PEOPLE OF MI V CORBIN AMIEL THOMAS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 28, 2007
Plaintiff-Appellee,
v
No. 267301
Tuscola Circuit Court
LC No. 04-009251-FC
CORBIN AMIEL THOMAS,
Defendant-Appellant.
Before: Whitbeck, C.J., and Wilder and Borrello, JJ.
PER CURIAM.
Following a jury trial, defendant was found guilty but mentally ill of committing four
counts of assault with intent to murder, MCL 750.83. Defendant was sentenced to 23 years and
9 months to 60 years in prison, with credit for 526 days served on counts one, two, and three, and
to 18 years and 9 months to 60 years in prison, with credit for 526 days served, on count four.
Defendant appeals as of right, and we affirm.
I. FACTS
In June 2004, defendant was a patient at the Caro Center, a state-owned mental health
facility. Defendant escaped from the center on around June 22, 2004. On June 25, 2004, at
approximately 8:00 a.m., Patricia Colburn-Spencer arrived at Caro Learning Center, where she
was employed as a teacher. The Caro Learning Center is an alternative school on the Caro
Center’s campus. Colburn-Spencer went to the library where three of her coworkers, Kristie
Reh, Larry Gettel, and Sarah Cox, were gathered, and talked with Reh and Gettel. Reh left the
group to make coffee in the break room and to retrieve her coffee mug from the kitchen. Reh
noticed that the kitchen door was closed, which struck her as unusual because when no children
were in the building, the door was typically left open. Reh pushed the door open, and stated that
once it was open “all I could see was this big black thing, and all of a sudden I was on the
ground.” Initially, Reh was not sure if the attacker was a male or female, or even if it was human
or an animal. According to Reh, it felt like the attacker was either stabbing her or striking her
with a fist in her head. She curled into a fetal position, using her arms to protect her head, and
screamed to warn her coworkers. Colburn-Spencer and Gettel heard Reh’s screams, and
Colburn-Spencer went to get help. Gettel saw someone in the hallway standing over Reh and
striking her. Gettel did not notice much about the attacker’s appearance except that it was a man
with a distinctive hairstyle. Gettel put out his leg to stop the man, but the man knocked him
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down and proceeded down the hallway, where Gettel’s tool cart was stationed. The attacker took
a hammer from the tool cart and continued down the hall and around a corner.
Gettel pursued the attacker. When he rounded the corner, Gettel saw the attacker hitting
Colburn-Spencer in the head with the hammer. Gettel was able to knock the attacker away from
Colburn-Spencer, but then the man began to hit Gettel in the head with the hammer. Gettel was
briefly incapacitated, and the attacker moved further down the hall to the office where Cox had
retreated during the commotion. Cox saw the man coming towards her and was able to get a
good look at him; she identified him at trial as the defendant. Defendant then grabbed Cox on
the arm, and when she freed herself he grabbed her again and raised his hand, which held a stick
of some sort, as though to strike her. Cox pulled away from defendant again, and ran to the
bathroom and locked herself inside. After Cox’s escape from defendant, Gettel engaged him
again and was able to wrest the hammer away from him after suffering additional blows to his
head and body. Once Gettel had the hammer, defendant exited the building through the front
door. Cox escaped from the building through the bathroom window and ran to her car to get
help. Cox drove to the Caro Center, which dispatched people to help her coworkers at the Caro
Learning Center.
On June 27, 2004, at about 6:00 a.m., Michigan State Trooper Tim Johnson got a call to
assist in a search for defendant near the Caro Learning Center. Johnson, who also worked as a
K-9 handler in his department, took his dog and began to search the woods along the river. As
Johnson walked down a trail in the woods, his dog began “to giv[e] indications he was on an
odor.” The dog stopped about ten feet ahead of Johnson near a person who was lying on the
ground on his back with garbage bags on top of him and papers, magazines, food wrappers, a
pair of scissors, and a large ring of keys strewn around his body. Johnson testified that he
“[made his] presence known” to the person, who did not react or respond in any way.
Following a jury trial, defendant was found guilty but mentally ill of four counts of
assault with intent to murder. This appeal ensued.
