People v. Grant

People v Grant PEOPLE v GRANT 14). (Calendar Argued January Docket No. 96686. No. De 12, 1994. July cided by jury Andre L. Grant convicted was a in the Detroit Recorder’s Court, Curtis, J., Daphne first-degree posses- M. murder and during felony. sion of a firearm a commission of The Court Cavanagh Appeals, Jansen, P.J., and P. Schaefer, and D. unpublished per opinion JJ., reversed in an curiam and re- manded for a trial new because of the trial court’s failure to give preliminary jury insanity a instruction on the issue of 138577). (Docket people appeal. No. The opinion joined by In an Justice Riley, Brickley, Justices Supreme Boyle, Griffin, Mallett, Court held: preliminary A trial court’s failure to instruction on insanity made, testimony offer of before an as 28.1052(1)(1), required 768.29a(l); by MCL MSA does not re- quire automatic reversal. 768.29a(l); 28.1052(1)(1), 1. Under MCL MSA if a defendant asserts a defense of a criminal action tried before a jury, the court must instruct on the definitions of illness, retardation, legal insanity mental mental immedi- ately testimony, especially expert before the commencement of testimony. given must in all cases and not simply when a trial court believes that it would be useful. The give preliminary failure in this case instruction on insan- ity regardless request was error failure defendant’s it. However, require does not failure automatic reversal. Auto- reversal, presuming miscarriage justice, matic would 769.26; 28.1096, provides conflict with MCL which judgments or verdicts are not to be absent a reversed miscar- Further, riage justice. proper subject final instructions are analysis, and harmless-error there is indication that no requires error involved in this case different treatment. law, plain Michigan unpreserved 2. Under not be appeal considered for the first time on unless error could have been decisive the outcome it falls or unless under the category prejudice presumed which of cases in or reversal is case, automatic. In this the error was not involved decisive of Thus, the outcome. the defendant establish the failed to form of 445 Mich 535 preserve prejudice necessary an issue that was not raised court, making unnecessary to address the standard the trial of reversal. concurring, Cavanagh, joined by Chief Justice Levin, Justice Michigan appellate law an court should not stated that under prejudicial unless it is determined that reverse a conviction Michigan incorporate into error occurred. There is no need to Olano, —; jurisprudence holding v 507 US the of United States (1993), govern- the 113 S Ct 123 L Ed 2d 508 that while showing preserved that error was not ment has the burden showing prejudicial, the defendant has the burden of plain unpreserved or error claimed to have been was forfeited plain prejudicial. adequately resolved both and This case can be error, may not have been on the basis that even if was there obvious, on the clear or and that whether the burden is pre- prosecution, have been because the error is deemed to served, defendant, preserved, or on the because it was not at was harmless. instructional omission issue concerning adoption meaning expressed of the in Olano plain ignores significant rule difference the federal judicial power judicial power the federal and the between Michigan Supreme Congress, to the Court. While confided constitution, provides consistent with the federal federal courts appeal through the federal error rule with a limited raised, timely power to correct errors forfeited because not Supreme Michigan judicial power Constitution confides to the Court, define, power Legislature beyond and it is limit, power power. or control the exercise of that Because Michigan Supreme plenary, recognize Court is it should Michigan Appeals measure of discretion in the Court a wide supervision litigation. in the Reversed. Mikulin, (1978),

People App 270 NW2d 500 overruled. Kelley, Attorney General, L. J. Thomas

Frank Casey, ecuting General, O’Hair, D. Solicitor John Pros- Baughman,

Attorney, Timothy A. Training, Appeals, Chief, Research, for the people. Appellate (by Kristina Larson State Defender

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

I charged Defendant was and thereafter convicted first-degree possession of during murder1 and of a firearm felony2 following jury

the commission of a trial. The trial court sentenced defendant to man- datory parole life without for the murder convic- two-year felony-firearm tion and to a term for the conviction. gave trial,

