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Docket Number

Docket No. 194432.

Attorney(S)

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Senior Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Ralph C. Simpson and Sarah E. Hunter), for the defendant on appeal.

Judges

Henry Wiliam Saad

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Smart Summary

People v. Gomez, Michigan Court of Appeals — Opinion Summary

Factual and Procedural Background

On July 1, 1995, after leaving the Barn Tavern in Grand Ledge, the victim walked through the tavern parking lot and observed a car abruptly drive in front of him. A man in the car made a remark about the victim "shooting his mouth off." When the victim turned, he was struck near his left eye with "something hard" and then repeatedly struck over the head. The victim sustained a concussion, lacerations, and facial-bone injuries, requiring approximately twenty to twenty-five stitches; at trial the victim's vision remained impaired.

Sergeant Don McGillis witnessed the vehicle shortly before the assault and observed it driving the wrong way through a bank drive-through lane and braking suddenly. McGillis followed the vehicle to the Barn Tavern and observed the driver (identified at trial as defendant) approach the victim and strike him repeatedly with an object. McGillis believed the attack to be unprovoked. When arresting defendant, McGillis smelled alcohol on him but did not regard defendant as "heavily intoxicated" and did not administer a Breathalyzer or blood test. Defendant told McGillis that the victim had stolen his money. McGillis also testified that defendant was not slurring words, stumbling, or falling when arrested.

Procedurally, defendant moved to proceed in propria persona during pretrial proceedings after two appointed attorneys withdrew; a third attorney was appointed as "stand by" counsel to assist at trial. Defendant moved to disqualify the trial judge; that motion was denied. A jury convicted defendant of felonious assault, MCL 750.82; MSA 28.277. Defendant appealed as of right, raising two issues. The Court of Appeals affirmed the conviction.

Legal Issues Presented

Whether the trial judge abused his discretion by refusing to disqualify himself based on alleged personal bias against defendant (claimed to be required under MCR 2.003(B)).
Whether the trial court erred in failing to instruct the jury on the defense of intoxication, and if so, whether any failure amounted to manifest injustice when defendant neither requested nor objected to such an instruction at trial.

Arguments of the Parties

Defendant's Arguments

Defendant contended the trial judge demonstrated personal bias against him (in part because defendant elected to proceed without counsel at times), and therefore the judge should have disqualified himself pursuant to MCR 2.003(B).
Defendant argued the trial court erred by not giving a jury instruction on the defense of intoxication, implying that intoxication evidence could have negated the requisite intent for the charged offense.

The opinion does not contain a detailed account of the People's (prosecution's) specific arguments opposing these contentions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cain v. Dep't of Corrections, 451 Mich. 470; 548 N.W.2d 210 (1996)	Cited in connection with MCR 2.003(B)(1) to require a showing of actual bias or prejudice to support judicial disqualification.	The court relied on Cain in stating that defendant failed to meet his burden to demonstrate actual bias or prejudice on the part of the trial judge and therefore the judge did not abuse his discretion in denying the disqualification motion.
People v. Taylor, 159 Mich. App. 468; 406 N.W.2d 859 (1987)	Cited for the proposition that a defendant cannot claim instructional error on appeal when he failed to request the instruction at trial.	The court used Taylor (along with MCL 768.29) to ground its conclusion that the claim of instructional error regarding intoxication was not preserved and warranted review only for manifest injustice.
People v. Van Dorsten, 441 Mich. 540; 494 N.W.2d 737 (1993)	Cited for the standard that when an instructional error is not preserved, appellate review is limited to whether manifest injustice occurred.	The court invoked Van Dorsten to frame the standard of review (manifest injustice) for the unpreserved claim concerning the intoxication instruction.
People v. Mills, 450 Mich. 61; 537 N.W.2d 909 (1995), mod. 450 Mich. 1212 (1995)	Cited for the principle that an intoxication instruction is proper only if the facts would allow a jury to conclude defendant's intoxication was so great as to render him incapable of forming the requisite intent; mere appearance of intoxication is insufficient.	The court applied Mills' standard in evaluating the record: although there was some evidence of erratic driving and an odor of alcohol, there was no evidence defendant was actually intoxicated to the point of incapacity; the court concluded an intoxication instruction was not warranted and no manifest injustice resulted.

Court's Reasoning and Analysis

The court addressed the two raised issues sequentially.

