People v. Musser, Docket Nos. 15044

• Decision Date: 24 June 1974
• Docket Number: Docket Nos. 15044,15529,No. 2,2
• Citation: 53 Mich.App. 683,219 N.W.2d 781
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Janet Lee MUSSER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond L. HUMBEL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 781

219 N.W.2d 781

53 Mich.App. 683

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Janet Lee MUSSER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond L. HUMBEL, Defendant-Appellant.

Docket Nos. 15044, 15529.

Court of Appeals of Michigan, Division No. 2.

June 24, 1974.

Released for Publication July 24, 1974.

Leave to Appeal Denied Sept. 25, 1974.

Lawrence R. Greene, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas J. Kizer, Jr., Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and ALLEN and VanVALKENBURG,* JJ.

VanVALKENBURG, Judge.

Defendants were tried jointly before a jury, were found guilty of murder in the first degree, M.C.L.A. § 750.316; M.S.A. § 28.548, and were sentenced to life imprisonment. Both defendants appeal as of right.

While the trial was extensive, taking some 15 days and resulting in almost 2300 pages of transcript, no useful purpose would be served by here detailing the evidence. The ultimate question confronting the jury was not so much the fact of the brutal killing of the 17-year-old female victim, nor even the fact of defendants' commission of that act, but rather it was the question of defendant's sanity. As defendant Humbel's attorney so succinctly stated in his opening statement:

'I suggest to you that the issue in this case and the issue upon which you will ultimately have to make your decision, it is not what happened, but the acts of the actor was, except as they may relate to the mental condition. There is going to be very little disagreement between the defense and the prosecution on what happened. The question that I am going to ask you and the question that you are going to ultimately have to answer to reach a decision in this case, is why did those facts happen.

'Our defense is that of insanity. I think insanity is probably a poor choice of words but the law uses the word insanity. The defense of the case will be that Mr. Humbel suffers from a mental disease or defect, and that he did not have control of his free will.'

On appeal defendant Musser makes a broad-based attack upon the long-established Michigan insanity standard as promulgated in People v. Durfee, 62 Mich. 487, 29 N.W. 109 (1886). It will suffice to say that defendant Musser's assertions have been answered adversely by the Michigan Supreme Court in its recent comprehensive reappraisal of the efficacy of the Durfee rule in People v. Martin, 386 Mich. 407, 192 N.W.2d 215 (1971). It is clear that the Supreme Court found the Durfee rule does provide a reasonable basis for determining those who should not be held criminally responsible for their acts; and since all those within that classification are treated equally, defendant's assertion of denial of equal protection must fail.

Defendant Musser also contends that she was denied a fair trial by reason of the disclosure by her expert witness that she had been involved in a prior criminal offense. This disclosure came in response to a question asked by defendant Musser's counsel. While the answer given was not truly responsive to the question asked, counsel did not move to have the testimony stricken. We would further note that the trial court specifically instructed the jury that the defense psychiatrist's testimony concerning the other crime could only be used for the limited purpose of determining defendant's sanity. While testimony of prior arrests, convictions, and antisocial conduct is ordinarily not admissible, such testimony is admissible for the purpose of determining the question of sanity, once defendant has raised such a defense. People v. Woody, 380 Mich. 332, 338, 157 N.W.2d 201, 203 (1968). See also People v. Schrantz, 50 Mich.App. 227, 213 N.W.2d 257 (1973). Since the testimony was admissible for the limited purpose of determining the question of defendant's sanity, and the trial court so instructed the jury, it follows that defendant Musser was not denied effective assistance of counsel by reason of counsel's failure to object, nor was she denied a fair trial by reason of the prosecutor's inferences in his closing argument concerning how that testimony related to the question of defendant's insanity.

During the cross-examination by the prosecutor of Dr. Tanay, a psychiatrist called by the defense, the following exchange occurred concerning the report prepared by the witness:

'Q. (By Mr. Pikkarainen for the prosecution): And referring further in that same page, page five, I will read the opinion:

"In my opinion Paymond L. Humbel is able to stand trial since he does comprehend his own condition in relation to the proceedings, and he can rationally assist his attorney in the conduct of his defense. It is further my opinion that at the time when he committed the acts complained of, he did not suffer from a mental illness which would impair his ability to know the nature and the quality of the acts he was doing, and that he did know these acts were wrong.'

