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Full Opinion
PEOPLE
v.
RAMSEY
PEOPLE
v.
BOYD
Supreme Court of Michigan.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Timothy A. Baughman, Principal Attorney, Research, Training and Appeals, for the people in Ramsey and Boyd.
State Appellate Defender (by Norris J. Thomas, Chief Deputy Defender and Rolf E. Berg, Assistant Defender) and Lauck, Leto & Cavanaugh, P.C. (by Frederick W. Lauck), for defendant Ramsey.
State Appellate Defender (by Rolf E. Berg) for defendant Boyd.
Amici Curiae:
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Michael A. Nickerson, Assistant Attorney General, for the Attorney General.
Arthur J. Tarnow and Mark Granzotto for Michigan Psychiatric Society.
John F. Salan for Prosecuting Attorneys Association of Michigan.
BRICKLEY, J.
These cases involve the constitutionality of MCL 768.36; MSA 28.1059, the statute which introduced the verdict of guilty but mentally ill to this state. In both cases, it is asserted that the guilty but mentally ill verdict violates principles of due process of law. We hold the statute to be constitutional.
I
Defendant Bruce Ramsey was charged with first-degree murder, MCL 750.316; MSA 28.548, as a *506 result of the death of his wife. Ramsey had first choked her, and then stabbed her thirty-two times. At trial, he raised the defense of insanity, claiming he believed that he was exorcising a demon from his wife by stabbing her and that she would return to life once the demon was removed.
In the trial court, defendant moved that the verdict of guilty but mentally ill be held unconstitutional and that the jury not be instructed on that verdict. According to defendant, he opted for a bench trial because his motion was denied.
Several witnesses, including Ramsey himself, testified in support of his claim of insanity. Defendant was portrayed as the product of a Southern fundamentalist religious family who had strayed from the church by drinking alcohol, smoking marijuana, and having an extra-marital affair.
A few months before the killing, Ramsey visited his mother in Kentucky. She gave him a pamphlet entitled "Defeated Enemies," which concerned demons and demon-possessed people. Both Ramsey and a woman by the name of Cross testified that that weekend, Ramsey, while engaged in sexual intercourse with Cross, suffered a psychotic episode; Ramsey thought that Cross was a devil. Ramsey fled the room. When later found by Cross, Ramsey insisted that they return to their room to pray, which they did.
Ramsey testified regarding an episode the day before the killing. He found in the clogged choke of his truck a sign from God that he should stay with his wife. He also found messages from God in the lyrics of popular songs.
The day of the killing, Ramsey, after a full day of work, called his mother in Kentucky. He was excited; his mother described him as exuberant over his "return to God."
As for the killing itself, which was witnessed by *507 Ramsey's children, who testified at trial, the victim and Ramsey had apparently argued. One of Ramsey's children testified that the victim came to the child's room crying. Ramsey entered the room and said, "Walk." The victim left the room and locked herself in the bathroom. Ramsey broke down the bathroom door.
Ramsey testified that he had attempted to choke, and then to stab, the demon out of his wife. Ramsey's son testified that he heard Ramsey say, "Die demon, die." When Ramsey realized that the victim was dead and was not returning to life, he placed her body in bed, crawled in next to her, and stabbed himself in the chest. Found in that position by the police (the children had fled to a neighbor's home), Ramsey was taken to a hospital. There, he made statements to family and friends to the effect that he was "screwed up" and that his wife "wasn't supposed to die." Hospital psychiatrists diagnosed Ramsey as acutely psychotic upon admission.
Psychiatrists called by the prosecution and the defense differed over whether Ramsey was mentally ill or insane at the time of the killing. Dr. Emanuel Tanay testified for the defense that Ramsey was acutely psychotic and legally insane at the time of the killing. A lengthy taped interview between Ramsey and Dr. Tanay was played to the court. Dr. Philip Margolis, however, testified for the prosecution that Ramsey was neither mentally ill nor insane at the time of the crime. Dr. Margolis stated that Ramsey's behavior, rationalizing the killing after it had taken place, was consistent with an attempt to escape responsibility for the crime.
