People v. Smith

• Decision Date: 08 January 1975
• Docket Number: Docket No. 19220,No. 3,3
• Citation: 226 N.W.2d 673,57 Mich.App. 556
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Maurice SMITH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 673

226 N.W.2d 673

57 Mich.App. 556

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Maurice SMITH, Defendant-Appellant.

Docket No. 19220.

Court of Appeals of Michigan, Division No. 3.

Jan. 8, 1975.

Released for Publication March 12, 1975.

Francis A. Allen and Robert A. Burt, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald A. Burge, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and R. B. BURNS and CARLAND,* JJ.

T. M. BURNS, Presiding Judge.

On February 5, 1954, defendant Louis Maurice Smith, then 18 years of age, was committed to the Kalamazoo State Hospital following a series of somewhat minor acts of sexual aberrations such as window peeping, stealing articles of feminine apparel, and indecent exposure. On November 5, 1954, Marilyn Kraai, a student nurse, was found strangled to death in the basement of the Kalamazoo State Hospital. An autopsy revealed that she had also been the victim of rape. On that same date, defendant was arrested and charged with murder. On November 17, 1954, a preliminary hearing was held in municipal court and evidence was produced to indicate that the crime of murder had been committed and that there was probable cause to believe that defendant committed the crime. Part of the evidence produced was a confession by the defendant. At the conclusion of the preliminary examination, defendant was bound over to the circuit court, and on November 22, 1954, an information was filed by the prosecuting attorney charging defendant with the murder of Marilyn Kraai. At the arraignment on that date, defendant stood mute, and a plea of not guilty was entered in his behalf by the court.

On November 24, 1954, defendant's father, Harry L. Smith, filed a petition in the trial court under M.C.L.A. §§ 780.501--780.509; M.S.A. §§ 28.967(1)--28.967(9) ¹ praying that the court order a hearing pursuant to the statute to ascertain whether or not the defendant was a criminal sexual psychopathic person. Pursuant to the prayer in the petition and the mandates of the statute, the circuit court appointed three qualified psychiatrists to personally examine the defendant and make and file with the court a report in writing of their examinations together with their conclusions. On January 4, 1955, the three psychiatrists filed a six-page report in which they unanimously concluded that defendant was a criminal sexual psychopathic person and recommended that he be committed to the State Hospital Commission for further treatment.

On January 11, 1955, the court conducted a hearing for the purpose of ascertaining whether defendant was a criminal sexual psychopathic person. Upon hearing the testimony of the psychiatrists, and other evidence, the court determined that defendant was a criminal sexual psychopathic person and ordered that he be committed to the State Hospital Commission to to be confined in an appropriate state institution until he would be 'fully and permanently recovered from such psychopathy, to a degree that he will not be a menace to others as provided for by statute'.

Defendant spent the next 18 years confined under maximum security conditions in Ionia State Hospital. Late in 1972, defendant was asked whether he would be willing to be a research subject for experimental psycho-surgery in a project which had been initiated at the Lafayette Clinic in Detroit. He agreed, and in November 1972, he was transferred to the clinic in Detroit. However, before the conclusions of the tests to determine whether defendant was a proper subject for the psycho-surgery, the experiment became publicly known and a taxpayer suit ² was instituted in Wayne County Circuit Court to prevent continuation of the experimental project. This suit was filed without defendant's knowledge or consent.

A three-judge court was impanelled to resolve this matter and prior to consideration of the merits, the court decided that separate counsel should be appointed to represent defendant ³ and twenty-three others similarly situated. Defendant's court-appointed counsel challenged the constitutionality of the criminal sexual psychopath act under which defendant remained confined. The three-judge court agreed, and on March 23, 1973, issued an opinion holding the act unconstitutional because it violated the Equal Protection Clause of the U.S. Constitution. However, the court did not order defendant's release until April 9, 1973, nearly three weeks after the entry of its opinion. ⁴ Prior to the entry of that order, the assistant attorney general informed the court in open session that the state, after consideration of all the facts and circumstances of the case, had decided not to institute civil commitment proceedings agaisnt the defendant.

