People v. Hopson, Docket No. 102640

• Decision Date: 30 August 1989
• Docket Number: Docket No. 102640
• Citation: 444 N.W.2d 167,178 Mich.App. 406
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lafrench HOPSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 167

444 N.W.2d 167

178 Mich.App. 406

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lafrench HOPSON, Defendant-Appellant.

Docket No. 102640.

Court of Appeals of Michigan.

Submitted May 11, 1989.

Decided July 17, 1989.

Released for Publication Aug. 30, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Mary Sue Czarnecki, Asst. Pros. Atty., for the People.

John R. Minock, Ann Arbor, for defendant-appellant on appeal.

Before HOOD, P.J., and BEASLEY and SHEPHERD, JJ.

SHEPHERD, Judge.

In this matter we are called upon to apply the recent holding of our Supreme Court that a trial judge may not impose a sentence of a long term of years in order to make certain that a defendant never becomes eligible for parole in those cases where the Legislature has provided for life with the possibility of parole as a sentencing option.

Following a bench trial, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant was sentenced to fifty to eighty years imprisonment. He appeals as of right from his conviction and sentence. We affirm the conviction, but remand for resentencing pursuant to People v. Moore, 432 Mich. 311, 439 N.W.2d 684 (1989).

I

We first consider defendant's assertion that the evidence establishing his identity as the perpetrator was insufficient. When reviewing a challenge to the sufficiency of the evidence in a bench trial, we consider the evidence presented, viewed in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11 (1985). The evidence is sufficient if the prosecution proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defendant may provide. People v. Daniels, 163 Mich.App. 703, 707, 415 N.W.2d 282 (1987), lv. den. 430 Mich. 854 (1988), and cases cited therein.

Viewed most favorably to the prosecution, the evidence here showed that the victim died of multiple stab wounds inflicted upon her in the vestibule of Kelly's Elbow Lounge in Detroit on February 27, 1987. Defendant's identity was established through testimony placing defendant with the victim at the times relevant to the stabbing. First, Learvis Harris testified that he saw defendant and the victim, Shirley Blythe, arguing in a bar across the street from Kelly's. Harris left at the victim's request that Harris go out and get her boyfriend.

Next, Reginald Parr testified that the victim asked him if he would walk her across the street to Kelly's. The victim requested that Parr accompany her because she did not want to meet defendant alone. As the two crossed the street, the victim saw defendant and ran. She tripped in front of Kelly's and began crying. Defendant seemed angry when he reached the victim. Defendant told the victim to get up and "let's go." Parr eventually left and went inside Kelly's, leaving defendant and the victim alone. About fifteen minutes later, he heard a commotion at the door and then saw someone helping the victim, who was bleeding, inside the lounge.

Robert Kelly, the owner of the lounge, also heard the commotion at the door. He went to see what was happening but could not get the door opened. He looked through a window and saw defendant in the vestibule. Defendant was striking at someone or something and "thrashing" with a downward motion. After defendant left, Kelly opened the door and saw the victim lying in the vestibule.

We conclude that this testimony would permit a rational trier of fact to find beyond a reasonable doubt that the victim was stabbed while in the vestibule of Kelly's Elbow Lounge by the defendant. Defendant's argument that the evidence, at best, established his mere presence is without merit. We find no error on this issue.

II

Defendant also contends that the prosecutor had a burden to prove that he lacked provocation for the killing and that the trial court improperly shifted the burden of persuasion on this element to defendant. We disagree.

The absence of provocation is not an actual element of the crime of second-degree murder that the prosecutor must prove beyond a reasonable doubt. See People v. Van Wyck, 402 Mich. 266, 262 N.W.2d 638 (1978); People v. Deason, 148 Mich.App. 27, 33, 384 N.W.2d 72 (1985), lv. den. 428 Mich. 869 (1987). The mental state or malice that the prosecutor must prove is the intent to kill, an intent to inflict great bodily harm, or the wanton and wilful disregard of the likelihood that the natural tendency of the defendant's behavior is to cause death or great bodily harm. People v. Aaron, 409 Mich. 672, 728, 299 N.W.2d 304 (1980), and see People v. Maghzal, 170 Mich.App. 340, 344, 427 N.W.2d 552 (1988). However, a homicide may be reduced to voluntary manslaughter if the factfinder determines from an examination of all the circumstances surrounding the killing that malice was negated by adequate and reasonable provocation and the homicide was committed in the heat of passion. People v. Townes, 391 Mich. 578, 589, 218 N.W.2d 136 (1974). Passion, in the context of voluntary manslaughter, describes a state of mind incapable of cool reflection. Id., n. 3.

The trial court's factual findings in this case clearly reflect that the trial court placed the burden of persuasion on the prosecutor to prove that defendant had the requisite state of mind. The trial court specifically found that the prosecutor proved the requisite state of mind, specifically, the intent to do great bodily harm or the creation of a very high risk of death with knowledge that death or great bodily harm would be the probable result. The trial court then considered whether there were any circumstances that would justify mitigating the crime to manslaughter, but concluded that there were none. When viewed in context, there is nothing in the trial court's factual findings to support defendant's assertion that the trial court shifted the burden of persuasion to defendant. Therefore, we find no error.

We also reject defendant's further assertion that the evidence was insufficient to prove that he had the requisite state of mind. The trial evidence, at best, established that defendant and the victim had an argument prior to the stabbing incident and that defendant appeared to be angry with the victim. Viewed most favorably to the prosecution, a rational trier of fact could find that the stabbing was not an act done out of passion induced by adequate and reasonable provocation, but rather was a cold-blooded and deliberate act of murder. In our view, the trial evidence amply supports the trial court's finding that defendant had the requisite state of mind to support a second-degree murder conviction.

III

Defendant, in pro per, raises one issue regarding his conviction. Defendant contends that he was denied the effective assistance of counsel at trial because his attorney cross-examined only one prosecution witness, Reginald Parr, and the "complaining witness" listed on the "felony warrant" did not testify. Defendant briefly expressed his dissatisfaction with his trial counsel to the trial court at the sentencing hearing, and the trial court responded that it was satisfied that defendant was afforded proper representation at trial.

Generally, a motion for new trial or for an evidentiary hearing is a prerequisite for appellate review unless the error is apparent from the face of the record so as to permit this Court to decide the issue. People v. Sharbnow, 174 Mich.App. 94, 105-106, 435 N.W.2d 772 (1989); People v. Reinhardt, 167 Mich.App. 584, 591, 423 N.W.2d 275 (1988), lv. den. 430 Mich. 874 (1988). The burden is on defendant to overcome the presumption that he was afforded effective assistance. Id.

The ineffectiveness claim by defendant in this appeal, specifically, the decision to cross examine or call a witness to testify, is regarded as a matter of trial strategy. Defendant is entitled to relief only in those instances where his attorney's omission deprived defendant of a substantial defense. Id., p. 594, 423 N.W.2d 275; People v. Wilson, 159 Mich.App. 345, 354, 406 N.W.2d 294 (1987). We have carefully considered defendant's claim of ineffectiveness, but conclude that...