Dr. Irving Edgar, also testifying for the prosecution, initially testified that Ramsey was not psychotic at the time of the killing and that it was *508 possible that the demon story was fabricated. On cross-examination, however, Dr. Edgar testified that he was not sure if Ramsey knew right from wrong when he was choking his wife and that Ramsey was probably psychotic following the choking.
The trial court found Ramsey guilty of the crime of second-degree murder, but mentally ill. Following a remand to the trial court for further factual findings, 89 Mich App 468; 280 NW2d 565 (1979), the Court of Appeals affirmed Ramsey's conviction by way of an unpublished opinion per curiam. This Court granted Ramsey's application for leave to appeal. 414 Mich 864 (1982).
Defendant Gary Boyd was charged with armed robbery, MCL 750.529; MSA 28.797, and assault with intent to commit robbery while armed, MCL 750.89; MSA 28.284, for conduct at the home of his former girlfriend. Boyd, after being admitted to the home of Ruby Hughes, suddenly and without provocation grabbed her around the neck, held a knife to her throat, and demanded money. He led Hughes upstairs and assaulted two other women, robbing one of the other women of a few dollars. Boyd then dropped his knife and fled after stating that he knew that Hughes was going to shoot him in the back.
At trial, Boyd did not dispute that the events occurred. He presented an insanity defense. He related an extensive psychiatric history, including several hospitalizations, with one hospitalization exceeding eighteen months. Regarding the events of the crime, Boyd testified, "I don't know. One minute we was talking and the next minute, before I know it, I had a knife around her side."
Boyd presented three witnesses as to his mental state. Dr. Bruce Danto, a psychiatrist, testified that defendant was schizophrenic, psychotic, and *509 insane at the time of the crime. Boyd's mother and his sister testified to the effect that Boyd had been exhibiting strange behavior patterns for years and that he was alternately violent and paranoic, a compulsive gambler, and would sometimes see and hear nonexistent things.
Dr. Steven Bank, a psychologist, testified for the prosecution that Boyd was mentally ill, but not insane. He noted that defendant had denied that the crime had occurred when he was arrested. This denial, according to Dr. Bank, indicated a purposeful behavior inconsistent with insanity. He further testified that defendant had described himself as a "good con-man."
The jury returned a verdict of guilty but mentally ill to both charged counts and the Court of Appeals affirmed Boyd's convictions in an unpublished opinion per curiam. This Court granted Boyd's application for leave to appeal. 415 Mich 851 (1982).
II
Both Ramsey and Boyd contend that the guilty but mentally ill verdict denied them the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Their arguments, however, are subtly different. Ramsey argues that the danger of jury compromise due to the existence of the guilty but mentally ill verdict caused him to waive his right to a jury trial, and, therefore, he should be allowed to challenge the constitutionality of the verdict. Boyd's argument is more straightforward. He contends that the submission of the guilty but mentally ill verdict to the jury encouraged the jury to return that verdict as a compromise between the verdict of guilty and the verdict of not guilty by reason of insanity. We *510 will treat the arguments of both defendants jointly.
A fair trial is a right guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Drope v Missouri, 420 US 162; 95 S Ct 896; 43 L Ed 2d 103 (1975). Therefore, our task is to decide if the guilty but mentally ill verdict violates principles of fairness by, according to defendants, deflecting a jury's attention from the issues of guilt or innocence by adding an irrelevant verdict which brings the risk of impermissible jury compromise.[1] We must stress, however, that we are not concerned with the wisdom of the verdict. Arguments that a statute is unwise or results in bad policy should be addressed to the Legislature. Our concern here is only whether the statute is invalid because it denies criminal defendants a fair trial.[2]
MCL 768.36(1); MSA 28.1059(1) provides:
If the defendant asserts a defense of insanity in compliance with section 20a [MCL 768.20a; MSA 28.1043(1)], the defendant may be found "guilty but mentally ill" if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:
(a) That the defendant is guilty of an offense.
*511 (b) That the defendant was mentally ill at the time of the commission of that offense.
(c) That the defendant was not legally insane at the time of the commission of that offense.