II. ANALYSIS
On appeal, defendant raises two issues. First, defendant asserts that the evidence
regarding the intent element of assault with intent to murder was not sufficient to sustain his
convictions because he was legally insane at the time he committed the offenses. Therefore,
according to defendant, the trial court should have sua sponte directed a verdict pursuant to MCR
6.419(A). In a related argument, defendant argues that the jury’s verdict was against the great
weight of the evidence and that the trial court failed to recognize that it possessed the authority to
overturn the verdict. Defendant cites People v Lemmon, 456 Mich 625; 576 NW2d 129 (1998),
for the proposition that due process requires the trial court to order a new trial if the verdict is
against the great weight of the evidence. Second, defendant argues that he was denied effective
assistance of counsel because defense counsel failed to move for a directed verdict, failed to
object to the testimony of Dr. Donald Proux, and failed to meet with and properly prepare
defense witness Dr. Firozza B. Van Horn.
A. Sufficiency of the Evidence-Directed Verdict
In his first argument, defendant makes the somewhat novel assertion that even though
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defendant did not move for a directed verdict under MCR 6.419 based on the sufficiency of the
evidence, the trial court nevertheless should have sua sponte directed a verdict of not guilty by
reason of insanity on each of the relevant charges pursuant to MCR 6.419(A). Under MCR
6.419(A), the trial court is authorized to direct a verdict of acquittal if “the evidence is
insufficient to support [the] conviction.” Criminal defendants do not need to take any special
steps to preserve a challenge to the sufficiency of the evidence. People v Cain, 238 Mich App
95, 116-117; 605 NW2d 28 (1999). In reviewing the sufficiency of the evidence to support a
conviction, this Court must decide whether, viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could have found that the essential elements of the crime
were proven beyond a reasonable doubt. People v Patterson, 428 Mich 502, 524-525; 410
NW2d 733 (1987). “‘When reviewing a trial court’s decision on a motion for a directed verdict,
this Court reviews the record de novo to determine whether the evidence presented by the
prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of
fact that the essential elements of the crime charged were proved beyond a reasonable doubt.’”
People v Werner, 254 Mich App 528, 530; 659 NW2d 688 (2002), quoting People v Aldrich, 246
Mich App 101, 122; 631 NW2d 67 (2001).
Defendant argues that the trial court failed to recognize its authority to grant a directed
verdict after stating on the record that “one could reasonably conclude that [defendant] was not
in control of his faculties, and therefore maybe he should have been found not guilty by reason of
insanity.” It is true that under MCR 6.419(A), “the court on its own initiative may . . . direct a
verdict of acquittal on any charged offense as to which the evidence is insufficient to support
conviction.” (Emphasis added.) According to defendant, the evidence was insufficient to
establish the intent element of the offense of assault with intent to murder because defendant
presented evidence which established that he was legally insane at the time of the offense.
A criminal defendant is presumed sane. People v Jones, 151 Mich App 1, 5; 390 NW2d
189 (1986). However, legal insanity is an affirmative defense:
It is an affirmative defense to a prosecution for a criminal offense that the
defendant was legally insane when he or she committed the acts constituting the
offense. An individual is legally insane if, as a result of mental illness . . . or as a
result of being mentally retarded . . . , that person lacks substantial capacity either
to appreciate the nature and quality or the wrongfulness of his or her conduct or to
conform his or her conduct to the requirements of the law. Mental illness or being
mentally retarded does not otherwise constitute a defense of legal insanity. [MCL
768.21a(1).]
MCL 768.21a(3) expressly provides that “[t]he defendant has the burden of proving the defense
of insanity by a preponderance of the evidence.” Thus, in order to establish that he was legally
insane under MCL 768.21a(1), defendant was required to prove that he lacked the substantial
capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law.
The burden of proving beyond a reasonable doubt each and every element of the crime
charged is on the prosecution. People v Mette, 243 Mich App 318, 330; 621 NW2d 713 (2000).
However, sanity is not an element of assault with intent to commit murder, see People v Barclay,
208 Mich App 670, 674; 528 NW2d 842 (1995), and the prosecution is not shouldered with the
burden of proving the failure of an affirmative defense, such as insanity. Mette, supra at 330.
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As stated above, under MCL 768.21a(3), defendant bears the burden of proving insanity. The
prosecution and defendant presented a substantial number of witnesses, from psychiatrists and
psychologists to a sheriff’s deputy, regarding the issue of defendant’s sanity. In general, the
prosecution’s witnesses asserted that defendant was sane. A psychiatrist who treated defendant
testified that he was not acutely mentally ill, as did a psychologist and forensic examiner who
was also a medical doctor. In contrast, a sheriff’s deputy who testified on behalf of defendant
testified that defendant displayed bizarre behavior, and a board-certified psychologist who
evaluated defendant on multiple occasions but who was not his treating mental health
practitioner, testified that defendant was “clearly psychotic” and “insane.” The jury heard all of
this testimony and rejected defendant’s insanity defense.
