People v. Szczytko

212 N.W.2d 211, 390 Mich. 278, 1973 Mich. LEXIS 143

• Court: Michigan Supreme Court
• Decided: November 20, 1973
• Docket: 10 April Term 1973, Docket No. 54,132
• Status: Published

Opinions

T. E. Brennan, J.

We are here called upon to consider the question of comment by the prosecuting attorney upon the effect of a verdict of not guilty by reason of insanity.

The Facts

The Court of Appeals told the story of this crime in great detail. People v Szczytko, 40 Mich App 161; 198 NW2d 740 (1972). For this opinion, it is sufficient to note that defendant was informed against upon two counts; assault with intent to commit rape and felonious assault with intent to do great bodily harm less than murder, and was found guilty as charged by a jury verdict. He was sentenced to a prison term of 7-1/2 to 10 years.

The defense of insanity was interposed at trial. During the people’s summation to the jury, the following occurred:

"Counsel brings up, if you come back by reason of— not guilty by reason of insanity that the defendant will go to a mental institution appropriate considered and according to the laws of the State of Michigan. That’s right. But, all he has to do is, through some legal paper work ask to be released—(Emphasis added.)

"Mr. Pawlowski [defense attorney]: Well, now, wait a minute. Objection.

"Mr. Zerial [assistant prosecutor]: He brought it up on his argument, your Honor.

"The Court: You may proceed.

"Mr. Zerial: So all he has to do is say I am well now. I am well.

"Mr. Pawlowski: Mr. Zerial, you know this isn’t true. Now why are you saying this?

"Mr. Zerial: A writ of habeas corpus and—

"The Court: Just a moment. I think I will restrict you on this. I think that the matter of what the procedures are in the hospital is far beyond the province of this jury. I will restrict you on that.

"Mr. Zerial: I think when opposing counsel brings up an argument that I am allowed to rebut it and I say that—

"The Court: You may proceed. I will restrict you on that.”

In its instructions to the jury, the court stated:

"Now as I have indicated to you, you are not to base your verdict upon any speculation or guessing or surmising but base it upon the evidence as you have heard it and the exhibits as they have been received here in evidence. If you find the defendant guilty the ultimate punishment is not in your hands or disposition of the case, but that is in the sole discretion of the Court. If you find him not guilty by reason of insanity, then it would be the duty of the Court to commit him to the hospital authorities who would take over at that particular time.”

The Issues

We granted leave to appeal in this case to review the apparent conflict between the decision of the Court of Appeals in the present matter and the holdings of two other panels of that Court in similar cases. People v Lewis, 37 Mich App 548; 195 NW2d 30 (1972); and People v Secorski, 37 Mich App 486; 195 NW2d 8 (1972).

At issue is the propriety of prosecution comment to the jury upon the disposition of a defendant found not guilty by reason of insanity.

Discussion

In People v Cole, 382 Mich 695, 719-720; 172 NW2d 354 (1969), a majority of this Court adopted the rule in Lyles v United States, 103 US App DC 22; 254 F2d 725 (1957), requiring the court to instruct the jury that a defendant found not guilty by reason of insanity is not thereby released and discharged, but is committed to a mental hospital.

In Cole, this Court made a choice between two competing considerations (p 720):

"(1) the possible miscarriage of justice by imprisoning a defendant who should be hospitalized, due to refusal to so advise the jury; and (2) the possible 'invitation to the jury’ to forget their oath to render a true verdict áccording to the evidence by advising them of the consequence of a verdict of not guilty by reason of insanity.”

Not considered in Cole was another possibility; that of a miscarriage of justice in hospitalizing a defendant who should be imprisoned due to advice to the jury which:

a) suggests that the disposition of a defendant found not guilty by reason of insanity is more humane and rehabilitative than the range of dispositions possible under a verdict of guilty, or

b) suggests that the disposition of a defendant found not guilty by reason of insanity is more protective of society than the range of dispositions available under a verdict of guilty.

The general rule, of course, has always been that neither the court nor counsel should address themselves to the question of the disposition of a convicted defendant. Indeed, it is proper for the court to instruct the jury that they are not to speculate upon such matters; that they are to confine their deliberations to the issue of guilt or innocence.

