People v. Grant

520 N.W.2d 123, 445 Mich. 535

• Court: Michigan Supreme Court
• Decided: July 12, 1994
• Docket: 96686, (Calendar No. 14)
• Status: Published

Opinions

Riley, J.

The issue in this case involves the question whether a trial court’s failure to give a preliminary instruction before an offer of testimony on insanity, as required under MCL 768.29a(1); MSA 28.1052(1)(1), requires automatic reversal. We conclude that it does not. Moreover, we find that defendant failed to preserve the error for appellate review. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the jury’s verdict.

I

Defendant was charged and thereafter convicted of first-degree murder¹ and possession of a firearm during the commission of a felony² following a jury trial. The trial court sentenced defendant to mandatory life without parole for the murder conviction and to a two-year term for the felony-firearm conviction.

Before trial, defendant gave notice of his intent to assert the defenses of legal insanity and diminished capacity. By order of the court, defendant’s competence to waive his Miranda³ rights was assessed by a clinical psychologist. Later, defendant moved the court for the appointment of an independent psychiatrist to determine his criminal responsibility and the possibility of diminished capacity at the time of the killing. Defendant asserted a combination of longstanding mental problems, which allegedly included the hearing of voices that told him what to do, and drug and alcohol abuse on the date of the killing constituted legal insanity or, at the least, a diminished capacity that negated the intent element of murder.

Immediately preceding jury voir dire on the first day of trial, the court denied defendant’s motion to suppress his confession for lack of capacity to understand his Miranda rights. Next, the prosecutor reminded the court that defendant had filed a notice of insanity defense.⁴ Accordingly, the court incorporated this possibility in its voir dire of the jury. After the prosecution rested its case and the court denied a motion for directed verdict, defense counsel indicated defendant’s intent to testify regarding the defenses of legal insanity or diminished capacity.⁵ Defendant testified to long-term drug abuse, to hearing voices during stressful periods, and to having ingested drugs and alcohol on the date of the shooting.⁶

In rebuttal, the prosecutor offered the testimony of the clinical psychologist who had conducted the independent examination of defendant’s criminal responsibility or diminished capacity. After the close of proofs, the court instructed the jury regarding intoxication as a defense to a specific intent crime,⁷ mental illness,⁸ mental retardation,⁹ legal insanity,¹⁰ a mixture of intoxication and mental illness or retardation as a defense,¹¹ and the guilty but mentally ill verdict.¹² The instructions were in substantial compliance with the applicable Michigan Criminal Jury Instructions.¹³ A unanimous jury convicted defendant of first-degree murder and of illegal possession of a firearm during a felony._

Defendant appealed his conviction on two grounds. First, he asserted that the failure to give a preliminary jury instruction on insanity was error requiring reversal. Second, he alleged error in the trial court’s denial of his motion for directed verdict concerning whether he could be guilty of first-degree murder where his own confessions, the only direct evidence offered on the point, could not establish an intent to rob the decedent before the shooting.

Relying on the mandatory language of MCL 768.29a(1); MSA 28.1052(1)(1) and on People v Mikulin, 84 Mich App 705; 270 NW2d 500 (1978), the Court of Appeals reversed defendant’s conviction because of the trial court’s failure to give a preliminary jury instruction on the issue of insanity. The Court of Appeals also held that defendant’s second issue did not "independently require reversal.”¹⁴ Unpublished opinion per curiam, decided May 12, 1993 (Docket No. 138577).

This Court granted the prosecutor’s application for leave to appeal.¹⁵

n

A

MCL 768.29a(1); MSA 28.1052(1)(1) provides:

If the defendant asserts a defense of insanity in a criminal action which is tried before a jury, the judge shall, before testimony is presented on that issue, instruct the jury on the law as contained in [MCL 330.1400a; MSA 14.800(400a)] and [MCL 330.1500(g); MSA 14.800(500)(g)[¹⁶] and in [MCL 768.21a; MSA 28.1044(1)] of chapter 8 of this act. [Emphasis added.]

Clearly, this statutory language directs our courts to instruct on the definitions of mental illness, mental retardation, and legal insanity immediately before the commencement of testimony on insanity in a jury trial. See Achtenberg v East Lansing, 421 Mich 765, 770; 364 NW2d 277 (1985) ("When the language of a statute is clear, courts must apply it as written”). Furthermore, use of the term "shall” rather than "may” indicates mandatory rather than discretionary action. Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612 and n 7; 321 NW2d 668 (1982); Matheson v Secretary of State, 170 Mich App 216, 219; 428 NW2d 31 (1988).

