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Docket Number

Docket No. 62767.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Michael J. Berezowsky, Assistant Prosecuting Attorney, for the people. Wilcox Robinson, P.C. (by Joseph V. Wilcox), for defendant.

Judges

V.J. BRENNAN, P.J.
SHEPHERD, J. (concurring in part and dissenting in part).

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Smart Summary

People v Parker, Docket No. 62767 (Mich. Ct. App. Apr. 2, 1984)

Factual and Procedural Background

Defendant was charged with five counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). After a jury trial, the defendant was convicted of three counts of felonious assault, MCL 750.82; MSA 28.277, and one count of felony-firearm. The trial court sentenced defendant to three concurrent terms of two to four years' imprisonment for the felonious assault convictions and a consecutive two-year prison term for the felony-firearm conviction. On appeal the defendant raised several claims largely concerning jury instructions, the exclusion of certain witness testimony and alleged ineffective assistance of counsel; the Court of Appeals issued the opinion now summarized.

Legal Issues Presented

Whether the trial court's failure to repeat the intent requirement for assault when instructing the jury on felonious assault was reversible error.
Whether the trial court's failure to define "dangerous weapon" in its felonious assault instructions was reversible error.
Whether the trial court erred by not defining "felony" and "firearm" and by not using the standard instruction in its felony-firearm instruction.
Whether the trial court erred by refusing to instruct the jury on insanity and by excluding lay witnesses on insanity for lack of notice.
Whether the trial court erred in supplying supplemental written jury instructions requested by the jury without repeating a self-defense instruction that the jury had not requested.
Whether defendant was denied effective assistance of counsel because counsel failed to include names of two lay (police) witnesses on the notice of insanity defense and allegedly failed to properly prepare a meritorious insanity defense.
Whether convictions for felonious assault and felony-firearm violate double jeopardy protections.

Arguments of the Parties

Defendant's Arguments

The trial court erred by not repeating the intent requirement for assault when instructing on felonious assault.
The court erred by failing to define "dangerous weapon" in felonious assault instructions, despite defendant's admission he shot three persons with a pistol.
The court erred by failing to define "felony" and "firearm" and by not using the standard felony-firearm instruction.
The defendant was entitled to jury instructions on insanity; the court removed the issue from the jury before formal proofs were presented and excluded lay witness testimony for lack of notice.
The court erred in providing supplemental written instructions responsive to a jury request without supplying an unrequested repetition of the self-defense instruction.
Defense counsel was ineffective for failing to include the names of two lay (police) witnesses on the notice of insanity defense and for failing properly to investigate and prepare an insanity defense, depriving defendant of a reasonably likely chance for acquittal.
The felonious assault and felony-firearm convictions violate constitutional double jeopardy protections.

The People (Prosecution)

