People v. Brown

• Citation: 267 Mich App 141,703 N.W.2d 230
• Decision Date: 23 June 2005
• Docket Number: Docket No. 254494.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy BROWN, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

703 N.W.2d 230

267 Mich App 141

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy BROWN, Defendant-Appellant.

Docket No. 254494.

Court of Appeals of Michigan.

Submitted April 12, 2005, at Detroit.

Decided June 23, 2005, at 9:20 a.m.

Released for Publication September 2, 2005.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Lori Palmer, Assistant Prosecuting Attorney, for the people.

Gerald Ferry, Detroit, for the defendant.

Before: GRIFFIN, P.J., and BANDSTRA and HOEKSTRA, JJ.

GRIFFIN, P.J.

Defendant Tommy Brown appeals as of right his jury trial convictions of assault and battery, MCL 750.81; assault with intent to do great bodily harm less than murder, MCL 750.84; and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to time served on the assault and battery conviction, 42 to 120 months of imprisonment on the assault with intent to do great bodily harm less than murder conviction, and a consecutive two-year term of mandatory imprisonment for the felony-firearm conviction. We affirm.

I

This case arises from a shooting incident in September 2003 at a house in Detroit that defendant shared with his girlfriend of ten years, Khimley Young. On the day in question, defendant and Young were at the house, along with Young's teenage children from a previous relationship, Porshia Johnson, Codi Johnson, and Kevin Johnson, Jr., and three of Porshia Johnson's friends, Marlin Woodfin, Tony Johnson, and Christopher Jones.

According to prosecution witnesses, defendant and Young began to argue inside the house. As a result, Porshia Johnson left the front porch where she and her friends were talking and went into the residence to investigate. She returned to the porch in an agitated state and requested that her three friends follow her back inside the house. In the living room, they were confronted by defendant, who told the three young men to leave his house. Ms. Young, however, stated that they did not have to leave and that defendant's name was not on the lease. At this point, defendant retreated to the back area of the house. He soon reappeared in the living room and approached Ms. Young. He asked again if his name was on the lease, and when Young replied "no," defendant produced a handgun and shot Young in the shoulder. Next, defendant turned, pointed the gun at Porshia Johnson, and shot her in her left arm. Defendant then approached Young as she was lying on the floor, picked her up as if he was going to hug her, and shot her again in the stomach at extremely close range. Defendant then fired in the direction of Codi Johnson, wounding her in the leg. At this time, Maril Woodfin, Tony Johnson, and Christopher Jones ran from the scene. Defendant gave chase after Jones and was heard saying "I'll kill all y'all." Defendant eventually returned to the house, changed his shirt, and fled the scene. Shortly thereafter, the police arrived, and defendant was apprehended following a brief foot chase. All three victims — Young, Codi Johnson, and Porshia Johnson — were taken to the hospital and treated for their injuries; Khimley Young underwent emergency surgery for serious and permanent intestinal injuries.

Following his arrest, defendant was advised of his rights and signed the notification and waiver of rights form. During questioning, he admitted firing shots, but claimed that he was firing at the floor when Khimley Young jumped in the way. Defendant was charged with four counts of assault with intent to commit murder and one count of felony-firearm.

At trial, the prosecution presented testimony and evidence that the shootings were deliberate. Defendant, on the other hand, maintained that the shootings were accidental and prompted by fears for his own safety. In addition to the charged offenses, the trial court, at the request of the prosecution and over defendant's objection, also instructed the jury on the lesser offenses of assault with intent to do great bodily harm less than murder and misdemeanor assault and battery. The jury ultimately found defendant guilty on one count of assault with intent to do great bodily harm, one count of misdemeanor assault and battery, and felony-firearm. Defendant was acquitted on the remaining two counts charging assault with intent to commit murder. He now appeals.

II

On appeal, we address an issue of first impression: whether assault with intent to do great bodily harm less than murder is an inferior offense of assault with intent to commit murder within the meaning of MCL 768.32.

Defendant claims that the trial court committed error requiring reversal when it instructed the jury regarding the offense of assault with intent to do great bodily harm less than murder. Defendant argues, as he did before the trial court, that the instruction regarding assault with intent to do great bodily harm less than murder was improper under MCL 768.32(1) because it is a cognate offense, not a necessarily included lesser offense, of assault with intent to commit murder. We disagree.

