People v. Lipps

• Decision Date: 19 April 1988
• Docket Number: Docket No. 87439
• Citation: 167 Mich.App. 99,421 N.W.2d 586
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darryl LIPPS, Defendant-Appellant. 167 Mich.App. 99, 421 N.W.2d 586
• Court: Court of Appeal of Michigan — District of US

Page 586

421 N.W.2d 586

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darryl LIPPS, Defendant-Appellant.

Docket No. 87439.

167 Mich.App. 99, 421 N.W.2d 586

Court of Appeals of Michigan.

Submitted Nov. 3, 1987.

Decided March 8, 1988.

Released for Publication April 19, 1988.

[167 MICHAPP 100] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert Cares, Pros. Atty., for the people.

State Appellate Defender by James Krogsrud, Detroit, for defendant-appellant on appeal.

[167 MICHAPP 101] Before WAHLS, P.J., and BEASLEY and BURRESS, ^* JJ.

PER CURIAM.

On April 22, 1985, defendant, Darryl R. Lipps, was convicted by a jury of assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, for a March 24, 1984, attack upon his ex-wife, Joyce Peterson, and her then-fiance (now husband) Albert "Roy" Peterson, while the couple slept in the former marital home located in Sturgis, Michigan. On July 29, 1985, the St. Joseph Circuit Court sentenced defendant to a term of imprisonment of fifteen to thirty years for the conviction of assault with intent to murder and to 1 1/2 to 4 years for the conviction of felonious assault. Defendant now appeals as of right, arguing that the trial court erred in its instruction regarding the element of intent in its jury charge on the crime of assault with intent to murder, that he was denied a fair trial because the prosecutor improperly questioned a defense witness about defendant's mental condition, that he was denied a fair trial because the prosecutor improperly questioned him about past specific instances of conduct toward his wife and children and because the prosecutor called his ex-wife to testify as a rebuttal witness in order to substantiate certain alleged prior bad acts, and that he is entitled to a resentencing because the sentencing judge, who presided in defendant's earlier divorce case, improperly considered information obtained during the divorce case. We affirm.

The record reveals that defendant and Joyce were married for twelve years, during which time they had two children. They separated in June, 1983, and were divorced on March 20, 1984. Joyce married Albert "Roy" Peterson on April 4, 1984. [167 MICHAPP 102] On March 23, 1984, Peterson drove from his home in New Orleans, Louisiana, to visit Joyce in Sturgis, Michigan. Joyce lived in the same home in which she and defendant had resided during their marriage. Peterson arrived at approximately 8:00 p.m., and the couple went to bed around 1:00 or 2:00 a.m. Sometime thereafter, they were awakened by defendant, who was stabbing at them with a knife. Joyce managed to escape after a brief struggle and ran downstairs to telephone the police. However, since the telephone cord had been pulled from its connection in the wall, the telephone was inoperative. Joyce ran to a neighbor's house, where she telephoned the police.

Meanwhile, Peterson attempted to elude defendant's knife attack. Eventually, he managed to wrestle the knife away from defendant, who then began to strike out at Peterson with a long object. Finally, defendant ceased his attack and fled from the home. Peterson had suffered an eye injury, a broken finger, a bite wound, and multiple knife wounds to the head, arms, and legs. Four of the stab injuries were serious, consisting of two to an eye and two that penetrated the outer table of the skull. Joyce also suffered cuts on her head.

Defendant testified in his own behalf at trial. First, he explained the efforts he had made to save his marriage to Joyce and the frustration and distress he had experienced pending his divorce. He then testified regarding the events leading up to and concerning the March 24, 1984, attack. According to defendant, on March 23, 1984, at approximately 5:00 p.m., he picked up his children for his scheduled weekly visitation and drove to a Holiday Inn in Elkhart, Indiana. After putting the children to bed, he watched television and drank some alcohol. Pondering his divorce situation, he became increasingly perturbed. Earlier, he had [167 MICHAPP 103] learned that Peterson was visiting Joyce that weekend and, in fact, was delivering a new car to her. Defendant assumed that Joyce was paying for the car in part with some of the child support money he had been paying to her. This thought made defendant even more angry, prompting him to leave his children by themselves at the motel and return to Joyce's home in Sturgis.

