People v. Ng

• Court: Court of Appeal of Michigan
• Writing for the Court: R.B. BURNS
• Citation: People v. Ng, 156 Mich.App. 779, 402 N.W.2d 500 (Mich. App. 1987)
• Decision Date: 29 May 1987
• Docket Number: Docket No. 85635
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip NG, a/k/a Yuen Ming, Defendant-Appellant.

Page 500

402 N.W.2d 500

156 Mich.App. 779

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip NG, a/k/a Yuen Ming, Defendant-Appellant.

Docket No. 85635.

Court of Appeals of Michigan.

Submitted Nov. 14, 1986.

Decided Dec. 16, 1986.

Released for Publication March 24, 1987.

Leave to Appeal Denied May 29, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gerald L. White, Pros. Atty., and Norman W. Donker, Sr. Asst. Pros. Atty., for people.

C. Michael Gorte, P.C. (by C. Michael Gorte), Bay City, for defendant.

Before R.B. BURNS, P.J., and GRIBBS and DAVIS, ^* JJ.

R.B. BURNS, Presiding Judge.

Defendant was convicted, following a jury trial, of attempted murder, M.C.L. Sec. 750.91; M.S.A. 28.286, and manufacturing explosives with unlawful intent, M.C.L. Sec. 750.211; M.S.A. Sec. 28.408. He was sentenced to life in prison on the attempted murder count and from forty to sixty months on the explosives count. He now appeals and we affirm.

On the morning of November 3, 1983, a postal carrier delivered a package to the Midland home of Noel and Diana Lejoice. Diana started to open it, but became suspicious when she saw a straw attached to one of the box flaps and discovered, by shaking the box, that it contained a liquid. She took the box to her husband, who was sleeping in an upstairs bedroom. He examined the box and then rushed outside with it and then contacted the police. His fear that the box contained a bomb was later confirmed.

After the Midland police arrived, they placed a bomb blanket over the box and waited for a state police bomb squad to arrive. The bomb squad eventually arrived and disarmed the bomb.

Defendant became a suspect in the mail bombing when the box containing the bomb was traced to a Nevada company, which had sold such a box to defendant approximately two weeks prior to the incident. Defendant had employed Diana Lejoice at his restaurant in 1982. She had filed a complaint with the Department of Labor over defendant's shorting her on her paycheck. The department found in her favor and ordered defendant to pay her back wages. Defendant thereafter laid off Lajoice, who again complained to the department, which ordered payment of $75 per week for the time she was laid off.

State Trooper Kent Gardner, of the Bridgeport forensic laboratory, disarmed the bomb and transported it to the state police crime laboratory. At the crime laboratory, Gardner dismantled the device, removing a plastic container containing gasoline. Gardner opined that the device, upon detonation, would render a low order explosion (one that burns) rather than a high order explosion (one that detonates). Gardner stated that a low order explosion would create intense burning and heat, but may not produce sufficient force to propel the shrapnel that was contained in the device. Gardner also discovered that the 9-volt battery in the device was not sufficiently charged to ignite the device and there was also a defective electrical switch. Gardner stated that either defect was enough in and of itself to render the device incapable of detonation. Gardner made tests and determined that a fully charged 9-volt battery would be sufficient to ignite the device.

After Gardner dismantled the device and examined it, he constructed several devices as near to the original as he could with available materials. The facsimiles were the same as the original except that a different, but similar, plastic container was used because the plastic container used in the original was no longer in production. Gardner also did not use the same electrical circuitry as in the original, although the duplicate was actually ignited by the same type of model rocket engine as in the original device. Instead of using a 9-volt battery, Gardner used a 12-volt battery to detonate the device. Gardner stated that he was not interested in the circuitry of the bomb, but the results of the bomb itself. Finally, Gardner videotaped six detonations of the devices. During the course of his testimony, the jury was shown a videotape which depicted three detonations of the duplicate devices.

