant-appellant.

Before T. M. BURNS, P. J., and HOLBROOK and GLASER ^*, JJ.

PER CURIAM.

Following a jury trial, defendant was found guilty on two counts of armed robbery, but mentally ill, M.C.L. § 750.529; M.S.A. § 28.797. He was sentenced to a term of from 3 to 20 years in prison and appeals as of right.

Defendant raises six allegations of error which will be dealt with seriatim. The facts will be discussed as necessary.

Defendant first contends that the trial court erred by instructing the jury, over objection, on the verdict of guilty but mentally ill. The trial court was required by statute to give the instruction on guilty but mentally ill where evidence was presented by defendant supporting a defense of insanity. M.C.L. § 768.29a; M.S.A. § 28.1052(1). Defendant argues that this statute is unconstitutional in that it encourages compromise verdicts, depriving him of liberty without due process of law contrary to Const.1963, art. 1, § 17. Another panel of this Court addressed this issue in People v. Thomas, 96 Mich.App. 210, 221, 292 N.W.2d 523 (1980), and stated:

"The language of the statute imposes a duty on trial judges to use this instruction where the evidence warrants it. While trained professionals may better understand the distinction between a not guilty by reason of insanity verdict and a guilty but mentally ill verdict, MCL 768.36; MSA 28.1059 offers sufficient guidance in this respect."

As in that case, there is no evidence here that the jury was misled into returning a compromise verdict or was improperly instructed, and we find no error.

Defendant next contends that the failure of the Department of Corrections to provide psychiatric treatment in conformity with M.C.L. § 768.36(3); M.S.A. § 28.1059(3) mandates reversal of his conviction. Since the affidavits containing the allegations are not part of the official trial record, the issue is not reviewable by this Court. The proper remedy for defendant is to proceed by writ of mandamus against the Department of Corrections if psychiatric treatment fails to materialize. People v. Tenbrink, 93 Mich.App. 326, 331, 287 N.W.2d 223 (1979).

Furthermore, while there is no doubt that a sentencing judge may, prior to sentencing, look into the resources available to provide psychiatric treatment, we know of no requirement that he do so. People v. McLeod, 407 Mich. 632, 288 N.W.2d 909 (1980).

Defendant contends that it was error for the trial court to instruct the jury, sua sponte, as to the consequences of a verdict of not guilty by reason of insanity. This same argument was addressed and rejected in Thomas and Tenbrink. The analyses and holdings in those cases apply equally here. Furthermore, defendant failed to object to the instruction, and we find no manifest injustice.

Defendant next takes the position that finding him mentally ill necessarily precludes a finding that he had the specific intent necessary for a conviction of armed robbery. In People v. Ramsey, 89 Mich.App. 468, 471-472, 280 N.W.2d 565 (1979), a similar question was raised with respect to a first-degree murder charge and was rejected, the Court stating:

"It does not necessarily follow that a person with a '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', MCL 330.1400(a); MSA 14.800(400a), is incapable of deliberation and premeditation."

The same rationale applies here.

Defendant is confusing the definition of mental illness with the defense of diminished capacity which is included in the definition of insanity set forth in M.C.L. § 768.21a; M.S.A. § 28.1044(1). See People v. Mangiapane, 85 Mich.App. 379, 271 N.W.2d 240 (1978). It does not follow that being mentally ill as defined by the Mental Health Code necessarily means that the person has diminished capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

Defendant also contends that the trial court erred by permitting a prosecution witness to testify, where the witness had consulted with the prosecutor as to another witness's testimony after the court had ordered sequestration. This issue was addressed in People v. Stanley, 71 Mich.App. 56, 62, 246 N.W.2d 418 (1976), in which a panel of this Court ruled:

"The exclusion of witnesses from the courtroom is within the discretion of the trial judge, People v. Dickerson, 62 Mich.App. 457, 233 N.W.2d 612 (1975). So too is the ordering of the sequestered witnesses not to discuss the evidence while outside the courtroom. Langel v. United States, 451 F.2d 957 (CA 8, 1971), United States v. Chiarella, 184 F.2d 903 (CA 2, 1950), rev'd on other grounds, 341 U.S. 946, 71 S.Ct. 1004, 95 L.Ed. 1370 (1951). We question the efficacy of a sequestration order, however, if the witnesses are not ordered not to discuss the evidence.

"Failure to so caution the witnesses, however, does not constitute reversible error absent abuse of discretion in ruling on a request for such a warning."

Here, as in Stanley, the trial court was not asked to caution the witness against discussing the evidence, and, since there was no violation of...