MCL 768.21a; MSA 28.1044(1) defines insanity:
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.
Finally, mental illness is defined in MCL 330.1400a; MSA 14.800(400a) as:
[A] substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
The history of the guilty but mentally ill verdict is well set forth in Smith & Hall, Evaluating Michigan's guilty but mentally ill verdict: An empirical study, 16 U Mich J L Ref 77 (1982). For our purposes here, it suffices to state that the statute was a reaction to this Court's decision in People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974). Following that decision, a large number of persons found not guilty by reason of insanity, whom professionals had determined to be presently sane, were released from institutions, with tragic results. Two of the released persons soon committed violent crimes. See Comment, Guilty but mentally ill: An historical and constitutional analysis, 53 U Det J Urban L 471, 471-472 (1976); Robey, Guilty but mentally ill, 6 Bull of Am Ass'n of Psychiatry 374-375. Amid public outcry, the Legislature responded with the guilty but mentally ill verdict.
*512 The major purpose in creating the guilty but mentally ill verdict is obvious. It was to limit the number of persons who, in the eyes of the Legislature, were improperly being relieved of all criminal responsibility by way of the insanity verdict. As stated in the House analysis of the bill creating the verdict, one argument in favor of the verdict was that:
The new verdict will help a jury. Perhaps because there seems to be a tendency for people to assume that someone who commits a particularly offensive crime "must be insane," juries frequently find defendants in such cases "not guilty by reason of insanity." Sometimes, however, the defendants are not legally insane, and although it may well have been the intent of the jury that such defendants be committed for a long period, they must be automatically released under a Michigan Supreme Court ruling of September, 1974. [Third Analysis of HB 4363, Michigan House Legislative Analysis Section (July 15, 1975).]
There is nothing impermissible about such a purpose. It is well within the power of the Legislature to attempt to cure what it sees to be a misuse of the law.[3] What we must decide, however, is whether the verdict acts to deny defendants a fair trial.
*513 It is claimed that the guilty but mentally ill verdict introduces a confusing irrelevancy into jury deliberations. Therefore, the first question we must face is whether the inclusion of the guilty but mentally ill verdict is so confusing to the jury that it denies a defendant a fair trial.
To a certain extent, we must agree that the inclusion of the verdict complicates a trial and creates a greater opportunity for confusion. Under prior law, the jury had only to decide whether the defendant was sane. Under present law, the jury must engage in a two-step inquiry. But the fact that an extra step is added to the inquiry hardly makes the inquiry beyond a jury's competence.
Furthermore, we reject the claim that a jury is unable to comprehend the distinctions made by the Legislature between the concepts of mental illness and insanity. Our statutory scheme recognizes a continuum of mental functioning. A person is mentally ill if suffering from "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). A person is insane, however, only if that substantial impairment results in the lack of "substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." MCL 768.21a; MSA 28.1044(1). Under these definitions, one must be mentally ill before he can be found insane, but the converse is not true. As stated by Justice CAVANAGH in People v Fultz, 111 Mich App 587, 590; 314 NW2d 702 (1981):
Insanity by definition is an extreme of mental illness. When a person's mental illness reaches that extreme, the law provides that criminal responsibility *514 does not attach. To put it alternatively, the statutes provide that all insane people are mentally ill but not all mentally ill people are insane.
Also, MCL 768.36(1); MSA 28.1059(1) requires the jury to find that the defendant is not insane, that is, that the defendant does not lack the substantial capacity to appreciate the wrongfulness of his conduct or the ability to conform his conduct to the law, before it can conclude that the defendant is guilty but mentally ill.
We conclude that the Legislature has created a clear distinction between mental illness and insanity. Of course, in particular cases, this distinction may be very subtle and difficult for the jury to apply. But, it is no more subtle or difficult than the distinction between the intent to do great bodily harm and the intent to kill, a distinction we allow juries to make which often determines whether a defendant is guilty of first- or second-degree murder. In short, we cannot say that the legislative distinctions between mental illness and insanity deny the right to a fair trial.