I. Judicial Disqualification

The court began by identifying the applicable disqualification standard under MCR 2.003(B)(1), which requires a showing of actual bias or prejudice. Defendant pointed to several comments by the trial judge (for example, the judge's reference to defendant as "Mr. Pro Se" and the judge's statement, in response to defendant's complaint that counsel had not prepared a defense, that "in some cases there is no defense"). After reviewing the entire record, the Court of Appeals concluded that these remarks did not amount to the requisite showing of actual bias or prejudice. The court relied on Cain v. Dep't of Corrections as authority for the actual-bias standard and determined that defendant did not satisfy his burden; therefore the trial judge did not abuse his discretion in denying the disqualification motion.

II. Intoxication Instruction

The court first addressed preservation: the record did not show that defendant requested an intoxication instruction or objected to the absence of such an instruction, and there was no record of the in-chambers jury instruction conference or any subsequent objection. Citing People v. Taylor and MCL 768.29, the court observed that instructional error not requested at trial generally cannot be raised on appeal; accordingly, review is limited to whether there was manifest injustice under People v. Van Dorsten.

On the merits and under the manifest-injustice standard, the court applied the rule from People v. Mills: an intoxication instruction is proper only where the facts permit a jury to conclude the defendant's intoxication was so severe that he could not form the requisite intent. The court compared the facts of this case to those described in Mills: although an officer observed erratic driving and suspected impairment, the officer also observed defendant delivering multiple, apparently controlled blows to the victim and did not believe defendant was so impaired as to warrant chemical testing. The officer noted only the smell of alcohol. The court reasoned that such evidence was insufficient to establish that defendant "actually was intoxicated, or was intoxicated to the point at which he was incapable of forming the intent to commit the charged crime." Thus, the trial court's omission of an intoxication instruction was not erroneous, and given the lack of supporting evidence of incapacity, there was no manifest injustice.

Holding and Implications

Holding: The Court of Appeals affirmed the defendant's conviction for felonious assault.

Implications:

Direct effect on the parties: Defendant's conviction and sentence were affirmed; the trial court's denial of the motion to disqualify the judge and its omission of an intoxication instruction were upheld.
Legal consequences: The opinion applies established Michigan law on judicial disqualification (actual bias standard under MCR 2.003(B)(1)) and on intoxication instructions (the Mills standard requiring evidence that intoxication rendered the defendant incapable of forming requisite intent). The court did not create or announce a new legal rule; rather, it applied existing precedent to the facts of this case.

Disposition: Affirmed.

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PEOPLE v GOMEZ

SAAD, P.J.

Defendant raises two issues in his appeal as of right from his conviction of felonious assault, MCL 750.82; MSA 28.277. We affirm.

On July 1, 1995, the victim left the Barn Tavern in Grand Ledge and walked to the parking lot. While he was walking, he saw a car drive quickly out of an alleyway beside the bar and come to a screeching halt in front of him. After a brief pause, the victim proceeded in front of the car until he heard a man's voice say something about the victim "shooting his mouth off." When the victim turned to address the driver, the victim was struck with "something hard" near his left eye and then was repeatedly bashed over the head. The victim was treated for a concussion, lacerations, and injuries to his facial bones, and he received twenty to twenty-five stitches. At the time of trial, the complainant's vision was still impaired.

Sergeant Don McGillis of the Grand Ledge Police Department, who had been in his vehicle at a gas station, saw the assailant's vehicle shortly before the assault began. McGillis watched the vehicle drive the wrong way through a bank drive-through-service lane and heard brakes screeching. Thinking the driver might be impaired, McGillis followed the car to the Barn Tavern where he watched the driver (later identified as defendant) approach the victim and begin hitting him over the head with an object. McGillis believed that the attack was unprovoked.

When McGillis arrested defendant, defendant told him that the victim had stolen his money. McGillis observed defendant following the arrest and testified that defendant was not slurring his words, stumbling, or falling down. McGillis smelled alcohol on defendant, but did not believe that defendant was "heavily intoxicated." McGillis did not administer a Breathalyzer or blood test to determine whether defendant was intoxicated.

During the pretrial phase of this matter, defendant moved to proceed in propria persona, after having two attorneys appointed and withdraw from his representation. A third attorney was appointed as "stand by" counsel to assist defendant at trial. Defendant's motion to disqualify the trial judge was denied. The jury ultimately convicted defendant of felonious assault.