The Lyles-Cole rule is an exception to that general proposition. It proceeds from the following rationale, quoted in People v Cole from Lyles v United States (pp 719-720):

" '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, DC 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.’ ”

There are a number of problems with this line of reasoning. First, common knowledge that a verdict of guilty subjects the defendant to "such punishment as the court may impose” is a far cry from knowing the maximum penalty for the crime charged, whether probation can be imposed and upon what condition, whether parole can be granted and after how long, or who makes the judgment to put the defendant at his liberty and upon what considerations.

There is simply no comparison between a vague understanding that a guilty defendant will be subject to some kind of punishment and the specific understanding that an insanity-acquitted defendant "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”.

Thus the Lyles argument that the jury "has a right to know the meaning of [the insanity verdict] as accurately as it knows by common knowledge the meaning of the other two possible verdicts” does not support the jury instruction which Lyles approves.

The Lyles charge gives the jury a very definite understanding of the effect of an insanity acquittal. It presents a picture of certain, humane and safe disposition of the accused. By comparison, the common understanding of the jury with respect to the effect of a conviction is likely to be very confused. Published reports of recidivism, prison atrocities, and community skepticism of judicial leniency combine to suggest that the traditional rule against jury speculation upon the disposition of a defendant was well conceived.

But the specificity of the Lyles charge is not its only shortcoming.

Of more immediate concern to the case at hand is the fact that the Lyles charge invites argumentation by counsel.

As a general proposition, lawyers base their arguments on the court’s instructions. While they are not permitted to instruct the jury on points of law, or urge arguments of legal propositions to the jury, it is nevertheless commonplace and permissible for a lawyer to say to the jury, "Now the court will instruct you in such and such a fashion” and proceed to build his summation upon the legal framework of the court’s charge.

The function of the court’s instruction to the jury is to acquaint them with the pertinent, relevant points of law which they need to know in order to enter upon their deliberations and discharge their responsibilities. It would be a novel rule indeed if the court is obligated to instruct the jury upon a certain point of law, and then promptly inform them that such point of law is immaterial to their consideration and should be ignored.

In Cole, a majority of this Court opened the door to jury consideration of the post-verdict disposition of an insanity-acquitted defendant. Having done so, we must recognize that zeálous defense counsel will argue to the jury from that charge, emphasizing their client’s claimed insanity and pleading for humane care and treatment, wliile pointing out that the security of the community is protected.

Argument used in People v Lewis is typical:

" 'It is my opinion that really he has done nothing to show that Mr. Lewis was sane, everything that we have seen has been the act of one who is ill as he indicated in the event that you find Mr. Lewis not guilty by reason of insanity, he is going to Ionia State Hospital for the criminally insane at Ionia. I am sure I don’t really have to describe the place, but for an indefinite period and as Mr. Shea says, is it three years, is it four years, is it one year, is it 20 years, is it 30 years. These psychiatrists have no doubt that Mr. Lewis is suffering from a mental illness so what we are asking here is not that you turn him loose, but that you put him in a position where something can be done so that a thing like this will never happen again. We can’t guarantee that he will not be out in two, or three years, we can’t guarantee to him that he won’t be there the rest of his life, but we are asking that the right thing be done.

" 'Now Mr. Shea has suggested that this is all a long involved plot on the part of Mr. Lewis; that he was going to fool everybody * * * . Do you really think that any of you would be smart enough to do that. I don’t think I could do it, and ultimately why would he have done it. If he was that smart and can do it, does he do it just so he can go to Ionia for the rest of his life. It seems to me that the whole proposition is absolutely ridiculous. I can’t buy it myself and I don’t think anybody can.’ ”

Where does this leave the prosecutor?

The issue of post-verdict disposition has been injected by the court. The defense has used it to maximum advantage. What can he say in rebuttal?

He is not permitted to tell the jury the maximum prison term for the offense. He is not permitted to tell the jury that a presentence report will be developed, or that the court may order psychiatric evaluation. In short, he is prevented—and properly so—from arguing the advantages of a guilty verdict over an insanity acquittal.

This leaves two courses open. The prosecutor can ignore the insanity-acquittal disposition argument, or he can attempt to attack it directly.

He will ignore the argument at no small peril, for the jury having been told that insanity-acquittal means hospital confinement—perhaps even long-term confinement—the inference is substantial that the insanity plea is sincerely interposed. Here is a defendant who asks for help. He appreciates his dilemma. He chooses confinement, and does not wish to be at large until disinterested authority concludes that his liberty can be safely restored.