Both Ramsey and Boyd also contend that the inclusion of the guilty but mentally ill verdict infringed on their right to a fair trial by creating an unjustifiable risk of a compromise verdict.[4] We find this claim to be wholly speculative, and must reject it.
All members of a criminal jury must agree *515 beyond a reasonable doubt to the same verdict. That is not to say that individual jurors cannot change their initial view of a case and ultimately reach a common ground with the others. Provided that in the end all jurors agree beyond a reasonable doubt as to the verdict, there is absolutely no prohibition of a juror changing positions during deliberations. Juror deliberations, however, must be distinguished from juror compromise. When jurors give up their beliefs to settle on a common ground with other jurors, who may have also abandoned their convictions in the interest of agreement, a compromise verdict results. When jurors forsake their convictions simply to reach a verdict, the defendant has not been found guilty beyond a reasonable doubt by all members of the jury.
In People v Stahl, 234 Mich 569; 208 NW 685 (1926), People v Gessinger, 238 Mich 625; 214 NW 184 (1927), and People v Vail, 393 Mich 460; 227 NW2d 535 (1975), we recognized that jurors, as people generally, often will compromise with regard to their differences. In those cases, we recognized a fact, consistent with human nature. In each of those cases, however, the issue was not whether the jury had, in fact, compromised. Instead, the issue was whether allowing a greater charge not supported by the evidence to go to the jury constituted error requiring reversal of the defendants' convictions, even though the defendant in each case was convicted of the lesser charge. And, it was not only the possibility of impermissible compromises which led this Court to conclude that reversal was required, but also the possibility that all jurors could be equally swayed by the inclusion in their deliberations of a greater, but legally improper, charge. The point of those cases, however, is not that the possibility of jury compromise *516 requires a conviction to be reversed. That possibility is present in every case. To the contrary, our decisions were based on the reality that compromise does occur, and, therefore, the boundaries within which it occurs must be legally and factually supportable.
The problem raised in Stahl, Gessinger, and Vail is not present in the present case. Jurors had not begun their discussions considering charges of which the defendants could not have been convicted as a matter of law. Exactly how the jurors in Boyd reached their decision, or how the typical jury would act in the case of Ramsey, is entirely a matter of speculation.
Parties who are concerned that the jury has compromised are free to poll that jury pursuant to MCR 2.512(B)(2). See also People v Pizzino, 313 Mich 97; 20 NW2d 824 (1945). Since there is no other error identified in the present cases which, in light of the possibility of compromise, could have prejudiced defendants, we must reject their claims.[5] See Illinois v DeWit, 123 Ill App 723; 463 NE2d 742 (1984), which also rejected the argument that the possibility of a compromise violates due process. To hold otherwise would require us to presume a jury compromise in every case where more than one verdict or charge is submitted to the jury.
*517 III
Ramsey raises two additional issues regarding the guilty but mentally ill verdict.[6] First, he argues that as a matter of policy this Court should hold that a mentally ill defendant cannot entertain the malice necessary to support a murder conviction. Alternatively, he argues that we should find that a trial court must, in its findings of fact following a bench trial, affirmatively state that the mental illness did not negate the necessary intent for second-degree murder.
Malice aforethought, or stated otherwise, the mental state necessary for the crime of murder, requires the intent to kill, the intent to do great bodily harm, and the intentional creation of a great risk of death or great bodily harm with the knowledge that death is the probable result. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980). A finding of mental illness, even when defined as a substantial disorder of thought or mood, does not inexorably lead to the conclusion that the defendant did not entertain the requisite malice aforethought for murder. As explained in LaFave & Scott, Criminal Law, ยง 42, p 326:
A defendant in a criminal case, at the time he *518 engaged in the conduct giving rise to the charges against him, may have been suffering from an abnormal mental condition which was not of a kind or character to afford him a successful insanity defense under the right-wrong test or other standard applicable in that jurisdiction. But, while this defendant is therefore ineligible for a finding of not guilty by reason of insanity, his mental abnormality may nonetheless be a most relevant consideration in the determination of whether he is guilty of the crime charged. Under the doctrine referred to as partial responsibility, diminished responsibility, or (somewhat less accurately) partial insanity, evidence concerning the defendant's mental condition is admissible on the question of whether the defendant had the mental state which is an element of the offense with which he is charged.