It cannot be gainsaid that the purpose behind MCL 768.29a(1); MSA 28.1052(1)(1) is other than to establish the framework of an insanity defense in the minds of the jury before testimony begins, in light of the highly technical and esoteric nature of testimony, especially expert testimony, that often obtains in matters of insanity. The statute’s clear language evidences the purpose to ensure that the preliminary instruction is given in all cases and not simply when a trial court believes that it would be useful. See Achtenberg, Browder and Matheson, supra. Indeed, the mandatory nature of the preliminary instruction language has already been recognized. See People v Cramer, 201 Mich App 590, 593; 507 NW2d 447 (1993); People v Girard, 96 Mich App 594, 596; 293 NW2d 639 (1980); Mikulin, supra at 708.

Accordingly, we agree with the Court of Appeals that the failure to give the preliminary instruction on insanity was error regardless of defendant’s failure to request it. In fact, the prosecutor does not argue that this did not constitute some form of error. However, whether this error required automatic reversal of defendant’s conviction as the Court of Appeals held is another question.

We conclude that the failure to give a preliminary instruction on insanity does not require automatic reversal for several reasons. First, automatic reversal would come into direct conflict with MCL 769.26; MSA 28.1096, which orders that judgments or verdicts shall not be reversed absent a miscarriage of justice. Automatic reversal would presume a miscarriage of justice, and this presumption is far from evident in the terms of MCL 768.29a(1); MSA 28.1052(1)(1). Second, other important concerns such as proper final instructions to the jury are the subject of harmless-error analysis and are therefore not susceptible to automatic reversal.¹⁷ Absent a clear legislative directive, we cannot consider the preliminary jury instruction involved here to avoid the more generalized requirement that no judgment or verdict may be reversed absent a miscarriage of justice. Third, rules of automatic reversal are disfavored. People v Mosko, 441 ; 495 NW2d 534 (1992). Finally, the error at issue in this case does not resemble cases that have historically been the subject of automatic reversal in the federal system. Thus, we are unable to discern any state or federal basis for treating errors surrounding MCL 768.29a(1); MSA 28.1052(1)(1) any differently than the myriad of trial errors subject to harmless error analysis. For these reasons, we overrule the Mikulin decision.

B

Guidelines for correcting trial errors are described in three places: MCL 769.26; MSA 28.1096, MCR 2.613, and MRE 103(a) and (d).¹⁸ The specific terms differ in each source, and courts appear to have used them interchangeably. It is therefore important to determine whether there are any substantive differences in the terms as used.

MCL 769.26; MSA 28.1096 provides:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [Emphasis added.]_

Similarly, MCR 2.613(A) provides:

An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [Emphasis added.][¹⁹]

Finally MRE 103, which applies only to evidentiary matters, states:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or,

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the trial court. [Emphasis added.][²⁰]

Clearly, only MRE 103 specifically addresses the concept of issue preservation. However, the courts of this state have long recognized the importance of preserving issues for the purpose of appellate review. As a general rule, issues that are not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances. See, e.g., Napier v Jacobs, 429 Mich 222, 235; 414 NW2d 862 (1987) (failure to raise a claim of insufficiency of the evidence); Moskalik v Dunn, 392 Mich 583, 592; 221 NW2d 313 (1974) (failure to object to an erroneous jury instruction); People v DerMartzex, 390 Mich 410, 416-417; 213 NW2d 97 (1973) (failure of the defendant to request a limiting instruction on admissibility of prior-acts evidence); People v Farmer, 380 Mich 198, 208; 156 NW2d 504 (1968) (failure to raise the issue of the involuntariness of a confession). Indeed, the United States Supreme Court has recognized a state’s right to develop procedural rules that lead to issue forfeiture even where the procedural rules implicate constitutional protections if the rules serve a legitimate state interest. Henry v Mississippi, 379 US 443; 85 S Ct 564; 13 L Ed 2d 408 (1965).²¹

