People v. Stratton

• Decision Date: 25 September 1968
• Docket Number: Docket No. 2843,No. 2,2
• Citation: 164 N.W.2d 555,13 Mich.App. 350
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth G. STRATTON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 555

164 N.W.2d 555

13 Mich.App. 350

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth G. STRATTON, Defendant-Appellant.

Docket No. 2843.

Court of Appeals of Michigan, Division No. 2.

Sept. 25, 1968.

On Rehearing Dec. 31, 1968.

Released for Publication Feb. 14, 1969.

William F. Goler, Jackson, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Bruce A. Barton, Pros. Atty., Jackson County, Jackson, for appellee.

Before QUINN, P.J., and T. G. KAVANAGH and LEVIN, JJ. (on rehearing).

LEVIN, Judge.

The defendant Kenneth G. Stratton appealed his conviction of escape from prison ¹ charged as a second felony under the habitual criminal sections of the code of criminal procedure. ²

Stratton attempted to defend against the charge of prison escape by offering an insanity defense. This the trial judge refused to allow him to do on the ground that he had not given the prosecutor notice of his intention to do so in advance of the trial as required by the statute (M.C.L.A. § 768.20 (Stat.Ann.1954 Rev. § 28.1043)).

The prosecutor alleged the second felony offense by a separate or supplemental information filed at the same time that the information alleging the principal charge, escape from prison, was filed. After the jury announced its verdict convicting Stratton of escape from prison, the prosecutor was allowed, over defendant's objection, to try the second felony charge before the very same jury that had just 5 minutes before convicted the defendant of escape from prison.

Two issues are presented. Was Stratton entitled (1) to offer evidence of insanity, and (2) to have a new jury impaneled before commencement of the trial of the recidivist issue? For reasons hereafter stated, we conclude that he should have been allowed to offer evidence in an attempt to convince the jury that he was insane at the time the offense was alleged to have been committed but that he was not entitled as a matter of course to have a new jury impaneled to consider the recidivist issue.

I.

The prosecuting attorney and Stratton's defense counsel had agreed prior to the trial that Stratton could use the written reports of 2 out-of-state physicians at the time of trial in support of an insanity defense and that he people could offer the reports of 2 doctors who had examined Stratton and testified at a sanity commission hearing on the issue whether Stratton was competent to stand trial. ³ No notice of an insanity defense was filed.

It was the trial judge who first questioned the defendant's failure to have filed notice of intention to make an insanity defense. It appears that much of the discussion between court and counsel on the question whether the defendant should be allowed, nevertheless, to put in an insanity defense was not taken down by the court reporter.

The purpose of the statute requiring an accused person who intends to offer an insanity defense to give notice to the prosecutor in advance of trial stating the names of the witnesses he intends to call is to forewarn the prosecutor. It appears that the only evidence that Stratton was in a position to offer in support of his proposed insanity defense were the 2 out-of-state doctors' reports which the prosecutor had earlier agreed could be offered.

We are satisfied that the prosecutor waived statutory notice of intention to make an insanity defense insofar as introduction of those 2 reports were concerned, which waiver was binding upon the judge as well as the prosecutor. Accordingly, Stratton is entitled to a new trial.

II.

This opinion is written following a rehearing granted on the people's petition. Our earlier opinion declared--we are now convinced erroneously--that supplementation of an information to charge an accused person as a prior offender so as to make possible the meting out of an increased sentence upon conviction may take place only 'after conviction.' We reached that conclusion after reading sections 10 and 13 of chapter 9 of the code of criminal procedure. ⁴ Section 10 provides that one who, like Stratton, is charged as a second felony offender may upon conviction of the current charged offense be sentenced to 1 1/2 times the longest term prescribed for the current offense. Section 10 does not purport to prescribe the procedure by which an accused person can be charged as a second felony offender.

Section 13 provides:

'If at any time after conviction and either before or after sentence it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in any of the 3 foregoing sections, the prosecuting attorney of the county in which such conviction was had, in his discretion, may file a separate or supplemental information in such cause accusing the said person of such previous convictions.'

In our earlier opinion we reasoned, reading sections 10 and 13 together, that the procedure to be followed in charging one as a prior felony offender was prescribed in section 13 and that the procedure in section 13 set forth was required to be followed whenever it was desired to increase the penalty pursuant to the '3 foregoing sections,' i.e., section 10, concerning second felony, section 11, concerning third felony, ⁵ and section 12, concerning fourth felony. ⁶

Section 13 then appeared to us to provide the exclusive procedure. And that section provides the prosecutor could only take action 'after conviction.' (Emphasis supplied.) Section 13 also provides that if the defendant pleads not guilty to the recidivist charge, 'a jury of 12 jurors Shall be empanelled' and that 'the Usual practice in the trial of criminal cases shall be followed in the empanelling of such jury and the trial of said issue and the prosecuting officer and the accused shall each be allowed 5 peremptory challenges.' (Emphasis supplied.) We concluded that Stratton was entitled to a new and separate jury because that is what the statute appeared then to us expressly to require.

Our earlier opinion overlooked the last sentence of section 12, which section concerns the increased penalty for those accused persons convicted as Fourth felony offenders. Stratton was charged as a second felony offender. The last sentence of section 12 reads:

'A person to be punishable under this and the last 2 preceeding sections need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section.'

The 'following section' is section 13.

Implicit in the language just quoted--'need not have been indicted and convicted as a previous offender' an 'may be proceeded against as provided in the following section'--is the concept that the procedure set forth in the 'following section,' section 13, need not be followed and that an accused person may be punished pursuant to sections 10, 11 and 12 when 'indicted and convicted' without regard to section 13.

Thus, as we now read sections 10, 11, 12 and 13, they contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor 'after conviction' of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed. ⁷

The procedure followed in this case will not ordinarily deny the defendant a fair trial on the recidivist charge. The procedure that was followed was modeled on that approved in State v. Johnson (1963), 86 Idaho 51, 383 P.2d 326, which relied on State v. Ferrone (1921), 96 Conn. 160, 113 A. 452. See, also, Harrison v. State (1965), 217 Tenn. 31, 394 S.W.2d 713. In State v. Johnson, supra, the Idaho Supreme Court held that habitual criminal charges should not be disclosed to the jury unless and until the defendant is convicted of the principal charge and, if the defendant is so convicted, the portion of the information charging the defendant as an habitual criminal 'should be read to them without reswearing them, and they should be charged to inquire on that issue.'

The procedure that was followed in Stratton's trial as a recidivist is also consistent with requirements enunciated by our Court in People v. Burd (1965), 1 Mich.App. 178, 134 N.W.2d 843, leave to appeal denied by the Michigan Supreme Court October 22, 1965. Burd, like Stratton, was charged with the crime of escaping prison. The information additionally charged that he was guilty of the offense of second felony and sought an increase in the penalty pursuant to the provisions of section 10. Burd successfully contended that to charge him with the felony of prison escape and as an habitual criminal in the same information would deprive him of the presumption of innocence on the prison escape charge by placing his prior felony conviction before the jury Prior to his conviction on the current charge. Our Court ruled in Burd that the information should be amended so as to insure (1 Mich.App. p. 183, 134 N.W.2d p. 846) 'that it will not place before the jury the accused's past criminal record Prior to the jury's finding of guilt or innocence on the charge of escaping prison.' (Emphasis supplied.)

Since Burd was decided, the practice in Jackson county has been to charge the fact that the accused person has a prior felony record in a supplemental information which may, as in this case, be filed at the same time as the information charging the current principal charge. At the trial of the current principal charge only the information charging that alleged...