People v. McMaster, Docket No. 48528

• Decision Date: 08 April 1981
• Docket Number: Docket No. 48528
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert McMASTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 434

306 N.W.2d 434

105 Mich.App. 162

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert McMASTER, Defendant-Appellant.

Docket No. 48528.

Court of Appeals of Michigan.

April 8, 1981.

Released for Publication June 16, 1981.

Lawrence R. Greene, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Timothy L. Cronin, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and KAUFMAN and MacKENZIE, JJ.

KAUFMAN, Judge.

Defendant was initially charged with assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, and possession of a firearm while in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was convicted on September 10, 1979, by a Wayne County Circuit Court jury of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, and possession of a firearm while in the commission of a felony. Defendant received a suspended sentence for the felonious assault conviction but was sentenced to the mandatory two-year prison term for the felony-firearm violation. Defendant appeals as of right, pursuant to GCR 1963, 806.1.

The charges in the instant case arose out of a domestic argument which culminated in a shooting. In the course of an argument and physical fight with his wife, defendant drew a handgun from under the couch, began to load it and threatened to kill his wife. Complainant fled from the apartment and defendant fired a shot at the door through which she had exited.

Of the three issues raised by defendant on appeal, we deem only one to be meritorious. There is, however, an issue which we feel compelled to raise sua sponte which we believe is dispositive of this case.

Defendant contends that the trial judge abused his discretion in denying defendant's request for a continuance. Defendant alleges that defense counsel expected that the trial would not proceed as scheduled, believing that defendant and his wife had reconciled. When the requested continuance was denied, defendant claims he was forced to proceed to trial without a valid defense, that of diminished capacity.

Wayne County Circuit Court Rule 14.9 states:

"No trial of a criminal case shall be adjourned except by the Presiding Judge for good cause shown upon written motion of the party seeking the adjournment."

Thus, it appears that under the local court rule, the trial judge had no discretion to grant the requested continuance. However, a motion was made before the Presiding Judge and was denied. The record of that hearing has not been made available to this Court and we, therefore, have nothing to review.

In any case, the issue raised by defendant in regard to the denial of the continuance should more properly be characterized as the denial of effective assistance of counsel. It is defendant's contention that the failure of his counsel to give timely notice of his intention to raise the issue of defendant's sanity or diminished capacity as required by M.C.L. § 768.20a; M.S.A. § 28.1043(1) may have deprived defendant of a valid defense. Without the requisite 30-day notice, the statute mandates the exclusion of evidence purporting to establish insanity. M.C.L. § 768.21; M.S.A. § 28.1044.

Counsel's reason for not providing the appropriate notice was his belief that the charges against defendant would be dismissed because of complainant's reluctance to pursue the matter. We believe that counsel's opinion was well-founded. Defendant had reconciled with his wife. She had driven him to court on the date set for trial and stated that it was her intention to drive him home and to allow him to remain with her if he refrained from drinking. Under the standards of People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976), and People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969), we believe that counsel's failure to pursue the available defense was excusable.

We believe the following issue is dispositive of this case. After the judge charged the jury, defense counsel requested an instruction on intoxication as it relates to specific intent crimes. Although the court asked the attorneys to approach the bench to discuss this request, the court's ruling does not appear on the record. However, since no such instruction was given, the request was obviously denied. We agree that there was no objection to the court's jury charge. GCR 1963, 516.2 requires that counsel object to alleged errors before the jury retires to deliberate if he expects to rely upon such alleged errors on appeal. This no objection-no review rule applies unless there is a miscarriage of justice. People v. Fry, 27 Mich.App. 169, 183 N.W.2d 377 (1970), lv. den. 384 Mich. 826 (1971); People v. Turner, 31 Mich.App. 44, 187 N.W.2d 241 (1971). Although there was no objection to the judge's apparent refusal to give the intoxication instruction, and, in fact, this issue was not even raised on appeal, we feel that in light of the Supreme Court's recent decision in People v. Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979), a miscarriage of justice did, in fact, occur in the instant case.

We acknowledge that the jury did not convict defendant of the charged offense, assault with intent to do murder, M.C.L. § 750.83; M.S.A. § 28.278, or of the lesser included offense, assault with intent to do great bodily harm, M.C.L. § 750.84; M.S.A. § 28.279. Prior to the Johnson decision, we could then have said that failure to instruct on the intoxication defense in regard to these specific intent crimes was harmless beyond a reasonable doubt. However, People v. Johnson, supra, strongly suggests that felonious assault is also a specific intent crime.

In the memorandum opinion signed by seven Justices, the Supreme Court stated:

"1) a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery', People v. Sanford, 402 Mich. 460, 479, 265 N.W.2d 1 (1978) "2) the jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery,

"3) the instruction in Johnson was deficient in two respects: it failed adequately to inform the jury of the intent requirement and it neglected to present the alternative 'reasonable apprehension of receiving an immediate battery' form of felonious assault; the jurors in Ring should be instructed that defendant can be convicted if he intended to injure the victim or put him in reasonable apprehension of receiving an immediate battery." Johnson, supra, 210, 284 N.W.2d 718. (Emphasis supplied.)

The Court in Johnson further stated:

"Johnson did not raise an intoxication defense and the question whether assault or felonious assault are specific intent crimes for the purpose of the voluntary intoxication defense is not raised by the facts and has not been briefed or argued and is not before us; we intimate no opinion on that question." Id.

In the instant case, however, the intoxication defense was raised and the instruction requested. Although we also do not intimate an opinion on whether voluntary intoxication would negate the crime of felonious assault, we nevertheless feel that the trial court in the instant case should either have given the intoxication instruction or should have clarified the intent element of felonious assault, according to Johnson, supra, especially when the jury requested a rereading of that statute.

The trial court gave an instruction which closely paralleled CJI 17:4:01, the recommended jury instruction on felonious assault. In response to a request from the jury for a rereading of the felonious assault statute, the Court responded as follows:

"THE COURT: Okay. The felonious assault statute is really entitled: 'Assault with a dangerous weapon.' We commonly call it the felony assault statute. And it provides that any person who shall assault another with a gun or other dangerous weapon, but without intending to commit the crime of murder and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of felonious assault.

"And you want to know what the prosecution must prove. Okay. Now, for this charge the prosecution must prove beyond a reasonable doubt first that the defendant assaulted Henrietta McMaster. And an assault is an attempt or threat with force and violence to do immediate bodily harm to another by one who has the present means of doing such harm; and second, that the defendant committed such assault by the use of a dangerous weapon; that is, as alleged in this case, a revolver or pistol. Now, a gun, as I told you, is a or revolver or pistol is a firearm and a firearm includes any weapon from which a dangerous object may be shot or propelled by the use of explosives. Okay?"

The only allusion to specific intent had been made by the court in its instructions on the charged offense of assault with intent to murder and the lesser included offense of assault with intent to do great bodily harm less than murder.

This Court is certainly aware that at the time of the trial in the instant case, the trial judge did not have the benefit of the Supreme Court decision in People v. Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979). In that case, the trial court refused defendant's request to instruct the jury that the crime of felonious assault includes the specific intent to inflict an injury on another and instead instructed the jury that a felonious assault must be an "intentional assault". Johnson, supra, 255, 284 N.W.2d 718 (concurring opinion by Levin, J.). On appeal, the Supreme Court stated that the trial court's instruction constituted reversible error in that it failed to adequately inform the jury of the intent requirement. The Court held that "the jury should be instructed that there must be either an...