People v. McKeever

• Decision Date: 06 May 1983
• Docket Number: Docket No. 62161
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Solomon McKEEVER, Defendant-Appellant. 123 Mich.App. 533, 332 N.W.2d 596
• Court: Court of Appeal of Michigan — District of US

Page 596

332 N.W.2d 596

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Solomon McKEEVER, Defendant-Appellant.

Docket No. 62161.

123 Mich.App. 533, 332 N.W.2d 596

Court of Appeals of Michigan.

Submitted Oct. 21, 1982.

Decided Feb. 25, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 535] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Deputy Chief Asst. Pros. Atty., and Nancy R. Alberts, Asst. Pros. Atty., for the People.

Carl Ziemba, Detroit, for defendant-appellant on appeal.

Before MAHER, P.J., and BRONSON and CYNAR, JJ.

PER CURIAM.

The facts in this case are not in dispute. On June 6, 1981, the defendant came to the door of Webb Wood's house asking the whereabouts of Wood's daughter. When he learned that she was not in the house, defendant shot at Wood three times, hitting him twice. Wood died of these injuries.

The defendant relied upon an insanity defense in his bench trial. At the close of trial, the court found the defendant to be guilty of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), but mentally ill. Sentenced to from 15 to 40 years for second-degree murder and five years for felony-firearm, defendant appeals by right.

Defendant raises several claims on appeal which we discuss seriatim.

Defendant first contends that the trial court's findings of fact do not adequately explain the court's rejection of defendant's insanity defense. GCR 1963, 517.1 provides in pertinent part:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. [123 MICHAPP 536] It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein."

This court rule applies to criminal as well as civil cases. People v. Jackson, 390 Mich. 621, 212 N.W.2d 918 (1973). The purpose of these special findings of fact in bench trials is to aid appellate review. People v. Jackson, 63 Mich.App. 249, 234 N.W.2d 471 (1975), lv. den. 395 Mich. 825 (1976). Consequently, "the required findings must cover the trial court's steps with the degree of specificity necessary to disclose the basis for each critical determination". People v. Jackson, supra, 63 Mich.App. p. 254, 234 N.W.2d 471. Such specificity is lacking in the present case.

The trial court's only allusion to defendant's insanity defense is contained in the following passage: "[T]he testimony of the three psychologists indicate [sic ] that he [the defendant] was mentally ill * * * ". A criminal defendant is presumed sane. However, "once any evidence is presented to suggest otherwise, the burden of proof rests on the prosecution to prove a defendant's sanity beyond a reasonable doubt", People v. Philpot, 98 Mich.App. 257, 263, 296 N.W.2d 229 (1980) (D.C. Riley, J., concurring in part). In rejecting defendant's insanity defense, the trial court must have concluded either that the defendant had not rebutted the presumption of sanity or that the prosecutor had proved defendant's sanity beyond a reasonable doubt. The findings of fact however, do not disclose the path the trial court traveled to its conclusion. Therefore, we must remand for additional factfinding on the record already made.

Defendant next argues that his attorney so [123 MICHAPP 537] poorly prepared and presented defendant's insanity defense that he was denied effective assistance of counsel. Michigan courts apply a two-part test to ineffective assistance of counsel claims. People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976). In the first part, a reviewing court measures defense counsel's performance against the standard of competency announced in Beasley v. United States, 491 F.2d 687, 696 (CA 6, 1974):

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interests, undeflected by conflicting considerations."

The second prong of the test considers whether defense counsel made a "serious mistake" and, if so, whether "but for this mistake defendant would have had a reasonably likely chance of acquittal". People v. Garcia, supra, 398 Mich. p. 266, 247 N.W.2d 547.

Defense counsel's performance developing his client's insanity defense satisfies both parts of the test. He put on two witnesses who testified that defendant was insane or nearly insane. Another defense witness recounted examples of defendant's bizarre behavior. In addition, defense counsel succeeded in diminishing the credibility of the prosecution's expert witness. In light of these efforts, we cannot say that defendant's attorney failed to measure up to the Beasley standard.

Nor do we find that defense counsel made a serious mistake in his preparation of the insanity defense. Defendant complains that his lawyer should have acquired an independent psychiatric evaluation of defendant's mental condition. The results of such an evaluation may have further supported defendant's defense; however, we decline [123 MICHAPP 538] to hold that "but for this mistake defendant would have had a reasonably likely chance of acquittal".

Third, defendant argues that the introduction of evidence of his prior conviction requires reversal. Because defendant did not object to this evidence at trial, appellate review is barred absent manifest injustice. People v. Hogan, 105 Mich.App. 473, 307 N.W.2d 72 (1981). Evidence of a defendant's criminal record is inadmissible "until such time as the defendant takes the witness stand and raises the issue of his character or credibility". People v. Stinson, 113 Mich.App. 719, 726-727, 318 N.W.2d 513 (1982). Nevertheless, "an unresponsive, volunteered answer to a proper question is not cause for granting a mistrial". Id., 727, 318 N.W.2d 513.

Defendant did not testify and place his character or credibility in issue. Evidence of his criminal record emerged, however, in the prosecutor's cross-examination of defendant's brother, called as a defense witness:

"Q. Was he employed--When was he last employed, to your knowledge?

"A. To my knowledge, the place he was employed was at Budd Wheel.

"Q. How long ago?

"A. I would say, it had to be three years prior to the time he got in trouble.

"Q. Three years prior to this last summer?

"A. Yes, that's right, it had to be three years prior to last summer because he was up for some time in Jackson prior to that time on violation of parole."

The witness's answer was volunteered and unresponsive. It explained how he remembered the date of defendant's last employment. The prosecutor, however, had not challenged the witness's memory. Therefore, the admission of evidence of [123 MICHAPP 539] defendant's criminal record was not cause to grant a mistrial and does not require reversal. Moreover, we cannot accept defendant's claim that his counsel's failure to move for mistrial following the testimony excerpted above constitutes ineffective assistance of counsel. The testimony was so obviously volunteered and unresponsive that a competent lawyer could have decided to forego a motion for mistrial. Furthermore, it is likely that such a motion would have failed.

Finally, defendant asserts that we must remand his case for resentencing because the sentencing court used a five-month-old presentence report prepared for another offense. We agree. In People v. Triplett, 407 Mich. 510, 515, 287 N.W.2d 165 (1980), the Supreme Court announced that "a reasonably updated presentence report must be utilized in sentencing for felonies * * * ". An accurate, reliable and complete presentence report, the Court found, is necessary to effectuate our society's goal of individualized sentencing:

"In People v. McFarlin, 389 Mich. 557, 574, 208 N.W.2d 504 (1973), this Court emphasized its commitment to the principles that criminal punishment must fit the offender rather than the offense alone and that sound discretion must be exercised in sentencing matters. W...