People v. Hollis

• Decision Date: 01 April 1985
• Docket Number: Docket No. 78308
• Citation: 366 N.W.2d 29,140 Mich.App. 589
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Anthony HOLLIS, Defendant-Appellant. 140 Mich.App. 589, 366 N.W.2d 29
• Court: Court of Appeal of Michigan — District of US

Page 29

366 N.W.2d 29

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Anthony HOLLIS, Defendant-Appellant.

Docket No. 78308.

140 Mich.App. 589, 366 N.W.2d 29

Court of Appeals of Michigan.

Submitted Nov. 16, 1984.

Decided Feb. 5, 1985.

Released for Publication April 1, 1985.

[140 MICHAPP 590] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief, Appellate Asst. Pros. Atty., Civil and Appeals, and Charles Grant, Asst. Pros. Atty., for the People.

Alan D. Hunt, P.C. by Alan D. Hunt, Dearborn, for defendant-appellant.

Before CYNAR, P.J., and BEASLEY and ROBINSON, ^* JJ.

PER CURIAM.

Defendant was charged with one count of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and one count of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was found guilty as charged after a bench trial. He was sentenced to a term of not less than 20 and not more than 40 years imprisonment on the assault conviction and a consecutive mandatory two-year term on the felony-firearm conviction. Defendant appeals to this Court as of right.

[140 MICHAPP 591] Defendant was involved in an assault on a security guard at Henry Ford Hospital in Detroit, Michigan. The guard approached defendant after observing him in a parking structure at the hospital. The guard, Abraham Hodgers, approached the defendant and advised him that he could not linger on the property. Defendant produced a gun, pointed it at Hodgers and threatened to kill him. When Hodgers reached for the gun, it discharged a bullet which ricocheted off Hodgers's shoe and knocked his gun from his holster. Hodgers fell onto his back. Defendant approached him, still pointing the gun at Hodgers. At that point, Dennis McBride, Hodgers's back-up arrived and disarmed the defendant.

Defendant testified that he pulled the gun out but that it discharged accidently when Hodgers rushed him. Defendant also testified that he had come down from his ingestion of "speed" about two hours earlier.

Defendant's first claim on appeal is that the trial court erred by failing to apply the "diminished capacity standard" when determining defendant's guilt or innocence. On appeal, the defense theory is that defendant's ingestion of "speed" prior to the assault made him incapable of forming the requisite intent to kill. Defendant reasons that the trial court erred by failing to apply the diminished capacity standard to defendant's case.

In this case defendant complied with the statutory notice requirements for asserting the diminished capacity defense. M.C.L. Sec. 768.20a(1); M.S.A. Sec. 28.1043(1)(1), People v. Atkins, 117 Mich.App. 430, 435-436, 324 N.W.2d 38 (1982); People v. Mangiapane, 85 Mich.App. 379, 395, 271 N.W.2d 240 (1978). Defendant, however, failed to affirmatively assert diminished capacity as a defense at trial. This Court has held that the failure of a defendant to [140 MICHAPP 592] present competent proof of an insanity defense forecloses appellate consideration of the merits of the defense. People v. Blocker, 45 Mich.App. 138, 140-141, 206 N.W.2d 229 (1973), aff'd 393 Mich. 501, 227 N.W.2d 767 (1975). The same rationale applies to the diminished capacity defense. Mangiapane, supra, 85 Mich.App. p. 395, 271 N.W.2d 240; People v. Denton, 138 Mich.App. ---, 360 N.W.2d 245 (1984). The statutory procedures are equally applicable to the insanity and diminished capacity defenses. The record in this case is void of any evidence which tends to show an insanity defense, an intoxication defense, or a diminished capacity defense. This case is squarely within the Blocker, supra, rule. Appellate consideration is foreclosed. Compare, People v. Spencer, 23 Mich.App. 56, 178 N.W.2d 130 (1970), 1v. den., 383 Mich. 787, 177 N.W.2d 621 (1970).

Defendant next claims that the evidence was insufficient to support his conviction for assault. In reviewing a sufficiency claim this Court must determine whether, considering the evidence in the light most favorable to the prosecutor, a rational trier of fact could find the necessary elements of the crime proven beyond a reasonable doubt or if the court clearly erred. People v. Simpson, 132 Mich.App. 259, 263, 347 N.W.2d 215 (1984); People v. Anderson, 112 Mich.App. 640, 648, 317 N.W.2d 205 (1981). Defendant contends that evidence on the element of intent to kill was not shown. The trial court stated:

"From the testimony this court has heard, he aimed it at him and followed him and aimed it again. His testimony is that he took it out to scare him away. Doesn't hold water with this court. A person takes out a handgun and knows there's a chance of great bodily harm. He aims at...