As alluded to previously, this preservation rule is not without exceptions. For example, appellate courts will consider claims of constitutional error for the first time on appeal when the alleged error could have been decisive of the outcome. See, e.g., People v Degraffenreid, 19 Mich App 702, 716; 173 NW2d 317 (1969); People v Merchant, 86 Mich App 355, 358; 272 NW2d 656 (1978); People v Catey, 135 Mich App 714, 722; 356 NW2d 241 (1984); People v Bushard, 444 Mich 384, 439; 508 NW2d 745 (1993) (opinion of Brickley, J.). However, the instant case does not involve a constitutional right. Rather, it is concerned with the violation of a statutory provision requiring a trial court to give a preliminary instruction to the jury immediately preceding the submission of insanity testimony. See MCL 768.29a(1); MSA 28.1052(1)(1). We now turn to the questions whether the unpreserved, nonconstitutional plain error in this case may nonetheless be considered as an exception to the preservation rule, and if so, whether reversal is required.

c

The federal courts’ approach to nonconstitutional plain error, especially in regard to the subject of issue preservation, is highly instructive. A recent pronouncement of the federal standard for unpreserved, nonconstitutional error is found in United States v Olano, 507 US —; 113 S Ct ; 123 L Ed 2d 508, 519-520 (1993).²² In Olano, the majority distinguished FR Crim P 52(a), regarding preserved harmless error, from rule 52(b), plain, unpreserved error.²³

When the defendant has made a timely objection to an error and Rule 52(a) applies, the Court of Appeals normally engages in a specific analysis of the District Court record — a so-called "harmless error” inquiry — to determine whether the error was prejudicial. Rule 52(b) normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, the Court of Appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial. [Id., 123 L Ed 2d 519-520. Emphasis added.]

On the issue whether a specific, unpreserved, nonconstitutional plain error could be addressed by an appellate court in light of possible forfeiture, the Olano Court developed a three-step test.

The first limitation on appellate authority under Rule 52(b) [plain, unpreserved error] is that there indeed be an "error.” Deviation from a legal rule is "error” unless the rule has been waived.

The second limitation on appellate authority under Rule 52(b) is that the error be "plain.” "Plain” is synonymous with "clear” or, equivalently, "obvious.”

The third and final limitation on appellate authority ... is that the plain error "affec[t] substantial rights.” This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the . . . proceedings. [Id., 123 L Ed 2d 518-519. Emphasis added; citations omitted.][²⁴]

The Olano majority concluded that the presence of alternate jurors did not affect substantial rights independent of any prejudicial effect and that there was neither a specific showing of prejudice nor a reason to presume any prejudice. Id., 123 L Ed 2d 521-522. Thus, the defendant’s claim was held to have been forfeited, which prevented the need for a determination whether reversal was required. Moreover, Olano clearly placed the burden of proving the prejudice of a plain forfeited error on the appealing party because the grant of relief under FR Crim P 52(b) is permissive rather than mandatory. See id., 123 L Ed 2d 520.²⁵ Presuming that the test for avoiding forfeiture is met, the Olano majority provided a separate test for reversal: a federal appellate court may reverse a plain forfeited error (1) where a miscarriage of justice would result because the defendant is actually innocent or (2) if the error "seriously affects” the fairness, integrity, or public reputation of judicial proceedings. Id, 123 L Ed 2d 521. It is important to note that the specific language of the federal rules themselves, and of the Olano majority’s formulation from earlier precedent, make no distinction between constitutional and nonconstitutional error. Accordingly, we conclude that it is the forfeiture aspect and not the actual constitutional status that drives the federal standard.²⁶

D

The rationale underlying the distinction between preserved and unpreserved error is strongly supported by history as well as by policy. At the beginning of this century, legislative reformers around the country advocated the adoption of the harmless error doctrine in response to an ever-increasing number of reversals in criminal cases on the basis of perceived minor errors occurring at trial.²⁷ Many years ago, Dean Pound stated that "[njothing is so subversive of the real purposes of legal procedure as individual vested rights in procedural errors . . . .”²⁸ More recently, writing for the majority in United States v Mechanik, 475 US 66, 72; 106 S Ct 938; 89 L Ed 2d 50 (1986), Justice Rehnquist stated:

The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences. The "[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.” Thus, while reversal "may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,” and thereby "cost the society the right to punish admitted offenders.” [Citations omitted.]