The opinion does not contain a detailed account of the people's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979)	The jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery (intent requirement for assault).	The court noted the trial court had recited this instruction verbatim in its instructions on the more serious assault offenses and concluded that, read as a whole, the instructions satisfied the Joeseype Johnson requirement; no error in not repeating it with felonious assault instructions.
People v Doss, 122 Mich. App. 571, 578; 332 N.W.2d 541 (1983)	Authority concerning the adequacy of felony-firearm jury instructions.	Cited to support the court's conclusion that a fair reading of the felony-firearm instruction in this case revealed no error.
People v Sauerbier, 173 Mich. 521, 522; 139 N.W. 260 (1913)	Principle concerning supplemental jury instructions and whether the omission of repeating an instruction constitutes prejudice.	Used to conclude the court's supplemental instructions were responsive to the jury request, not misleading, and the defendant was not prejudiced by not repeating the self-defense instruction.
People v Garcia, 398 Mich. 250, 266; 247 N.W.2d 547 (1976)	Standard that defendant is entitled to a new trial if counsel's omission deprived defendant of a reasonably likely chance for acquittal (ineffective assistance standard).	Applied as the governing standard for evaluating defendant's claim that counsel's failure regarding the insanity defense warranted a new trial; court found standard not met.
People v Peery, 119 Mich. App. 207, 215; 326 N.W.2d 451 (1982)	Related authority on ineffective assistance and when omissions justify a new trial.	Cited with Garcia as part of the standard applied to the ineffective assistance claim; court concluded defendant was not entitled to relief under that standard.
People v McDonnel, 91 Mich. App. 458; 283 N.W.2d 773 (1979)	Cases holding that failure to properly prepare a meritorious insanity defense can deny effective assistance when defendant has an extensive history of mental instability.	Cited as examples where lack of preparation warranted relief; the court distinguished those cases from the present one because defendant here had no history of mental problems.
People v Bryant, 77 Mich. App. 108; 258 N.W.2d 162 (1977)	See McDonnel row: counsel's failure to prepare insanity defense may warrant relief where defendant had extensive mental instability history.	Used by the court to illustrate precedent where counsel's failure required relief; distinguished from present facts.
People v Tumpkin, 49 Mich. App. 262; 212 N.W.2d 38 (1973)	See McDonnel row: authority on when failure to assert or prepare insanity defense merits relief.	Cited to show precedent in which extensive history supported relief; distinguished from the present case.
People v Blue, 114 Mich. App. 137; 318 N.W.2d 498 (1982)	Authority finding that where defendant lacks a history of mental problems, counsel's failures similar to those in other cases do not justify a new trial.	Relied upon to support the conclusion that, in the absence of a history of mental problems, the counsel's omissions here did not warrant relief.
People v Anderson, 112 Mich. App. 640; 317 N.W.2d 205 (1981)	Similar authority to People v Blue on lack of relief where no history of mental problems exists.	Used to support the court's distinction from McDonnel/Bryant/Tumpkin and to deny relief for ineffective assistance.
Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979)	Authority cited in relation to double jeopardy challenges to felonious assault and felony-firearm convictions.	Cited to conclude that the defendant's double jeopardy argument was without merit.
People v Lewis, 64 Mich. App. 175; 235 N.W.2d 100 (1975)	Authority referenced by the dissent regarding remand for hearing to determine whether an insanity defense could have been developed and whether assistance of counsel was adequate.	The dissent would rely on Lewis to remand for an evidentiary hearing in the trial court to resolve the ineffective assistance/insanity-defense development issue.

Court's Reasoning and Analysis

The majority addressed each claim in turn and applied legal principles and precedent as follows.

Intent requirement for assault: The court relied on People v Joeseype Johnson's articulation of the assault intent requirement (intent to injure or to place victim in reasonable fear of immediate battery). Because the trial court had recited that instruction verbatim in its instructions on the more serious assault offenses, and because jury instructions must be read as a whole, the court concluded there was no error in not repeating the intent language specifically when instructing on felonious assault.
Definition of "dangerous weapon": The court held that defendant's failure to request the definition and failure to object at trial precluded appellate review absent a miscarriage of justice. It further concluded that no injustice resulted from omission because defendant admitted shooting multiple victims with a pistol and there was no issue as to the danger posed by the weapon.
Felony-firearm instruction: The court determined that a fair reading of the felony-firearm instruction revealed no error and cited People v Doss to support that conclusion.
Insanity instruction and exclusion of lay witnesses: After hearing testimony from defendant and a clinical psychologist, the trial court concluded there was a total absence of evidence of mental illness and therefore properly refused to instruct on insanity despite having given a preliminary insanity instruction. The trial court also excluded two lay witnesses because defense counsel failed to give statutory notice of those witnesses; the majority concluded the exclusion was proper under the notice statute and that the record contained no evidence of mental illness warranting an insanity instruction. The court noted that it had instructed on diminished capacity and observed that two police officers did testify about defendant's mental state after the offenses.
Supplemental written instructions and self-defense: The court found the supplemental instructions provided in response to a jury request were responsive and not misleading. Citing People v Sauerbier, the court held defendant was not prejudiced by the failure to repeat the self-defense instruction when the jury had not requested it.
Ineffective assistance for failure to prepare an insanity defense / notice omission: The court applied the standard (citing People v Garcia and People v Peery) that a defendant is entitled to a new trial if counsel's omission deprived the defendant of a reasonably likely chance for acquittal. The court compared cases where counsel's failure to prepare an insanity defense warranted relief (People v McDonnel, People v Bryant, People v Tumpkin), noting those defendants had extensive histories of mental instability. By contrast, in this case defendant had no history of mental problems, the expert witness testified defendant was responsible for his behavior, and the police officers (whose names were omitted from notice) nevertheless testified at trial. The court concluded defendant was not deprived of a reasonably likely chance for acquittal.
Double jeopardy claim: The court found the claim without merit and cited Wayne County Prosecutor v Recorder's Court Judge in support of that conclusion.