The videotapes were also shown to Dr. Lawrence R. Simson, Jr., an associate pathologist at Edward W. Sparrow Hospital in Lansing, and to Dr. Irving Feller, of the University of Michigan Burn Center. Both men opined on the effect of the bomb if exploded on a person's lap. They indicated that the victim would receive first-, second-, and third-degree burns over twenty-three to thirty percent of their body. Dr. Feller estimated that a victim in his or her mid-twenties with burns over twenty-three percent of the body would have a three to five percent chance of mortality. Dr. Simson indicated that, while the odds favored survival, death was a possibility and that if the victim inhaled during the explosion, his or her airways would be burned, causing instantaneous death.

George E. Fassnact, who specializes in forensic firearms and tool marks, testified that he was retained by defendant to render an opinion with regard to certain evidence involved in defendant's prosecution. Fassnact inspected the device, which he did not consider to be very sophisticated, and expressed serious doubts whether the device had the ability to ignite. Fassnact stated that the battery contained in the device could not cause the model rocket motor to ignite and thus rendered the device incapable of detonation. Fassnact also believed that one of the switches in the device was unreliable and could also cause the device not to detonate. Fassnact opined that the device could have been designed to frighten someone and that the device may not have been designed to be lethal. On cross-examination, Fassnact conceded that, if everything worked properly upon detonation of the device, there would be a possibility of injury.

I

Defendant first argues that, since attempted murder and assault with intent to commit murder are mutually exclusive charges, and the evidence established that an assault was committed, it was improper to convict defendant of attempted murder rather than assault with intent to commit murder.

Defendant was originally charged with attempted murder, assault with intent to commit murder, and the manufacturing of an explosive device with unlawful intent. At the conclusion of proofs during the preliminary examination, defendant moved for an election of counts. The examining magistrate held that the attempted murder charge was the appropriate count on which to bind defendant over. Thereafter, defendant was bound over on the counts of attempted murder and the manufacturing of an explosive device with unlawful intent.

At the outset of trial, defendant moved to quash the attempted murder charge on the theory that the prosecutor failed to prove that the bomb would have ensured death had it detonated. The trial judge denied the defendant's motion, holding that there was sufficient evidence for the bindover. At no time did the defendant indicate that the examining magistrate had erred in not binding defendant over on assault with intent to murder.

Defendant did not object at trial that he was not charged with assault with intent to commit murder as opposed to attempted murder. Failure to object at trial precludes appellate review absent manifest injustice. People v. Handley, 415 Mich. 356, 360, 329 N.W.2d 710 (1982). In the proceedings below, if defendant believed this to be an assault case, the examining magistrate should have been notified at the time of the election of counts or at trial. This Court has held that it is improper to make an appellate parachute out of issues not raised below. People v. Brocato, 17 Mich.App. 277, 305, 169 N.W.2d 483 (1969). Manifest injustice will not result if this Court declines to review the issue. Defendant's failure to object in the lower court, especially after requesting an election of counts, precludes review by this Court.

However, defendant also argues that he cannot be convicted of attempted murder because the device, as it was constructed, was not capable of ensuring the death of Diana Lajoice. We disagree. There are three elements to an attempt: (1) intent to commit a crime, (2) an overt act necessary to the commission of the crime, and (3) failure to consummate the crime. People v. Lucas, 47 Mich.App. 385, 387, 209 N.W.2d 436 (1973). See also People v Frost, 148 Mich.App. 773, 776, 384 N.W.2d 790 (1985).

A defendant's intent may be inferred from his acts. People v. Love, 127 Mich.App. 596, 605-606, 339 N.W.2d 493 (1983), rev'd on other grounds 425 Mich. 691, 391 N.W.2d 738 (1986). In the case at bar, the jury could infer defendant's intent to commit the crime of murder from the testimony regarding the make-up of the bomb, particularly the fact that it was loaded with shrapnel, and that the bomb had the potential to inflict serious injury or death. That is, the jury could conclude that defendant, in designing the bomb, was...