A forfeiture rule, then, serves the important " 'need to encourage all trial participants to seek a fair and accurate trial the first time around ....’” United States v Young, 470 US 1, 15; 105 S Ct 1038; 84 L Ed 2d 1 (1985), quoting United States v Frady, 456 US 152, 163; 102 S Ct 1584; 71 L Ed 2d 816 (1982).²⁹ See also Michigan v Tucker, 417 US 433, 446; 94 S Ct 2357; 41 L Ed 2d 182 (1974) ("[T]he law does not require that a defendant receive a perfect trial, only a fair one”). Accordingly, the United States Supreme Court has recognized the importance of an incentive for criminal defendants to raise objections at a time when the trial court has an opportunity to correct the error, which could thereby obviate the necessity of further legal proceedings and would be by far the best time to address a defendant’s constitutional and nonconstitutional rights. Failure to timely raise error thus requires defendants to establish prejudice in order to avoid the forfeiture of an issue.³⁰

We now turn to an analysis of the appropriate state standard for assessment of unpreserved, non-constitutional plain error.

III

Review of state law on the issue of harmless error leads us to the conclusion that the distinction between issue preservation and harmless error has not been clearly defined.³¹ We are persuaded that Olano, which first requires assessing the merits of an issue presented for the first time on appeal, is instructive in this regard. As in Olano, in this case there was error and it was plain, to wit: the violation of the statute mandating that a preliminary jury instruction on insanity be given before testimony on insanity. Although defendant failed to properly request the instruction, the language of MCL 768.29a(1); MSA 28.1052(1)(1) does not require a defendant to make a specific request. The question then becomes whether the error affected defendant’s substantial rights.

The Olano majority defined the term " 'affect[ing] substantial rights’ ” as an error that was “prejudicial: It must have affected the outcome of the . . . proceedings.” Olano, supra, 123 L Ed 2d 519. We believe that the proper interpretation of the term "prejudice” in the context of issue preservation for plain error may be equated with the longstanding state precedent of outcome determination. See Degraffenreid, Catey, and Merchant, supra. In other words, a plain, unpreserved error may not be considered by an appellate court for the first time on appeal unless the error could have been decisive of the outcome or unless it falls under the category of cases, yet to be clearly defined, where prejudice is presumed or reversal is automatic. Cf. Napier, Moskalik, DerMartzex, and Farmer, supra. Under the facts of this case, we are persuaded that the error involved here was not decisive of the outcome.

Although our review of the facts on the record indicates that defense counsel raised the matter of an insanity defense before voir dire of the jury, no reference was made to MCL 768.29a(1); MSA 28.1052(1)(1) and its requirement of an instruction to be given immediately before expert testimony on insanity. Thus, the error was unpreserved. In addition, the trial court asked jurors during voir dire whether they could conceptualize the nature of the insanity defense and the fact that, if successful, it would support a verdict of not guilty. Moreover, the jury instructions given at the conclusion of proofs were straight from an instruction manual and therefore presented the appropriate standards. Finally, the only witnesses to testify regarding the issue of insanity were one expert witness and defendant. Because we are not convinced that the error in this case led to significant confusion regarding an insanity defense, we conclude that the error was not decisive of the outcome. Thus, defendant failed to establish the form of prejudice necessary to preserve an issue that was not raised before the trial court. Accordingly, it is unnecessary to address the standard of reversal in this case of unpreserved, plain error.

The Court of Appeals decision is reversed and the jury verdict reinstated.

Brickley, Boyle, Griffin, and Mallett, JJ., concurred with Riley, J.

1 MCL 750.316; MSA 28.548.

2 MCL 750.227b; MSA 28.424(2).

3 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

4 [Prosecutor]: Your Honor, there is another issue that I guess I want to see if we can clarify. The defense has filed a notice of diminished capacity or insanity. He has been evaluated by the clinic, I understand there is no expert witness that can testify for the defense at this time. Mr. Kincaid wasn’t sure if his client would take the stand somehow raise it, therefore, I have filed a notice of rebuttal if it should come up. The law is once the issue is joint [sic], the jury has been informed. I understand until the People rest, that is not an issue. We can reserve those kinds of instructions although there is some voir dire, the defense request that area but I have no problem with it but the instructions and issue itself is [sic] reserved until the defense, or something we are sure we are going to do instruct [sic] the jury from the outset.

[Defense counsel]: Your Honor, I need a moment, just a moment. Your honor, in my interest, I have advised my client that at this point I have no expert testimony to assist him in this defense of insanity. That the state has expert testimony to assist the state in its rebuttal of any defense of insanity. I have also advised my client that it is possible to lay testimony to establish some defense of insanity, however, that may not be sufficient given the nature of the expert testimony.