"We review de novo a trial court's ruling on a necessarily included lesser offense instruction." People v. Walls, 265 Mich.App. 642, 644, 697 N.W.2d 535 (2005), citing People v. Lowery, 258 Mich.App. 167, 173, 673 N.W.2d 107 (2003).

MCL 768.32(1) provides:

Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.

In People v. Cornell, 466 Mich. 335, 646 N.W.2d 127 (2002), our Supreme Court clarified the law regarding instruction on inferior offenses under MCL 768.32(1). The Cornell Court noted that the statute "was not intended to be limited only to those [inferior offenses] expressly divided into `degrees,' but was intended to extend to all cases in which different grades of offenses or degrees of enormity had been recognized[,]" including misdemeanors. Id. at 353-354, 646 N.W.2d 127. The Court further explained, "[T]he word `inferior' in the statute does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense. . . .'" Id. at 354, 646 N.W.2d 127, quoting People v. Torres (On Remand), 222 Mich.App. 411, 419-420, 564 N.W.2d 149 (1997). In other words, an offense is "inferior" within the meaning of MCL 768.32(1) if "`all the elements of the lesser offense have already been alleged by charging the defendant with the greater offense.'" Cornell, supra at 354-355, 646 N.W.2d 127, quoting Torres, supra at 419-420, 564 N.W.2d 149.

Consequently, because the plain language of the statute only permits consideration of inferior offenses, the Cornell Court concluded that instructions on "cognate" lesser offenses, which contain one element or some elements not found in the greater offense,¹ are no longer permitted under MCL 768.32(1). Cornell, supra at 355, 646 N.W.2d 127. Instead, the jury may only be instructed on necessarily included lesser offenses,² provided "the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." Id. at 357, 646 N.W.2d 127. See also Walls, supra.

Thus, to determine whether assault with intent to do great bodily harm less than murder is an inferior offense to assault with intent to commit murder, the elements of each offense must be compared. Both assault with intent to commit murder and assault with intent to do great bodily harm less than murder are specific intent crimes. See People v. Eggleston, 149 Mich.App. 665, 668, 386 N.W.2d 637 (1986); People v. Mack, 112 Mich.App. 605, 611, 317 N.W.2d 190 (1981); People v. Bailey, 104 Mich.App. 146, 155, 304 N.W.2d 507 (1981). However, the requisite specific intents for these two offenses differ.

The elements of assault with intent to do great bodily harm less than murder³ are: "(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder." People v. Parcha, 227 Mich.App. 236, 239, 575 N.W.2d 316 (1997) (emphasis added). See also People v. Lugo, 214 Mich.App. 699, 710, 542 N.W.2d 921 (1995); People v. Harrington, 194 Mich.App. 424, 428, 487 N.W.2d 479 (1992). This Court has defined the intent to do great bodily harm as "an intent to do serious injury of an aggravated nature." People v. Mitchell, 149 Mich.App. 36, 39, 385 N.W.2d 717 (1986), citing People v. Ochotski, 115 Mich. 601, 608, 73 N.W. 889 (1898). See also People v. Smith, 217 Mich. 669, 673, 187 N.W. 304 (1922); People v. Troy, 96 Mich. 530, 537, 56 N.W. 102 (1893).

The elements of assault with intent to commit murder⁴ are: "`(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.'" People v. Davis, 216 Mich.App. 47, 53, 549 N.W.2d 1 (1996), quoting People v. Warren (After Remand), 200 Mich.App. 586, 588, 504 N.W.2d 907 (1993). See also People v. Plummer, 229 Mich.App. 293, 305, 581 N.W.2d 753 (1998); People v. Hoffman, 225 Mich.App. 103, 111, 570 N.W.2d 146 (1997).

It is readily apparent that both offenses share the common element of assault and are, therefore, of the same class and category. However, they are distinguishable from each other by the intent required of the actor at the time of the assault. Thus, categorization of either as an offense cognate to or necessarily included within the other must center on an analysis of these distinguishing...