People v. McRunels

• Decision Date: 01 December 1999
• Docket Number: Docket No. 204349.
• Citation: 603 N.W.2d 95,237 Mich. App. 168
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andre McRUNELS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

603 N.W.2d 95

237 Mich. App. 168

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andre McRUNELS, Defendant-Appellant.

Docket No. 204349.

Court of Appeals of Michigan.

Submitted January 12, 1999, at Lansing.

Decided August 13, 1999, at 9:20 a.m.

Released for Publication December 1, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Lenore M. Ferber, Assistant Prosecuting Attorney, for the people.

Martin J. Beres, St. Clair Shores, for the defendant on appeal.

Before: RICHARD ALLEN GRIFFIN, P.J., and McDONALD and WHITE, JJ.

WHITE, J.

Defendant was charged with assault with intent to commit murder, M.C.L. § 750.83; MSA 28.278, and assault with intent to commit sexual penetration, M.C.L. § 750.520g(1); MSA 28.788(7)(1), after attacking a female aide at the Center for Forensic Psychiatry, Department of Corrections, where defendant was hospitalized. A jury found defendant guilty of assault with intent to murder and acquitted him of the other assault charge. Defendant was sentenced to twenty-five to fifty years' imprisonment as an habitual offender, second offense, M.C.L. § 769.10; MSA 28.1082.

Defendant appeals as of right, challenging as ex post facto the application of the amended legal insanity statute to the charged offenses, which were committed before the change in law, and asserting claims of insufficiency of the evidence, improper admission of inculpatory testimony as rebuttal evidence, ineffective assistance of counsel, instructional error regarding diminished capacity and intoxication, and that his sentence is disproportionate. We conclude that the retroactive application of the amended insanity statute was ex post facto, and we therefore reverse. Because we reject defendant's sufficiency claims, we remand for a new trial.

I

We first address defendant's claim that application of the 1994 amendment of the insanity statute to offenses committed before the amendment took effect violates the Ex Post Facto Clauses of the federal and state constitutions, U.S. Const., art. I, § 9, cl. 3; Const. 1963, art. 1, § 10. Defendant argues that his rights under the clauses were violated because he was tried under, and the jury was instructed in accordance with, the amended insanity statute, which eliminated the prosecution's burden of proving sanity beyond a reasonable doubt and placed on defendant the burden of proving he was insane by a preponderance of the evidence, thus permitting the prosecution to convict on less evidence. We agree.

Constitutional issues are issues of law we review de novo. People v. Echavarria, 233 Mich.App. 356, 358, 592 N.W.2d 737 (1999). Defendant did not object to the jury instruction. We review unpreserved claims of constitutional error for plain error. People v. Carines, 460 Mich. 750, 764, 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. at 763, 597 N.W.2d 130. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when the error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. Id. at 763-764, 597 N.W.2d 130. We consider this claim of plain constitutional error because we conclude that it affected substantial rights and the outcome of the proceedings. Id.

A

The charged conduct in this case occurred on May 3, 1993. At that time, the insanity statute made no reference to the burden of proof. The burden of proof in criminal cases in which defendants asserted the insanity defense was governed by common law:

[O]nce the issue [of insanity] is raised and evidence of insanity is presented by the defendant, the prosecutor then must go forward and produce evidence beyond a reasonable doubt that the defendant was sane at the time the crime was committed. The same burden of proof which the prosecutor must carry in proving the elements of a crime is applicable in establishing the defendant's sanity. However, this burden of going forward and establishing defendant's sanity beyond a reasonable doubt only arises following the defendant's introduction of evidence of insanity (i.e., affirmative defense), which is not true of the stated elements of an offense. [ In re Certified Question, 425 Mich. 457, 465-466, 390 N.W.2d 620 (1986).]

Further,

[t]he amount of evidence that is sufficient to overcome the presumption of sanity is minimal.... The current Michigan standard is stated in People v. Krugman, 377 Mich. 559, 563, 141 N.W.2d 33 (1966): "A criminal defendant is presumptively sane. However, once there is any evidence introduced of insanity, the burden of proof is on the prosecution to establish defendant's sanity beyond a reasonable doubt." [ People v. Savoie, 419 Mich. 118, 126, 349 N.W.2d 139 (1984).]