The Court: Do I need to address the issue in the preliminary instructions or just wait to see how the trial testimony develops . . . ?

[Defense counsel]: From my conversation of my client, I think it should be addressed. Is that correct, [defendant]?

Defendant: Yes.

The Court: Well in voir dire?

[Defense counsel]: Yes.

The Court: Well what I intend to address with respect to the issue of insanity or diminished capacity simply tell [sic] the jury during the course of this trial and during the course of any trial certain defenses might be raised or may be raised. The defense of insanity or diminished capacity might be raised. For example, do any of you believe any time someone says that they are, they were suffering from insanity or some mental defect or illness that it is just an excuse and can’t be true. Or do you understand that it can be a complete defense. Something to that effect is what I would give unless either of you have phrased it more artfully.

[Prosecutor]: Sounds like a good presentation, your Honor.

[Defense counsel]: Sounds good.

5 The exact details of the defense were never clearly outlined. Defense counsel stated:

I think I should make appoint [sic] now before we go on the record that as I understand it, that my client we just talked about his sanity. In my opening statement he wishes me to discuss his sanity and not being insane to some extent. I don’t know how I plan on working that in in great specificity, he wishes me to raise this issue. I don’t have an expert to testify to support my client. He would be putting insanity in if he takes the stand comment [sic] on his sanity which he may or may not do. He would be putting his sanity into issue that’s why I would be raising the point ....

6 Defendant also admitted fabricating a story to tell his uncle soon after the shooting, fearing retribution for taking crack without paying for it, and initially lying to police the next morning until "the voice told [him] to . . . tell them what happened . . . .”

7 The court gave an instruction in substantial compliance with CJI2d 6.2.

8 MCL 330.1400a; MSA 14.800(400a) defines mental illness as "a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”

9 MCL 330.1500(h); MSA 14.800(500)(h) defines mentally retarded as "significantly subaverage general intellectual functioning that originates during the developmental period and is associated with impairment in adaptive behavior.”

10 MCL 768.21a(1); MSA 28.1044(1)(1) provides:

A person is legally insane if, as a result of mental illness as defined in [MCL 330.1400a; MSA 14.800(400a)] or as a result of mental retardation as defined in [MCL 330.1500(h); MSA 14.800(500)(h)] that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

11 MCL 768.21a(2); MSA 28.1044(1)(2) provides that "[a] person who is under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his alleged offense shall not thereby be deemed to have been legally insane.”

Section 21a(2) has been interpreted to allow proof of insanity caused by long-term effects of drug or alcohol abuse, but the defense must focus on a mental condition caused by such abuse and not on incapacity from voluntary ingestion of drugs or alcohol immediately preceding an offense. See, e.g., People v Chapman, 165 Mich App 215; 418 NW2d 658 (1987); People v Conrad, 148 Mich App 433; 385 NW2d 277 (1986). But see People v Savoie, 419 Mich 118, 129-130 and n 4; 349 NW2d 139 (1984) (mere assertions that a substance abuse problem indicated legally cognizable insanity were insufficient to rebut the presumption of sanity).

12 MCL 768.36(1); MSA 28.1059(1) provides:

If the defendant asserts a defense of insanity . . ., the defendant may be found "guilty but mentally ill” if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:

(a) That the defendant is guilty of an offense.

(b) That the defendant was mentally ill at the time of the commission of that offense.

(c) That the defendant was not legally insane at the time of the commission of that offense.

13 See CJI2d 3.9, 6.2, 7.6, 7.10, 7.11, and 7.12.

14 This holding was not pursued on appeal in this Court. Therefore, we express no opinion on this issue.

15 443 Mich 882 (1993).

16 The definition of mental retardation, to which the statute refers as subsection (g), is now found in subsection (h). The statute was amended to add a new subsection by 1986 PA 264, which altered the numbering format.

17 See, e.g., People v Johnson, 128 Mich App 618, 622; 341 NW2d 160 (1983) (failure to properly define consent in a case involving criminal sexual conduct); People v Peery, 119 Mich App 207, 214; 326 NW2d 451 (1982) (an erroneous intent instruction in an armed robbery case); People v Crawford, 89 Mich App 30, 37; 279 NW2d 560 (1979) (erroneous instructions on insanity and involuntary intoxication). See also People v Mosko, 441 Mich 496; 495 NW2d 534 (1992) (failure to instruct the jury on a lesser included offense despite a request by the defendant). We are unaware of any precedent that considers a preliminary instruction on insanity any more important than a similar instruction to be given just before a jury retires for deliberation.