Before defendant notice of his intent legal insanity to assert the defenses of and dimin- capacity. By ished court, order of the defendant’s competence rights to waive his Miranda3 was as- by psychologist. sessed Later, clinical defendant appointment moved the court for the of an inde- pendent psychiatrist to determine his criminal responsibility possibility and the of diminished capacity killing. at the time of the Defendant longstanding asserted a combination of mental problems, allegedly hearing which included the drug do, voices that told him what to killing alcohol abuse on the date of constituted (1966). 1 Miranda v MCL MCL 750.227b; 750.316; Arizona, MSA 28.548. 28.424(2). 384 US 86 S Ct 16 L Ed 2d 694 445 Mich op the Court capac-

legal insanity or, least, at the a diminished negated ity murder. that the intent element of Immediately preceding jury on the voir dire first day trial, to to the court denied defendant’s motion suppress understand his Miranda capacity his confession for lack rights. pros Next, ecutor a notice of the court that defendant had filed reminded Accordingly, defense.4 Honor, guess I Your there is another issue that [Prosecutor]: clarify. I diminished clinic, to if we can notice of want see The defense has filed a capacity insanity. He has evaluated been expert testify I understand there is no witness that can at Mr. if his for client would take the stand somehow raise defense this time. Kincaid wasn’t sure it, therefore, I have up. if it come The law is filed notice of rebuttal should once joint [sic], jury the issue is until the kinds of instructions defense has been informed. I understand rest, that is not an issue. We can reserve those dire, although there is some voir the but the request problem I area but have no with defense, instructions and issue itself is or reserved until the [sic] something going we are sure we are to do instruct [sic] jury from the outset. Honor, moment, just I Your need a [Defense counsel]: interest, honor, my my Your I moment. that at this have advised client point expert testimony I have no to assist him in insanity. expert testimony this defense of That the state has any insanity. I assist the state also advised its rebuttal of defense of have my possible lay testimony client that it is however, insanity, may establish some defense of not be given expert testimony. sufficient the nature of the preliminary The Court: Do I need to the issue in the address just testimony instructions or wait to see how the trial develops . . . ? client, my my From conversation of I think [Defense counsel]: correct, it should be addressed. Is that [defendant]? Defendant: Yes. The Court: Well voir dire? Yes. [Defense counsel]: respect The Court: Well what I intend to with address the the capacity simply issue of or diminished tell [sic] during during any the course of this trial and the course of might trial certain defenses be raised or be raised. The insanity capacity might defense of example, or diminished be raised. For any you any says do time believe someone that are, they defect or illness that it is do thing they suffering were from or some mental just an excuse and can’t be true. Or you complete understand that it can be a defense. Some- you to that effect is I would unless either of what phrased artfully. it more have People v Grant Opinion of the Court incorporated possibility court this in its voir dire jury. prosecution After the rested its case verdict, the court denied a motion for directed defense counsel testify regarding indicated defendant’s intent to legal insanity the defenses of or capacity. long- diminished term periods, Defendant testified to drug hearing during abuse, to voices stressful having ingested drugs

and to and alcohol shooting.6 on the date of the prosecutor testimony rebuttal, In offered the psychologist of the clinical who had conducted the independent examination of defendant’s criminal responsibility capacity. or diminished After the proofs, close of the court instructed the re- garding specific intoxication as a to defense crime,7 illness,8 retardation,9 intent mental mental good presentation, your Sounds [Prosecutor]: like Honor. good. [Defense Sounds counsel]: 5The clearly exact details of defense never were outlined. Defense counsel stated: appoint I go think I should make before we now on [sic] it, my just record that as I understand client we talked sanity. my opening about his In he statement wishes me to sanity being discuss his know and not insane some don’t to extent. I plan working great I specificity, how in in he expert testify

wishes me to raise to I this issue. don’t an have to support my putting client. He would be in if he sanity takes may stand comment on his which or [sic] he putting sanity He not do. would be his into that’s issue why raising point I would .... story fabricating Defendant also admitted tell his uncle soon shooting, taking fearing paying after the for retribution for crack without it, initially lying morning police the next until "the voice happened told . . to . tell them . .” what . . [him] gave compliance The court an substantial with CJI2d 6.2. 14.800(400a) 330.1400a; 8 MCL MSA defines mental as "a illness impairs thought significantly substantial disorder of or mood which judgment, behavior, recognize reality, cope capacity ability ordinary with life.” demands of 14.800(500)(h) 330.1500(h); mentally MCL defines retarded as 445 Mich 535

