*1 PEOPLE v STRONG 8, 1985, Lansing January at 72106. Submitted No. Docket . Decided 4, 1985. June following jury a Strong felonious assault convicted of L. C. Court, Conlin, J. Circuit Patrick Washtenaw in up picked proofs effect that defendant prosecution were to the shop teenage girl, at complainant, a donut late near the a area, girl’s night, put a knife to took to a deserted her escape girl’s made from arm as she her then cut throat and theory complainant’s the case was Defendant’s of automobile. girl that, picked up had taken her around he had and while requested, girl he marijuana had had which the search of shop The court instructed donut unharmed. returned her to the find must jury convict of felonious assault to dangerous act with a forceful or violent defendant did a intending fear or weapon, to the victim in reasonable specifi- battery. apprehension Defense counsel an immediate of cally Defendant waived a further instruction appealed. Held: on both of court failed to instruct 1. the trial While intent, necessary specific bases which would establish i.e., dangerous weapon was committed with assault injure the intent to to the victim or with with the intent either place of fear or an the victim in reasonable [1] [2] [3] [4] [6] [7] [5] Failure to Adequacy Modern status 6 Am 21A Am Jur Am5 21 Am regarding of dant’s mental Am Am Jur Am Jur right Jur Jur Jur Jur pretrial irresponsibility of defense counsel’s 2d, Appeal 2d, 2d, Appeal object 2d, Estoppel appellate 2d, 2d, complain References 2d, Assault Criminal Law Trial silence Criminal Law 967§ rules improper questions § and Error and Error § of error —modern and 573 et in criminal case. 17 postconviction Battery failure to burden and Waiver seq. Points §§ §§ representation 545 et § 850-852. § et 131. testify 150. et seq. cases. 32 Headnotes seq. remedies. or comments as seq. sufficiency as ALR3d 146. constituting of criminal client ALR4th 15 ALR4th 582. 774. proof waiver defen- battery, give injure immediate the failure to the intent mandating reversal, instruction did not result in error since the give prejudice failure to the instruction did not defendant. Further, specifically any defense counsel waived additional *2 specific instruction on intent. deprived 2. The defendant was not of effective assistance of counsel. jury 3. The against verdict of the cannot be said to be great weight of the evidence. jury properly proofs 4. The could infer from the at trial that necessary specific defendant had the intent. proofs 5. The at trial did not establish that defendant was so requisite intoxicated that specific intent, he could not have the defendant, the evidence was sufficient to establish that despite intoxication, any necessary formed the Affirmed. Giovan, J., that, W. J. concurred. He would further hold even specific if the former intent instruction contained in the Crimi- Jury requested, nal Instructions had been it should not have given argumentative.
been because that instruction was
Opinion op the Court Battery Jury — — 1. Assault and Felonious Assault Instruc- —tions Intent. mandating It is not error reversal for a trial court to instruct the jury only in a trial for felonious assault as to one not both jury of the two may alternative means which the find the requisite specific necessary intent to convict one of felonious assault; the failure to instruct as to both alternative means of establishing requisite specific prejudice intent does not and, indeed, may defendant be favorable to him. Jury— — 2. Criminal Law Instructions Waiver. It charge is not error for jury a trial court to fail to in a trial specific for language felonious assault as to intent in the found Jury in the Criminal Instructions where the court otherwise requisite specific instructs the as to the intent and defense specifically giving counsel jury charge waives the of a in the language Jury found in the Criminal Instructions. — Appeal op — — 3. Criminal Law Trial Tactics Assistance Counsel. opinion A difference of as to trial tactics does not amount to counsel, Appeals ineffective assistance of and the Court of is judgment reluctant to substitute its for that of a trial counsel strategy. in matters of trial Opinion op the Court Preserving — — Appeal — New Trial Question. 4. Verdicts weight against great that the verdict claim A defendant’s preserved appeal properly where the is of the evidence ground in the trial for a new trial on moved court. Appeal — — Law Evidence. 