People v. Mikulin

• Decision Date: 17 July 1978
• Docket Number: Docket No. 77-1787
• Citation: 84 Mich.App. 705,270 N.W.2d 500
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gloria MIKULIN, Defendant-Appellant. 84 Mich.App. 705, 270 N.W.2d 500
• Court: Court of Appeal of Michigan — District of US

Page 500

270 N.W.2d 500

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Gloria MIKULIN, Defendant-Appellant.

Docket No. 77-1787.

84 Mich.App. 705, 270 N.W.2d 500

Court of Appeals of Michigan.

July 17, 1978.

Released for Publication Oct. 20, 1978.

[84 MICHAPP 706]Ronald P. Weitzman, Madison Heights, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Edward R. Wilson, Appellate Chief Asst. Pros.Atty., Anne B. Wetherholt, Asst. Pros.Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and KAUFMAN and BASHARA, JJ.

T. M. BURNS, Presiding Judge.

The main issues in this appeal relate to the trial court's duty to instruct at trial when the defense of insanity is raised before trial.Because of instructional error, we reverse defendant's conviction for second-degree murder.M.C.L. § 750.317;M.S.A. § 28.549.

Defendant was originally charged with first-degree murder, M.C.L. § 750.316;M.S.A. § 28.548, in the death of her husband.The deceased died as the [84 MICHAPP 707] result of multiple gunshot wounds to the head.Before trial, defense counsel filed a notice of defense claiming the shooting was the result of an "irresistible impulse".The court entered an order for psychiatric evaluation of the defendant at public expense, and later entered an order requiring defendant to undergo an examination at the Center for Forensic Psychiatry relative to the claim of insanity under M.C.L. § 768.20a;M.S.A. § 28.1043(1).

Both sides presented expert testimony at trial on defendant's mental condition at the time of the offense.The trial court instructed the jury that the permissible verdicts were guilty of first-degree murder, second-degree murder, or manslaughter and not guilty by reason of insanity.No instructions were given relative to a verdict of guilty but mentally ill or a general not guilty verdict.It does not appear on the record that counsel were given an opportunity to register their objections to the instructions as given.GCR 1963, 516.2.

The standard of legal insanity is now codified in M.C.L. § 768.21a(1);M.S.A. § 28.1044(1)(1).Although the standards are substantially the same, the statutory standard replaces the common-law standard formerly followed in Michigan.¹The same act that codified the legal definition of insanity, 1975 P.A. 180, also introduced the concept of guilty but mentally ill, M.C.L. § 768.36;M.S.A. § 28.1059, and imposed additional duties on trial courts.The present defendant raises several questions about these newly imposed duties.

Defendant claims the failure of the trial court to instruct on the question of insanity before taking expert testimony on the subject was reversible error, even without a request for such an instruction.[84 MICHAPP 708]We agree.M.C.L. § 768.29a(1);M.S.A. § 28.1052(1)(1) provides:

"If the defendant asserts a defense of insanity in a criminal action which is tried before a jury, the judge Shall, before testimony is presented on that issue, instruct the jury on the law as contained in sections 400aand500(g) of ActNo. 258 of the Public Acts of 1974 and in section 21a of chapter 8 of this act."²(Emphasis added.)

This section imposes a duty on the trial court to prepare the jury for the expert testimony which is to be received.The appropriate instruction is CJI 7:8:01.In this case, the record does not show that any instruction on insanity was given before the expert testimony was received and, therefore, reversible error occurred.

We do not hold that every failure to give CJI 7:8:01 is reversible error.The instruction may be modified to fit the expected testimony in any particular case.However, unless the substantial equivalent of such an instruction is given, the command of the statute will not have been fulfilled and reversal will be required.The policy of the statute recognizes the difficulty of weighing testimony relative to a defendant's mental condition and criminal responsibility.By the use of mandatory language, the Legislature has concluded that an instruction is essential for a fair disposition of a claim of insanity.We agree with the expression of policy and intend to enforce it by requiring the instruction.

[84 MICHAPP 709]Defendant also claims reversible error in the trial court's failure to instruct on the possible verdict of guilty but mentally ill.Because of the holding above, we need only note that the statute requires an instruction on guilty but mentally ill whenever an instruction on insanity is warranted by the evidence.M.C.L. § 768.29a(2);M.S.A. § 28.1052(1)(2).See, CJI 7:8:03-7:8:13.This statute was not complied with here.Whether the court must honor a defense request that the instruction on guilty but mentally ill not be given, or whether any error is waived by failing to object to the court's failure to include such an instruction need not be considered here.

We also note that the jury must be given the opportunity to return a general verdict of not guilty.See, People v. White, 81 Mich.App. 335, 339, n. 1, 265 N.W.2d 139(1978).Failure of the trial court to include not guilty as a possible...