540 the Court legal insanity,10 and men- mixture of intoxication defense,11 and the as a tal illness or retardation guilty mentally instructions ill verdict.12 The but applicable compliance with the were substantial Michigan Jury A unani- Instructions.13 Criminal first-degree jury mur- defendant of mous convicted during possession illegal of a firearm der and of felony._ functioning origi- "significantly subaverage general that intellectual developmental period impair- during and is associated with nates adaptive

ment behavior.” 10 28.1044(1)(1) 768.21a(1); provides: MCL MSA if, person legally A as result of mental illness as insane 330.1400a; 14.800(400a)] MSA or as a result of defined in [MCL 330.1500(h); MSA mental retardation as defined [MCL 14.800(500)(h)] person capacity lacks substantial either appreciate wrongfulness his of his conduct or to conform requirements conduct to the of law. thereby 418 NW2d 277 must focus on a mental condition caused incapacity from preceding indicated presumption is under the influence of controlled substances at 349 NW2d 139 caused Section MCL MCL (1986). by long-term be deemed to have been 768.36(1); legally an offense. 21a(2) But see (1984) (mere (1987); People sanity). voluntary ingestion has been cognizable insanity effects of MSA See, 28.1059(1) voluntarily e.g., People Chapman, the time of his 28.1044(1)(2) assertions that a substance abuse interpreted Savoie, v drug Conrad, legally provides: or alcohol consumed or v were insufficient insane.” provides that 148 Mich drugs to allow alleged such abuse or alcohol abuse, App 433; 165 Mich injected alcohol or proof offense 129-130 and n but "[a] to rebut immediately the defense person and not on 385 NW2d shall not App problem who ., insanity . . If the defendant asserts a defense of if, trial, "guilty mentally defendant be found but ill” after following beyond fact finds all of the a reasonable the trier of doubt: (a) guilty That the defendant of an offense. (b) mentally ill at the time of the That the defendant was commission of that offense. (c) legally That the defendant was not insane at the time of of that offense. the commission 3.9, 6.2, 7.6, 7.10, 7.11, See CJI2d and 7.12. People v Grant Opinion of the Court appealed Defendant his conviction on two First, grounds. he to asserted failure a preliminary was Second, error requiring reversal. he alleged in the trial court’s denial of his motion di- concerning rected verdict whether he could be guilty first-degree of murder where his own confes- sions, only point, direct evidence offered on the could not establish an intent to rob the decedent shooting. before the on

Relying the mandatory language of MCL 768.29a(1); 28.1052(1)(1) MSA and on Mikulin, 84 (1978), Mich App 270 NW2d 500 of Appeals reversed defendant’s convic Court tion because the trial court’s failure to preliminary jury instruction on the issue of insan ity. Appeals The Court of also held that defen dant’s second issue did not require "independently curiam, reversal.”14 Unpublished opinion per de (Docket 138577). cided 1993 May No.

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

n A 28.1052(1)(1) 768.29a(1); MCL MSA provides: If the defendant insanity asserts a defense of in a criminal action which is tried a jury, before shall, judge testimony presented before on that issue, instruct jury on the as law contained 330.1400a; 14.800(400a)] MSA [MCL [MCL 14 holding pursued appeal Therefore, This was not on this Court. opinion express we no on this issue. 15 (1993). 443 882 Mich Mich 535 Court 14.800(500)(g)[16]

330.1500(g); 768.21a; [MCL and in MSA 28.1044(1)] chapter this act. 8 of MSA [Emphasisadded.] language statutory Clearly, our directs this mental the definitions of on courts instruct legal insanity retardation, im- illness, mediately mental testimony the commencement before Achtenberg v East trial. See in a Lansing, 765, 770; 364 NW2d 421 Mich ("When language clear, courts a statute is written”). apply Furthermore, use of the must as "may” indicates manda- rather than term "shall” tory discretionary Browder v action. rather Fidelity than 7;n Co, 413 Mich 612 and Int’l Ins (1982); Secretary of Matheson v 321 NW2d (1988). App 216, State, 219; 428 NW2d purpose gainsaid that behind It cannot be 28.1052(1)(1) is other than MCL establish the framework defense of an begins, testimony jury minds of the the light testimony, especially before highly esoteric nature of technical and expert testimony, that often insanity. clear The statute’s obtains in matters of language purpose that the the to ensure evidences given preliminary in all cases and instruction simply trial court believes that not when a Achtenberg, Browder and useful. See would be mandatory supra. Matheson, Indeed, nature of language already preliminary has instruction recognized. People Cramer, 201 Mich v been See (1993); People App 590, 447 v 593; 507 NW2d App 594, 596; 293 639 Girard, 96 Mich NW2d (1980); supra Mikulin, at 708. Appeals agree

