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November 19, 1984


J. H. Shepherd, P.j., and Cynar and S. D. Borman,* JJ. Shepherd, P.j., concurred. S. D. Borman (concurring).

The opinion of the court was delivered by: Cynar

A jury found defendant to be guilty of four counts of first-degree murder, MCL 750.316; MSA 28.548, one count of second-degree murder, MCL 750.317; MSA 28.549, and two counts of assault with intent to murder, MCL 750.83; MSA 28.278, but mentally ill. He was sentenced to life terms for the five murders, and terms of 100 to 200 years and 150 to 300 years on the assaults. Defendant filed an appeal as of right alleging seven grounds for reversal.

The charged offenses occurred at three different locations in Wayne and Washtenaw Counties during the night of October 18-19, 1978. On the evening of October 18, defendant shot and killed his parents, Ronald and Jeannette Hardesty, at their home in rural Wayne County. Later that night, he shot and killed Troy Curry and Timothy Schofield outside Abigail's Bar in Ypsilanti. The same night, he went to Stiles-Wood Building, a machine shop in Ypsilanti Township, Washtenaw County, and shot and killed Daniel Wood, the brother of his former wife. He also shot Tommy Lee Brown, a witness to the Wood killing. He later returned to the machine shop and shot Bobby Joe Baker as he fled after discovering the dead and wounded men at the machine shop. Defendant was arrested at his home on the morning of October 19, 1978.

On November 8, 1978, defendant was admitted to the Center for Forensic Psychiatry in Ypsilanti for a competency evaluation. After two Forensic Center examiners testified that defendant was not competent to stand trial but might eventually be rendered competent, the trial Judge found defendant incompetent and committed him to the Department of Mental Health for treatment.

In March, 1979, a competency hearing was again held and defendant was found competent to stand trial. However, on June 15, 1979, the Judge, on his own motion, found reason to believe defendant again might not be competent. He ordered that defendant be returned to the Forensic Center for another evaluation, and at the next hearing he was again found incompetent. Defendant was recommitted to the Forensic Center.

In August, 1980, Dr. Lee of the Forensic Center staff recommended that defendant be found competent to stand trial. During his commitment, defendant was given psychotherapy and drug therapy, receiving injections of Prolixin (fluphenazine decanoate), an antipsychotic medication and major tranquilizer. Dr. Lee strongly recommended that Hardesty be continued on this chemotherapy while awaiting trial. The Judge found defendant competent to stand trial by an order dated September 11, 1980. He ordered that defendant's treatment not be changed without consultation with Dr. Lee.

On January 30, 1981, just prior to the trial herein, the Judge heard several motions, including a motion seeking to discontinue use of psychotropic drugs in defendant's treatment program. Defense counsel argued that this would give the jury a truer picture of defendant's mental condition when he took the stand. The motion was denied without prejudice.

Defense counsel also argued prior to trial that the evidence was insufficient to support the prosecutor's charges of first-degree murder in the killings of defendant's parents. The trial Judge denied defendant's motion for a directed verdict on this issue, and defendant went to trial on these charges. After the prosecutor's case in chief, defendant again moved for a directed verdict on this issue, which the trial court again denied.

The trial commenced on February 13, 1981, and continued through 11 days of proceedings, until the case went to the jury on the evening of March 4, 1981. The prosecutor's case-in-chief included the testimony of 35 witnesses. Following the denial of defendant's motion for a directed verdict of dismissal with respect to the first-degree murder charges in the killings of Ronald and Jeannette Hardesty, the defendant presented nine witnesses, including defendant, in support of defendant's insanity defense. The Judge refused to allow defendant's clinician at the Forensic Center to testify as an expert on his criminal responsibility, but allowed her to testify on his competency for trial.

Among his witnesses, defendant produced three experts who testified that he was insane at the time of the killings. In rebuttal, the prosecutor presented four expert witnesses who had examined defendant and determined that he was not insane and should be found criminally responsible.

The jury deliberated all day on both March 5 and March 6, 1981, ultimately finding defendant guilty as charged but mentally ill on six of the seven counts, and guilty of second-degree murder but mentally ill in the killing of his father.


Whether Defendant's Convictions Should be Reversed Because the Trial Judge's Instructions on Insanity Were Incorrect and Confusing.

In order to have been insane at the time of the crime, a defendant first must have been mentally ill:

"As used in this chapter, 'mental illness' means 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." MCL 330.1400a; MSA 14.800(400a).

Then, a defendant must meet a further condition:

"A person is legally insane if, as a result of mental illness * * * that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." MCL 768.21a(1); MSA 28.1044(1)(1).

Thus, whether or not he was mentally ill, a defendant is legally sane if he had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. If any evidence of insanity is introduced, the prosecution then bears the burden of establishing the defendant's sanity beyond a reasonable doubt. People v Murphy, 416 Mich 453, 463-464; 331 NW2d 152 (1982).

In defense counsel's opening remarks, he stated that the sole issue in the case was defendant's sanity at the time of the shootings. He argued that the prosecution could not prove beyond a reasonable doubt that defendant was not mentally ill and not insane at the time of the offenses. Following the defense attorney's opening statement, the trial Judge gave instructions on the statutory definitions of mental illness and insanity. However, near the end of such instructions, the Judge said:

"Correspondingly, a person is legally sane if despite mental illness that person possesses substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law he is charged with violating." (Emphasis added.)

Before the jury deliberations began, the Judge again instructed on mental illness and insanity, repeating the instructions as given before. Defense counsel did not object to the Judge's erroneous instructions on legal sanity given after his opening remarks. However, he properly objected to the instruction prior to the jury deliberations, apparently pointing out that the instruction was incorrect because the Michigan Standard Criminal Jury Instruction 7:8:02A improperly used the article "or" instead of "and".

This Court in People v Gasco, 119 Mich App 143, 145; 326 NW2d 397 (1982), lv den 414 Mich 951 (1982), said:

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

After defense counsel's conference with the Judge, the Judge announced that he was going to amend and correct his previous instruction. Defendant, on appeal, argues that the attempted correction was again wrong because although the Judge properly replaced the "or" of the incorrect instruction with an "and", the correction mistakenly replaced "sane" with "insane". After defendant filed his appellate brief, however, the official court reporter filed an affidavit with corrected transcript pages 1550-1554. The affidavit states that the court reporter compared the original transcript with her own notes and the back-up tape recording of the proceedings to correct the transcripts. Corrected page 1551 beginning at line 21 shows that the trial Judge properly replaced the "or" with an "and", and properly said "sane" rather than "insane". Nonetheless, defendant argues that where both correct and incorrect versions of an instruction are rendered, it must be presumed that the jury followed the incorrect instruction. Gasco, supra, p 145.

This is a worthy rule to be sure, but we decline to extend it to cases where, as here, the trial court expressly repudiates the incorrect instruction. Such a holding would make every inadvertant but substantive instructional error irremediable and hence subject to mistrial, even though the error is brought to the attention of the Judge prior to deliberation. ...

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