The 1994 amendment of the insanity statute, 1994 PA 56, M.C.L. § 768.21a; MSA 28.1044(1), took effect on October 1, 1994, adding to the statute that "legal insanity" is an affirmative defense and that a defendant has the burden of proving the defense by a preponderance of the evidence. We quote the amended statute below, with the amendment's provisions emphasized:

(1) It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the offense. An individual is legally insane if, as a result of mental illness as defined in ... [MCL 330.1400a; MSA 14.800(400a) ] ... that person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental illness or being mentally retarded does not otherwise constitute a defense of legal insanity.

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(3) The defendant has the burden of proving the defense of insanity by a preponderance of the evidence. [MCL 768.21a; MSA 28.1044(1).]

The trial court in the instant case read almost verbatim the jury instruction that had been modified in 1994 to reflect the amended statute.¹

B

The prosecution argues that the amendment of the insanity statute was procedural, not substantive, because it did not create new rights or destroy existing rights. People v. Russo, 439 Mich. 584, 592-593, 487 N.W.2d 698 (1992). It argues that defendant's rights were not violated because he still had the right to assert the insanity defense and the burden of proof is simply part of the procedural framework for asserting the defense.

The Ex Post Facto Clause was intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit legislative control of remedies and procedures that do not affect matters of substance. Id. at 592, 487 N.W.2d 698. A statute that affects the prosecution or disposition of criminal cases involving crimes committed before its effective date violates the Ex Post Facto Clauses if it "(1) makes punishable that which was not, (2) makes an act a more serious criminal offense, (3) increases the punishment, or (4) allows the prosecution to convict on less evidence." Riley v. Parole Bd., 216 Mich.App. 242, 244, 548 N.W.2d 686 (1996) (emphasis added).

While there is no Michigan law directly on point, other state and federal courts have addressed whether similar changes to insanity statutes are substantive and thus subject to the Ex Post Facto Clause. The courts have uniformly concluded that changes affecting the burden of proof are substantive and that retroactive application of the changes would violate the Ex Post Facto Clause.

In Illinois v. Hickman, 143 Ill.App.3d 195, 198, 97 Ill.Dec. 382, 492 N.E.2d 1041 (1986), the court rejected the prosecution's argument that the defendant had to prove his insanity by a preponderance of the evidence on the ground that "[a] shift in the burden of proof relating to the insanity defense would be an ex post facto application of the statute if applied to the trial for an offense which was committed prior to the amendment to the law, such as in the instant case." Before the amendment, when a defendant introduced evidence of insanity, the prosecution was required under a common-law standard² to prove his sanity beyond a reasonable doubt. The amendment placed the burden of proof on a defendant to prove his insanity by a preponderance of the evidence. In Lewis v. State, 709 P.2d 1278, 1282-1283 (Wy., 1985), the Wyoming Supreme Court held that the defendant was prejudiced by the trial court's giving a jury instruction on insanity that reflected an amended insanity statute, which, as applied to the defendant, was ex post facto. In addressing the question whether the prosecution had a lesser burden of proof under the instruction than it would have had if the instruction under the original statute had been given, the court noted:³

Since the original act required the prosecution to "prove beyond a reasonable doubt ... the mental responsibility of the defendant," and the amended statute required the defendant to prove the same "by the greater weight of the evidence," it is obvious that the appellant could have been prejudiced. The jury here found that he had not established it to be more likely than not that he could not conform his conduct to the requirements of law — as required by the instruction. Under an instruction pursuant to the old law, the jury would have had to find that his ability to conform his conduct to the requirements of law had to be proven beyond a reasonable doubt. The burden was shifted and the State was relieved of the obligation to establish the status "beyond a reasonable doubt."

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Appellant was prejudiced by failing to give the instruction under the statute in effect at the time of the incident. [Id.]

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