Accordingly, the Court of we with 16 retardation, which the statute refers of mental The definition (h). (g), The statute was is now found in subsection as subsection amended to add a new subsection 264, altered the 1986 PA which numbering format. People Opinion op the Court 543 v Grant give preliminary that the failure instruction regardless insanity on was error of defendant’s request prosecutor fact, failure to not it. In does argue this did not constitute form some required However, error. whether this error auto- matic reversal defendant’s as conviction Appeals question. Court of held is another prelimi We conclude that the failure to a nary require instruction does not auto First, matic reversal for several reasons. reversal would come into direct conflict with MCL automatic judgments 769.26; 28.1096, MSA which orders that or verdicts shall not be reversed a absent miscar riage justice. presume reversal Automatic would miscarriage justice, presumption and this far from evident in the terms of MCL 28.1052(1)(1). important Second, other con proper jury cerns such as final to the instructions subject analysis are the of harmless-error and are susceptible therefore not Absent a clear to automatic reversal.17

legislative directive, we cannot preliminary jury consider the instruction involved generalized requirement here to avoid the more judgment that no or verdict reversed ab miscarriage justice. Third, sent rules of auto People matic Mosko, reversal are disfavored. v 441 17See, e.g., Johnson, properly 618, 622; People App v 128 Mich 341 NW2d (1983) (failure involving 160 define consent in a case conduct); People Peery, 214; App criminal sexual v (an (1982) NW2d 451 robbery case); erroneous intent an armed Crawford, App v Mich 279 NW2d 560 (1979) (erroneous involuntary instructions on intoxica tion). People Mosko, See Mich also NW2d (failure despite instruct on a lesser included offense defendant). request by precedent any We are unaware of preliminary insanity any important considers a instruction on more just given than a similar deliberation. instruction be before a retires for (an Girard, supra preliminary But cf. erroneous instruction on and an erroneous the close of after proofs preclude caused sufficient confusion as to so consideration of harmless). the combination errors as of 445 Mich 535 Court (1992). 496, 502-503; Finally, 495 NW2d Mich not resemble at in this case does the error issue subject historically that have been cases Thus, we system. reversal in the federal automatic federal basis for any to discern state or are unable 768.29a(1); MSA surrounding MCL treating errors 28.1052(1)(1) myriad than the differently any For analysis. to harmless error subject trial errors Mikulin decision. reasons, we overrule the these B errors are de- correcting trial Guidelines 28.1096, 769.26; MSA places: in three MCL scribed 103(a) (d).18 2.613, specific and MRE MCR source, appear differ in each and courts terms It is therefore interchangeably. have used them any there are important to determine whether differences in the terms as used. substantive 769.26; 28.1096 provides: MCL or shall be set aside or judgment No verdict granted by any new trial court of reversed or a case, ground of any criminal on the this state improper admis- jury, misdirection of the or evidence, any rejection of or for error as sion or in the pleading procedure, unless matter of court, opinion of the after an examination cause, affirmatively appear that entire it shall miscarriage complained of has resulted [Emphasis justice. added.]_ general authority in article 6 of the 1963 The Court’s is set forth authority, this Court has created Pursuant to this Constitution. 2.613(A) appellate provided in MCR limitations review as certain 769.26; 4. MSA 28.1096 103. See Const art MCL § and MRE against Legislature’s proclamation trial represents reversal of upon to determine minor errors. We are not called court verdicts for legislative usurpation judicial discretion whether this statute is developed rule own standards in the court the Court has its because notably evidentiary to the statute. rule that are similar v Grant op Opinion the Court 2.613(A) Similarly, MCR provides: An error in the admission or the exclusion of evidence, order, an ruling a or or an error or in anything defect done or omitted by the court by parties ground or trial, is not granting for a new setting verdict,

for a aside or vacating, modifying, or disturbing otherwise judgment or order, unless refusal appears take this action the court inconsistent with justice. substantial [Emphasis added.][19] MRE Finally which applies only eviden- matters, tiary states:

(a) Effect of ruling. erroneous Error not be predicated upon ruling which admits or excludes evidence right unless a substantial party affected, and (1) Objection. In ruling case the admitting is one evidence, timely objection or motion to strike record, appears stating specific ground objection, specific ground if the apparent was not or, context; from the proof. Offer of In ruling case the is one excluding evidence, the substance of the evidence was made known to the court offer or was apparent from the context within questions which were asked.

