People v. Brown

• Decision Date: 20 May 1980
• Docket Number: Docket No. 43824
• Citation: 296 N.W.2d 121,97 Mich.App. 606
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory BROWN, Defendant-Appellant. 97 Mich.App. 606, 296 N.W.2d 121
• Court: Court of Appeal of Michigan — District of US

Page 121

296 N.W.2d 121

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

Docket No. 43824.

97 Mich.App. 606, 296 N.W.2d 121

Court of Appeals of Michigan.

May 20, 1980.

Released for Publication Sept. 24, 1980.

[97 MICHAPP 609] Marvin Skupski, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., A. George Best, II, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and BRONSON and RILEY, JJ.

PER CURIAM.

Defendant was charged in a three-count information with assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and felonious assault, M.C.L. § 750.82; M.S.A. § 28.277. After a jury trial, he was found not guilty on the first two charges, and on the third, was found guilty of the included offense of aggravated assault, M.C.L. § 750.81a; M.S.A. § 28.276(1). ¹ He was sentenced to one year in prison, and now appeals by right.

The complainant testified that on June 11, 1978, he went to a barbershop. The defendant's brother Alvin was also there, and the two men engaged in a "tussle", allegedly over a grudge held by Alvin against the complainant. The fight was broken up by bystanders. Approximately three hours later, the complainant and his sister were alone at his father's home; and, while they were sitting in the living room, they heard one shot which came from outside. They looked out the window and saw a car traveling down the street in front of the house. Alvin was driving, defendant was in the front seat, [97 MICHAPP 610] and defendant's other brother, Karl, and his sister's boyfriend were in the back seat. The complainant testified that Alvin had his hand sticking out of the window and was holding a gun and that, as the car was still moving, the defendant jumped out and ran up onto the porch of the house and opened the screen door. The complainant testified that, while he was driving towards the front door in order to shut it, defendant stepped into the house, aimed, and fired. The bullet did not strike anyone and landed in the hallway wall. Defendant ran from the porch followed by the complainant, returned to his car, retrieved a steel pipe from the car, and hit the complainant on the head. The blow knocked the complainant unconscious.

Defendant first argues that the prosecution failed to present sufficient evidence of a serious or aggravated injury so as to sustain the burden of proof on a charge of aggravated assault. ² The statute provides as follows:

"Any person who shall assault another without any weapon and inflict serious or aggravated injury upon the person of another without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail or the state prison for a period of not [97 MICHAPP 611] more than 1 year, or fine of $500.00, or both." (Emphasis added.) M.C.L. § 750.81a; M.S.A. § 28.276(1).

CJI 17:3:01, which was given to the jury during the trial court's instructions, further defines "serious or aggravated injury" as "substantial bodily (physical) injury or injury that necessitated immediate medical treatment or caused disfigurement, impairment of health or impairment of any bodily part". The evidence will be deemed sufficient if it would justify a reasonable person in concluding that the element was established beyond a reasonable doubt. People v. Johnson, 83 Mich.App. 1, 17-18, 268 N.W.2d 259 (1978).

Several persons testified at trial concerning complainant's injuries. Their testimony revealed that he had been rendered unconscious by the blow to the head, and that his head hit concrete as he fell. He suffered cuts on his face, an eye injury, and a bruised neck. We hold this evidence was sufficient to justify a reasonable person in concluding that defendant inflicted a serious or aggravated injury on complainant. See People v. Chadwick, 301 Mich. 654, 656-657, 4 N.W.2d 45 (1942). While complainant did not seek medical attention until the evening following the attack, the need to seek immediate medical attention is only one factor used in determining whether the element is established.

The defendant also argues that expert testimony is required on the question of whether a serious or aggravated injury has been inflicted. We know of no such requirement, and decline to imply one. Expert testimony is important if it can aid the trier of fact in resolving complex issues beyond the experience of a person not trained in a specific field. See MRE 702. We believe, however, that a jury is normally capable of applying the statutory [97 MICHAPP 612] language involved in the instant case without the need of expert testimony.

During the cross-examination of complainant, in response to a question asked by defense counsel, complainant implied that defendant had recently been released from incarceration. ³ On appeal, defendant argues the trial court erred in not giving a curative instruction. While defendant's trial counsel did request a mistrial, which was denied, no request for a curative instruction was made. Accordingly, this issue is not preserved for our review absent a showing of manifest injustice. People v. Phillips, 61 Mich.App. 138, 149-151, 232 N.W.2d 333 (1975). We do not believe manifest injustice will result from our refusal to reach this issue. The response was not solicited, and did not directly convey the fact of defendant's prior incarceration. Defendant's reliance on People v. Killebrew, 61 Mich.App. 129, 232 N.W.2d 329 (1975), lv. den. 395 Mich. 817 (1975), is misplaced, as defense counsel in Killebrew actually requested a curative instruction.

Defendant finally contends that the jury should not have been instructed on the crime of which he was convicted, as instruction on this lesser included offense was barred by People v. Chamblis, 395 Mich. 408, 429, 236 N.W.2d 473, 483 (1975), where the Supreme Court stated:

"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, [97 MICHAPP 613] the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less."

The rule is applicable in the instant case, as the charged offense, felonious assault, carries a maximum sentence of four years ⁴ and the included offense, aggravated assault, is punishable by a maximum sentence of one year. ⁵

It is not clear from the record whether the trial court gave the instruction on its own accord, or whether it was requested by one of the parties. Although the record does not establish that the instruction was requested by the defense, it does reveal that defendant made no objection to this specific charge. As a result, appellate review is precluded absent manifest injustice. See, e. g., People v. Jones, 92 Mich.App. 100, 108, 284 N.W.2d 501 (1979); People v. Clay, 91 Mich.App. 716, 723, 283 N.W.2d 870 (1979).

We do not believe manifest injustice will result from a failure to reach this issue. In the course of formulating rules to govern lesser included offenses, the Supreme Court adopted the rule in Chamblis as a brake on the power of the jury, in the "exercise of conscience", to compromise beyond reasonable limits. The rule was to protect both the defendant and the community. An endless procession of lesser included offenses could amount to harassment and could, ultimately, lead to a conviction on a lesser offense bearing no reasonable relation to the charge on which the defendant was originally brought before the court. On the other hand, those who have actually committed a serious offense should be punished as such and should not [97 MICHAPP 614] be allowed the chance to escape with conviction on a charge that is technically a lesser included offense but is logically unrelated to the charged offense.

Applying these policy considerations to the instant case, we believe that the underlying concerns expressed in Chamblis are not present. The offenses of felonious assault and aggravated assault are of the same class, and bear a reasonable relationship to one another. See People v. Brown, 87 Mich.App....