People v. Acosta
| Decision Date | 15 August 1985 |
| Docket Number | Docket No. 79160 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin ACOSTA, a/k/a Jose Juan, Defendant-Appellant. 143 Mich.App. 95, 371 N.W.2d 484 |
| Court | Court of Appeal of Michigan — District of US |
[143 MICHAPP 97] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Solicitor Gen., Gary M. Gabry, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the people.
O'Connor, McNamara & O'Keeffe by Herbert D. Ward, Jr., Ionia, for defendant-appellant on appeal.
Before GRIBBS, P.J., and MacKENZIE and SULLIVAN, * JJ.
Defendant was convicted by a jury of assault with a dangerous weapon (felonious assault). M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. He appeals as of right. We reverse.
Defendant's conviction arose out of an altercation in a bar where defendant allegedly stabbed another patron. He was originally charged with felonious assault. Defendant and the prosecution entered into a plea agreement whereby the case was to be remanded to district court where defendant could enter a plea to aggravated assault, M.C.L. Sec. 750.81a; M.S.A. Sec. 28.276(1). The circuit court issued an order encompassing the terms of the stipulated-to agreement and the case was remanded to district court for entry of the plea. Defendant failed to appear to enter his plea, but was arrested eight months later. The prosecution then moved to remand to the circuit court and void the plea bargain. The district court remanded [143 MICHAPP 98] the case to the circuit court, and the circuit court granted the prosecution's motion to void the plea bargain and reinstated the original charge.
Defendant was tried and convicted on the charge of felonious assault. Complainant testified that he felt defendant stick a knife in him and saw the knife in defendant's hand after he was stabbed. He also testified that defendant was intoxicated at the time of the incident. Defendant testified at trial that he had been at the bar but did not remember the incident due to intoxication. Defense counsel requested an instruction on the misdemeanor of assault and battery, M.C.L. Sec. 750.81; M.S.A. Sec. 28.276, in addition to the instruction on felonious assault. The trial court denied this request and instructed only on the charged greater offense of felonious assault.
Defendant first argues on appeal that the circuit court erred in granting the prosecution's motion to void the plea agreement. He contends that the prosecution could not be released from the agreement since it had already received judicial sanction. See People v. Heiler, 79 Mich.App. 714, 721-722, 262 N.W.2d 890 (1977). He further argues that the court erred by applying contract law to the plea bargain and voiding the bargain due to constructive breach by defendant. Defendant's underlying argument is that by entering a plea nine months after stipulating to the agreement defendant would be living up to his part of the bargain and the prosecution would thereby be bound by the agreement.
The plea agreement entered into by stipulation in the circuit court stated in part:
"3. The Defendant may enter a Plea to Count II [aggravated assault] of the amended information in the District Court;
Under this agreement, the prosecution was not bound until defendant entered and completed his plea. Although strict contract analogy may not be applicable to a plea agreement, People v. Reagan, 395 Mich. 306, 318, 235 N.W.2d 581 (1975), defendant did not live up to his part of the bargain when he absconded and failed to enter his plea. We decline to accept defendant's position that the bargain should be enforced irrespective of defendant's bad faith in failing to comply with the bargain by failing to appear. Although there was no explicit time limit or condition as to when or under what circumstances defendant could enter a plea, the requirement that defendant enter and complete his plea contemplated defendant's appearance to enter that plea. Defendant knew of the pending charges and the plea bargain, yet failed to appear on the date of the plea proceeding and was a fugitive for eight months. Under these circumstances, the court did not err in granting the prosecution's motion to void the plea agreement.
Defendant next argues that the trial court abused its discretion in failing to instruct on the lesser offense of the misdemeanor of assault and battery. The trial court found that since the evidence adduced at trial established the weapon element of felonious assault, and the elements of felonious assault and assault and battery differed, the lesser offense instruction was not required.
The Supreme Court has set out the following conditions for a lesser included misdemeanor instruction:
[143 MICHAPP 100] 1. a specific request has been made;
2. there exists an appropriate relationship between the charged offense and the requested misdemeanor;
3. the requested misdemeanor is supported by a rational view of the evidence;
4. if the prosecution requests the misdemeanor instruction, the defendant has adequate notice of it as one of the charges against which he is expected to defend;
5. the requested instruction does not result in undue confusion or some other injustice. People v. Stephens, 416 Mich. 252, 261-265, 330 N.W.2d 675 (1982).
Only the second and third conditions are at issue in this case at bar.
The second condition requires that there be an appropriate relationship between the charged offense and the requested misdemeanor:
" '[T]here must also be an "inherent" relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.' United States v. Whitaker, 144 US App DC 344, 349; 447 F2d 314 (1971).
(Emphasis added.) Stephens, supra, p. 262, 330 N.W.2d 675.
An inherent relationship between the offenses does not mean that the elements of the lesser offense must be "necessarily" included within the statutory elements of the greater offense since such a relationship does not invariably require that proof of the lesser offense is necessarily presented as part of the commission of the greater offense. In other words, the lesser offense need not be a "necessarily" included lesser offense of the greater offense. Thus, in the instant case, the presence of the element of battery in the misdemeanor, although not present in the felonious assault offense, does not defeat the inherent relationship between the greater and lesser offenses. [143 MICHAPP 102] The focus of the inherent relationship requirement is the protection of the same societal interest. In the case at bar, one common purpose of the felonious assault and assault and battery statutes is the protection of the public from the fear and possibility of physical harm. Contrast People v. Baker, 127 Mich.App. 297, 299-300, 338 N.W.2d 391 (1983).
The third condition, that the requested misdemeanor be supported by a rational view of the evidence adduced at trial, 2 was explained in Stephens as follows:
* * *
" (Emphasis added.) Stephens, supra, 416 Mich. at p. 263, 330 N.W.2d 675.
The disputed elements in the case at bar were not the presence of the knife or the stabbing. The stabbing with the knife would support either a felonious assault (weapon) or an assault and battery (battery) conviction. The disputed element at trial was intent. The prosecution contended that defendant had formed the specific intent required for felonious assault. See e.g., People v. Korona, 119 Mich.App. 369, 370, 326 N.W.2d 143 (1982); People v. Wilson, 113 Mich.App. 591, 593, 318 N.W.2d 479 (1981). Defendant argued that his state of intoxication rendered him incapable of entertaining the intent required for felonious assault. S...
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