(d) Nothing Plain error. precludes this rule taking notice of affecting errors substantial 19Technically, governs this court rule a trial court’s own review of judgments its orders for correction of error. There is no similar chapter rules, court rule in six of the court which concerns criminal procedure generally, chapter nor appellate appellate is one found in seven on However, 2.613(A) generally accepted rules. MCR as the Martin, Webster, Michigan standard. 3 Dean & Court Rules Practice (3d ed), p See, e.g., Flint, 571. Henson v Veterans Cab Co of (1971). 494; 185 NW2d 383 445 Mich op the Court brought although not to the

rights they were [Emphasis attention of trial court. added.][20] Clearly, only specifically MRE 103 addresses concept preservation. However, the courts of issue importance long recognized the of this state have appellate preserving purpose of of review. As a issues for the general rule, that are not issues properly raised before a trial court cannot be appeal compelling extraordi- raised on nary absent e.g., Napier Jacobs, See, 429 circumstances. v (1987) (failure 222, 235; Mich 414 862 to NW2d evidence); insufficiency of of the raise a claim Dunn, 583, 592; 221 Moskalik v 392 Mich NW2d (1974) (failure object 313 to an erroneous instruction); People DerMartzex, 390 Mich v (1973) (failure 416-417; 213 97 of the defen- NW2d request limiting on admissi- dant to evidence); prior-acts People bility Farmer, 380 v (1968) (failure 198, 208; Mich raise the issue of the involuntariness of a confes- 156 NW2d 504 sion). Supreme Indeed, the United States Court recognized right develop proce- has a state’s dural rules that lead to issue forfeiture even procedural implicate constitu- where rules protections legitimate if tional serve a rules 20 Michigan rule for word FRE 103. is borrowed word from at error The federal courts also have least two other harmless provides: FR P rules. Crim 52 (a) error, defect, irregularity Any Harmless Error. or vari- rights ance which does not affect substantial shall be disre-

garded. (b) affecting Plain Error. Plain errors or defects substantial although brought rights may they not to the be noticed were attention of the court. addition, hearing any provides In 28 USC 2111 "[o]n case, appeal any give judgment or writ of certiorari the court shall regard after an examination of the record without to errors or defects rights parties.” (Emphasis which do not affect the substantial added.) 547 v Grant Opinion of the Court Mississippi, Henry 443; state interest. v 379 US 85 (1965).21 S Ct 13 L Ed 2d preservation previously, As alluded to this rule exceptions. example, appellate is not without courts will consider claims of constitutional error For appeal alleged for the first time on when the error e.g., See, could have been decisive of the outcome. People Degraffenreid, App 702, 716; v 19 Mich (1969);People App Merchant, NW2d 317 v 86 Mich (1978); People Catey, 355, 358; 272 NW2d v App (1984); Mich 356 NW2d 241 People Bushard, 384, 439; 508 NW2d J.). (opinion However, Brickley, instant case not does involve constitutional right. Rather, it is concerned with the violation statutory provision requiring a a trial court

preliminary jury immediately instruction to the preceding insanity testimony. submission 28.1052(1)(1). See MCL We now questions unpreserved, turn to the whether nonconstitutional in this case exception nonetheless be considered as an to the preservation rule, so, if whether reversal is required.

c approach The federal courts’ to nonconstitu plain regard especially error, tional in to the subject preservation, highly of issue instructive. pronouncement A recent of the federal standard unpreserved, nonconstitutional found Olano, in —; United States v 507 US S 113 Ct 21 Henry, Supreme upheld Mississippi In the United States Court a requiring contemporaneous objection court rule evidence, alleged to the admission of illegally to have in of been seized violation Amendment, prevent argument Fourth order forfeiture of the purposes appeal. procedure for federal interest rules Such of trial that could affect course, rights, legitimate constitutional must serve a state challenge validity. a their at order withstand Id. 447. 445 Mich 535 Opinion of the Court (1993).22 Olano, 508, In

1770; 123 L 2d 519-520 Ed 52(a), P re distinguished FR Crim majority 52(b), error, rule harmless from garding preserved plain, unpreserved error.23 timely objec- When the defendant has made 52(a) applies, the Court

tion to an error and Rule Appeals engages specific analysis in a normally "harmless of the District Court record —a so-called inquiry whether the error error” determine —to 52(b) normally requires Rule prejudicial. was inquiry, important same kind of with one differ- ence: It is the defendant rather than the Govern- persuasion ment respect bears the burden of with who cases, prejudice. In most the Court of Appeals cannot correct the forfeited error unless prejudi- the error the defendant shows was [Id., cial. Emphasis 123 L Ed 2d 519-520. added.] a specific, unpreserved, On issue whether nonconstitutional error could be addressed forfeiture, court appellate light possible an Olano Court developed three-step test. appellate The authority first limitation on under 52(b) [plain, unpreserved Rule is that there error] legal indeed be an "error.” Deviation from a rule is "error” unless the rule has been waived. appellate authority