But cf. Girard, supra (an erroneous preliminary instruction on insanity and an erroneous insanity instruction after the close of proofs caused sufficient confusion so as to preclude consideration of the combination of errors as harmless).

18 The Court’s general authority is set forth in article 6 of the 1963 Constitution. Pursuant to this authority, this Court has created certain limitations to appellate review as provided in MCR 2.613(A) and MRE 103. See Const 1963, art 6, § 4. MCL 769.26; MSA 28.1096 represents the Legislature’s proclamation against reversal of trial court verdicts for minor errors. We are not called upon to determine whether this statute is a legislative usurpation of judicial discretion because the Court has developed its own standards in the court rule and the evidentiary rule that are notably similar to the statute.

19 Technically, this court rule governs a trial court’s own review of its orders or judgments for correction of error. There is no similar court rule in chapter six of the court rules, which concerns criminal procedure generally, nor is one found in chapter seven on appellate rules. However, MCR 2.613(A) is generally accepted as the appellate standard. 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 571. See, e.g., Henson v Veterans Cab Co of Flint, 384 Mich 486, 494; 185 NW2d 383 (1971).

20 The Michigan rule is borrowed word for word from FRE 103.

The federal courts also have at least two other harmless error rules. FR Crim P 52 provides:

(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

In addition, 28 USC 2111 provides that "[o]n the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” (Emphasis added.)

21 In Henry, the United States Supreme Court upheld a Mississippi court rule requiring contemporaneous objection to the admission of evidence, alleged to have been illegally seized in violation of the Fourth Amendment, in order to prevent forfeiture of the argument for purposes of appeal. Such rules of trial procedure that could affect federal constitutional rights, of course, must serve a legitimate state interest in order to withstand a challenge to their validity. Id. at 447.

22 The facts in Olano involve permitting alternate jurors who were properly dismissed at the close of proofs to remain with the jury during deliberations in contravention of FR Crim P 24(c). The basis of the error in Olano was therefore statutory rather than constitutional in nature.

23 See also United States v Caputo, 978 F2d 972, 974 (CA 7, 1992). We also acknowledge the possible existence of a subcategory in this context, to wit: unpreserved error that is not plain. Under these facts, the failure to give the preliminary jury instruction despite the mandate of MCL 768.29a(1); MSA 28.1052(1)(1) clearly constitutes plain error. Accordingly, we leave for the appropriate case a discussion of this issue.

24 In Olano, the majority recognized the possibility of a special category of forfeited errors that could be corrected regardless of prejudicial effect, i.e., their effect on the outcome. Olano, supra, 123 L Ed 2d 520. However, the Olano majority did not fully address the issue.

We are convinced that the types of cases that require automatic reversal, or in which prejudice would be presumed, are not implicated under these facts, and leave for another time their consideration.

25 See also People v Johnson, 427 Mich 98, 115, n 14; 398 NW2d 219 (1986) (opinion of Boyle, J.).

26 We find it interesting that the Olano Court utilized FR Crim P 52(a) and (b) rather than 28 USC 2111. Theoretically, 28 USC 2111 would also be applicable to the case because it is found in chapter 133 of the code, which contains rules that specifically apply to review cases. However, 28 USC 2111 does not contain the same clear dichotomy between preserved and plain errors as is found in the criminal procedural rules. Rather, it forbids appellate reversal "without regard to errors or defects which do not affect the substantial rights of the parties.” Clearly, the procedural rule provides a stronger semantic basis for the decision reached by the majority.

27 For a history of the harmless error doctrine, see, generally, 3 LaFave & Israel, Criminal Procedure, § 26.6.

28 Pound, The canons of procedural reform, 12 ABA J 541, 543 (1926).

29 See also Yakus v United States, 321 US 414, 444; 64 S Ct 660; 88 L Ed 834 (1944) ("No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it”).

30 Except, of course, in the class of cases in which prejudice is presumed. See n 24.

31 The requirement of timely objection to trial errors in order to preserve an issue for appellate review is well established in Michigan jurisprudence. For example, in Moskalik, supra at 592, the majority stated:

The requirement of a timely objection is not an arbitrary one. Its purpose is to avoid improper instruction and, if perchance an improper instruction which can be corrected has been given, to facilitate its correction before verdict, thereby avoiding costly new trials.