“[I]t is not permissible for a trial court to determine the credibility of witnesses in
deciding a motion for a directed verdict of acquittal, no matter how inconsistent or vague that
testimony might be.” People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997). Witness
credibility and the weight accorded to evidence is a question for the jury, and any conflict in the
evidence must be resolved in the prosecution’s favor. People v McGhee, 268 Mich App 600,
624; 709 NW2d 595 (2005). In this case, the jury heard the evidence regarding defendant’s
sanity, and rejected defendant’s insanity defense. “The jury is the ultimate judge of [a]
defendant’s sanity at the time of the crime . . . .” People v Krugman, 377 Mich 559, 563; 141
NW2d 33 (1966). In light of the testimony of the prosecution’s witnesses indicating that
defendant was sane, not only was the trial court correct in not sua sponte directing a verdict, it
would have been error for the trial court to direct a verdict because weighing the evidence
regarding defendant’s sanity or lack thereof and determining the credibility of the witnesses who
were testifying regarding defendant’s sanity were questions for the jury, not the court.
B. Great Weight of the Evidence-New Trial
Defendant also argues that the verdict was against the great weight of the evidence.
Defendant failed to preserve this issue because he did not raise it in a motion for new trial before
the trial court. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Therefore,
our review of this issue is limited to whether there was plain error affecting defendant’s
substantial rights. Id.; People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
Defendant cites Lemmon, supra, in support of his argument that the verdict was against
the great weight of the evidence. Although defendant did not argue before the trial court and
does not now argue on appeal that he should receive a new trial, he relies on Lemmon, which
states that a new trial may be granted if the verdict is against the great weight of the evidence.
Lemmon, supra at 635. MCR 2.611(C) provides that “the court on its own initiative may order a
new trial for a reason for which it might have granted a new trial on motion of a party.” Included
in the grounds for a new trial is “[a] verdict or decision against the great weight of the evidence
or contrary to law.” MCR 2.611(A)(1)(e).
The test to determine whether a verdict is against the great weight of the evidence is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand. Musser, supra at 218-219. The basis of defendant’s
argument is that the evidence regarding defendant’s sanity preponderates so heavily against the
verdict that it would be a miscarriage of justice to allow the verdict to stand. In general, the
testimony of defendant’s witnesses on the issue of defendant’s sanity conflicted with the
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testimony of the prosecution’s witnesses who testified regarding defendant’s sanity. As
explained above, for defendant, a sheriff’s deputy testified that defendant displayed bizarre
behavior, and a board-certified psychologist, who evaluated defendant on multiple occasions but
who was not his treating mental health practitioner, testified that defendant was “clearly
psychotic” and “insane” at the time of the attacks. On the other hand, several witnesses,
including a psychiatrist who regularly worked with defendant and a psychologist and forensic
examiner who was also a medical doctor, testified that defendant was not suffering from acute
mental illness at the time of the offenses and was aware of his actions. Although the testimony
was conflicting regarding the issue of defendant’s sanity, conflicting testimony is an insufficient
ground for granting a new trial. Id. at 219. Furthermore, we conclude that the evidence does not
preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand. Therefore, we find no plain error affecting defendant’s substantial rights.
C. Effective Assistance of Counsel
Defendant also contends that trial counsel was ineffective, thereby denying him a fair
trial. Although defendant raised the issue whether trial counsel was ineffective in a motion for
remand before this Court, he did not move for an evidentiary hearing or a new trial based on
ineffective assistance of counsel in the trial court. Therefore, the issue is not preserved, and this
Court’s review is limited to mistake apparent on the record. People v Ginther, 390 Mich 436,
443-444; 212 NW2d 922 (1973); People v Williams, 223 Mich App 409, 414; 566 NW2d 649
(1997). Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The
facts and law are reviewed, respectively, for clear error and de novo. Id. To establish ineffective
assistance of counsel, a defendant must show that counsel’s performance fell below an objective
standard of reasonableness and that the representation so prejudiced the defendant as to deprive
him of a fair trial. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
Defendant first argues that defense counsel was ineffective because he failed to move for
a directed verdict even when the trial court expressed reservations about defendant’s guilt. We
reject this argument based on our conclusion that the trial court did not err in not directing a
verdict in favor of defendant, and we observe again that it would have been error for the trial
court to direct a verdict in defendant’s favor in this case.
Defendant also argues that trial counsel should have objected to the testimony of Dr.