The opinion also includes a concurring-in-part/dissenting-in-part opinion by Judge Shepherd. The dissent agreed with much of the majority but disagreed with the majority's resolution of the ineffective assistance/insanity-defense issue. Judge Shepherd observed facts indicating extreme provocation and opined that a substantial disorder of thought or mood might have been shown with further development. The dissent would remand for an evidentiary hearing to determine whether an insanity defense could have been developed and whether counsel's assistance was adequate, citing People v Lewis.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the defendant's convictions and sentences.

Implications: The direct effect is that the felonious assault and felony-firearm convictions and the sentences imposed by the trial court were upheld. The court determined that the asserted jury-instruction errors, the exclusion of unnamed lay witnesses for lack of notice, the claimed failure to give standard felony-firearm language, and the ineffective assistance claim (as presented) did not warrant reversal or a new trial under the governing standards and precedent. The opinion does not announce a novel rule of law; it applies existing Michigan precedent to the facts and denies relief. The dissent would have remanded for a hearing on the ineffective assistance/insanity development issue.

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PEOPLE v PARKER

V.J. BRENNAN, P.J.

Defendant raises several claims regarding the trial court's instructions to the jury. We have reviewed the alleged errors and find that none merit reversal of the defendant's convictions.

First, the defendant contends that the trial court's failure to repeat the intent requirement for assault when instructing the jury on felonious assault was reversible error, even in the absence of a defense request or objection. In People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979), the Supreme Court held that, where the defendant is charged with felonious assault, "the jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery". In the present case, the trial court recited this instruction verbatim during its instructions on the more serious assault offenses. Because jury instructions must be read as a whole, and because the trial court's instructions included a correct recitation of the intent requirement of assault, we find no error on the part of the trial court by not repeating the instruction in conjunction with its instructions on felonious assault.

Second, the defendant claims that the trial court's failure to define a "dangerous weapon" in its instructions on felonious assault was reversible error, even though the defendant admitted shooting three persons with a pistol. We find no reversible error. The defendant's failure to request the instruction and his failure to object to the trial court's failure to define "dangerous weapon" precludes appellate review absent a miscarriage of justice. No injustice resulted from the omission of the definition of a dangerous weapon since the defendant admitted shooting a pistol at the several victims and there was no issue as to the danger posed by the weapon.

Third, the defendant claims that the trial court's failure to define the words "felony" and "firearm" and its failure to use the standard jury instruction in its instruction on felony-firearm constituted reversible error. We disagree. A fair reading of the felony-firearm instruction reveals no error. People v Doss, 122 Mich. App. 571, 578; 332 N.W.2d 541 (1983).

Next, the defendant argues that he was entitled to jury instructions on insanity and the trial court erred by removing the issue of insanity from the jury even before the defendant presented his formal proofs. We have reviewed the defendant's arguments and find them to be without merit. After the defendant and a clinical psychologist testified as defense witnesses, the trial court announced its intention not to instruct the jury on the defense of insanity, although it had issued an insanity instruction in its preliminary charge to the jury. The court based its ruling upon the total absence of evidence of mental illness. The court also refused to admit the testimony of two lay witnesses on the issue because defense counsel had failed to give notice of the witnesses. Because there was no evidence of mental illness or insanity, the trial court properly refused to instruct on the insanity issue. MCL 768.29a(2); MSA 28.1052(1)(2). The trial court did instruct the jury on the diminished capacity defense. Further, the trial court properly excluded lay testimony as to the defendant's insanity since the defendant failed to give notice of the witnesses who would testify. MCL 768.21(1); MSA 28.1044(1). It is noteworthy that two policemen did testify, on behalf of the defendant, as to the defendant's mental state following the commission of the offenses.