Thus, while his mental illness may be a consideration in evaluating the requisite state of mind for the crime charged, we decline to accept Ramsey's invitation to hold that a finding of mental illness negates malice aforethought as a matter of law.[7]
The trial court in this case found that Ramsey entertained the malice aforethought necessary to support a conviction of second-degree murder. Defendant would have us require that the trial judge affirmatively state that the mental illness did not affect the defendant's ability to form the requisite intent.
Had the trial judge indicated a refusal to consider the defendant's mental illness as a diminishing factor in his decision of whether defendant *519 possessed the requisite malice aforethought, we would find it necessary to address the question of the extent to which mental illness could diminish the intent requirement for second-degree murder. But he did not. We therefore are faced with a statement by the judge that defendant possessed the requisite intent.
We are disinclined, under the circumstances of this case, to place a further burden on the fact-finding of a judge in a bench trial which would require, in addition to a finding of guilty on the elements of the crime, an affirmative statement that all potential mitigating factors have been considered and rejected.
Boyd raises one matter which requires additional consideration.[8] He claims that error which requires reversal occurred when the trial court, over objection, instructed the jury on the disposition of a defendant found not guilty by reason of insanity and on the disposition of a defendant found guilty but mentally ill. The Court of Appeals rejected Boyd's claim on the strength of authorities now questionable in light of our recent decision in People v Goad, 421 Mich 20; 364 NW2d 584 (1984).
In Goad, we held that it was error to instruct the jury as to the disposition of a defendant found not guilty by reason of insanity. However, we expressly stated that our holding was prospective, which makes it inapplicable to Boyd. As to the propriety of giving instructions on the disposition of a defendant found guilty but mentally ill (CJI 7:8:01), Goad, supra, p 37, strongly intimated that such instructions are also improper:
*520 We hold that in all jury instructions given more than 30 days after the filing of this opinion, the jurors shall not be given any information including, but not limited to, CJI 7:8:07 and 7:8:08 requiring the disposition of the defendant after their verdict.
We would now similarly hold that jurors should not be instructed on the disposition of a defendant found guilty but mentally ill. Although error occurred in the instant case, it does not require reversal, for the reasons stated in Goad.
WILLIAMS, C.J., and RYAN, J., concurred with BRICKLEY, J.
BOYLE, J. (concurring).
I concur in all respects save one with the majority opinion. For the reasons stated in dissent in People v Goad, 421 Mich 20, 38; 364 NW2d 584 (1984), I would hold that it is not error to instruct the jury as to the disposition of a defendant found guilty but mentally ill.
LEVIN, J. (dissenting).
I would hold that the guilty but mentally ill verdict is unconstitutional because a jury cannot, consistent with the right of an accused in a criminal prosecution to a trial by jury,[1] be called upon to provide a special finding explicating a guilty or not guilty verdict.
The form of the special finding called for by the statute establishing the guilty but mentally ill verdict,[2] and the jury instructions contemplated by *521 that statute ย and those actually given in the instant case of Boyd ย are also violative of the Due Process Clause[3] because they focus the deliberations and the verdict on a finding that is not determinative of the central issue of guilt or innocence, thereby impermissibly impairing the accused's rights to a fair trial and to be presumed innocent.
Any treatment provided an offender found guilty but mentally ill is not a consequence of the special finding that, at the time the offense was committed, he was mentally ill, but rather of a determination that the offender at some time after his imprisonment is mentally ill, is treatable, and there are resources available to provide treatment, a determination made by physicians and other professionals without regard to, and uninfluenced by, the jury's special finding of mental illness.
I
Bruce Ramsey was charged with first-degree murder.[4] Before trial Ramsey filed a notice of his intention to assert a defense of insanity. Also before trial Ramsey moved that the statute,[5] providing that a defendant who asserts a defense of insanity may be found "guilty but mentally ill," be declared unconstitutional,[6] and that the jury not be instructed on that verdict. After the circuit judge denied the motion, Ramsey filed a written *522 waiver of his right to a jury trial. The circuit judge found Ramsey guilty of second-degree murder,[7] but mentally ill.[8] The Court of Appeals, following a *523 remand for findings of fact,[9] affirmed in an unpublished opinion.
