People v. Crawford

• Decision Date: 19 August 1987
• Docket Number: Docket No. 84770
• Citation: 161 Mich.App. 77,409 N.W.2d 729
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald CRAWFORD, Defendant-Appellant.

Page 729

409 N.W.2d 729

161 Mich.App. 77

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald CRAWFORD, Defendant-Appellant.

Docket No. 84770.

Court of Appeals of Michigan.

Submitted Nov. 6, 1986.

Decided March 24, 1987.

Released For Publication Aug. 19, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Atty., for the People.

James R. Rinck and George S. Buth, Grand Rapids, for defendant-appellant on appeal.

Before CYNAR, P.J., and KELLY and HATHAWAY , JJ.

PER CURIAM.

Defendant was convicted in 1981 on two counts of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and carrying a concealed weapon M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. Defendant was sentenced to life imprisonment on the assault convictions. On appeal to this Court, the assault and felony-firearm convictions were reversed. People v. Crawford, 128 Mich.App. 537, 340 N.W.2d 323 (1983). After retrial on those charges, defendant was again convicted on two counts of assault with intent to commit murder and felony-firearm. This time the judge sentenced him to two concurrent terms of from sixty-five to one hundred years on the assault with intent to commit murder convictions, plus the mandatory two-year term on the felony-firearm conviction. Defendant now appeals as of right.

Defendant's convictions arose out of a shoot-out at the Grand Rapids Hall of Justice in January, 1981. When police officers met defendant there to execute an outstanding warrant for his arrest, defendant shot two of them. At his second trial, defendant presented a diminished capacity defense, claiming he was too intoxicated from his voluntary use of alcohol and drugs to form the requisite specific intent necessary for conviction of assault with intent to murder.

Defendant's first claim on appeal is that the court's jury instructions on specific intent impermissibly shifted the burden of proof from the prosecution to defendant. Defendant did not object to the instructions at trial, when any error could have been cured. Therefore, appellate review of this issue is precluded, unless a miscarriage of justice would otherwise result. People v. Morris, 139 Mich.App. 550, 560, 362 N.W.2d 830 (1984). To insure that no injustice is done defendant, we have reviewed the jury instructions and find no egregious error. Jury instructions must be read as a whole, and if they adequately inform the jury of the applicable law, no error requiring reversal is established. People v. Stewart, 126 Mich.App. 374, 377, 337 N.W.2d 68 (1983). The trial court's instructions on specific intent, when read as a whole, were proper. The court did not, as defendant argues, instruct the jurors that they could presume specific intent. Cf., People v. Wright, 408 Mich. 1, 22, 289 N.W.2d 1 (1980).

Defendant raises two issues concerning his sentences. Defendant first objects that the judge gave him harsher sentences than he had received on the same convictions after his first trial, although no new information had been produced to justify the increased sentences. A defendant's due process rights are violated if the judge, in enhancing defendant's sentence after retrial, indicates on the record that he is imposing a harsher sentence out of vindictiveness against defendant for having successfully appealed from his first conviction. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); People v. Jones, 403 Mich. 527, 271 N.W.2d 515 (1978), cert. den. 440 U.S. 951, 99 S.Ct. 1432, 59 L.Ed.2d 640 (1979). Where the record reveals that vindictiveness played no role in the judge's resentencing decision, the imposition of a higher sentence does not violate defendant's right to due process. People v. Van Auker (After Remand), 132 Mich.App. 394, 398, 347 N.W.2d 466 (1984), rev'd. in part and remanded 419 Mich. 918, 354 N.W.2d 258 (1984).

The record indicates that the judge sentenced defendant to a term of years, rather than the life sentences imposed on his first convictions, only to effectuate his original intent to keep defendant "off the streets as long as possible." The record does not even hint at any vindictiveness because of defendant's successful appeal of his original convictions. Between defendant's first sentencing and second trial, the Supreme Court ruled that a person sentenced to a parolable life term was still eligible for parole consideration after just ten years. People v. Johnson, 421 Mich. 494, 498, 364 N.W.2d 654 (1984). The trial court's decision to impose indeterminate sentences of from sixty-five to one hundred years, instead of life, foreclosed the possibility that defendant would be eligible for parole in just ten years. This is the basis for defendant's argument that his second sentence was harsher than his first.

This Court, in considering the vindictiveness issue, has held that a parolable life term is, as a matter of law, a lengthier sentence than any term of years, even though a defendant sentenced to life in prison may be eligible for parole before a defendant sentenced to a lengthy term of years. People v. McNeal, 156 Mich.App. 379, 401 N.W.2d 650 (1986); People v. Lindsey, 139 Mich.App. 412, 415, 362 N.W.2d 304 (1984). In People v. Hurst, 155 Mich.App. 573, 400 N.W.2d 685 (1986), this Court, in considering a departure from the sentencing guidelines, expressed its frustration in attempting to review sentences with different parole consequences, especially when compounded by suggestions that the Department of Corrections considers defendants for parole after ten years despite People v. Johnson, supra. Pending a response to Hurst from the Department of Corrections, we will abide by this Court's holdings that a term of years is not harsher than a life sentence. Therefore, this issue is without merit, not only because the judge did not impose a different sentence out of vindictiveness, but also because the new sentence was not harsher than the previous one.

Defendant also argues that the court impermissibly considered defendant's lack of remorse when imposing his sentence. It is neither clearly erroneous nor improper for a trial court to consider a defendant's lack of remorse in imposing sentence. People v. Federico, 146 Mich.App. 776, 800, 381 N.W.2d 819 (1985).

Finally, defendant objects that the prosecution did not make a good-faith effort to bring him to trial in compliance with the 180-day rule, M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). The statute does not require the trial to be commenced within 180 days, but obligates the prosecution to take good-faith action during the 180-day time period and thereafter to proceed to ready the case against the prison inmate for trial. People v. Hill, 402 Mich. 272, 281, 262 N.W.2d 641 (1978); People v. Tutton, 128 Mich.App. 412, 340 N.W.2d 649 (1983). In this case, the prosecution did make a good-faith effort to bring defendant to trial within the 180-day period. Some of the delay, moreover, was attributable to defendant, whose appointed counsel asked the court to reschedule the trial to accommodate his vacation, and then, just before the trial date, stated that he was unprepared, although it had been two months since his appointment. Delays attributable to a defendant have been held to negate a violation of the 180-day rule. People v. Pelkey, 129 Mich.App. 325, 329, 342 N.W.2d 312 (1983). Finally, defense counsel stated on the record that he had discussed the matter with defendant, who had decided that he would prefer to waive the 180-day rule rather than start the case after only a short period of preparation. Defendant argues that, since defendant himself did not state his affirmance of this on the record, he has not adequately waived his constitutional right. This Court has observed that the right to trial within a certain number of days may be waived. People v. Browning, 104 Mich.App. 741, 760, 306...