People v. Rone

• Decision Date: 22 September 1981
• Docket Number: Docket No. 58436
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Junior C. RONE, Defendant-Appellant. 109 Mich.App. 702, 311 N.W.2d 835
• Court: Court of Appeal of Michigan — District of US

Page 835

311 N.W.2d 835

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Junior C. RONE, Defendant-Appellant.

Docket No. 58436.

109 Mich.App. 702, 311 N.W.2d 835

Court of Appeals of Michigan.

Sept. 22, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 705] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and Timothy A. Baughman, Asst. Pros. Atty., for the people.

Strefling & Brode, P. C., Detroit, for defendant-appellant on appeal.

Before CAVANAGH, P. J., and KELLY and DeWITT, ^* JJ.

KELLY, Judge.

ON SECOND REMAND

On April 19, 1978, defendant was convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, three counts of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and four counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced under the indeterminate sentencing act M.C.L. § 769.8 et seq.; M.S.A. § 28.1080 et seq., to life imprisonment on the second-degree murder count and to a prison term of from 10 to 30 years for each count of assault with intent to murder. He also received a mandatory two-year prison term for each of the four felony-firearm counts. Defendant's subsequent appeal of right to this Court resulted in an unpublished memorandum opinion affirming each of the convictions. People v. Rone, Docket No. 78-2461, released December 12, 1979. The decision was [109 MICHAPP 706] remanded to this Court on order of the Supreme Court, for "amplification of the reasons for its decision". 409 Mich. 903, 308 N.W.2d 97 (1980). We were also directed to consider "whether the trial court's unrequested instructions concerning the procedures to be followed after a verdict of not guilty by reason of insanity constituted error" under People v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969). Pursuant to the Supreme Court's order, the Court issued a second opinion amplifying the reasons for our decision and considering the trial court's unrequested instruction. 101 Mich.App. 811, 300 N.W.2d 705 (1980). However, the second decision is now remanded to this Court on order of the Supreme Court because only two judges of the original panel considered the case during the first remand. 411 Mich. 984; 311 N.W.2d 702 (1981).

On September 2, 1977, defendant, while armed with a .22-caliber semi-automatic rifle, entered the Band Drug Store in the City of Detroit. He was looking for the manager when, suddenly and without apparent provocation, he shot the pharmacist, Allen Margolis. Defendant then exited from the store, whereupon he encountered Mary and Robert Rish. He then asked Miss Rish if Robert was her "old man", and proceeded to shoot Robert in the side of the head.

Shortly after the above shootings, Detroit police officer James Lawless observed the defendant in the neighborhood carrying a rifle. When Lawless identified himself as a police officer, the defendant began shooting at him as well. Defendant then retreated into a nearby house where he was arrested. A subsequent search of the defendant's home disclosed the body of Mary Stevens, with whom the defendant had been living. Miss Stevens was later found to have been shot three times with a .22-caliber rifle.

[109 MICHAPP 707] During trial, the defense presented the testimony of Dr. Norman G. Pothyress, a clinical psychologist, in support of its proposed defense of insanity. Dr. Pothyress opined that the defendant was mentally ill at the time of the shootings. He also suggested that defendant had likely consumed a considerable amount of alcohol both on the day of and the day before the shootings.

Defendant first contests as a violation of due process this Court's denial of his motion for additional time to file an appellate brief. Defendant specifically alleges that this denial violated his due process right to effective oral arguments on appeal. On October 5, 1978, the defendant was provided with substitute appellate counsel, after the 60-day period for filing briefs provided in GCR 1963, 815.1(1) had expired. On October 19, 1978, defense counsel petitioned this Court for an additional 60 days to file his brief. We granted a 20-day extension in an order dated November 6, 1978.

This Court's authority to permit the filing of an appellant's brief more than 90 days after a claim of appeal or transcript is filed is governed by GCR 1963, 815.1(1). Under this rule, additional time may be ordered "for cause shown". We hold that no error was committed. Defendant's appellate brief was not in fact filed until February 26, 1979, three months after expiration of the original 20-day extension. Further, arguments were not scheduled on defendant's case until October, 1979; counsel made no motion for oral argument although the case call specifically noted the time requirements for filing motions and that "all attorneys not endorsed must move for oral argument". This allegation of error is not only meritless but specious.

Defendant next alleges as reversible error the [109 MICHAPP 708] trial court's decision, sua sponte, to instruct the jury on the post-trial effect of a verdict of not guilty by reason of insanity. The trial judge instructed as follows:

"If you make such decision, the defendant will be immediately committed to the custody of the center for forensic psychiatry for a period not to exceed sixty days. During that time the statute directs that the center thoroughly examine and evaluate the present mental condition of the defendant in order to reach an opinion as to whether he is mentally ill and requires medical treatment.

"Within the sixty day period, the center will file a report with the Court, Prosecuting Attorney and Defense Counsel. If the report states that the person is not mentally ill or does not require treatment, the defendant shall be discharged from custody. If the report finds that the person is mentally ill and does require treatment, the Court may direct the Prosecuting Attorney to file a petition with the Probate Court for an order of hospitalization or an order of admission to a clinical facility.

"If the court so directs the center may retain the person pending such a hearing. If after a hearing before a Probate Court, the defendant is found not to be mentally ill or not to be a person requiring treatment, the defendant shall be discharged. However, if the person is ordered hospitalized, admitted to a facility or otherwise (to) receive treatment he shall not be discharged or placed on leave without prior consultation with the center for forensic psychiatry.

"If hospitalized, the defendant will be hospitalized until his mental condition is such that he is no longer judged to require treatment."

In Cole, supra, the Supreme Court considered as a matter of first impression the question whether a jury should be apprised of the consequences of returning a verdict of not guilty by reason of [109 MICHAPP 709] insanity. ¹ The Court concluded in favor of the instruction, when requested by the defendant or jury. In so holding, the Cole Court adopted the rationale supporting the instruction expressed in Lyles v. United States, 103 U.S.App.D.C. 22, 25, 254 F.2d 725 (1957):

" 'This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955 (69 Stat. 710, D.C.Code § 24-301 (1951) (Supp. 5)). It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.' " Cole, supra, 382 Mich. at 719-720, 172 N.W.2d 354.

Accord, People v. Hampton, 384 Mich. 669, 674-676, 187 N.W.2d 404 (1971), People v. Gray, 57 Mich.App. [109 MICHAPP 710] 289, 297, 225 N.W.2d 733 (1975). See also People v. Ashford, 91 Mich.App. 693, 283 N.W.2d 830 (1979), in which the Court found no manifest injustice arising from the trial court's unobjected-to decision to instruct the jury, sua sponte, in this manner.

Two subsequent cases in this Court have considered the specific allegation of error raised by defendant. In People v. Samuelson, 75 Mich.App. 228, 254 N.W.2d 849 (1977), the Court interpreted the Cole reference to a request by the jury or defense counsel as impliedly prohibiting a sua sponte disposition instruction. The Samuelson Court did not, however, find the lower court's unrequested instruction to be reversible error. It concluded that the Cole "automatic commitment charge" mistakenly given by the trial court under M.C.L. § 767.27b; M.S.A. § 28.966(12), since repealed, 1974 P.A. 258, was more helpful to defendant's insanity defense than a disposition instruction under the then recently enacted Mental Health Code, M.C.L. § 330.2050; M.S.A. § 14.800(1050). ²

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