The defendant's last claim regarding jury instructions is that the trial court erred by providing the jury with supplemental written jury instructions, which the jury requested, without providing a self-defense instruction which the jury did not request. We find no error. The court's instructions were responsive to the jury's request and not misleading in any way. The defendant was not prejudiced by the failure to repeat the instruction on self-defense. People v Sauerbier, 173 Mich. 521, 522; 139 N.W. 260 (1913).

The defendant also claims that he was denied the effective assistance of counsel by his attorney's failure to include the names of two lay witnesses in his notice of insanity defense. The defendant argues that defense counsel made a grave error in failing to give proper notice of the names of two police Defendant maintains that he was seriously prejudiced by this failure because both witnesses knew the defendant well and counsel's omission deprived the defendant of his only real defense.

Defendant does not argue that the overall assistance rendered by his trial attorney was ineffective. Rather, it is claimed that his failure to properly investigate the insanity issue and to give notice of the names of the police officers was a grave mistake which denied defendant a fair trial. Defendant is entitled to a new trial if this omission by defense counsel deprived him of a reasonably likely chance for acquittal. People v Garcia, 398 Mich. 250, 266; 247 N.W.2d 547 (1976); People v Peery, 119 Mich. App. 207, 215; 326 N.W.2d 451 (1982).

A criminal defendant is denied effective assistance of counsel by his attorney's failure to properly prepare a meritorious insanity defense. People v McDonnel, 91 Mich. App. 458; 283 N.W.2d 773 (1979); People v Bryant, 77 Mich. App. 108; 258 N.W.2d 162 (1977); People v Tumpkin, 49 Mich. App. 262; 212 N.W.2d 38 (1973). In each of the cited cases, defendant had an extensive history of mental instability, yet defense counsel either failed entirely to assert an insanity defense, or did not adequately prepare the defense for trial. Where the defendant has no such history, this Court has found that similar failures by defense counsel did not furnish a basis for a grant of a new trial. People v Blue, 114 Mich. App. 137; 318 N.W.2d 498 (1982); People v Anderson, 112 Mich. App. 640; 317 N.W.2d 205 (1981). In the present case, defendant had no history of mental problems of any sort. There was no indication of insanity. Even defendant's expert witness testified that he was responsible for his behavior.

Further, counsel's failure to list the names of the policemen on his notice of insanity defense cannot form the basis for relief in the present case, since the officers did testify at trial as to their impressions of defendant's mental state. It is unlikely that further testimony by the officers would have resulted in acquittal, even if they had testified more directly to the issue of insanity, rather than diminished capacity. We conclude that the mistake raised by defendant on appeal did not deprive him of a reasonably likely chance for acquittal.

The defendant's final claim of error, that his convictions for felonious assault and felony-firearm violate the constitutional prohibition of double jeopardy, is without merit. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).

Affirmed.

E.A. QUINNEL, J., concurred.

SHEPHERD, J. (concurring in part and dissenting in part).

I concur in the majority opinion with the exception of that portion which deals with the effective assistance of counsel. Defendant claims that his attorney failed to properly prepare a meritorious insanity defense. The record indicates that there was evidence of extreme provocation when defendant's property was being systematically destroyed by a gang employed by his wife. Defendant's theory is that he lost control of his senses as a result of such provocation. Whether a more complete insanity defense could have been developed is not clear from the record, but I am able to conclude that a strong probability exists that evidence could have been developed to show that the defendant was suffering from a substantial disorder of thought or mood which significantly impaired his judgment, behavior, capacity to recognize reality, or his ability to cope with the situation he found at the scene of the crime. The preceding language is taken directly from MCL 330.1400a; MSA 14.800(400a).

Since there was no real development of this issue, I would remand for a hearing in the trial court at which there would be a determination of whether the insanity defense could have been developed and for a ruling, after an evidentiary hearing as to why it was not. The trial court would then make a determination of whether the defendant received adequate assistance of counsel. See People v Lewis, 64 Mich. App. 175; 235 N.W.2d 100 (1975).

PEOPLE v. PARKER