'Is that your conclusion?

'A. That is my conclusion, yes.

'Q. And further on page five, the last paragraph, I refer you to the statement and it says:

"These statements, in my opinion, exclude the possibility of the insanity defense under the current Michigan law.'

'Is that a correct statement?

'A. That is my statement, yes.

'Q. By these statements you would refer to the statement you have just gone through, is that right?

'A. Yes.

'Q. So it is your testimony as you understand the Michigan law-- 'THE COURT: Let's find out that his understanding of the Michigan law is.

'Q. What do you understand the Michigan law to be at this time, Doctor?

'A. At the time when I wrote this report it was my understanding that it had to be an irresistible impulse, and the report was typed on March 20, 1972. Subsequent to my rendering this report, my understanding was extended that a recent Supreme Court decision was called to my attention by Mr. Wascha. He sent it to be and asked me to read it, in fact, he sent to me two opinions one an old one, People v. Durfee and the other one was People v. Martin. I read it and I sent him my reaction to it on May 17, 1972. He called my attention to the fact that, in his letter addressed to me, and then I read the opinion and I reached the conclusion that my understanding of the law was erroneous.

'MR. WASCHA (Counsel for defendant Humbel): Your Honor, excuse me, Doctor, if the Court please, I am going to enter an objection at this time. The Doctor is not qualified as an expert of the law. Number two, the Court will tell the jury what the law is.

'THE COURT: It is the function of the Court to make the legal determination. I wanted to clarify in his statement whether he used the Durfee rule or what rule he was using, that would be based on what the law is.

'MR. PIKKARAINEN: I will appreciate that, Your Honor, I don't think there is--he has indicated that he is an associate professor of law at the Wayne State University.

'THE COURT: That does not qualify him legally. He also has testified that his teaching is in the relationship of the medical or psychiatric area to the law. If the Doctor can lecture in that area it is beyond my comprehension that he would not know and have an opinion as to what the Michigan law is in relation to a psychiatric diagnosis. He brought it up, nobody asked what his legal opinion was. Any more questions?

'MR. WASCHA: Go ahead, I will withdraw my objection.

'Q. Now, Doctor, you indicated that you were basing your opinion on People v. Durfee, the old case; is that correct?

'A. I state that prior to this date I have never read the original opinion which I am sure very few psychiatrists have done, and very few lawyers, as I understand. It was made available to me and I read it and the more recent, very recent one I think it is in January, the legal opinion of the Martin case, I read that too. The psychiatric facts haven't changed as far as I am concerned. That is what I described in my original report. I did say that Mr. Humbel was in my judgment, sick. My impression was, and my lay impression because I am not a lawyer, was that this would not fall into the insanity defense but it is obviously up to a judge or jury to decide and not for me.

'Q. You have testified in a number of cases as you have indicated; is that right?

'A. I have testified in a number of cases, yes.

'Q. You have had some experience in this area?

'A. Yes, I have. But I might say, that the Martin decision is a recent one and I don't really keep up with the court decisions unless they are called to my attention.

'Q. You indicate that you have read People v. Martin?

'A. Yes, I have.

'Q. And you have read People v. Durfee?

'A. Yes, I have.

'Q. From the reading of those two cases, as a layman, is it not correct that People v. Martin did not overturn the Durfee rule?

'MR. WASCHA: Your Honor, I am going to object to that, he is arguing law.

'THE COURT: You are arguing the law, counsel. People v. Martin, whatever it says, is for me to determine when we are having the jury charge conferences. The jury charge will be based on what I determine Martin to say. But, to ask a lay witness even though he is an expert in other areas, he has testified in court that he is teaching some legal related aspects in a law school, a legal question he is not qualified to answer, in the eyes of the law at least.'

On appeal defendant Humbel argues that he was denied his right to a fair and impartial trial, his right to a trial by jury, and his right to due process of law by reason of the fact that the prosecutor was able to elicit from the defense psychiatrist his opinion and conclusion of law, which thereby usurped the function of the jury.

The question of the propriety of allowing any witness, be he expert or otherwise, to testify as to his opinion of the sanity or insanity of a criminal defendant presents ramifications which appear to have been heretofore unexplored. While there is indeed...