The second limitation permitting jurors The facts in involve alternate who were Olano properly during proofs dismissed at the close of to remain with the 24(c). in contravention of FR Crim P deliberations basis statutory the error in Olano was therefore in nature. rather than constitutional (CA 1992). Caputo, See also United States v 978 F2d acknowledge possible subcategory existence of in this We also context, facts, unpreserved plain. to wit: error that is not Under these despite preliminary jury the man the failure to 28.1052(1)(1) clearly plain date of MCL error. constitutes Accordingly, appropriate for case a discussion of we leave the this issue. People Grant v op the Court 52(b) "plain.” under Rule is the error that or, synonymous equiva- "Plain” is "clear” with lently, "obvious.”

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

of alternate affect rights did not substantial independent of any prejudicial effect and that there was neither a specific showing prejudice Id., presume nor a reason to 123 L any prejudice. Thus, Ed 2d 521-522. the defendant’s claim was forfeited, held to been prevented have which need for a determination whether reversal was Moreover, required. clearly placed Olano bur den of proving the of a forfeited prejudice plain appealing grant error on the party because the 52(b) relief FR permissive under Crim P rather mandatory. id., than See L Ed 2d 520.25 Pre suming avoiding met, the test for forfeiture is the Olano test majority provided separate reversal: federal court appellate reverse a (1) miscarriage forfeited error where a justice result would because the defendant is actu- 24 Olano, majority recognized possibility special In aof category regardless of forfeited errors that could be corrected effect, i.e., prejudicial Olano, supra, their effect on outcome. 123 L However, majority fully Ed 2d 520. the Olano did not address the issue. types require We are convinced cases that automatic reversal, prejudice presumed, implicated or in which would be are not facts, under these and leave for time their another consideration. Johnson, See also n NW2d 219 J.). Boyle, (opinion of 445 535

550 Mich Opinion op the Court ally "seriously innocent or if the error affects” integrity, public reputation judi- fairness, proceedings. impor- Id, L cial 123 Ed 2d 521. It is specific language tant to note that of the majori- themselves, federal rules and of the Olano ty’s precedent, from formulation earlier make no distinction between constitutional and nonconstitu- tional error. the forfeiture

Accordingly, we conclude that it is aspect and not the actual constitu- tional status that drives the federal standard.26

D underlying The rationale the distinction be preserved unpreserved strongly tween and error is supported by history by policy. as well as At the beginning legislative century, of this reformers country adoption around the advocated the of the response harmless error in doctrine to an ever- increasing number of reversals in criminal cases perceived occurring on the basis of minor errors at Many years ago, trial.27 Dean Pound stated that "[njothing purposes is so subversive of the real legal procedure rights pro as individual vested in recently, writing cedural . . . .”28 errors More majority Mechanik, United States v 475 US (1986), 66, 106 S Ct 89 L Ed 2d 50 Justice Rehnquist stated: 26 interesting We find it the Olano Court utilized FR Crim P 52(a) (b) Theoretically, and rather than 28 2111. USC 28 USC 2111 applicable chapter would also be of the to the case because it is found in code, specifically apply which contains rules that to review However, cases. tomy procedural 28 USC 2111 not does contain the same clear dicho preserved between errors as is found in the criminal Rather, appellate regard rules. it forbids reversal "without rights to errors or defects which do not affect the substantial parties.” Clearly, procedural provides stronger rule semantic majority.

basis for the decision reached history doctrine, see, generally, For a of the harmless error Israel, Procedure, LaFave & Criminal 26.6. § 28Pound, reform, procedural The canons of 12 ABA J (1926). People v Grant Opinion of the Court

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

" 'need encourage all trial participants to seek a fair and accurate trial the first time around United States v Young, ....’” 470 US 15; 105 1038; S Ct 84 L (1985), Ed 2d 1 quoting United States v Frady, US 163; 102 S Ct 1584; 71 (1982).29 L Ed 2d 816 Michigan Tucker, See also 433, 446; 417 US 94 S Ct 41 L Ed 2d 182 (1974) ("[T]he law does not require that a defen- dant one”). receive a perfect trial, only fair Accordingly, United Supreme States Court has recognized importance of an incentive criminal defendants to raise objections at a time when the trial court has an opportunity correct error, which could thereby obviate the neces- sity legal further proceedings and would be by far the best time to address a defendant’s constitu- tional and nonconstitutional rights. Failure timely raise thus requires defendants States, 414, 444; See also Yakus v United 321 US 64 CtS (1944) ("No procedural L principle Ed 834 is more familiar to this right may Court than that a constitutional be forfeited in criminal as timely well as civil before a tribunal right cases the failure to make assertion of the it”). having jurisdiction to determine 445 Mich Opinion of the Court prejudice