Gary Boyd was charged with armed robbery[10] and assault with intent to commit armed robbery.[11] Before trial Boyd filed a notice of his intention to assert a defense of insanity. At trial Boyd did not deny the conduct[12] alleged in the information, but presented expert and lay testimony in support of his insanity defense.[13] The jury found Boyd guilty *524 but mentally ill on both charges, and the Court of Appeals affirmed in an unpublished opinion.
II
The Code of Criminal Procedure requires that, where a defendant asserts a jury-submissible defense of insanity, the jury be instructed to "consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity," and be instructed on the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty.[14]
A defendant may be found not guilty by reason of insanity if, as a result of "mental illness" or "mental retardation,"[15] the defendant ย at the time of the alleged offense ย "lack[ed] substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law."[16] (Emphasis supplied.) The Mental *525 Health Code defines "mental illness" as "a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life."[17] (Emphasis supplied.)
A defendant may be found guilty but mentally ill if the trier of fact finds beyond a reasonable doubt that the defendant (a) "is guilty of an offense," (b) "was mentally ill at the time of the commission of that offense," and (c) "was not legally insane at the time of the commission of that offense."[18]
III
At common law, the jury in a criminal prosecution ordinarily returned a general verdict ย guilty or not guilty. Alternatively, the jury might return with a statement of findings of fact without a general verdict.[19] The court, rather than the jury, would then apply the law to the facts and render the judgment that the law required on the basis of *526 the facts found by the jury.[20] It appears that the jury returned with only findings of fact and no verdict when it was unsure of the proper application of the law to the facts; it would thereby avoid rendering a "false" general verdict which, before Bushell's Case, made the jurors vulnerable to punishment through a writ of attaint.[21]
The jury could not, however, be required to return with a statement only of findings of fact, for that would violate what Blackstone described as the jury's "unquestionable right of determining upon all the circumstances, and finding a general verdict...."[22]
There was thus at common law either (i) a general verdict, guilty or not guilty, or (ii) special findings of fact (sometimes called a special verdict), without a determination by the jury of the ultimate question of guilt or innocence. There was not, with the exception of the not guilty by reason of insanity verdict, a combination verdict ย a general verdict with special findings.
A
In civil cases a procedure developed of supplementing the general verdict with a statement of findings of fact, resulting in a combination verdict *527 ย a general verdict with special findings. This procedure permitted the court to require the jurors ย if they returned a general verdict ย also to answer special questions concerning specific issues of fact.[23]
In Michigan, the Legislature, in 1871, enacted that in cases involving the trial of factual issues "the court shall, at the request in writing of the counsel of either party, instruct the jury, if they return a general verdict, also to find upon particular questions of fact to be stated in writing, and may direct a written finding thereon," and that "when a special finding of fact shall be inconsistent with a general verdict, the former shall control the latter, and the court shall give judgment accordingly."[24]
Accordingly, under this procedure, a general verdict was set aside if the court determined that it was inconsistent with the jury's answers to special questions. It is apparent that the object of this procedure was to prevent the jurors from misapplying the law to the facts they had found.[25] This Court said that the purpose of requiring the jury to answer special questions was "to test the correctness of their general verdict,"[26] "to enable the court to know what view the jury take of the material issues, and to correct their possibly *528 wrong inferences from the facts which they find to exist,"[27] and to "enabl[e] the court to know whether in finding generally they have properly considered the necessary elements of the finding."[28]
B
Shortly after the 1871 enactment, this Court held that this statutory procedure, authorizing the submission of special questions to supplement and control a general verdict, did not apply in criminal cases.
In People v Marion, 29 Mich 31 (1874), this Court affirmed the defendant's conviction of uttering a forged instrument. The defendant assigned error on the basis of the trial court's refusal to direct the jury to find specially on certain issues of fact.
