293 Mich. App. 393 | Mich. Ct. App. | 2011
Jerome Strickland challenges his jury trial convictions of first-degree home invasion,
Strickland was convicted of breaking into the home of a senior couple, Arlis and Vera Clarkson, during which 70-year-old Arlis armed himself with a gun after realizing the possibility of an intruder. The prosecution alleged that while Strickland was assaulting Arlis, he jointly possessed Arlis’s firearm when he placed both hands on the gun as he attempted to take it from Arlis. The gun discharged three times during the struggle, and Arlis was shot in the hand. Strickland conceded at trial that he invaded the Clarksons’ home, but argued that he never possessed Arlis’s gun.
I. APPOINTMENT OF NEW COUNSEL
Strickland first argues that the trial court abused its discretion by denying his request for new counsel made on the first day of trial. We disagree.
“An indigent defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced. Appointment of a substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. Good cause exists where a legitimate difference of opinion develops between a defendant and his appointed counsel with regard to a fundamental trial tactic. ”[9]
Initially, we reject Strickland’s claim that the trial court failed to adequately inquire into the nature of the breakdown of the attorney-client relationship. “When a defendant asserts that the defendant’s assigned attorney is not adequate or diligent, or is disinterested, the trial court should hear the defendant’s claim and, if there is a factual dispute, take testimony and state its findings and conclusion on the record.”
Further, neither Strickland’s complaints nor his filing of a grievance established good cause for the ap
In addition to the matters mentioned in the trial court, Strickland adds on appeal that counsel failed to file any pretrial motions to dispose of the assault and firearm charges. Strickland does not indicate what motions should have been filed or explain how they would have been successftd. Counsel was not required to file a futile motion.
II. SUFFICIENCY OF THE EVIDENCE
Strickland argues that he never possessed a weapon, so the evidence was insufficient to support the firearm and dangerous-weapon elements of the offenses of assault with intent to do great bodily harm less than murder, felonious assault, felon-in-possession, and felony-firearm. We disagree.
In ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court “must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.”
We first note that, Strickland’s sufficiency challenge to his conviction of assault with intent to do great bodily harm less than murder is without merit. His conviction for assault with intent to do great bodily harm less than
With regard to the remaining convictions, possession is a question of fact for the trier of fact and can be proved by circumstantial evidence and reasonable inferences arising from the evidence.
Strickland invaded the Clarksons’ home and discovered that Arlis had armed himself with a gun. Arlis testified that Strickland immediately attacked him and attempted to take the gun. During the struggle, Strickland had both of his hands on the gun, repeatedly tried to take it away, and directed Arlis to “give it up.” Strickland nearly managed to completely wrest control of the gun away from Arlis a couple of times. As Strickland attempted to gain sole possession of the gun, it discharged and Arlis was shot.
III. DOUBLE JEOPARDY
Strickland lastly argues that his dual convictions and sentences for both assault with intent to do great bodily harm less than murder and felonious assault viólate his double jeopardy right not to be subjected to more punishment than the Legislature intended. Because this issue was not raised below, our review is limited to plain error affecting substantial rights.
The validity of multiple punishments under the double jeopardy provisions of the United States and Michigan Constitutions is generally determined under the “same-elements test,” which requires the reviewing court to determine “ ‘whether each provision requires proof of a fact which the other does not.’ ”
Affirmed.
MCL 750.110a(2).
MCL 750.84.
MCL 750.224f.
MCL 750.82.
MCL 750.227b.
MCL 769.12.
People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001).
People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).
9 Traylor, 245 Mich App at 462, quoting People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991).
People v Bauder, 269 Mich App 174, 193; 712 NW2d 506 (2005).
People v Otler, 51 Mich App 256, 258-259; 214 NW2d 727 (1974).
See, e.g., Traylor, 245 Mich App at 463 (noting that a defendant’s filing of a grievance against his counsel is insufficient alone to warrant new counsel).
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
Traylor, 245 Mich App at 463-464.
See People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Traylor, 245 Mich App at 462.
People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992).
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997).
People v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989); People v Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996).
Hill, 433 Mich at 470; cf. People v Konrad, 449 Mich 263, 271; 536 NW2d 517 (1995).
See Hill, 433 Mich at 470-471; Konrad, 449 Mich at 271.
Wolfe, 440 Mich at 515.
People v Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999).
People v Smith, 478 Mich 292, 305, 315-316; 733 NW2d 351 (2007), quoting Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).
People v Strawther, 480 Mich 900; 739 NW2d 82 (2007).
People v Hall, 249 Mich App 262, 270; 643 NW2d 253 (2002).