People v. Savoie, Docket No. 66139

• Court: Supreme Court of Michigan
• Citation: 349 N.W.2d 139,419 Mich. 118
• Docket Number: No. 1,Docket No. 66139,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tony SAVOIE, Defendant-Appellant. Calendar419 Mich. 118, 349 N.W.2d 139
• Decision Date: 05 June 1984

Page 139

349 N.W.2d 139

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tony SAVOIE, Defendant-Appellant.

Docket No. 66139.

Calendar No. 1.

419 Mich. 118, 349 N.W.2d 139

Supreme Court of Michigan.

Argued June 7, 1983.

Decided June 5, 1984.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Civil and Appeals, Asst. Pros. Atty., Timothy A. Baughman, Principal Atty., Research, Training and Appeals, Detroit, for plaintiff-appellee.

State Appellate Defender Office by Herb Jordan, Asst. State Appellate Defender, and Susan J. Smith, Sp. Asst. State Appellate Defender, Detroit, for defendant-appellant.

BRICKLEY, Judge.

On August 2, 1974, defendant, while in the course of leaving his sister's home, which was surrounded by police, shot and killed a Dearborn police lieutenant.

On September 13, 1975, defendant was convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. That conviction was reversed by the Court of Appeals in July of 1977 for failure to instruct the jury on the defendant's theory of the case. 75 Mich.App. 248, 255 N.W.2d 11 (1977).

His second trial, in September of 1978, also resulted in a conviction of first-degree murder which was affirmed by the Court of Appeals in an unpublished opinion per curiam issued on October 27, 1980. We granted leave to appeal. 414 Mich. 851 (1982).

The defendant alleges that the trial court erred by failing to instruct the jury on the defense of insanity and by giving an erroneous intoxication instruction, that trial counsel was ineffective, and that reversal is required.

We conclude that any instructional error which occurred was harmless, that the intoxication instruction was not erroneous, and that there is no basis for the claim of ineffective assistance of counsel.

There is no dispute about the events leading up to the shooting. The defendant went to the home of his sister in the early morning hours of August 2, 1974. Against his sister's wishes, he forcibly retrieved his shotgun which had been locked in his brother-in-law's gun cabinet. In the course of her attempts to get the defendant to leave, defendant's sister caused the police to be notified because of her alarm over the defendant's demeanor and actions. Finally, she and her children vacated the house. The police had surrounded the house when the defendant later attempted to leave carrying a loaded shotgun, and he was asked by the police to surrender it. After some conversation with the police, he fired at and killed Lt. Louis Hinkel. Defendant was wounded in the ensuing gunfire.

Before the second trial, defense counsel filed a notice of intent to enter a plea of insanity. On the first day of trial, following testimony as to defendant's mental condition, counsel was asked by the trial court if he intended to raise a defense of insanity. Upon receiving an affirmative response, the court interrupted the proceedings and gave the jury a preliminary instruction on mental illness, insanity, and the defense of intoxication. ¹

At the close of proofs, defense counsel submitted requests for instructions which included an insanity instruction. This instruction was not given by the trial court. The request for instructions also contained a diminished capacity instruction for intoxication which was given. In addition, the trial court instructed the jury on the verdict of guilty but mentally ill. No objections were made to the instruction.

I

Complicating the resolution of the insanity issue in this case is the fact that the trial court and possibly trial counsel were laboring under the false impression that Michigan's new statutory definition of legal insanity, enacted between the time the offense was committed and the second trial, was applicable. Clearly it was not. ² The proper test for insanity for this offense is found in People v. Martin, 386 Mich. 407, 418, 192 N.W.2d 215 (1971):

"The salient elements of the Michigan test are: 1) whether the defendant knew what he was doing was right or wrong; and 2) if he did, did he have the power, the will power, to resist doing the wrongful act? The Michigan test encompasses not only a sudden overpowering, irresistible impulse but any situation or condition in which the power, 'the will power' to resist, is insufficient to restrain commission of the wrongful act."

