People v. Mazzie
357 N.W.2d 805
Mich. Ct. App.
1984
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*1 60 v MAZZIE PEOPLE 3, 1984, Rаpids. January at Grand Submitted No. 67670. Docket 4, September 1984. Decided murder, felony premeditated charged with P. Mazzie John agreement, plea kidnapping. defen- Pursuant to a murder and mentally pled guilty to murder in the second ill dant Evans, Detroit, degree, of Robert L. Recorder’s J. murder, felony premeditated murder prosecution dismissed sentencing hearing, kidnapping charges. At the victim, 14-year-old paperboy, had a he indicated that boy. strangled fighting he had and that hassle and were prison term from 25 to a Evans sentenced defendаnt of granted of years. a new trial on basis Defendant was to 50 fully him the inform at failure of the trial court rule proceeding of the court with the mandate in accordance trial, pleas. governing guilty which was before At new insanity. jury, The trial the defense of defendant raised Townsend, J., trial, instructed at this Leonard second insanity they acquit by find defendant of must that to reason his acts mentally ill such that he could not [1, [2] [3-5] [6] Modern status of test of criminal Due Retrial Modern status of Propriety Plea of 7] 21 Am 21 Am Jur simultaneously. 2 L Ed 2d 2020. ALR4th ALR Fed 326. tion of lesser offense. 14 ALR4th subsequеnt prosecution ALR3d offense, 21 Am process Am on Jur guilty 978. Jur of increased or for Jur 526. greater 2d, 2d, as violated References 2d, 2d, as basis of claim Criminal Law Criminal Law § multiple Criminal Criminal test offense punishment for same offense. 75 offenses of criminal for Points successive Law 314. following Law 56 et §§ 247. § § of double 970. responsibility the same 278. reversal state criminal in Headnotes responsibility new seq. trial for same jeopardy ALR2d 683. character —federal plea-based —state trials for committed offense. 12 attempted cases. cases. convic- single Mazzie were and that he could not conform his conduct to the that, the law. The if it was also instructed insane, guilty mentally found defendant ill but not it guilty return ill should verdict. The re- second-degree turned verdicts of as to both the murder *2 kidnapping Judge count the count. and Townsend sentenced years imprisonment to 75 to 150 on the murder imprisonment count, kidnapping finding count life the justified that the increased sentences were he had testimony heard the as to the brutal nature of the acts that committed, defendant had information which Evаns had imposed plea-based not known when he sentence after the appealed. conviction. Defendant Held: jury 1. While it was error for the trial court to instruct the legal insanity may mentally person that be found when a ill appreciate wrong cannot that his acts are and cannot conform requirements legal insanity to of conduct the the law since exist, must be found if either of those conditions that error does clearly not mandate reversal. The trial court instructed the requires finding jury insanity person a that the is men- that, tally person mentally ill and if the was ill but not insane crime, guilty guilty mentally of the and was a verdict of ill jury straight must be returned. Since the returned verdicts of guilty, jury it is clear that the found that defendant was not mentally Accordingly, insanity ill. the error in the instruction error, jury was harmless since the to the failed find condition i.e., precedent insanity, for mental illness. retry kidnapping charge 2. It was error defendant on the prosecutor charge after the had a dismissed that as result mentally second-degree the ill murder. Ac- cordingly, kidnapping the convictiоn and sentence for is va- cated. court, 3. A trial on conviction of a a criminal defendant after retrial, may justify by affirmatively identify- a harsher sentence ing subsequent relevant conduct or events that occurred to the original sentencing proceeding. subsequent A includes event additional evidence about the nature of the defendant’s crimi- during nal act which comes to the attention court trial the retrial and which was unknown to the trial at original imposed. time the sentence was Since the trial court upon indiсated that the harsher sentence was evidence of based death, the brutal of the nature events which led to the victim’s judge information which was unknown to the who sentenced guilty plea, defendant after the it is clear that the and since vindictiveness, the was not result