On April 6, 1973, defendant's counsel was informed by the Kalamazoo County Prosecuting Attorney that he was considering reinstitution of the 1954 murder charge against defendant. On April 9, 1973, the prosecutor's office filed a petition for a bench warrant in the Kalamazoo County Circuit Court for the arrest of defendant on the 1954 murder charge. On May 3, 1973, defendant filed a motion for hearing on the petition for bench warrant and a motion to quash the information. Following a hearing, the circuit court, on December 14, 1973, issued an opinion rejecting defendant's contentions and authorizing a bench warrant. On January 9, 1974, the circuit court ordered a stay of proceedings pending appeal to this Court. This interlocutory appeal followed, leave to appeal having been granted by this Court on March 20, 1974. Although defendant raises four issues on appeal, we find only two which merit decisional discussion. The other issues have been carefully considered and found lacking in substance.

1. IS THE PROSECUTION OF DEFENDANT ON CRIMINAL CHARGES PENDING AT THE TIME OF HIS COMMITMENT AS A CRIMINAL SEXUAL PSYCHOPATHIC PERSON BARRED BY S 8 OF THE RELEVANT STATUTE?

As previously mentioned, defendant was committed to the Michigan Department of Mental Health under provisions of the then criminal sexual psychopath act. Section 8 of that now-repealed act provided:

'No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.' (M.C.L.A. § 780.508; M.S.A. § 28.967(8))

The trial court found that the ruling on the unconstitutionality of the statute by the Wayne County Circuit Court acted to nullify all effects of the statute since its inception. The trial court thus concluded that defendant was amenable to criminal prosecution and that the above-quoted § 8 was nor a bar to such prosecution when it stated:

'It is the opinion of this Court that the finding which was made at the conclusion of the hearing by this Court was not justified in view of the unconstitutionality of the commitment and release sections of the Criminal Sexual Psychopath Act. Under such circumstances the findings of this Court did not become final within the meaning of Section 8. In the opinion of this Court, this defendant, Louis Smith, may be tried for the offense of murder, with which he originally stood charged at the time of the filing of the petition under the Sexual Psychopath Act.'

Defendant contends that the trial court erred in concluding that prosecution of defendant was not barred by § 8 of the statute. We disagree.

In Horrigan v. Klock, 27 Mich.App. 107, 183 N.W.2d 386 (1970), a tort action, a similar immunity question was before this Court. In that case the plaintiff had filed a motion to join the City of Flint as a party defendant on November 20, 1968. The trial court denied the motion because of governmental immunity, M.C.L.A. § 691.1407; M.S.A. § 3.996(107). On June 25, 1969, this Court in Maki v. City of East Tawas, 18 Mich.App. 109, 170 N.W.2d 530 (1969), aff'd 385 Mich. 151, 188 N.W.2d 593 (1971), declared that statute unconstitutional insofar as it granted immunity to governmental bodies from all tort actions. Thus, the question before the Court in Horrigan was what effect the Maki decision had on the City of Flint's governmental immunity in that tort action. In resolving this matter in plaintiff's favor and holding that the plaintiff was not barred from joining the City of Flint, as a party defendant, the Court stated:

'The statute was passed by the Legislature in 1964 and became effective in 1965. In the case of Briggs v. Campbell, Wyant & Cannon Foundry Company (1966), 2 Mich.App. 204, 139 N.W.2d 336, Aff'd, 379 Mich. 160, 150 N.W.2d 752 the court stated that an unconstitutional statute is void from the date of its passage. Quoting from 16 Am.Jur.2d, Constitutional Law, § 177, pp. 402, 403, the court stated:

"'The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed." 2 Mich.App. 204, 218, 139 N.W.2d 336, 342.

'Resultingly, the decision of this Court in Maki, supra, is fully retroactive and the statute declared unconstitutional there was void on the date it was passed. As a result, the trial court, through no fault of its own, erred when it did not permit the plaintiff to join the City of Flint as a party defendant. The city did not enjoy any immunity under the void statute.'

Such is the case here. The decision by the three-judge Wayne County Circuit Court declaring the statute in controversy in this case unconstitutional is also fully retroactive. Thus, the statute was void on the date it was passed. The defendant, therefore, did not...