People v. Newton

• Decision Date: 16 October 1986
• Docket Number: Docket No. 81755
• Citation: 152 Mich.App. 630,394 N.W.2d 463
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Edward NEWTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 463

394 N.W.2d 463

152 Mich.App. 630

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Edward NEWTON, Defendant-Appellant.

Docket No. 81755.

Court of Appeals of Michigan.

Submitted May 7, 1986.

Decided June 17, 1986.

Released for Publication Oct. 16, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Christopher S. Boyd, Pros. Atty., and Jeffrey D. Stroud, Asst. Pros. Atty., for the people.

State Appellate Defender by Kim Robert Fawcett, for defendant-appellant on appeal.

Before CYNAR, P.J., and R.B. BURNS and O'BRIEN ^*, JJ.

PER CURIAM.

Defendant appeals following his conviction of one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, three counts of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, one count of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and one count of carrying a concealed weapon (CCW), M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. Defendant was sentenced to from 10 to 15 years imprisonment on the robbery count, from 20 to 40 years on each assault count, from 3 to 5 years on the CCW count, and 2 years on the felony-firearm count.

Defendant's convictions arise from an armed robbery of a Saginaw convenience store. On the night in question, defendant entered the store, drew a revolver and demanded money from the two clerks on duty. After receiving a bag full of money, defendant fled the store. One clerk summoned the police with a silent alarm and then went out of the store to see in which direction defendant had left. After defendant turned a corner, the clerk got into his car and followed defendant. During the clerk's pursuit of defendant, two police cars arrived and gave chase after the defendant. During the chase, defendant pulled his revolver and fired several rounds at the officers.

Defendant first argues that the trial court erred in convicting him of assault with intent to commit murder as there was insufficient evidence that defendant possessed the requisite intent. The intent may be inferred from the circumstances. People v. Fields, 64 Mich.App. 166, 235 N.W.2d 95 (1975). In this case, the trial court found that the requisite intent was supported by the factual findings of defendant pointing and aiming the gun at the officers from 25 to 35 feet away and that he fired all six rounds. We do not believe that the trial court's conclusion was erroneous.

Next, defendant argues that his convictions for both felony-firearm and CCW constitute double jeopardy. We disagree, though we recognize that a conflict exists in this Court on the issue. ¹ While CCW may not be used as the predicate felony to support a felony-firearm conviction, ² this does not mean it is impossible to commit both offenses during the same criminal escapade. In this case, the record indicates that defendant was carrying a concealed weapon and that he also possessed that weapon during the commission of four subsequent felonies. Although we recognize that People v. Sturgis, 130 Mich.App. 54, 343 N.W.2d 230 (1983), lv. gtd. 422 Mich. 857 (1985), lacks precedential value while the appeal in that case is pending in the Supreme Court, ³ we nevertheless believe that the Sturgis analysis is correct. We conclude, therefore, that defendant's double-jeopardy interests were not violated.

Defendant's next argument is that the trial court improperly scored the Sentencing Information Report (SIR). However, defendant raised no objection in the trial court to the scoring of the SIR, thus precluding appellate review. People v. Jones, 147 Mich.App. 292, 382 N.W.2d 772 (1985); People v. Jannifer Williams, 147 Mich.App. 1, 382 N.W.2d 191 (1985).

Finally, defendant argues that he was denied due process by the denial of his motion to remand and motion for appellate forensic referral. Defendant claims a remand and forensic evaluation are necessary to determine if defendant was competent to stand trial, whether he received effective assistance of counsel, and whether defendant is competent to assist in his appeal.

First, defendant argues that his trial counsel's failure to challenge the finding of defendant's competency to stand trial and the failure to pursue an insanity defense constitute ineffective assistance of counsel. We disagree. Trial counsel did pursue and receive a forensic referral to determine defendant's competency to stand trial. The examiner opined that defendant was, in fact, competent. Although a failure to prepare and pursue a meritorious insanity defense constitutes ineffective assistance of counsel, this Court will not reverse a conviction on this basis if it is persuaded that there is little chance of success had the insanity defense been raised. People v. Parker, 133 Mich.App. 358, 349 N.W.2d 514 (1984); People v. Anderson, 112 Mich.App. 640, 317 N.W.2d 205 (1981). See also People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976) (reversal required only if there is a reasonably likely chance of acquittal absent defense counsel's mistake). Similarly, we will not reverse where failure to raise an insanity defense is a question of trial strategy. People v. Lotter, 103 Mich.App. 386, 302 N.W.2d 879 (1981).

We have reviewed the record supplied to us and there is no basis for concluding that, had an insanity defense been pursued, there was a reasonably likely chance of acquittal. First, defendant's testimony and statements to the trial court do not appear obviously irrational. In fact, defendant at sentencing clearly brought the court's attention to alleged inaccuracies in the presentence report, which the trial court accepted in part. Further, the manner in which the crime was committed does not indicate it was the product of an obviously irrational mind. It appears to have been well planned, including both disguise and weaponry, and defendant fled the scene and attempted to elude the officers. In fact, had the store clerk not given chase, defendant may have been able to escape capture. Finally, the forensic examination found defendant competent to stand trial. With this in mind, we cannot conclude that trial counse...