harsher sentence imposition retrial not error. harsher sentence after was of the part. part; reversed Affirmed in Burns, P.J., a would hold that more B. dissented. He R. may imposed only after retrial where be sentence severe the defendant which identifiable conduct of there has been imposed. would further first He after the occurred insanity cannot instruction on the erroneous hold that kidnapping He vacate the error. would deemed to be harmless for a and would reverse and remand conviction and sentence second-degree murder count. new Opinion of the Jury Insanity — — Instructions. 1. Criminal Law acquit by that to is error for a trial court instruct It insanity they could must find that accused reason of could not conform his that his acts were law, legal insanity since conduct to exists; such where either of those conditions an must be found require does not reversal where erroneous instruction requires finding that the also instructs the that, if the finds that accused is ill *3 ill, guilty they mentally insane is must accused is not and guilty mentally ill a return a verdict the returns verdict, straight guilty it since under those circumstances is that the accused was not ill clear that the found and, accordingly, insanity the erroneous instruction harm- (MCL768.21a[l]; 1044[1][1]). less MSA error Guilty Higher — — 2. Pleas Offense. Criminal Law 1, accused, any prior plea guilty The to of entered to March prosecution has determined that the and as to which the plea any justice by guilty to ends of served a of would be transaction, charge arising single of not out a shall thereafter any charge upon arises out of be called to answer to other higher subject transaction will either him to same which penalty any proof. him elements of or cause to meet additional Sentencing Resentencing — — — 3. Criminal Harsher Sen- Law tence. court, A trial a criminal defendant after retrial and conviction of trial, successfully sought may who had and seсured new justify by affirmatively identifying a harsher relevant original subsequent conduct occurred or events that acquisition sentencing proceedings; of about information v Mazzie the exact nature of the defendant’s criminal acts which comes during presentation of the attention of the by evidence retrial which was known the court at original imposed the time the sentence was is a relevant event subsequent original sentencing proceedings that occurred may justify an increased sentence after retrial. by P.J.

Dissent Sentencing Resentencing — — — 4. Criminal Law Harsher Sen- tence. upon resentencing

Identifiable conduct of which a sentence, imposing relies in a harsher after the defendant reconvicted, has had his first conviction set aside and has been sentencing. must have occurred after the first Sentencing Resentencing — — — 5. Criminal Law Harsher Sen- tence.

Imposition upon following of a harsher sentence reconviction appeal impermissible defendant’s successful is where the record sentencing objective of thе second does not disclose information concerning part identifiable conduct on the of the defendant occurring original sentencing proceeding. after the time of the Guilty Higher — — 6. Criminal Law Pleas Offense. accused, prosecution once the has determined that the ends justice any charge would be served arising transaction, single out of a shall not thereafter be called upon any charge to answer to that arises out of the same subject higher penalty transaction which will either him to a any рroof. cause him to meet additional elements of Insanity Jury — — 7. Criminal Law Instructions.

It acquit by is error for a trial court to instruct a that to insanity they reason of must find that the accused could not that his acts were and could not conform his law, legal insanity conduct to the of the since exists; ‍‌‌‌​‌​‌‌​​​‌​‌‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​‌​​‌‌​‍giving exists where either of those conditions such an erroneous instruction cannot deemed to be harmless expert support error where witnesses have testified in (MCL 768.21a[l]; 1044[1][1]). defendant’s defense *4 Kelley, Attorney General, Frank J. Louis J. Caruso, Generаl, Cahalan, Solicitor William L. Prosecuting Attorney, Dep- Reilly Wilson, Edward 60 Mich Opinion of the Court Schmidt, Carolyn and Chief, Appeals, and Civil

uty people. for the Prosecuting Attorney, Assistant Slameka, for defendant appeal. on E. Robert P.J., and V. J. Brennan Before: JJ. T. J. and Kallman,* with charged Defendant was J. J. T. Kallman, murder, kidnap- murder, felony premeditated 750.349; MCL 750.316; MSA 28.548 and MCL ping. ill He pled 28.581. 750.317; MSA MCL degree, in the second murder of from to a term 28.549, sentenced and was bargain. to a sentence prison pursuant years bargain, dismissed part prosecution, murder, murder and kid- felony premeditated 1981, a August, filed counts. Defendant napping motion for a new delayed file a for leave to motion comply did not trial, the trial court alleging that particulars. 785.7 in several GCR with a new trial. October, 1981, granted defendant trial, defen- jury, conducted before At his new second-degree murder dant was convicted a different kidnapping and was sentenced the second- imprisonment on years to 75 to on the imprisonment and life degree murder count as of appeals now count. Defendant kidnapping right. four issues. appeal,