establish in order to avoid the forfeiture of an issue.30 analysis appropriate

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

III Review of state law on the issue of harmless error leads us to the conclusion that the distinc preservation tion between issue ror has not been and harmless er

clearly per defined.31 We are requires assessing Olano, suaded that which first presented the merits of an issue for the first time appeal, regard. on instructive this inAs Olano, in this case there was error and it was plain, to wit: the violation of the statute mandat ing preliminary jury that a instruction on given testimony insanity. Although before properly request defendant failed to the instruc language tion, 28.1052(1)(1) of MCL require

does not a defendant to make specific request. question then becomes whether the error affected defendant’s substantial rights. majority The Olano defined the term

" ” 'affect[ing] rights’ substantial as an error “prejudicial: was It must have affected the out- course, Except, prejudice in the class of cases in which presumed. 24. See n requirement timely objection The errors in trial order to preserve appellate Michigan an issue for review is well established jurisprudence. example, Moskalik, supra majority For at stated: requirement timely objection arbitrary of a is not an purpose improper and, per- one. Its tois avoid if improper chance an instruction which can be corrected has given, verdict, thereby

been to facilitate its correction before avoiding costly new trials. v Grant Opinion of the Court proceedings.” supra, Olano, . . . L come of the proper interpreta- Ed 2d 519. We believe that the "prejudice” in the context of tion of preservation term issue may equated error with longstanding precedent of state outcome deter- Degraffenreid, Catey, Merchant, mination. See supra. plain, unpreserved words, In other appellate not be considered an court for appeal the first time on unless the error could have been decisive of the outcome or unless it falls category yet clearly cases, under to be prejudice presumed defined, where or reversal is Napier, Moskalik, DerMartzex, automatic. Cf. supra. Farmer, case, Under facts of this 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 insanity jury, an defense before voir dire of the no reference was made to MCL 28.1052(1)(1) requirement and its of an instruction given immediately expert testimony to be before unpreserved. insanity. Thus, the error In was jurors during addition, the trial court asked voir conceptualize they dire whether could the nature that, defense and the fact if suc support guilty. cessful, it Moreover, the of not would verdict given instructions at the con proofs straight clusion of were from an instruction presented appropriate manual and therefore Finally, only testify standards. witnesses regarding expert the issue were one witness and defendant. Because we are not con significant vinced that the error this case led to regarding insanity defense, confusion an we con clude that the error was not decisive of the out Thus, come. of defendant failed to establish the form preserve prejudice necessary an issue that 445 Mich Levin, J. was not raised before the trial court. Accordingly, it is unnecessary address the standard of rever- sal in this unpreserved, case of plain error.

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

Brickley, Boyle, Griffin, JJ., Mallett, and J. Riley, concurred with J. I concur Levin, in the result of the majority opinion, join part and in opinion.1

I The majority adverts to a distinction between constitutional and error, nonconstitutional and to a distinction between preserved un- and error, preserved now dubbed error, forfeited expounds then on the recent decision of United Supreme States in United States v Court Olano, —; US 113 S Ct 123 L Ed 2d (1993), 519-520 concerning unpreserved, for- feited, "plain” so-called error, nonconstitutional and where the Court that, said while govern- ment has the burden of showing preserved error was not prejudicial, the defendant has the burden of showing that unpreserved or forfeited error claimed to have been plain was both and prejudicial.

Justice Kennedy separate concurring opin- ion expressed his belief that had there been a specific objection, to allowing alternate jurors present during the jury’s deliberation, it would have been "most difficult government to. show the prejudice.” absence of Stevens, Justice 1Specifically, join introductory paragraph, part i, I in the in so subpart part precedes much of subpart A, concluding paragraph n as agree generally concluding paragraph, begin with the ning majority opinion. "[although review,” with the words part our in of the v Grant by Opinion Levin, J. with whom Justices White and Blackmun con- agree curred, said that he could not that "errors rights’ may only be deemed to 'affect substantial they prejudicial impact particu- when have a on a lar defendant.”2