Defendant contends that the trial judge abused his discretion in denying defendant's motion that the judge disqualify himself. According to defendant, disqualification was required pursuant to MCR 2.003(B) because the trial judge repeatedly demonstrated that he was personally biased against defendant, who elected to proceed (at times) without benefit of counsel. Defendant relies on several comments made by the trial judge, but after careful review of the entire record, we do not believe that he has met his burden of demonstrating that the comments evidence actual bias or prejudice against defendant, or that the trial judge abused his discretion in denying the motion. For example, the trial judge did refer to defendant on one occasion as "Mr. Pro Se." In addition, during the hearing regarding defendant's second appointed counsel's motion to withdraw, defendant complained that his attorney had failed to meet with him "to have some kind of defense" until approximately twelve days before trial was scheduled. The trial court responded, "Well, in some cases, sir, you have to understand that in some cases there is no defense." Even considering these (and other) comments, we do not believe that the record reflects a showing of actual bias or prejudice, as required by MCR 2.003(B)(1). See Cain v Dep't of Corrections, 451 Mich. 470, 503; 548 N.W.2d 210 (1996). There is no error.

Defendant next argues that the trial court erred in failing to give an instruction regarding the defense of intoxication. We disagree. As a threshold matter, the record does not reveal that defendant requested an intoxication instruction or objected to the absence of such an instruction. (There is no record of the jury instruction conference that occurred in chambers, and no subsequent objection to the instructions as given.) A defendant cannot claim instructional error on appeal when he failed to request the instruction at trial. People v Taylor, 159 Mich. App. 468, 488; 406 N.W.2d 859 (1987); MCL 768.29; MSA 28.1052. We thus review this issue only to determine if there is manifest injustice. People v Van Dorsten, 441 Mich. 540, 544-545; 494 N.W.2d 737 (1993).

We find no manifest injustice in this case. An instruction regarding the defense of intoxication is proper only if the facts of the case would allow the jury to conclude that the defendant's intoxication was so great as to render him incapable of forming the requisite intent. People v Mills, 450 Mich. 61; 537 N.W.2d 909 (1995), mod, 450 Mich. 1212 (1995). In Mills, the defendants were convicted of assault with intent to commit murder after dousing the victim with gasoline and lighting her on fire. Mills claimed that the trial court had erred in refusing his request for an instruction regarding intoxication. The Court noted that there was "some evidence that the defendants appeared intoxicated, but there was no testimony that Mills actually was intoxicated, or was intoxicated to the point at which he was incapable of forming the intent to commit the charged crime." Mills, supra at 82. There, two witnesses testified that the defendants were "loud and obnoxious" and that the one who came into the gas station was "in a hurry, nervous, and appeared `high.'" Yet the trial court observed:

"Under the circumstances, there is absolutely nothing on this record to substantiate the notion that Mr. Mills had consumed anything that night. People can appear one way to someone else when in actuality there is something else causing them to act the way they are being observed. Under the circumstances, I don't think the intoxication instruction is supported by anything that I've heard on this record. . . ." [ Id. at 83.]

Immediately following this quote, the Supreme Court stated:

We agree. Other than appearing high or drunk, there is no indication on the record that defendant was drunk or high on drugs and was incapable of forming the intent to commit this crime. With evidence that Mills was able to grab Ms. Grauman by the right leg, and at the same time was able to dump or throw gasoline on her, we cannot find that Mr. Mills was intoxicated, or intoxicated to the point at which he was incapable of forming the intent to commit the crime. We hold that the trial court properly denied the request to instruct on this defense. [ Id.]

Our issue is a closer one, but, as in Mills, we find no basis for an intoxication instruction. The law enforcement officer who witnessed the assault testified that defendant was driving erratically and this caused him to suspect that defendant might be driving under the influence. Yet, defendant had no trouble landing multiple blows on the victim — defendant was not flailing wildly or uncontrollably. When defendant was arrested, the officer did not believe that defendant was sufficiently under the influence to even test his alcohol level. The smell of alcohol that the officer detected could have been minimal but certainly insufficient to demonstrate intoxication that rendered defendant incapable of forming the requisite intent. As in Mills, there was simply no evidence that defendant "actually was intoxicated, or was intoxicated to the point at which he was incapable of forming the intent to commit the charged crime." Id. at 82-83. The trial court's omission of an instruction regarding the defense of intoxication was not erroneous, and there is therefore no manifest injustice.

Affirmed.

PEOPLE v. GOMEZ