On raises trial court’s first contends Defendant erroneous were instructions objection no reversal is mandated. As there was instruction, precluded on this basis is this reversal People v injustice. of manifest showing absent a * assignment. sitting Appeals by judge, on the Court of Circuit *5 People Mazzie v Opinion of Gaseo, 143, 145-146; 326 NW2d App 119 Mich (1982). case, charged jury court

In this the trial follows: thought or is a substantial disorder of "Mental illness significantly person’s judgment, affects a

mood which recognize reality and his ability to his behavior and ordinary demands of ordi- ability to conform with the nary life. That is mental illness. It is a substantial thought person’s affects the disorder of or mood which recognize judgment ability and his behavior and ordinary life. That is mental reality and the demands of illness. person legal insanity means that because a is "Now ill, appreciate he that the acts which

mentally cannot doing wrong and that he cannot conform his he is are requirements to the of the law. Now there are conduct mental, things required for are two that are two two —there required insаnity. The things that are for illness, things person, that because of mental are doing he is are appreciate cannot that the acts that that, wrong. knowing In that the act is addition himself, wrong, help he cannot conform his he cannot requirements conduct to the of the law.” erroneous judge’s The trial instruction was acquit that it allowed the reason by (1) if it concluded that defendant insanity only not appreciate could his acts were (2) require- not to the could conform his conduct 28.1044(1). 768.21a; ments of the law. MCL fact, if could not wrоngfulness of his conform his acts could not law, the statute conduct reason of requires acquitted that defendant be insanity.

Nonetheless, correctly that, instructed if it found defendant to be insane, be mentally ill but not its verdict "should App Mich Opinion op the Court could ill” and that defendant mentally guilty being mentally also legally insane without ill, does not insanity the erroneous instruction Here, instruction un reversal. court’s require finding directed the equivocally short should result mental illness ill. This case is thus verdict of Crawford, by controlled *6 (1979). There, this Court noted 36; 279 NW2d that, 768.21а(l); to MCL pursuant 28.1044(1)(1), before a defendant can be found insane, mentally he would have to be found legally Crawford, here, ill. In as the trial court’s instruc straight verdict if the precluded "guilty” tions Here, ill. mentally found defendant to be as jury Crawford, in the erroneous instruction was harmless as defendant was not found insanity to be ill.1 mentally there

Defendant contends sufficient support at his convic- presented ‍‌‌‌​‌​‌‌​​​‌​‌‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​‌​​‌‌​‍evidence Gasco, (1982), People App 143; v 119 Mich 326 NW2d 397 lv den (1982), upon by Judge factually inappo 414 Mich 951 relied is Crawford, site to this case. Unlike this case and in Gaseo the trial jurors they mentally mentally told the that if found the defendant to be ill, insane, they might guilty hut not return a verdict of but ill, App implied jury 119 Mich 146. This instruction had ill", "guilty” "guilty mentally discretion to find the defendant if it found that the defendant was crime. "guilty” but mentally ill at the time of the Thus, Gaseo, possible jury in it was for the to find defendant though reason of proper even under instructions he would have been acquitted by insanity, e.g., the Gaseo could have believed that the defendant could not conform his conduct to the of the law but that he could that his acts acquit were basis of and therefore cоncluded that it could not on the given yet under the instructions found the guilty "guilty mentally defendant lower court’s instruction did not rather than ill” but obligate the defen to find "guilty mentally dant ill” if illness. the defendant suffered mental case, then, required only In this Gaseo would had the straight have reversal "guilty defendant been found ill”. Because the "guilty” verdict showed that the did not believe that the defen ill”, "mentally prerequisite finding legal insanity, dant was to a injustice. the erroneous instruction did not result in manifest People Mazzie v Opinion of the Court In there was kidnapping. opinion, оur tion of support evidence to the conviction. sufficient erred Next, claims that the trial court of a kidnapping the reinstatement permitting to a pursuant it had been dismissed charge after agreement. agree. We McMiller, 431; 208 389 Mich (1973), the Court stated: NW2d 451 policy reasons we forbid adver- seen, "As we have for procedure expose person to conviction for a sary independent higher offense when the fact finder has (Emphasis offense.” find him of a lesser chosen to original.) Sheriff, In Mikowski v Grand Traverse County 66, 70; 216 NW2d 603 this Court stаted: did, indeed, in McMiller the Court use the "While offense’, 'higher