In addition, the verdict of guilty but mentally ill was not an option for the jury in this case. ³

We now proceed to defendant's contention that the trial court erred in failing to instruct the jury on insanity and that reversal is required. Although defendant concedes that no expert testimony was elicited in support of an insanity defense, defendant argues that sufficient lay testimony was introduced to overturn the presumption of sanity and to entitle him to a jury instruction.

During the course of the trial defendant's expert witness, a forensic psychiatrist, testified that, in his opinion, "there is no clinical evidence from what I can see that he was insane at the time of the shooting". As a result, defendant is forced to rely on the testimony of lay witnesses, mostly family and friends, to establish this defense. Defendant characterizes their testimony as follows: "They painted a picture of a previously normal adolescent who returned from Vietnam a shell-shocked young man, tormented by memories of war atrocities. They described fits of irrationality, emotional breakdowns, massive and constant consumption of drugs and alcohol, bizarre incidents such as having target practice in his mother's basement, or questioning his parentage. They described him as not being in his right mind, as being sick, as being mentally ill, and as needing psychiatric help."

The Court of Appeals contrasted the defendant's conviction with the conviction obtained in People v. VanDiver, 79 Mich.App. 539, 261 N.W.2d 78 (1977). In VanDiver, the defendant's conviction by a jury of assault with intent to do great bodily harm less than murder was reversed because the trial judge erred in refusing a request for an instruction on the defense of insanity. The only evidence which supported an insanity defense in that case was the defendant's rambling and often incomprehensible testimony at trial. That testimony revealed that the defendant had been institutionalized almost continuously since the age of seven for mental and emotional disturbances. When asked, the defendant could not explain his behavior, was unable to describe his emotions on the day of the alleged assault, and indicated that he was unable to control his conduct or his feelings on that day.

In upholding the defendant's second conviction in the present case, the Court of Appeals concluded:

"Unlike the defendant in VanDiver, supra, the instant defendant demonstrated an awareness of what occurred on the night of the incident, and what his thoughts and feelings were at the time. The records indicates no history of institutionalization or serious mental illness prior to the incident. The defendant was steadily employed by the Ford Motor Company at the time of the incident. Lay testimony regarding defendant's mental state after returning from Vietnam suggests that the defendant did, at times, show that he was emotionally troubled by his war experiences. But, in our view, none of the various testimony introduced to describe defendant's mental state demonstrated that defendant was ever legally insane according to the definition in VanDiver, supra, nor does defendant's or police testimony indicate that defendant was legally insane at the time of the shooting.

"While the record does not indicate whether the court's instructional lapse at the close of trial was an oversight or a conscious refusal to instruct on insanity, we submit that the court was not obligated to give such an instruction because of insufficient evidence in the record."

We think after our own review of the record that the Court of Appeals correctly concluded that the testimony relied upon by defendant is not material to the defense of legal insanity. As we said in People v. Abernathy, 253 Mich. 583, 587, 235 N.W. 261 (1931), "the sufficiency of the evidence is [to be resolved by] the jury unless there is no evidence at all upon a material point ". (Emphasis supplied.)

The amount of evidence that is sufficient to overcome the presumption of sanity is minimal. In People v. Garbutt, 17 Mich. 9, 23 (1868), Justice Cooley described it as "any evidence * * * which tends to overthrow the presumption". 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. Garbutt, supra; People v. Eggleston, 186 Mich. 510; 152 NW 944 (1915)."

Defendant's sister merely testified about his use of alcohol and drugs, his inability to properly communicate, and a sudden, unconnected emotional outburst shortly before the homicide. In response to an inquiry about her brother's mental condition on the date of this incident, she stated that he "wasn't in his right mind" and was "sick". She stated that defendant was angry and drunk, possibly high, and "weird".

Defendant's brother-in-law stated that defendant was a lot quieter after his tour in Vietnam. He testified that he and defendant had discussed defendant's experience in Vietnam. He stated that he had never witnessed an emotional outburst by defendant related to his war experiences.

Defendant's girlfriend testified that defendant had become increasingly dependent on alcohol. She stated that she had met defendant after his discharge. She related "combat" stories told to her by the defendant and testified that defendant found his Vietnam experience upsetting. She stated that defendant had never been violent in her presence. She further stated that, in her opinion, defen...