The Court said that the statute permitting requests for special findings did not apply in criminal cases, observing that "it is one of the most essential features of the right of trial by jury at common law, that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit." Id., p 40. The Court, citing Justice COOLEY'S treatise on Constitutional Limitations,[29] said that "very serious questions" "could not fail to be suggested" were the statute construed to apply in criminal cases, id., p 41.[30]
*529 The predicate of the "very serious questions" is the constitutional right of an accused to a trial by jury. The incidents of that right include a jury empowered ย after instruction in the law by the court ย to apply the law to the facts as found by the jury and to answer generally, without explication, the ultimate question of guilt or innocence. To call upon the jury to return answers to special questions in addition to, and in explication of, a general verdict would be contrary to an incident of a jury trial in a criminal case. Reluctant jurors might be "catechized" by "a progression of questions each of which seems to require an answer unfavorable to the defendant"; answering special questions may have a "subtle, and perhaps open, direct effect" "upon the jury's ultimate conclusion."[31]
*530 C
The statute providing for the guilty but mentally ill verdict so impairs the right to a trial by jury. The statute, by requiring that the judge instruct the jury on that verdict, calls upon the jury to provide a special finding in explication of a general verdict of guilty.[32]
1
It might be argued that because the jurors retain the option of returning a general verdict of guilty or not guilty, they are not required by the inclusion of the special finding of mental illness within the alternative verdict of guilty but mentally *531 ill ย as they would be if required to answer special questions ย to provide a special finding.[33]
To be sure, the jury is instructed on the general verdicts of guilty and not guilty. Jurors, sworn to render a verdict in accordance with the instructions of the court,[34] are not, however, informed that, even if they should find that the defendant was mentally ill at the time of the alleged commission of the offense, they need not so specially find and may instead, consistent with their oaths, return a general verdict of guilty.
To preserve the right to a general verdict, it would be necessary to instruct the jurors that even if they find facts justifying a special finding that the defendant was mentally ill, but not legally insane, at the time of the alleged commission of the offense, they nevertheless may return a general verdict. To avoid confusing the jurors, it would also be necessary to instruct them on why they have the option, if they find the defendant was mentally ill, of returning either a verdict of guilty or a verdict of guilty but mentally ill.
Such instructions are not in fact given;[35] rather, the jurors are instructed that it is their "duty to accept the law" as stated by the court.[36] Jurors instructed on the verdict of guilty but mentally ill, and on the findings required to justify that verdict,[37]*532 will understand that if they find that the defendant was mentally ill, their duty to "accept the law" obliges them to return a verdict, in accordance with their findings, of guilty but mentally ill. They will not understand that it is lawful, although mental illness is found, to return a general verdict of guilty.
The manner in which juries are instructed thus unconstitutionally impinges on the right to a general verdict by in effect requiring, where the jury finds all the elements of the offense and mental illness, that it make a special finding of mental illness in partial explication of its general verdict of guilty.
2
The people argue that the purpose of enacting the guilty but mentally ill verdict was "to require judges, juries, and counsel to focus on the critical issue in any insanity case, criminal responsibility, as well as on the frequently distracting issue of *533 mental illness" and "to eliminate or substantially reduce inappropriate insanity verdicts by compelling all participants... to focus on the distinct issues in each case with the hope that the fact-finding process would have less confusion and would be more likely to produce an accurate factual result."[38] (Emphasis in original.)
While the issue of sanity may often be particularly difficult, juries are confronted with other difficult issues in which the need for factual accuracy is no less important to the ultimate decision on the issue of criminal responsibility. Were the need for care in fact-finding sufficient to justify a departure from the general rule that it is impermissible to call upon the jury for special findings, the exception for the issue of sanity might soon expand to include many, perhaps all, elements necessary to establish criminal responsibility, and the general verdict, without explication, might be virtually eliminated.
The people and the accused might be better served by a system in which the jury were required to provide special findings either in lieu of or in addition to a general verdict. We start, however, with the adoption in this state's constitution[39] of the accused's right to a trial by jury, which at common law referred to a jury that ordinarily returned a general verdict without explication. Until this Court decides that the constitution allows a judge to call upon a jury to explain its verdict, the Legislature cannot alter the role of the jury in a manner so inconsistent with the *534 constitutional right to a jury trial in a criminal case.