terms offense’ and 'lesser we think using speaking only Court in terms was not those possible penalty imposed. public could be which *7 enunciated in McMiller policy prose- that once the was cutor justice has determined that the ends of would be by plea charge arising single served a any to out of a transaction, the accused shall not thereafter be called upon charge to any answer to that arises out of that subject transaction which will either him to a higher penalty any or cause him to additional meet proof. explicitly elements of In fact the indicated Court that charge accused shall be 'tried on the to which plea was offered’.” in McMiller adopted

On the basis of the rule Mikowski, kidnapping convic- defendant’s 785.7(7)(d) tion must aside. set GCR the McMiller changes rule for convictions only op Opinion the Court 1, 1984; thus, the new March on or after entered here. inapplicable subrule is trial court the defendant claims Finally his greater following in imposing erred pursuant impоsed conviction than was by We following guilty. his bargain a sentence disagree. ex- pleading guilty, originally

While happened: plained what happened? "The Court: What house, your I him into the "The Defendant: invited Honor, Honor, fighting, your had a hassle and we were and we strangled him.”

and I But, conviction, the sec- after defendant’s the following: ond trial stated judge only Judge "Now. Evans had one sentence. 'We were fighting strangled I him.’ That is all he had. I had to suggest all the other evidence acts; all sorts of sadistic acts, strangulation, notes that written sexual were victim, suggesting torture to the the fact that there was and, a under constrained or no mental illness in Mr. Mazzie found circumstances, those the court does not feel any way any obligation under imposed follow There are have in sentence that Evans. many judge not so reasons that the other did knowledge. possession at or in his that time "So, begin- this court from the since heard this case ning and not has heard all circumstances that were judge, known the other has to use its own the court give discretion is in sentence this feels kеeping I with the evidence this court heard. don’t I believe can sentence Mazzie of what Mr. similarly knowledgeable another about He was did. facts and of this case.” circumstances People Payne, Michigan Supreme *8 69 v Mazzie Opinion of the Court rev’d other 84; (1971), 375 NW2d grounds 47; 1966; 412 US 93 S Ct 36 L Ed 2d 736 Pearce, North Carolina v (1973), interpreted 711; 2072; US 89 S Ct 23 L Ed 2d 656 requiring the "identifiable conduct” of a de- sentencing fendant that a judge may rely upon in imposing more severe sentence must have oc- curred "after” the first sentence. This interpreta- as evidenced Wasman v United tion in —States, (1984). —; US 104 S 3217; Ct 82 L Ed 2d Wasman, Pearce did not said prevent consideration of criminal prior acts committed the original sentencing. The Wasman Court noted that Pearce is not ambiguities, without its quoting the following language from Pearce:

"A man who is retried after his first conviction has convicted, been set may acquitted. aside may If he sentence, receive a shorter he may receive the same sentence, may or he longer receive sentence than the * ** originally one imposed. "* * * precluded, A triаl is not constitutionally words, sentence, imposing from a new whether greater original sentence, or less light than the subsequent events may the first trial have light upon 'life, thrown health, new the defendant’s habits, conducts, and propensities.’ mental and moral ‍‌‌‌​‌​‌‌​​​‌​‌‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​‌​​‌‌​‍York, 2072; Williams v New US S Ct [69 L (1949)]. 93 Ed 1337 may Such information come judge’s attention from evidence adduced at the second itself, presentence from a new investigation, from record, prison defendant’s possibly from other added). sources.” 395 (emphasis US 722-723 The Wasman Court further stated: "We any language conclude that suggesting in Pearce that an intervening conviction for an offense committed prior original sentencing may not be considered upon retrial, sentencing after is inconsistent with the *9 App 60 137 Mich 70 Opinion the Court — 3225; —; Ct 82 L 104 S opinion as whole.” US Pearce 2d 435. Ed in Court Pearce before the the two cases explanation justification no asserted