When defendant arrived at Joyce's home in Sturgis, he noticed a new car parked in the driveway. He watched Joyce and Peterson through a window for a short time and then went to his own home, also located in Sturgis, where he had a few more drinks of alcohol. His frustration mounted as he thought about the possibility that his children could be removed from the state if Joyce and Peterson were to marry. In his anger, he decided to damage the new car at Joyce's house. Thus, he packed a hammer to break the car's windows and lights, a knife to slash the car's upholstery, and a flashlight into a bag and set out for Joyce's house. Upon arriving, he found the car doors locked. For reasons he could not explain, defendant did not damage the vehicle, but instead entered the home through an open window. Inside, he found a bottle of liquor and took two or three swallows directly from the bottle. After pulling the telephone wire out of its wall connection, he slowly walked upstairs, taking his hammer, knife and flashlight with him.

Defendant testified that he could not remember his feelings or thoughts as he entered the bedroom where Joyce and Peterson were sleeping; he felt only a numbness as he stood by the bed. The actual attack was very hazy in his memory and he could recall only bits and pieces of it, although he remembered striking both Joyce and Peterson with either the flashlight or hammer. He did not [167 MICHAPP 104] recall having used his knife until he and Peterson were fighting on the floor. He insisted that he did not intend to harm or kill anyone.

The defense theory of the case was that defendant had been temporarily insane at the time of the attack. In support of that theory, defense witness Dr. Leonard J. Donk, a licensed psychologist who had conducted extensive tests of, and interviews with, defendant, testified that defendant had recently experienced a great deal of stress and had suffered from a mood disorder which manifested itself by odd behavior (e.g., by spying on Joyce, taking her clothing, and making confrontational telephone calls and notes). Dr. Donk hypothesized that defendant's mood disorder worsened as he became aware of Peterson's presence with his ex-wife and that on the night in question he probably suffered an acute schizophrenic episode (i.e., temporary insanity) after observing the couple together in bed in what had been his marital home. On cross-examination, the prosecutor questioned Dr. Donk extensively regarding defendant's negative personality traits and alleged criminal insanity.

After the defense had rested, the prosecution presented several rebuttal witnesses. Two of the witnesses, Dr. Newton Jackson, a clinical and forensic psychologist, and Dr. William Decker, a psychiatrist, opined that, while defendant has a paranoid personality disorder and may have experienced a severe emotional disturbance, he was not temporarily insane at the time of the attack. Moreover, Joyce was recalled to testify regarding the circumstances which had prompted her to file for a divorce from defendant, such circumstances including defendant's possessive personality as well as his physical abuse and harassment of her.

Defendant first contends on appeal that the trial [167 MICHAPP 105] court erred in its instruction to the jury regarding the element of intent in its charge on the crime of assault with intent to murder. At the trial level, defense counsel not only failed to object to the court's instructions to the jury, but also stated that he was "very satisfied with the charge." Generally, a party may not assign as error a trial court's failure to give an instruction unless that party objected on the record before the jury retired to consider the verdict. MCR 2.516(C). Absent such an objection, this Court will not review the alleged error except to prevent a miscarriage of justice. People v. Vicuna, 141 Mich.App. 486, 492, 367 N.W.2d 887 (1985); M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096. The purpose of this rule is to prevent the giving of an improper instruction or to facilitate the correction of an erroneous instruction before a verdict is rendered, thereby avoiding a costly new trial. Moskalik v. Dunn, 392 Mich. 583, 592, 221 N.W.2d 313 (1974). Counsel may not sit back and harbor error, to be used as an appellate parachute in the event of an unfavorable jury verdict. People v. Bragdon, 142 Mich.App. 197, 201, 369 N.W.2d 208 (1985). We are convinced that defendant in this case suffered no manifest injustice as a result of the trial court's instructions to the jury and that, to the contrary, the jury was properly instructed on the controlling law.

The offense of assault with intent to murder is, without question, a specific intent crime. It must be shown that the defendant intended to kill the victim under circumstances that did not justify, excuse, or mitigate the crime. People v. Guy Taylor, 422 Mich. 554, 567-568, 375 N.W.2d 1 (1985). Thus, it is not enough that the defendant acted only with an intent to cause serious bodily injury or with a conscious disregard of the risk of death. Id., p. 567, 375 N.W.2d 1; People v. Cochran, 155 Mich.App. 191, [167 MICHAPP 106] 193-194, 399 N.W.2d 44 (1986). Because the offense is a specific intent crime, a defendant cannot be found guilty of it if conditions were such as to preclude the forming of the necessary intent. Conditions which are recognized as defenses to the crime include intoxication insanity and diminished...