People v. Lugo, Docket No. 167470

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM
• Citation: 214 Mich.App. 699,542 N.W.2d 921
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerardo LUGO, Defendant-Appellant.
• Docket Number: Docket No. 167470
• Decision Date: 28 December 1995

Page 921

542 N.W.2d 921 214 Mich.App. 699 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Gerardo LUGO, Defendant-Appellant. Docket No. 167470. Court of Appeals of Michigan. Submitted Oct. 18, 1995, at Detroit.
Decided Dec. 28, 1995, at 9:35 a.m.
Released for Publication Feb. 7, 1996.

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[214 Mich.App. 701] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, for the People.

[214 Mich.App. 702] Hoare and Lyda by Madelaine P. Lyda, Farmington Hills, for defendant on appeal.

Before BANDSTRA, P.J., and CAVANAGH and BEACH, ^* JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, two counts of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, resisting a police officer, M.C.L. § 750.479; M.S.A. § 28.747, assault and battery, M.C.L. § 750.81; M.S.A. § 28.276, and possession of a firearm during the commission or attempted commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant subsequently pleaded guilty of being an habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082. Defendant was sentenced to five to ten years' imprisonment for the conviction of assault with intent to do great bodily harm less than murder, two to four years' imprisonment for each conviction of felonious assault, one to two years' imprisonment for the conviction of resisting a police officer, ninety days' imprisonment for the

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conviction of assault and battery, and two years for the felony-firearm conviction. The sentences for the underlying offenses were then vacated, and defendant was sentenced as an habitual offender to eight to fifteen years' imprisonment. We affirm.

On November 21, 1992, Officer William Wells of the Pontiac police responded to a call to investigate a complaint of illegal entry and malicious destruction of personal property at an address on C Street. Wells was told that defendant might have been involved in the incident and Wells was given a physical description of defendant. Wells located defendant at the gas station where he [214 Mich.App. 703] worked and informed him that Wells was investigating the C Street incident. Defendant denied any involvement in or knowledge of the incident.

Wells asked defendant for some identification. Defendant swore at Wells and pushed him back several feet against a door. Wells then told defendant that he was going to place defendant under arrest for assaulting a police officer. Defendant again swore at Wells and attempted to push him out the door. Because defendant was a large man, Wells decided to call for backup.

After Officer Mark Peters arrived, Wells again advised defendant that he was under arrest and gave him the opportunity to go peacefully. Defendant refused and took several steps backward. Wells and Peters approached defendant and tried to push him into a corner so they could handcuff him. Defendant immediately began striking the officers, and they were unable to subdue him, even with the use of Wells' baton.

Peters then sprayed defendant with pepper spray. However, instead of debilitating defendant, the pepper spray only resulted in enraging him. Defendant picked up a broom and began swinging it wildly at the officers. Although defendant hit both officers with the broom, after a time he began to direct his blows exclusively at Wells. After forcing Wells to back up, defendant struck him on the head three times; the third blow caused the broomstick to break in half. Wells fell backward, leaving his gun exposed. Defendant dropped the broom and grabbed Wells' gun. Defendant pulled on the gun with such force that at one point he actually lifted Wells off the ground. Defendant finally managed to remove the gun from its holster and then, using both hands, he shoved the gun into Wells' abdomen just below Wells' bulletproof vest. Wells managed to cup his hands around the [214 Mich.App. 704] trigger. Defendant attempted to force his fingers onto the trigger, but as they struggled Wells managed to knock the gun away. While Peters blocked defendant, Wells was able to retrieve the weapon.

Peters then struck defendant on the head with a flashlight. Although defendant was momentarily stunned, he soon resumed fighting. Finally, after additional officers arrived, the police managed to overcome defendant and take him into custody.

I

In his first issue, defendant contends that the prosecutor abused his discretion by overcharging defendant with multiple assault charges based on one continuous incident of assault and resistance of arrest. However, defendant did not raise this issue in the trial court; an objection at the appellate level "comes far too late." People v. Stevens, 130 Mich.App. 1, 4, 343 N.W.2d 219 (1983); see People v. Grant, 445 Mich. 535, 546, 520 N.W.2d 123 (1994). We note, however, that defendant's arguments regarding this issue are essentially identical to those regarding the double jeopardy issue discussed infra.

II

Defendant next argues that the trial court erred in denying defendant's motion for a mistrial following Wells' testimony. This Court reviews a trial court's grant or denial of a mistrial for an abuse of discretion. A motion for a mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs the defendant's ability to get a fair trial. People v. Haywood, 209 Mich.App. 217, 228, 530 N.W.2d 497 (1995).

The parties agreed that evidence regarding the [214 Mich.App. 705] prior incident on C Street was not relevant; however, the police were permitted to explain why they went to the gas

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station and why they acted as they did. Wells testified that he had probable cause to believe that defendant had been involved in the prior incident based on both interviews with witnesses and physical evidence. Defendant then moved for a mistrial. The trial court denied defendant's motion, but instructed the jury that it was not to make any inferences regarding, or speculate about, the matters that occurred before Wells' arrival at the gas station.

We find no abuse of discretion. As the trial court observed, Wells' testimony did not give any details about what took place at C Street. Moreover, there is no evidence that the prosecutor deliberately attempted to elicit improper testimony. We find that the trial court's curative instruction to the jury was sufficient to cure any prejudice to defendant.

III

Defendant also argues that the convictions of assault with intent to do great bodily harm, felonious assault, assault and battery, and resisting arrest were based on the same conduct and therefore violate the prohibitions under the Double Jeopardy Clauses of the United States and Michigan Constitutions of multiple punishment.

Although defendant did not raise this issue in the trial court, we will review it because it involves a significant constitutional question. People v. Harrington, 194 Mich.App. 424, 427, 487 N.W.2d 479 (1992). A double jeopardy issue constitutes a question of law that is reviewed de novo on appeal. People v. White, 212 Mich.App. 298, 304-305, 536 N.W.2d 876 (1995).

In the multiple punishment context, both the [214 Mich.App. 706] federal and state Double Jeopardy Clauses ¹ seek to ensure that the total punishment does not exceed that authorized by the Legislature. People v. Whiteside, 437 Mich. 188, 200, 468 N.W.2d 504 (1991), cert. den. 502 U.S. 889, 112 S.Ct. 249, 116 L.Ed.2d 204 (1992); People v. Sturgis, 427 Mich. 392, 399-400, 397 N.W.2d 783 (1986). Because the power to define crime and fix punishment is wholly legislative, the Double Jeopardy Clauses are not a limitation on the Legislature, and the Legislature may specifically authorize penalties for what would otherwise be the "same offense." Id. at 400, 397 N.W.2d 783; People v. Ayers, 213 Mich.App. 708, 716, 540 N.W.2d 791 (1995). Cumulative punishment of the same conduct does not necessarily violate the prohibition against double jeopardy under either the federal system or the state system. The determinative inquiry is whether the Legislature intended to impose cumulative punishment for similar crimes. People v. Robideau, 419 Mich. 458, 485, 355 N.W.2d 592 (1984); Ayers, supra.

Determination of legislative...