People v. Grant

• Decision Date: 15 December 1980
• Docket Number: Docket No. 78-4241
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald Bernard GRANT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 536

301 N.W.2d 536

102 Mich.App. 368

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald Bernard GRANT, Defendant-Appellant.

Docket No. 78-4241.

Court of Appeals of Michigan.

Dec. 15, 1980.

Released for Publication Feb. 20, 1981.

Emory W. Clark, Lapeer, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Earl Morgan, Jr., Pros. Atty., Nick O. Holowka, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and KELLY and FREEMAN, ^* JJ.

DONALD R. FREEMAN, Circuit Judge.

Defendant was convicted by a jury of assault with intent to commit murder, contrary to M.C.L. § 750.83; M.S.A. § 28.278. In a subsequent proceeding, the trial court sentenced defendant to a life term of imprisonment. From the conviction and sentence, defendant appeals by leave granted.

On February 15, 1976, defendant committed an armed robbery when, while armed with a gun, he entered a Genesee County grocery store and demanded money. Defendant then left the robbery scene in a small yellow car and was seen headed in the direction of Lapeer County. Alerted by radio dispatch, Lapeer County Sheriff's Deputy John Young observed the defendant's vehicle about 15 minutes after the robbery. Officer Young's attempt to apprehend the defendant resulted in a gun battle, upon which the instant conviction was based. However, prior to his conviction for assault with intent to commit murder, defendant was convicted in Genesee County for armed robbery and received a sentence of 10 to 20 years imprisonment. The armed robbery conviction was affirmed by this Court in a memorandum opinion.

Defendant maintains that his second trial and conviction violated his constitutional guarantee against double jeopardy by imposing upon him separate trials for two criminal acts arising from the same transaction. People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), U.S.Const. Am. V. We disagree.

In Crampton v. 54-A District Judge, 397 Mich. 489, 499, 245 N.W.2d 28 (1976), the Supreme Court reaffirmed its adoption of the same transaction test for claims of double jeopardy, first espoused in People v. White, supra. Applied to criminal acts requiring proof of intent, multiple offenses exhibiting " 'a continuous time sequence and display (of) a single intent and goal' " must be tried in a single proceeding or be subject to a double jeopardy defense. Crampton, supra, 499, 245 N.W.2d 28.

In its analysis, the Crampton Court specifically approved this Court's application of the same transaction test in a number of prior decisions. Among the approved decisions was that in People v. Charles Johnson, 62 Mich.App. 240, 233 N.W.2d 246 (1975), in which the defendant was convicted and sentenced for prison escape. Thereafter, the defendant was permitted to plead guilty to a charge of assault with intent to commit a felony, for an assault committed on the day of his escape. The Johnson Court held:

"In the present case, the first element of the White same transaction test, that the crimes 'were committed in a continuous time sequence', may appear to be met because both offenses occurred on the same day. However, that fact alone does not make the offenses one long continuous transaction. People v. Martin, supra (53 Mich.App. 321, 220 N.W.2d 186 (1974)). Furthermore, the crime of prison escape was completed at the time that the defendant did 'leave said prison without being discharged'. MCLA 750.193; MSA 28.390.

"The second element, that the crimes 'display a single intent and goal', is not satisfied. The defendant could not have assaulted the victim with the same intent and goal that he had when escaping prison. The prison escape was a completed act. The assault was an independent act intended to allow the defendant to elude capture. As such, while the assault was made possible by the escape, the assault was a separate transaction." People v. Charles Johnson, supra, p. 248, 233 N.W.2d 246.

Additionally, in People v. Davenport (On Remand), 51 Mich.App. 484, 215 N.W.2d 702 (1974), the Court found double jeopardy violated by consecutive convictions for being a disorderly person and for resisting arrest. The sequence of events was as follows:

"When a police officer stopped defendant for a traffic infraction, defendant allegedly refused to cooperate with him and directed obscene epithets at him, and then, when the officer attempted to arrest defendant because of those epithets, defendant refused to submit peacefully. The continuousness of the time sequence is obvious. The unity of intent is also readily apparent a refusal to submit to a police officer's authority."

People v. Davenport, supra, 486, 215 N.W.2d 702.

In People v. Rolston, 51 Mich.App. 146, 214 N.W.2d 894 (1974), involving the robbery of a bar and the kidnapping, rape and murder of a barmaid, the Court found the defendant's guarantee violated. In Rolston, the Court determined that the goal of the murder (for which the defendant was initially tried and acquitted) was the same as that for the kidnapping (the defendant's second trial); in effect, to spirit the defendant's accomplice out of the country.

The facts of the present case do not evidence a single intent or goal as found in Rolston. An obvious goal of the armed robbery was to obtain money for whatever use the defendant intended. The later assault was aimed at evading police efforts to apprehend the defendant, a clearly different objective. Additionally, the offenses herein were not interrelated to the extent that they comprise an " 'essentially unitary criminal episode' ". People v. Charles Johnson, supra, 248, 233 N.W.2d 246. At the time the defendant assaulted Officer Young, the armed robbery was successfully completed. Further, at no time was Officer Young present at the robbery scene, which would indicate a hot pursuit of the defendant. Although the defendant's criminal acts were committed within a short period of time, that evidence alone does not suggest the identity of intent or goal behind the acts necessary to raise a valid double jeopardy defense. In the absence of shared intent or goal, the defendant's second trial was not violative of his guarantee against double jeopardy.

Defendant also claims he was denied the effective assistance of defense counsel. He argues that defense counsel's failure to subpoena or call for testimony Constance Caldwell, who worked at a mental hospital to which defendant was previously assigned and who lived with defendant after his release from the institution, was fatal to his defense of insanity. As further proof of ineffective assistance, the defendant alleges that defense counsel announced he would present five other witnesses to testify regarding the defendant's mental condition, but failed to subpoena or call them. Finally, defendant asserts ineffective assistance in defense counsel's refusal to call the defendant to testify.

In People v. Garcia, 398 Mich. 250, 264, 247 N.W.2d 547 (1976), the Michigan Supreme Court rejected the former "sham" test for finding ineffective assistance of counsel in favor of a test first established in Beasley v. United States, 491 F.2d 687, 696 (CA 6, 1974). The Beasley test, adopted by the Garcia Court, provides:

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interests, undeflected by conflicting considerations."

See also People v. Roberson, 90 Mich.App. 196, 282 N.W.2d 280 (1979). Further, where defense counsel's actions at trial produce a "serious error but for which defendant would have had a reasonable likelihood of acquittal", ineffective assistance will be found to have been established. People v. Knight, 94 Mich.App. 526, 528, 288 N.W.2d 649 (1980).

Our courts have consistently held that the decision to present specific witnesses is a matter of trial strategy and will not support a claim of ineffective assistance of counsel. People v. Gibson, 94 Mich.App. 172, 288 N.W.2d 366 (1979), People v. Roberson, supra. Also, a defendant is required to show prejudice under a claim of defense counsel unpreparedness. People v. Krist, 93 Mich.App. 425, 287 N.W.2d 251 (1979). Thus, although possibly helpful to the defense of insanity, defense counsel's failure to subpoena and call certain witnesses does not suggest a trial strategy outside the acceptable bounds of representation. Further, defense counsel presented the expert testimony of a psychiatrist, Dr. Dennis Koson. On cross-examination by the prosecutor, Dr. Koson testified that the defendant was not insane on the day of the robbery and assault. Although such testimony was not supportive of the defendant's claim of insanity, the mere fact...