People v. Mazzie

Decision Date09 November 1984
Docket NumberDocket No. 67670
Citation137 Mich.App. 60,357 N.W.2d 805
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Phillip MAZZIE, Defendant-Appellant. 137 Mich.App. 60, 357 N.W.2d 805
CourtCourt of Appeal of Michigan — District of US

[137 MICHAPP 63] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy[137 MICHAPP 64] Chief Appellate Asst. Pros. Atty., Civil and Appeals, and Carolyn Schmidt, Asst. Pros. Atty., for the People.

Robert E. Slameka, Detroit, for defendant-appellant.

Before R.B. BURNS, P.J., and V.J. BRENNAN and KALLMAN *, JJ.

KALLMAN, Judge.

Defendant was charged with premeditated murder, felony murder, and kidnapping. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548 and M.C.L. Sec. 750.349; M.S.A. Sec. 28.581. He pled guilty but mentally ill to murder in the second degree, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and was sentenced to a term of from 25 to 50 years in prison pursuant to a sentence bargain. The prosecution, as part of the bargain, dismissed the premeditated murder, felony murder and kidnapping counts. Defendant filed in August, 1981, a motion for leave to file a delayed motion for a new trial, alleging that the trial court did not comply with GCR 1963, 785.7 in several particulars. In October, 1981, defendant was granted a new trial. At his new trial, conducted before a jury, defendant was convicted of second-degree murder and kidnapping and was sentenced by a different judge to 75 to 150 years imprisonment on the second-degree murder count and life imprisonment on the kidnapping count. Defendant now appeals as of right.

On appeal, defendant raises four issues.

Defendant first contends that the trial court's instructions on legal insanity were erroneous and reversal is mandated. As there was no objection to this instruction, reversal on this basis is precluded absent a showing of manifest injustice. People v. [137 MICHAPP 65] Gasco, 119 Mich.App. 143, 145-146, 326 N.W.2d 397 (1982).

In this case, the trial court charged the jury as follows:

"Mental illness is a substantial disorder of thought or mood which significantly affects a person's judgment, his behavior and his ability to recognize reality and his ability to conform with the ordinary demands of ordinary life. That is mental illness. It is a substantial disorder of thought or mood which affects the person's behavior and judgment and his ability to recognize reality and the demands of ordinary life. That is mental illness.

"Now legal insanity means that because a person is mentally ill, he cannot appreciate that the acts which he is doing are wrong and that he cannot conform his conduct to the requirements of the law. Now there are two things that are required for mental,--there are two things that are required for legal insanity. The two things are that the person, because of mental illness, cannot appreciate that the acts that he is doing is [sic ] wrong. In addition to that, knowing that the act is wrong, he cannot help himself, he cannot conform his conduct to the requirements of the law."

The trial judge's instruction was erroneous in that it allowed the jury to acquit by reason of insanity only if it concluded that defendant (1) could not appreciate that his acts were wrong and (2) could not conform his conduct to the requirements of the law. M.C.L. Sec. 768.21a; M.S.A. Sec. 28.1044(1). In fact, if defendant could not appreciate the wrongfulness of his acts or could not conform his conduct to the requirements of the law, the statute requires that defendant be acquitted by reason of insanity.

Nonetheless, because the trial court correctly instructed the jury that, if it found defendant to be mentally ill but not insane, its verdict "should be [137 MICHAPP 66] guilty but mentally ill" and that defendant could not be legally insane without also being mentally ill, the erroneous insanity instruction does not require reversal. Here, the court's instruction unequivocally directed the jury that a finding of mental illness short of insanity should result in a verdict of guilty but mentally ill. This case is thus controlled by People v. Crawford, 89 Mich.App. 30, 36, 279 N.W.2d 560 (1979). There, this Court noted that, pursuant to M.C.L. Sec. 768.21a(1); M.S.A. Sec. 28.1044(1)(1), before a defendant can be found legally insane, he would have to be found mentally ill. In Crawford, as here, the trial court's instructions precluded a straight "guilty" verdict if the jury found defendant to be mentally ill. Here, as in Crawford, the erroneous instruction on legal insanity was harmless as defendant was not found to be mentally ill. 1

Defendant contends that there was not sufficient evidence presented at trial to support his conviction[137 MICHAPP 67] of kidnapping. In our opinion, there was sufficient evidence to support the conviction.

Next, defendant claims that the trial court erred in permitting the reinstatement of a kidnapping charge after it had been dismissed pursuant to a plea agreement. We agree.

In People v. McMiller, 389 Mich. 425, 431, 208 N.W.2d 451 (1973), the Court stated:

"As we have seen, for policy reasons we forbid adversary procedure to expose a person to conviction for a higher offense when the independent fact finder has chosen to find him guilty of a lesser offense." (Emphasis in original.)