5. Criminal against great weight is question a conviction The of whether credibility generally issues of the involves of the evidence evidence; Appeals, the Court of or circumstantial witnesses reviewing appeal, was an looks to whether there this issue on denying a motion for a the trial court of discretion abuse resolving credibility issues anew. trial rather than new Specific — — Inferences. Law Intent 6. Criminal crime, being a mental state to commit a mind, may by proof from of facts and circumstances be shown jury may the defendant had draw the inference that which the necessary specific intent. Giovan, J. W. J. Concurrence Argumentative Jury Jury— — Instruc- 7. Trial Instructions *3 tions. given. argumentative Jury should be instructions which are Attorney Kelley, General, Louis Frank J. Delhey, Caruso, General, F. Pros- Solicitor William King, ecuting Attorney, Assis- A. First and David people. Prosecuting Attorney, for the tant appeal. Crowe, Dale J. for defendant on P.J., H. Gillis and W. J. Before: and J. Allen, JJ. Giovan,* September 29, 1982, defendant Per Curiam. On by jury Sen- was convicted of felonious assault. prison term for a tenced on November years, defendant of from one and one-half to four appeals by granted. raised. Four issues are leave We affirm._
* assignment. sitting Appeals by judge, Circuit on the Court of May 3, 1982, At 1:00 a.m. on about Annetta years age, proceeding Grima, was Ypsilanti phone pay foot in to find a to call her city policemen father saw her Romulus for a ride. Two walking and took her to a Dunkin Donuts phone learning restaurant to use the there. After pick up, again her father that started couldn’t her she walking. pulled Defendant out of Dun- parking lot, kin Donuts honked and offered to take get her to a friend’s house where could direc- tions to Romulus. After a short visit at the friend’s poured whiskey cup house, defendant some in a and returned to the car where defendant drank whiskey cup and threw the into the back seat. factory Defendant then drove to a deserted area near some railroad tracks and turned off the car lights. passenger
When Grima reached for the car’s brought door, defendant leaned over and a five-to- six-inch hook knife to Grima’s throat. When again open Grima door, reached to the car defen- cutting dant came back with the knife Grima’s upper managed open arm. Grima door, swing escape. her knees out As she ran down began bleeding badly. the railroad tracks her arm Upon reaching stopped street, she two women driving by, Ypsilanti who were who took her to the hospital. University Hospi- She was transferred to tal in Ann Arbor where she had 47 external and 12 to 15 internal stitches. day hospital, after her release from the impound
Grima taken detectives to an lot identify where she was unable defendant’s car *4 identify cup but did a found in the back seat. She also noted that the car’s radio was tuned to the previously station which she had told the detec- playing night tives was that in the automobile in which she had been assaulted. She did not see Opinion op the Court later, identi- seat. Sometime she on the car
blood photo in a than the defendant other assailant, fied someone lineup as her after mid- testified that sometime
Defendant up night May his car at on Grima came to a ride to Detroit. He and for Dunkin Donuts replied asked enough gas go not to to he did have that got girl anyway Detroit, car the in the but marijuana. get could Defendant she asked where friend, who he had her the house of a said took to marijuana. drove look- Defendant around no ing might marijuana and,
for who have friends finding none, took Grima back to Dunkin after get had back to Ann Arbor. Donuts because he to got Arbor, Ann he was he arrested When light. driving he drunk after ran a red I argues appeal In his first issue failing judge that the trial instruct erred requires jury that the crime felonious assault charge jury, In his "specific In- court did intent”. not use words stead court instructed: charged "In this what we case Defendant is with person Any refer who shall assault. felonious intending com- another with a knife without assault mit the murder, great intending to do crime of without murder, charge. bodily guilty harm than is of this less this pled guilty Defendant has charge and to establish following prosecution prove each of the must First, beyond elements reasonable doubt. intending Defendant did a forceful or violent act an the victim in reasonable fear Second, battery. immediate the act such as injury person would a reasonable to be fearful of cause frighten person. Lastly, did so another *5 447 Opinion of the Court Defendant committed such an assault dangerous weapon. the use of a alleged case, That is as in this (Emphasis supplied.) knife.” objection
No was raised to this instruction. jury specific intent, While the was instructed on judge give 3:1:16, the objection did CJI no discussing fact,
was raised. In appropriate prior charge, instructions de- specifically agreed fense counsel to the instructions given, ’’The you specific Court: Do want intent? You have requested you waiving it? Are that now? Yes,
”Mr. I specific West: would waive the I think the Court covers that.”
