*1 1981] Slager
PEOPLE v SLAGER 8, 1980, Lansing. Docket No. 48688. Submitted December at —Decided April 21, 1981. Boyd W. was convicted of felonious assault the Kalama- Court, Borsos, Immediately zoo L. Circuit Robert J. after the verdict, jury’s plea guilty supplemental entered to a charging information him as a second offender. Prior to sen- tencing he moved to withdraw his and for newa .trial. appeals. These motions were denied and defendant Held: failing 1. The trial did court not err in to instruct the
that felonious assault is a
intent crime. The rule to that
expressed
effect
Affirmed. Burns, P.J., dissented. He would hold merely Johnson clarified law and should be applied retroactively. He would reverse. [2] [3] [7] [6] [8] [5] Am [4, [1] [9] Withdrawal 5 Am Jur 75 Am Jur 29 Am Jur 21 Am Jur 29 Am Jur 16A Am Jur 75 Am under Rule Fed 665. 6 Am Jur Jur Jur 2d, Appeal 2d, Appeal 2d, 2d, 2d, 2d, 2d, 2d, References 2d, 32(d) Criminal plea Trial 876 et Evidence 327. Evidence 320§ Trial Assault and Constitutional Law 661. of Federal Rules of Criminal Procedure. 6 ALR § §§ and Error 700. Law § for Points in Headnotes Error 774. 896. Battery seq. § et § § seq. nolo contendere before et § §§ seq. 51. sentence, — — Impeachment Convictions Rules of Prior Evidence Evidence. *2 prohibit prior a conviction for the use of
The of evidence rules years period impeachment purposes of more ten has if a than or the release of the elapsed the date of the conviction of since conviction, imposed for that the confinement from witness (MRE 609[b]). later whichever is Unspecified Impeachment — — 2. Felonies. Criminal Law impeachment pur- unspecified felony for conviction Proof of an impact poses prevents defen- of the of the rational evaluation credibility past therefore cannot on his and dant’s conduct presented; purpose it to be allow- for which was serve the sole unspecified felony by proof impeachment of convictions of ance is error. — — — Misdemeanors 3. Lesser Offenses Criminal Included Law Jury Instructions. court, charged offense criminal case wherein years, may by punishable than two incarceration for more included offenses for which on lesser instruct year one or less. of incarceration is maximum allowable Battery — Specific — 4. Intent. and Felonious Assault Assault Johnson, The rule announced intent crime has that felonious assault application only. prospective Appeal Authority. Appeal — — Citation of 5. Issues supporting position citations is insuffi- A statement of without Appeals; party bring a cient to an issue before Court of may to to sustain not leave to search position. reject Appeal — 6. Abuse Discretion. palpably is so
An abuse of discretion occurs where the result logic grossly it evidences not violative of fact will, perversity not the exercise exercise of will but the thereof, but judgment of reason not the exercise but defiance passion rather of or bias. — Guilty— — 7. Pleas Motions Withdrawal Criminal Law Pleas. Michigan; right withdraw exists No absolute however, guilty plea a motion for withdrawal should be great granted liberality sentencing. when made J.
Dissent P. Battery Specific — Assault Felonious Assault Intent. The rule announced in speciñc ais intent crime retroactively. Jury—
9. Courts Instructions. required jury concerning Trial courts are the law applicable to the case. Kelley, Attorney Frank J. General, Robert A. Derengoski, Gregart, General, Solicitor James J. Prosecuting Attorney, Dzialowski, H. Michael Principal Appellate Attorney, people. for the
Dauden, Basch, Tucker & for defendant. *3 P.J., Before: M.T. F. D. Allen JJ. Walsh, 15, 1978, J. On November defendant was Allen, by convicted of MCL of felonious assault in violation 750.82; Immediately MSA 28.277. after the jury’s verdict, defendant entered a supplemental charing the information him a as second offender. Defendant was sentenced Janu- ary 8, 1979, to serve three months total confine- program, ment, three months a work release and, years probation. thereafter, four and one-half appeals right. Defendant as of Defendant’s first claim of error that the trial improperly court prior allowed the use of his impeachment purposes. prelim- conviction for a As 609(b) inary prior prohibits matter, MRE the use convictions “if a of more than ten years elapsed has since the date of the conviction the release of the witness from the confine- imposed conviction, is the whichever for that ment undisputed (Emphasis supplied.) It is date”. later imprisonment from was released defendant that prior Therefore, no in 1973. conviction his limit from problem of this with the use exists time Although the maintains that defendant allowing evi- its discretion trial court abused prior conviction, of the lower a review dence the clearly that the trial indicates court record weighed against prejudical probative the value the upon the that and determined defendant effect probative prejudicial effect. exceeded the
value correctly record on the indicated The trial court (second- prior similarity of the conviction that the murder) degree prejudical its effect increased Equally weighed against correct, admission. prior was that conviction trial court indicated probative credibility. The trial court of defendant’s that discretion determined exercised its probative prejudical effect. We value exceeded clearly say trial court abused cannot doing. in so discretion opportunity address defendant’s
We take this
prosecution
suggestion
single question
be limited
(Have
you
of a
ever been convicted
impeach-
felony?)
using
when
convictions
purposes.
ment
cites the case
Defendant
Hollis,
333; 292
position.1 Hollis, 340,
of his
fn
does
suggest
this as a viable alternative.
indeed
People Moseley,
461, 464; 290
also
*4
(1979). However,
that Hollis
39
we believe
NW2d
regard. Michigan
Moseley are incorrect in this
and
1
Crawford,
People
268
v
83 Mich
Defendant also cites
(1978). However,
proposi
275
Crawford does not stand for
NW2d
(Have
prosecution
single
you
question
limited to the
tion that
be
felony?)
impeaching
of
a
evidence
convicted of
when
ever been
prior convictions.