In Milkowski v. Grand Traverse County Sheriff, 52 Mich.App. 66, 70, 216 N.W.2d 603 (1974), this Court stated:

"While the Court in McMiller did, indeed, use the terms 'higher offense' and 'lesser offense', we think the Court in using those terms was not speaking only of the possible penalty which could be imposed. The public policy enunciated in McMiller was that once the prosecutor has determined that the ends of justice would be served by a plea to any charge arising out of a single transaction, the accused shall not thereafter be called upon to answer to any other charge that arises out of that transaction which will either subject him to a higher penalty or cause him to meet any additional elements of proof. In fact the Court explicitly indicated that the accused shall be 'tried on the charge to which the plea was offered'."

On the basis of the rule adopted in McMiller and Milkowski, the defendant's kidnapping conviction must be set aside. GCR 1963, 785.7(7)(d) changes the McMiller rule only for convictions [137 MICHAPP 68] entered on or after March 1, 1984; thus, the new subrule is inapplicable here.

Finally the defendant claims that the trial court erred in imposing a greater sentence following his conviction by a jury than was imposed pursuant to a sentence bargain following his plea of guilty. We disagree.

While originally pleading guilty, defendant explained what happened:

"THE COURT: What happened?

"THE DEFENDANT: I invited him into the house, your Honor, and we had a hassle and we were fighting, your Honor, and I strangled him."

But, after defendant's jury conviction, the second trial judge stated the following:

"Now. Judge Evans only had one sentence. 'We were fighting and I strangled him.' That is all he had. I had all the other evidence to suggest all sorts of sadistic acts; sexual acts, strangulation, notes that were written suggesting torture to the victim, the fact that there was a jury that found no mental illness in Mr. Mazzie and, under those circumstances, the Court does not feel constrained or in any way under any legal obligation to follow the sentence that was imposed by Judge Evans. There are so many reasons that the other judge did not have in his possession at that time or in his knowledge.

"So, since this Court heard this case from the beginning and has heard all the circumstances that were not known to the other judge, the Court has to use its own discretion and give a sentence this Court feels is in keeping with the evidence this Court heard. I don't believe I can sentence Mr. Mazzie because of what another judge did. He was not similarly knowledgeable about the facts and circumstances of this case."

The Michigan Supreme Court in People v. Payne, [137 MICHAPP 69] 386 Mich. 84, 191 N.W.2d 375 (1971), rev'd on other grounds 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), interpreted North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as requiring that the "identifiable conduct" of a defendant that a sentencing judge may rely upon in imposing a more severe sentence must have occurred "after" the first sentence. This interpretation was wrong as evidenced in Wasman v. United States, --- U.S. ----, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). In Wasman, the Court said Pearce did not prevent consideration of criminal acts committed prior to the original sentencing. The Wasman Court noted that Pearce is not without its ambiguities, quoting the following language from Pearce:

"A man who is retired after his first conviction has been set aside may be acquitted. If convicted, he may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentence than the one originally imposed. * * *

" * * * A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conducts, and mental and moral propensities.' Williams v. New York, 337 US 241, 245 [69 S Ct 1079; 93 L Ed 1337 (1949) ]. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources." 395 U.S. 722-723, 89 S.Ct. at 2079 (emphasis added).

The Wasman Court further stated:

"We conclude that any language in Pearce suggesting that an intervening conviction for an offense committed prior to the original...

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4 cases
  • People v. Sutton
    • United States
    • Court of Appeal of Michigan — District of US
    • May 14, 1987
    ...v. Jones, 403 Mich. 527, 271 N.W.2d 515 (1978), cert. den. 440 U.S. 951, 99 S.Ct. 1432, 59 L.Ed.2d 640 (1979); People v. Mazzie, 137 Mich.App. 60, 357 N.W.2d 805 (1984), lv. gtd., 422 Mich. 974 (1985); People v. Van Auker (After Remand ), 132 Mich.App. 394, 347 N.W.2d 466 (1984), rev'd. in ......
  • People v. Cramer
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    • Court of Appeal of Michigan — District of US
    • September 20, 1993
    ...panels of this Court have held that the failure to properly instruct on legal insanity may be harmless error. See People v. Mazzie, 137 Mich.App. 60, 66, 357 N.W.2d 805 (1984), aff'd 429 Mich. 29, 413 N.W.2d 1 (1987), citing People v. Crawford, 89 Mich.App. 30, 279 N.W.2d 560 (1979). In Cra......
  • People v. McNeal
    • United States
    • Court of Appeal of Michigan — District of US
    • March 9, 1987
    ...supra, [395 U.S. at] p. 751 .)" (Emphasis in original.) The People urge us to follow the majority opinion in People v. Mazzie, 137 Mich.App. 60, 357 N.W.2d 805 (1984), lv. gtd. 422 Mich. 974 (1985). The Mazzie majority concluded that the ruling in Payne was no longer viable in light of Wasm......
  • Taylor v. Hazel Park Racing Ass'n, Docket No. 76800
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    • August 15, 1985
    ...468 U.S. ----, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), thus affecting the decision in People v. Jones, supra. People v. Mazzie, 137 Mich.App. 60, 357 N.W.2d 805 (1984). Therefore, prior newly discovered information is admissible. We believe that the Deputy Racing Commissioner arrived at his ......

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