Defendant now contends that the court’s instruc
inadequate. According
defendant,
tion was
in
put
possible
tent to
the victim in fear of
harm or
injury
enough,
is not
there must be the
actually
injure
harm or
the victim and
jury
explicitly
must be
so instructed. We dis
agree
People Yarborough,
on the basis of
App 579;
case,
Mich
131 Mich 581. opinion In our the same result should prevail in the instant case. We see no reason to instruct on where, here, prongs both of intent the victim is actually harmed and the is informed jury they must find the defendant intended to put victim in reasonable fear of immediate injury. on
Finally, this issue we note that defense coun- sel affirmatively specific waived an instruction circumstances, In such the court did not err in failing give to such an instruction. See Johnson, People 552, 562; 409 Mich 297 NW2d This Court examined a similar with- drawal of a requested instruction in Jankowski, NW2d case, In that defendant asserted trial failing court erred in instruct on a lesser initially included offense. Defense counsel made request written an instruction but later such request. abandoned the This Court stated: "Since holding Joeseype CJI 17:4:01 is consistent with the Johnson. ways committing CJI 17:4:01 states that there are two of an assault: (1) by trying person, physically injure another in which event the (2) person, injure; by frightening defendant another must intend to act, intending which event the defendant must do a violent injury. victim in reasonable fear or ultimately request abandoned his for an * * * instruction the trial court did not err in failing give such an instruction.” Jankowski, supra, p 151.
II
persuaded
We are not
that effective assistance of
pursue
counsel was denied because counsel did not
request
the defense of intoxication and failed to
an
instruction on
intent. The defense in this
case was misidentification. To establish this de-
important
fense,
theory
it was
to defendant’s
doing
the case that he knew what he was
night May
where he had
2,
been the
early morning
May
hours of
1982. This
knowledge allowed defense counsel at
bring
testimony
in the
of defendant
that he had
dropped the victim off at Dunkin
un-
Donuts
voluntary
harmed. The defense of
intoxication
would have been inconsistent with the defense
doing
that defendant knew what he was
all that
*7
night
clearly
remembered that he returned
the victim to Dunkin Donuts unharmed. This
judgment
Court is reluctant
to substitute its
strategy.
that of trial counsel in matters of trial
People Avery,
App
v
114
159,
Mich
168; 318 NW2d
(1982),
(1983).
685
lv den
(1980),
(1981).
lv den
Ill many there were so contends Defendant that, as a adduced at inconsistencies factual contrary jury was law, the verdict of the matter to the going objection weight great An the evidence. weight can be raised of the evidence appeal, only by this for a new trial. On motion a motion for abuse denial of such reviews a Court App Mattison, 26 Mich of discretion. (1970); People Johnson, 459-460; 182 NW2d App 618; 341 NW2d 128 Mich procedure forth in was set this rationale behind App People McCumby, 710, 717; 344 (1983): NW2d against is a conviction question "The of whether involves issues generally great weight of the evidence People v See evidence. credibility or circumstantial (1977). In 1, 9; Scotts, 263 NW2d looks to appeal, the Court reviewing whether the motion issue on this denying of discretion there was an abuse resolving credi- than for a new trial rather Atkins, 397 Mich People v bility issues anew. See (1976).” 172; 242 NW2d properly this before Even if this issue were testimony at adduced Court, of the a brief review jury’s verdict it clear that trial makes against *8 weight great Defen- the evidence. going spent theory time some that he dant’s marijuana looking for homes friends’ various that Dunkin Donuts and returned Grima picked up and assaulted must have been she someone else is frame with the time inconsistent hospital with the the officers and testified to indicating report was taken that Grima hospital by 2:30 a.m. no that because there was
Defendant claims clothing it is clear that his car or on his blood on assailant. How- he could not have been Grima’s ever, the time between her Grima testified flight injury from the car was a matter of and her improbable wholly Thus, that she it is not seconds. would not have bled in the car. While Grima photo lineup, identified another man in a testimony Foley heard the Detective photos extremely poor quality and that of the was photo lineup are often inade- identifications quate. pick Finally, the fact that Grima was unable impound not so out defendant’s car at the significant lot was weight go against great of the as to night evidence, and under since she saw the car at light. importantly, artificial More Grima aware that the lock mechanism on the car was normally found, reverse of that she knew cup seat, there would be a in the back and she knew to in the car was which station the radio turned on the basis that defendant had been lis- tening evening of her to that station on the as- sault.
IV
argues
Lastly, defendant
that the evidence of his
support
intent was insufficient to
his con-
earlier,
viction for felonious assault. As we noted
assault,
to convict a defendant of felonious
*9
App
452
442
143 Mich
among
prove
prosecution must,
elements,
other
injure
intended to
in
the defendant either
that
victim or
intended to
the victim reasonable
battery
injury.
apprehension of an immediate
recognizes
difficulty
proving
Because the law
mind,
minimal circumstantial
an actor’s state
sufficient to sustain a conclusion that a
evidence is
requisite
entertained the
intent. See
defendant
App
People Palmer,
549, 552;
42 Mich
202 NW2d
v
(1972); People
App
Noel,
478;
123
332
536
v
Mich
(1983).
578
Intent is a mental attitude made
NW2d
known
People
by
Haxer,
575, 577;
v
144 Mich
acts.