3
A finding of mental illness in the guilty but mentally ill verdict is not determinative of the issue of criminal responsibility. A person who is mentally ill may or may not, under the statute, be insane. A finding that the defendant was mentally ill at the time of the commission of the offense is not therefore inconsistent with either a guilty or not guilty verdict. Accordingly, a special finding of mental illness accompanying a general verdict does not assure that the jury has not misapplied the law to the facts. In a civil case, a court would be justified in refusing to submit to the jury a special question that had so little bearing on the general verdict.[40]
A finding that the defendant was mentally ill at the time of the commission of the offense is not a factual finding, but rather a legal conclusion. To ensure greater care in fact-finding on the issue of legal insanity, the jury should be asked:
1) whether the defendant at the time of the offense had a substantial disorder of
a) thought, or
b) mood;
2) if the answer to either 1a or 1b is "yes," whether such substantial disorder(s) significantly impaired
a) judgment, or
b) behavior, or
*535 c) capacity to recognize reality, or
d) ability to cope with the ordinary demands of life;
3) if the answers to one or more of 2a, 2b, 2c or 2d are "yes," whether such significant impairment(s) resulted in the lack of substantial capacity either
a) to appreciate the wrongfulness of the defendant's conduct, or
b) to conform his conduct to the requirements of law.
D
Some courts have said that the use of special questions in criminal cases, while disfavored, is not erroneous per se.[41] The circumstances in which those statements have been made do not, however, provide authority justifying the guilty but mentally ill verdict.
1
All would agree that the jurors may, indeed must, be called upon to specify the offense of which they find the defendant guilty. Where there are degrees or lesser included offenses of the charged offense, or the charged offense can be committed by alternative conduct, the accused is in effect faced with multiple charges.
When a jury finds that a defendant so charged is guilty of, say, petty larceny rather than grand larceny, it is necessary for it to distinguish in the guilty verdict whether the defendant committed one offense or another. One may characterize a verdict of guilty of petty larceny as a verdict of *536 guilty of larceny with a special finding of the amount involved in the larceny, but the verdict nevertheless is a general verdict of guilty of the lesser offense of petty larceny. When a jury returns a verdict of guilty of larceny under $100, it is not rendering a special finding explicating a general verdict, but only a general verdict of one of the lesser offenses charged.
Similarly, it is necessary ย to avoid convicting a person of first-degree murder unless all twelve jurors concur that he either premeditated and deliberated or that the murder occurred in the perpetration or attempted perpetration of a particular felony ย to divide the offense, for purposes of the verdict, into two offenses, so that the verdict makes clear that all twelve have found the defendant guilty of premeditated and deliberated murder or all twelve have found him guilty of murder in the perpetration or attempted perpetration of a particular felony.[42]
The decisions in other jurisdictions stating that special findings are not erroneous per se are principally of that kind.[43]
*537 A finding that the defendant was mentally ill at the time of the commission of the offense is not, however, determinative of either the fact or degree of criminal responsibility. The finding does not convict, exculpate, or reduce the degree of an offense from ย taking the example suggested by Ramsey and discussed in the opinion of the Court[44] ย second-degree murder to manslaughter.
2
In some jurisdictions, the role of the jury has been expanded to include consideration of the appropriate punishment of a convicted felon. In those jurisdictions, the jury may be called upon to *538 provide findings concerning facts that must be established to support imposition of the death penalty.[45]
In Michigan, however, the jury has no role in the determination of penalty or sentencing. It appears, moreover, that the finding of mental illness in the guilty but mentally ill verdict is not supposed to affect sentencing. If a defendant is found guilty but mentally ill, "the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense."[46]
3
The not guilty by reason of insanity verdict ย like the guilty but mentally ill verdict ย calls upon *539 the jury to provide a special finding explicating a general verdict. It appears, however, that the not guilty by reason of insanity verdict is an historical anomaly that has been accepted ย in Michigan[47]*540 and in other jurisdictions[48]