Donald Proux, which defendant asserts improperly bolstered the credibility of Dr. Arthur
Rosenburg, a medical doctor and forensic psychologist who testified on behalf of the
prosecution, and attacked the credibility of defense witness Dr. Van Horn. Proux worked at the
Caro Center as a contract psychiatrist whose role was to evaluate patients for the purpose of
testifying in court on behalf of their treating physician, in part to ensure that such duties would
not interfere with the staff physicians’ ability to spend their time treating patients. Proux met
with defendant and determined that he saw no evidence of acute mental illness; Proux believed
that defendant appeared to be “very self confident” and looked “very organized and together.”
Defendant specifically objects to the portion of Proux’s direct testimony concerning his opinions
of the evaluations of both Drs. Rosenburg and Van Horn, which is as follows:
Q. Did you have an opportunity, Doctor, to review the reports of Doctor
Rosenburg . . . as well as Doctor Van Horn?
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A. Yes I did.
****
Q. Did you evaluate the conclusions then of the two individuals and the basis for
those conclusions?
A. Yes. Obviously Doctor Rosenburg’s report was more coherent and logical,
and had a flow to it. . . . [H]is opinion . . . was more credible to me, and I
happened to agree with him.
When asked what the differences were between Van Horn’s and Rosenburg’s descriptions of
defendant’s reports of delusions, Proux responded that he believed Van Horn had “copied part of
. . . Rosenburg’s report . . . , and it wasn’t as coherent as his because she left things out.”
Defendant also argues on appeal that defense counsel should have objected to Proux’s
“anecdotal” stories about defendants with mental illness who want to outsmart the system by
escaping responsibility for their crimes.
When asked to give his opinion about Dr. Rosenburg and Dr. Van Horn’s reports, Proux
responded that he thought that Rosenburg’s report was more compelling than Van Horn’s. We
disagree with defendant’s claim that this testimony improperly bolstered Rosenberg’s testimony
and preemptively attacked Van Horn’s credibility. Proux was certified as an expert in the area of
forensic psychiatry pursuant to MRE 702. As such, he was qualified to offer an opinion on the
reports of the other expert witnesses, and defense counsel’s objection to this opinion would
likely have been in vain. “[T]rial counsel cannot be faulted for failing to raise an objection or
motion that would have been futile.” People v Fike, 228 Mich App 178, 182; 577 NW2d 903
(1998). We are also not persuaded that Proux’s statements suggesting that a guilty but mentally
ill verdict is appropriate for defendants who want to outsmart the system by escaping
responsibility for their crime were prejudicial. Therefore, any objection to these comments
would have also been futile.
Next, defendant argues that trial counsel failed to adequately prepare his expert witness,
Dr. Van Horn, by neglecting to provide her with all the materials she needed to consider prior to
testifying at trial and by failing to meet with her before trial. In particular, defendant claims that
counsel did not provide Dr. Van Horn with a videotape of defendant responding to police
questions following his arrest on June 27, 2004. Further, defendant states that trial counsel failed
to adequately consider the relevance of the videotape and its role in the prosecution’s argument.
However, defendant does not claim that the jury’s verdict turned upon the contents of the
videotape, nor does he argue that or how he was prejudiced by his counsel’s asserted failure to
appreciate its importance to the prosecution’s case. A defendant must show that he was
prejudiced by counsel’s defective performance in order to effectively claim ineffective assistance
of counsel. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). Prejudice results if,
but for counsel’s unprofessional errors, the result of the proceedings would have been different.
Id.
Defendant claims in essence that Dr. Van Horn’s testimony was defective because she
had not considered and used the videotape in preparing for trial. She testified as an expert in the
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area of forensic psychology that defendant was experiencing an intense period of psychosis at the
time of the offenses based on her meetings with him. The fact that counsel did not provide her
with the videotape of some of defendant’s post-arrest statements does not negate the importance
of Dr. Van Horn’s testimony, nor does defendant suggest that this was the case. In addition, we
reject defendant’s argument that counsel’s failure to meet with Dr. Van Horn shows a lack of
preparation. The failure to interview witnesses does not alone establish inadequate preparation.
People v Caballero, 184 Mich App 636, 642; 459 NW2d 80 (1990). It must be shown that the
failure resulted in counsel’s ignorance of valuable evidence which would have substantially
benefited the accused. Id. Defendant does not allege what information or evidence that better
preparation of Dr. Van Horn would have elicited. Therefore, defendant has not overcome the
presumption that defense counsel’s representation of defendant was effective.
Affirmed.
/s/ William C. Whitbeck, C.J.
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
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