(1906); People Counts,
108
90
v
318 Mich
NW
(1947).
Intent also be inferred from facts and beyond cumstances established a reasonable doubt. People Phillips, 30, 37; 187 211 v 385 Mich NW2d (1971); People App 690, 695; Kimball, v may 233 NW2d 26 draw particular inference as to the intent a with which inferences, act was done as draw all other any from fact in evidence which to their minds proves fully Roberts, its existence. (1870); People Turner, Mich (1975), 467, 470; NW2d lv den Mich 799 The record contains more than sufficient evi- persuade dence to that the a rational trier of fact proved beyond element of a reasonable doubt. Grima testified that defendant factory area, drove her to he a deserted where headlights pulled turned off his car’s and a hook Giovan, J. W. Concurrence placed then the knife knife on her. Defendant up throat, which caused her to Grima’s blade panic plead not hurt her. Defendant that he sharp quiet to "feel how her to told be again placed scuffle, is”. After blade only testimony Grima’s throat. The the knife to he drove Grima defendant was that offered dropped off Dunkin her at around town and testimony had to This conflict in the be Donuts. resolved credibility jury. A determination *10 purview properly and this Court within their should not disturb that determination.
Defendant contends that due his intoxication form he was unable to the intent Grima in reasonable an immedi battery, citing People Crittle, ate Mich (1973).3 argument in NW2d The is flawed respects. question First, Crittle, two under the is capacity not whether defendant had the to form specific intent, the but instead is whether defen actually requisite Second, dant had the presented despite sufficient evidence was that de intoxication, fendant’s in he formed the minimal frighten Lakeman, tent Mich Grima. App 235, 240; 353 NW2d 493 Affirmed. (concurring). W. J. in I concur Giovan,
majority opinion, including portion which holds that defendant waived the CJI 3:1:16 instruc- tion labeled
"Specific
separately,
Intent”.
I write
my
complete disposi-
however, to add
view that a
requires
tion of the defendant’s claim of error
argumenta-
that,
further observation
it
because
is
tive, the defendant would not have been entitled to
if it
instruction even
had been requested._
June, 1984,
Savoie,
by
Crittle was overruled in
118;
At provided:1 in "(1) necessary element intent is a certain aWhen when the been committed
crime, cannot have the crime did not exist. intent knowingly do "(2) the mind to Intent is a decision objective of [fully conscious with a formed] an act [specific] result. accomplishing a certain "(3) our of- under no crime There can be -, and the is no there law where beyond a prosecution to show upon the rests burden time of at doubt reasonable wrongful intent. alleged act had doing the is "(4) person does an act which a intent with expresses it to others he way which known indicates with which a The intent it his conduct. determined from can sometimes be person does an act done, used and it the method is the manner all intent which circumstances, only if that but other facts and evidence. by the is established to defenses relative read instructions point this "[At intent, i.e., negate raised which would which have been intoxication, right, claim of etc.] "(5) defendant, any reason you If find that knowingly act with whatsoever, consciously not did _, cannot have been the crime the intent guilty the defendant you must find committed and of the crime *11 of__ "(6) a reasonable you have If all of the evidence from knowingly not the defendant as to whether or doubt -, to with the consciously acted guilty of the not find the defendant you must of__” crime paragraphs are third, first, fifth sixth partisan that in form of instructions restatements specific give: judge that the described did the charged and that the is an element of crime intent a requires proof finding guilt each element of of December, 1984, appears in the 3:1:16 1A revised form of CJI Jury supplement Instructions. to the Standard Criminal People v by Giovan, Concurrence W. J. beyond proposi- a reasonable doubt. Once these clearly jury instruction, are established tions give go imply 3:1:16 on to CJI is to that the issue specific special significance intent has in of some infirmity proof that there is some the case or of regarding proposition element. If either that is to argument advanced, be should be made implication than of counsel rather instruc- the court. tions from hardly requires authority it citation
While of argumen- say instructions not that should be long ago tative, Justice which were it is relevant observe disparaged requests charge Cooley specified para- similar in effect to the graphs of CJI 3:1:16: argu- right "The defence is not entitled of an instructions;
ment into the
Neither
any
the weak
involve
demanded
and no incorrect or unfair comments
tion of
that must be left to counsel.
right
judge
is he entitled of
to have from the
evidence,
upon
pointing
any
comment
out of
State,
points
far
the case of the
so
questions
of law. All that can be
fact and not
is,
legal points
or
correct
on the
instructions
upon
presenta-
Crawford,
People
48 Mich
the evidence.”
501;