597
v
clear
in holding
case law is
is error
impeach with evidence
an unspecified felony.
People Dixon, v
App 847;
Mich
Defendant’s second claim error is that trial erred in refusing to instruct on the lesser included offenses of assault battery malicious destruction under property $100. However, both assault and malicious battery $100, destruction under property 750.81; MCL 28.609(1) MSA 750.377a; 28.276 and MCL MSA are respectively, misdemeanors with maximum imprisonment of 90 days, 750.504; MCL MSA such, 28.772. As the trial court properly refused to instruct on either following Supreme People Chamblis, mandate of which stated:
"We establishing are a rule a today, as matter of policy, limiting compromise the extent of allowable to a deciding whether to convict of a lesser included offense. In charged case wherein the offense is punishable by incarceration for years, more than two court, requested, whether or not may on lesser included offenses which the maximum allowable year incarceration is one less.” People Miller, citation NW2d 630 inappropriate. Chamblis Miller exception The sole created restricted allowing trial court to instruct jury on lesser included misdemeanor offense receiving concealing property with a value *5 105 593 598 Mich Opinion the Court property involved if the value less $100 separates only the misde- element which supra, charged. felony Miller, meanor from the opinion Futhermore, was held be Miller commencing May only after effective for trials 1979. Id. although argues that, he did not
Defendant next request the trial court intent crime
felonious assault was although object to the instructions as did given, by the retroactive is mandated reversal application Joeseype Johnson, 407 718 which held that Mich 284 NW2d specific intent crime. question Johnson clar- is whether crucial ifies consequently is retroactive law holding only application2 in prospective or whether principles under announced Hampton, Mich 404 (1971). panels of this Court have reached Different Starghill, In results. different App 790, 792; 298 NW2d held:
"However, decided on October Joeseype Johnson was 29, 1979, defendant’s conviction. We decline to after retroactively See Peo- in these circumstances. apply Hampton, 384 ple Mich Therefore, we the trial court’s decision under review prior law.” hand, with the identical the other when faced
On issue, panel of this concluded a different Szymanski, (1981): a re- agree Johnson constitutes "We Kamin, 482, 494; People v statement and clarification of previously existing Michi- gan case law and is fully applicable therefore instant case. problem No limiting application of a new rule of law arises under such circumstances.”
In both Starghill
and Szymanski
the issue of
*6
specific intent has been raised in the trial court. In
Ideis,
Mich App
(1980), and People v Braddock;
In Braddock, supra, 14, a unanimous panel considered both the Starghill and Szymanski deci- sions and held that: persuaded "We are that logic expressed better
in Starghill. Our conclusion is reinforced by the fact that, case, the instant exception no was taken at trial to the court’s failure to instruct jury was a intent crime. Under such circumstances, it is not necessary to decide whether application.” given Johnson should be retroactive
We believe the Braddock decision is correct and adopt its conclusion as our own.
Defendant attempts raise the issue of insuffi- ciency of the evidence on appeal. While we find the evidence sufficient verdict, to. we need not reach this decision. Defendant has not cited any support of this claim of op Opinion the Court 'may party this Court "to leave "A error. posi- reject authority” sustain search for * * * sup- position without tion’. porting A statement bring an issue is insufficient citations Hygrade Food Prod- Kucken v this Court.” before Corp, 471, 473; 215 NW2d ucts Bergeon, 89 Mich also Stanek v the sen- is that claim of error last denying tencing his its discretion court abused supple- guilty plea to the his motion to withdraw his motion at made Defendant mental information. the tenced. After the hearing shortly sentencing he was sen- before listening motion and to defendant’s sentencing prosecutor’s comments, have an abuse In order to the motion. denied discretion, palpably and so result must be logic perversity grossly it evidences of fact violative will, not but not the exercise will judgment thereof, not but defiance the exercise of the passion or but rather of exercise of reason *7 App People 622, 625-626; 211 Erb, 48 Mich v bias. (1973). determining there whether In NW2d discretion, both this Court notes was an abuse sentencing pleas to withdraw that motions great liberality there and that are considered with plea. right to withdraw such is no absolute People Price, 57; 85 Mich 270 NW2d v (1978), People Flanagan, 613; 249 72 Mich v (1976), Love, (1976). although present case, In plea shortly his defendant did move to withdraw any being sentenced, did not advance before motion, nor reasons in of his nonfrivolous did he assert his innocence with prior
regard his perceive Therefore, we cannot ground upon of discre- to find an abuse which tion. convictions are affirmed. Burns, M. T. P.J. by Dissent Walsh, J.,
F.D.
concurred.
(dissenting).
P.J.
I
Respectfully,
As
dissent.
was
by
stated
Szymanski,
102 Mich App
Rather, the Court merely clarified law.
Trial required courts are to instruct the jury concerning applicable law case, to the see People Oberstaedt, 127 NW2d judge The erred in this case instructing jury the crime of felonious assault intent crime. As a conse- quence, I cannot vote to affirm defendant’s convic- tion of felonious assault. Supreme John- opinion Court’s
son wholly this case. Because the trial judge’s instructions in this case do not comply with the standards defendant’s conviction of felonious assault should be reversed.