But how is the prosecutor to attack the argument head-on? The only logical tack is that found to be prejudicial in Lewis and Secorski; to tell the jury what advantage a defendant might have to gain by pleading insanity. He can impugn the sincerity of the plea only if the jury can be told the whole story.

The whole story, of course, is not permitted to be told under the Lyles and Cole cases. It looks something like this:

GUILTY NOT GUILTY BY REASON OF INSANITY

Permanent record of conviction_No conviction_

Possible prison sentence for No minimum period of minimum term of years_confinement_

Ineligible for parole consideration Eligible for immediate release until minimum term is served_on convalescent status_

Release decision made by parole Release decision made by board medical superintendent on recommendation of Center _for Forensic Psychiatry_

Ineligible for final discharge until Eligible for final discharge maximum term is served_immediately_

No right to apply to a court for Immediate right to apply to termination of confinement based probate court for release upon claimed rehabilitation_based upon claimed recovery

Conclusive presumption of guilt Rebuttable presumption of _insanity_

All of these might be the kind of "practical” considerations which a jury might like to take into consideration.

Indeed, all of the myriad side roads opened by the Cole decision should now be closed to further travel.

People v Cole should be overruled, the Lyles charge disapproved, and the courts and juries of Michigan returned to the salutary rule of People v Williams, 218 Mich 436; 188 NW 403 (1922).

In any event, the instant appeal should be affirmed. The trial judge ruled the prosecutor’s challenged argument to be improper, and restricted further development of it. Under the circumstances, it was not so prejudicial as to require reversal.

Affirmed.

M. S. Coleman, J.

Leave to appeal was granted in this case to determine what restrictions are placed upon the arguments of counsel in the trial court by People v Cole, 382 Mich 695; 172 NW2d 354 (1969).

My disagreement is not with the rule set down in the Cole opinion. However, I cannot agree that the result there reached requires reversal of defendant’s conviction in the instant case.

Defendant’s major argument is that the prosecutor’s comments constituted reversible error. In this particular case, the post conviction disposition was introduced by defendant’s attorney, not by the prosecutor who only commenced to reply. (It is noted that a writ of habeas corpus might well have resulted in just such a release.) He was prevented from proceeding by the judge. No mistrial was requested by the defendant. A proper instruction to the jury was given by the judge.

The dissent proceeds by a two stage analysis. The first acknowledges that Cole does not specifically prohibit counsel from indicating the possible results of a verdict of not guilty by reason of insanity. Such a prohibition is drawn from "the implicit rationale of Cole”. The second stage then proceeds to label as reversible error any violation of this prohibition. Such label is applied in this case despite the presence of sustained objections and subsequent proper instructions by the trial judge.

I cannot agree that Cole mandates such clairvoyance on the part of a judge as to require the restriction by the judge before an utterance is made, nor does it mandate that all possible "false starts” are grounds for reversible error despite anything the judge may do to inform the jury of the correct law, as in this case.

The dissenting opinion cites in support of its position the case of People v Secorski, 37 Mich App 486; 195 NW2d 8 (1972). The finding of the Court of Appeals was that the judge erred in failing to give an instruction to the jury such as was actually given in this matter. People v Lewis, 37 Mich App 548; 195 NW2d 30 (1972) was decided on the same day as the Secorski case (January 17, 1972) by the Court of Appeals. The facts of that case were flagrant and post conviction disposition arguments by both counsel went unchecked. The facts are not at all comparable. The Secorski case is supportive of this opinion while the Lewis case is inapposite to the facts before this Court.

There is a growing tendency to find the same jury charged with the handling of extensive factual testimony and complicated instructions on the law too feebleminded or too easily swayed to handle even simple problems such as the one presented here. This defendant was not denied any constitutional right, nor was the error of either prosecution or defense so offensive as never to be considered harmless.¹ In my opinion, errors were rendered harmless beyond a reasonable doubt by a conscientious trial judge.

It is well periodically to review the pertinent statute:

"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.” MCLA 769.26; MSA 28.1096.

It is my belief that neither legislative intent nor the ends of justice require a flawless trial. I find no miscarriage of justice in the instant case.

I would affirm.

1 People v Robinson, 386 Mich 551; 194 NW2d 709 (1972).