Justice Stevens also observed: are, however, Appeals The Courts of allowed a supervision wide measure of discretion litigation in respective their Circuits. [Citations Certainly, Appeals the Courts of are omitted.] positioned better than we are to evaluate the need procedural for firm to designed enforcement of a rule protect deliberations, integrity weigh the interest against such enforcement other relevant consideration. Because I am not persuaded its Appeals the Court of here abused discretion, I broad affirm judgment. would its [Id., 123 L Ed 2d 527.] Michigan counterpart does not have a to FR 52(b), although concept Crim P opinions has been adverted to in a few of this explained: Justice Stevens bearing jury’s At least some defects on the deliberative subject regardless prejudice function are to reversal of whether shown, only can be not because it is so difficult to measure decision, jury’s their effects on a but also because such defects integrity "undermine the structural of the criminal tribunal 254, Vasquez Hillery, 263-264; 617; itself.” v 474 US 106 S Ct (1986) (racial L88 Ed 2d 598 discrimination in selection of grand jury); Ct ring) (improper Whether or not question system Gray Mississippi, 668; see also 481 US 107 S 2045; (1987); (Powell, J., 95 L Ed 2d 622 id. at 669 concur- juror opposed penalty). exclusion of to death they defendant, harm the errors that call into integrity jury’s may deliberations harm the sense, they may "seriously as a whole. In that be said to fairness, integrity public reputation judicial affect proceedings,” Atkinson, 157, 160; United States v 297 US 56 S 391; (1936), making Ct 80 L Ed 555 them candidates Young, reversal under Rule 52. See United States v 470 US (citing Atkinson, supra). 105 S Ct 84 L Ed 2d 1 [Id., 123 L Ed 2d 525-526.] 445 Mich Levin, J. year ago, Olano, Court.3 decided a was not ad- verted to in the briefs of counsel. The United Appeals just beginning States Courts of are expound on this recent decision of the United Supreme States Court.4 incorpo- There is no need in the instant case to Michigan jurisprudence. rate Olano into This case adequately can be resolved on the basis set forth part opinion, majority hi of the which, as set paragraph part forth in the last full hi, shows error, even if there was not have been obvious, clear or and that whether the burden is prosecution, on the because the error is deemed to preserved, preserved, have been or on defendant, the because it was not the instructional omission in the instant case was harmless.

II adoption expressed The by of the views the of the majority concerning meaning in Olano the plain ignores significant federal error rule the judicial power difference between the federal and judicial power the forth in confided to this Court. As set Olano, 123 L Ed 517-518, 2d the federal plain provides Appeals error rule "the Court of power limited to correct errors that were forfeited timely because not raised in the Court,” District authority by and "the created” that rule "is cir- added.) (Emphasis cumscribed.” The federar rule adopted by pursuant was authority to the of the 3 Lucas, Washburn v 610, 625-626; (1964); Mich 130 NW2d 406 Dunn, Moskalik v 583, 592; (1974); 392 Mich 221 NW2d 313 Javis v Ypsilanti Ed, Bd of 689, 702, 4; (1975); Mich n 227 NW2d 543 Napier Jacobs, v 222, 233, (1987). 429 Mich n 414 NW2d 862 See People Bushard, 384, v also 508 NW2d 745 (Levin, J.); 103(d). see also MRE Colon-Pagan, (CA United States v 1, 1993); 1 F3d 80 United States v Montanye, (CA 1993). 8, 996 F2d 190 Grant by Levin, J. "Congress that It is well established Congress. judicial power or withhold the grant free to is (4th ed), Courts . . .” Law of Federal Wright, . 10, p 38. § constitution, the federal

In contrast with power the judicial confides Michigan Constitution Court,5 power it of beyond this and is define, limit, the exercise or control Legislature power. power plenary, judicial Because this Court’s rule, certainly not not confined a court by sug- the approach I would follow a statute. by Stevens, recognize in the Justice gested by of discretion a "wide measure Appeals Court . . .” 123 L 2d . Ed supervision litigation Court, does not hesitate to enter 527. This which reversal, can correct any orders of peremptory Court of by recognition excessive Appeals. Levin, J.

Cavanagh, C.J., concurred with exclusively judicial power one of the state is vested court, supreme justice into one court of which shall be divided jurisdiction appeals, general court of one trial court of one known as the circuit limited thirds vote of the members elected house. court, court, probate one and courts legislature may jurisdiction establish a two- serving to and in each art § 1.] [Const

Case Details

Case Name: People v. Grant

Court Name: Michigan Supreme Court

Date Published: Jul 12, 1994

Citation: 520 N.W.2d 123

Docket Number: 96686, (Calendar No. 14)

Court Abbreviation: Mich.