People v. Philpot

• Decision Date: 16 June 1980
• Docket Number: Docket No. 44334
• Citation: 296 N.W.2d 229,98 Mich.App. 257
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman D. PHILPOT, Defendant-Appellant. 98 Mich.App. 257, 296 N.W.2d 229
• Court: Court of Appeal of Michigan — District of US

Page 229

296 N.W.2d 229

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman D. PHILPOT, Defendant-Appellant.

Docket No. 44334.

98 Mich.App. 257, 296 N.W.2d 229

Court of Appeals of Michigan.

June 16, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 259] Arthur J. Rubiner, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., Frank I. Bernacki, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and BRONSON and RILEY, JJ.

BRONSON, Judge.

The pertinent facts are well stated in Judge Riley's separate opinion, and we are in agreement with the majority of what is said there. We are also in agreement with the position that [98 MICHAPP 260] the verdicts in this case are inexplicably inconsistent. We differ, however, with the apparent conclusion that there is no appropriate remedy for this situation.

The concurring/dissenting opinion seems to assume that the only way in which the inconsistency could be remedied would be to vacate the "but mentally ill" portion of defendant's felony-firearm conviction. This option is declined, because it is perceived that no benefit would result to the defendant from the premature termination of the treatment mandated by the guilty but mentally ill statute. We believe that the defendant could benefit from an extension of the treatment to cover the entire period of his incarceration, and hold that the proper remedy in this case is to add on the "but mentally ill" language to his assault conviction.

Although this requires interference with the jury's verdict, such "interference" takes place in every case involving inconsistent verdicts. The problem is that the jury has returned verdicts containing a legal inconsistency, so that some interference is necessary to set matters straight. The extent of the interference is governed in most cases by well-established precepts of criminal law so that, for example, where the inconsistency is between verdicts of guilty and not guilty, the reviewing court must side with the jury's acquittal, and cannot impose a conviction where the jury failed to do so. See People v. McCurtis, 84 Mich.App. 460, 269 N.W.2d 641 (1975).

Clearly there are differences between the verdicts of guilty and guilty but mentally ill. ¹ In the [98 MICHAPP 261] latter, evaluation and treatment are mandated while this is not true in the former. M.C.L. § 768.36; M.S.A. § 28.1059. Furthermore, the purpose of the guilty but mentally ill verdict should require the reviewing court to side with the jury's finding of mental illness. The guilty but mentally ill statute evinces a legislative intent to provide help to those who have committed a criminal offense while suffering from mental illness even when that mental illness cannot be said to have totally relieved the defendant from all criminal responsibility. In this manner, the statute furthers the announced constitutional and legislative concern for fostering care for the mentally handicapped. See Const.1963, art. 8, § 8, M.C.L. § 330.1116; M.S.A. § 14.800(116).

The jury found the defendant was mentally ill on one offense, but made no similar finding as to the other offense when there was no rational basis for such an inconsistency. Accordingly, we remand to the trial court for entry of a verdict of guilty but mentally ill on the assault charge, with leave to the prosecution, should it be persuaded that justice would be better served and on notification to the trial court before resentencing, to seek a new trial on the assault charge. ² The verdict of guilty but mentally ill on the felony-firearm charge is affirmed.

[98 MICHAPP 262] Affirmed in part, reversed in part and remanded.

RILEY, Judge (concurring in part, dissenting in part).

Defendant was charged in a two-count information with assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278; and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). A jury found him guilty of the former charge and guilty of the latter charge, but mentally ill. He was sentenced to 6 to 20 years and 2 years respectively and now appeals as of right.

Defendant initially contends that the trial court erred in refusing to suppress evidence of a prior conviction for attempted carrying of a concealed weapon. He specifically claims that the ruling was incorrect since the prejudicial effect of nonexclusion outweighed the probative effect. Despite the court's adverse ruling, however, defendant took the stand in his own behalf and evidence of the conviction was not used to impeach him.

In accord with current law, the instant trial judge noted his discretion regarding the admissibility of evidence of prior convictions. People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974). He also purported to comply with the MRE 609(a)(2) mandate that judges weigh the probative effect of admissibility against the prejudicial effect. Our courts have continually recognized that the similarity between offenses weighs heavily towards excluding evidence of prior convictions, yet the instant judge ruled that the evidence of the similar prior conviction was admissible in this case. See People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979); People v. Gunter, 76 Mich.App. 483, 257 [98 MICHAPP 263] N.W.2d 133 (1977); People v. Townsend, 60 Mich.App. 204, 230 N.W.2d 378 (1975).

While we are not certain that the trial court adequately balanced the factors necessary at the time of trial, ¹ we are convinced that defendant suffered no prejudice because of this. Since defendant was not deterred from taking the stand due to the court's ruling, and since evidence of the conviction was never actually admitted, we believe that any error was harmless. See People v. Wilkins, 82 Mich.App. 260, 271-273, 266 N.W.2d 781 (1978), rev'd on other grounds, 408 Mich. 69 (1980).

Defendant next asserts that the People failed to prove his sanity beyond a reasonable doubt. While every defendant is initially presumed sane, 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. Krugman, 377 Mich. 559, 563, 141 N.W.2d 33 (1966); People v. White, 81 Mich.App. 335, 337, 265 N.W.2d 139 (1978); People v. Fisk, 62 Mich.App. 638, 641, 233 N.W.2d 684 (1975). It is solely within the province of the trier of fact, whether it is a judge or a jury, to determine if this burden has been met. See People v. Chamblis, 395 Mich. 408, 420, 236 N.W.2d 473 (1975); People v. Duffy, 67 Mich.App. 266, 268-269, 240 N.W.2d 771 (1976); People v. Tubbs, 22 Mich.App. 549, 557, 177 N.W.2d 622 (1970). After carefully reviewing the record below, we believe that sufficient evidence was adduced to support the jury's conclusion regarding defendant's sanity.

[98 MICHAPP 264] Defendant's next argument has been refuted by the Supreme Court in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), and needs no further discussion here.

Finally, defendant contends that there is reversible error based on the jury's differing verdicts of guilty on the assault charge and guilty but mentally ill on the felony-firearm conviction. The majority and I agree that these verdicts are inexplicably inconsistent. See People v. Allen, 94 Mich.App. 539, 288 N.W.2d 451 (1980). However, we part company on what is the proper remedy for rectifying the...