there was heightened case, This sentence. for squarely presents hand, information judge’s ad from evidence attention came to may itself, trial which at second duced sentencing justify upon by authority to an relied retrial.2 after increased sentence concluded: Wasman following a retrial and conviction hold that after "We sentencing authority appeal, a

defendant’s successful iden- by affirmatively an may justify increased subse- events that occurred tifying relevant conduct or — —; sentencing US quent original proceedings.” to the 3225; 82 Ed 435-436. 104 S Ct L 2d subsequent case, that occurred In this the event sentencing proceedings original infor second mation that came to the attention sentenсing judge defen adduced at from evidence Accordingly, is con this Court dant’s second trial. part played in defen no vinced that vindictiveness Any presumption sentence. dant’s increased Here, Wasman, inas thereof has been rebutted. explained proper judge carefully reasons the for imposing greater sentence.3 kidnapping The is conviction vacated._ 549; Newman, Compare, People NW2d (1981). constituting opinion (Analyzed Bronson’s issue.) sentencing majority position on the unanimous 104; 1953; Compare, Kentucky, Ct 32 L Ed 407 US 92 S Coltеn v sentence after reversal 2d 584 and reconviction where the said stiffer imposed by Court after a is a different allowable if de novo trial. People v Mazzie Burns, R. B. P. Dissent J. second-degree conviction and sentence for murder is affirmed. in part; part.

Affirmed reversed in Brennan, J., J.V. concurred. (dissenting). P.J. Defendant was

charged premeditated murder, murder, with felony 750.316; 28.548, kidnapping. MCL MSA MCL 750.349; 28.581. pled MSA He ill degree, 750.317; to murder the second MCL 28.549, and was sentenced to a term of 25 to *10 in prison pursuant to a years bargain. sentence prosecution, part bargain, as dismissed murder, the premeditated felony murder and kid- napping counts. Defendant filed a motion for leave delayed to file a motion for new trial in August, 1981, alleging that the court did not comply with GCR in 785.7 In particulars. several October, 1981, granted defendant was a trial. new trial, At his new defendant was tried and con- victed second-degree murder and kidnapping and sentenced to 75 to 150 on the years second- degree murder count and life on the kidnapping count. Defendant I appeals. would reverse. appeаl,

On defendant four raises issues. First, he claims that the trial in court erred imposing a greater upon following sentence him his conviction aby jury than was imposed pursu- ant to a sentence bargain following guilty. pleading

While guilty, explained defendant what happened:

"The happened? Court: What house, ’’The Defendant: I invited your him into the Honor, fighting, we had a hassle we your were Honor, strangled and I him.” 137 Mich Burns, P.J. Dissent sentencing: stated at The trial sentence. 'We were only had one Evans "Now. I he had strangled is all had. I him.’ That fighting and sadistic suggest all sorts of the other evidence all were written acts, nоtes that acts; strangulation, sexual victim, fact that there was suggesting to the torture and, in Mr. Mazzie no mental illness that found a under constrained circumstances, not feel the court does those obligation to any legal any way under or in imposed by Judge Evans. that was follow sentence judge did not that the other many are reasons There so knowledge. that time or in his possession at have in his begin- "So, case from the court heard this since this not that were ning all judge, circumstances and has heard its to use own has known discretion keeping feels is this court give I this court heard. don’t the evidence with Mazzie of what I Mr. can sentence believe knowledgeable similarly He judge did. another about case.” in this the facts and circumstances v 84; 191 Payne, NW2d (1971),1 interpreted Michigan Supreme Pearce, 395 US 711; 89 S Ct North Carolina 2972; requiring 23 L Ed 2d 656 "identifiable conduct” upon imposing

sentencing judge may rely *11 "after” severe must have occurred more sentence erred increas by the first sentence. The trial Townsend’s ing the defendant’s sentence. expressed a harsher imposing reasons for relating all at trial relate the facts adduced by nоt known defendant’s heinous crime were of the sec The record prior sentencing judge. infor- "objective ond not sentencing does disclose 1Payne v Pearce on the that North Carolina was reversed basis 47; retroactively. Michigan Payne, applied US 93 v 412 should S Ct of (1973). 1966; However, question L Ed 2d 736 we do not have present retroactivity in case. People Mazzie v by Dissent P. J. concerning mation identifiable conduct on part of defendant occurring after the origi- time of the nal sentencing proceeding”. Payne, supra, p 97.

Next, defendant claims that the trial court erred permitting the reinstatement of a kidnapping ‍‌‌‌​‌​‌‌​​​‌​‌‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​‌​​‌‌​‍charge after it had been dismissed pursuant to a plea agreement. McMiller,

In People 425, 389 Mich 431; 208 (1973), NW2d the Court Stated: seen, "As we have for policy reasons we forbid adver- procedure sary higher expose person to conviction for a independent offense when the fact finder has chosen to find him guilty of a lesser (Emphasis offense.” original.) In Mikowski Sheriff, v Grand Traverse 70; NW2d this Court stated: did, "While the Court in indeed, McMiller use the "highеr

terms offense”, offense” and "lesser we think the Court in using those terms was not speaking only of possible penalty imposed. which public could be policy enunciated in McMiller prose- was that once the cutor has determined that justice the ends of would be plea served to any charge arising single out of a transaction, the accused shall not thereafter be called upon to any answer to charge either that arises out of transaction which will subject him to a higher penalty or cause him to any meet additional proof. elements of In fact the explicitly indicated that the accused shall be charge 'tried on the to which was offered’.”

On the basis of the rule adopted in McMiller Mikowski, the defendant’s kidnapping convic- tion must be set aside.

Defendant also claims that the trial court erred *12 App by Burns, P.J. R. B. Dissent concerning legal insanity. its instruction jury: instructed the person is because legal insanity means that "Now that the acts which ill, appreciate he cannot his cannot conform wrong and that he doing are he is are of law. Now there requirements the conduct mental, two are required for things that are two —there insanity. The two required for things are that illness, person, of mental things are that the doing are that he is appreciate that the acts cannot that, knowing the is to that act wrong. addition In himself, his help cannot conform wrong, he he cannot (Emphasis the requirements the of law.” to conduct added.) (a) definition, insane if defendant is Under this of con- wrongfulness his appreciate he cannot (b) he his conduct to cannot conform duct and (a) (b) are Since both law. insane, the рrosecution to find necessary (a) (b) to defendant’s negate or establish need only law. This is an incorrect statement sanity. Gasco, 143, 144-145; v People Mich (1982), den 414 Mich 951 lv 326 NW2d in following the Court was confronted with it as from CJI 7:8:02A struction which was taken was at that time: " if, insane, person legally 'A is also result retardation, person in or that

mental illness mental condition lacked substantial situation his to re- capacity ability to conduct or conform his charged he with violat- quirements of the law which is ing. " if, despite person legally 'Correspondingly, a is sane rеtardation, pos- person or mental

mental illness wrongful- capacity sesses substantial ness conform conduct his conduct Mazzie P.J. Dissent requirements of charged the law he is violating.’ with *13 added.)” (Emphasis This Court ruled that: legal "While the CJI insanity definition of correctly law,

states the CJI definition legal sanity is erroneous. The court’s legal instructions on sanity allow to find defendant criminally responsible if it (a) concluded that: he knew the right difference between (b) wrong; and requirements he could conform his conduct fact, pursuant law. In to MCL 768.21a(l); 28.1044(1)(1), defendant would be le- (a) (b) gally only sane if both were true. CJI 7:8:02A, court, and the trial should have used 'and’ instead of 'or’ in the definition of sanity.”

The trial this case well may have used CJI 7:8:02A before it was corrected on the basis of the Gaseo Expert decision. ‍‌‌‌​‌​‌‌​​​‌​‌‌‌​​​‌‌‌​‌‌‌​‌​‌​‌​​‌‌​‌‌​‌​‌​​‌‌​‍witnesses testified support of defendant’s defense. The im- proper instruction cannot be deemed harmless.

Defendant’s last claim of error contests the suffi- ciency presented evidence at trial support conviction of kidnapping. opinion my there was sufficient evidence support the conviction.

I would reverse and remand for new trial.