People v. Owens

• Decision Date: 18 August 1981
• Docket Number: Docket Nos. 78-2729,78-3530
• Citation: 108 Mich.App. 600,310 N.W.2d 819
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond C. OWENS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 819

310 N.W.2d 819

108 Mich.App. 600

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond C. OWENS, Defendant-Appellant.

Docket Nos. 78-2729, 78-3530.

Court of Appeals of Michigan.

Aug. 18, 1981.

Released for Publication Oct. 20, 1981.

James S. Sexsmith, Asst. Pros. Atty., Ann Arbor, for plaintiff-appellee.

Susan J. Smith, Detroit, for defendant-appellant.

Before DANHOF, C. J., and KELLY and CORSIGLIA, ^* JJ.

CORSIGLIA, Judge.

On May 3, 1978, defendant was convicted by a jury of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He pled guilty to a supplemental information, filed on May 8, 1978, charging him with being a habitual offender, M.C.L. § 769.12; M.S.A. § 28.1084. He was sentenced to a prison term of six to fifteen years, plus an additional two-year consecutive term on the felony-firearm conviction. Defendant appeals as of right. Also pending before this Court is a motion for peremptory reversal of the habitual offender conviction, Docket No. 78-3530.

Defendant's convictions arose out of an incident which occurred in March of 1978. According to the victim, Mr. Reeves, defendant came in and grabbed him from behind. He fell over backwards, and the defendant shot him in the head.

Another witness testified that he was sitting with the victim and the defendant's girlfriend, Ms. Spencer, and that the defendant walked into the kitchen, walked over to the victim, placed his left hand around his neck and pulled him to the floor just before the gun went off.

The defendant's girlfriend testified that when she met the defendant at her kitchen door, she saw the gun and attempted to grab it. However, the defendant was able to snatch it away, causing her to fall at the same time that the defendant grabbed the victim from behind. Hence she was unable to observe what happened when the gun went off. During her testimony the prosecution brought to light her relationship with the defendant and a prior inconsistent story she had told to the police.

The prosecutor questioned the detective who took Ms. Spencer's prior story. He related her earlier version, arguably hearsay, without objection by defense counsel. Absent manifest injustice, such matters are not preserved for appeal. People v. Stinson, 88 Mich.App. 672, 278 N.W.2d 715 (1979), MRE 103(a) (1). No manifest injustice is present in this case.

The defendant testified on his own behalf. The gist of his testimony, and indeed the entire defense theory, was that the shooting was an accident. Defendant explained that the gun was usually stored at his girlfriend's house, but that he had loaned it to someone else. According to his testimony, he was handing the gun to his girlfriend when he saw the victim. He had been drinking heavily. He believed that Reeves was someone who had earlier pulled a gun on him, and he grabbed him with his left hand, knocking him over. While the victim lay on the floor, and the defendant struggled with his girlfriend, the gun went off accidentally.

The prosecutor established that the defendant was married and living with his wife, in addition to having a boyfriend/girlfriend relationship with Ms. Spencer. The prosecutor also brought out through cross-examination testimony showing that the defendant owned several guns, had a prior conviction for carrying a concealed weapon, and had no permit to carry a weapon. Defense counsel did not object to this line of questioning. During closing arguments, the prosecutor referred back to these facts, and stated that the defendant committed an assault and battery, although it was not the offense charged.

The trial judge instructed the jury that it could return one of four verdicts on Count I. Instructions were given on assault with intent to commit murder (the crime charged), assault with intent to commit great bodily harm less than murder, felonious assault, and, of course, not guilty. On Count II the jury was instructed that they could reach one of two verdicts; they could find the defendant guilty as charged or not guilty.

The only objection raised by defense counsel was a continuing one to the instruction on assault with intent to do great bodily harm less than murder. Subsequent to the actual instruction to the jury, both parties expressed satisfaction with the instructions as given.

The instructions of the trial judge with regard to the defense of accident were brief. While giving the instruction on the elements of assault with intent to commit murder, the court stated: "The defense in this case (is) that anything that happened was accidental". After describing the prosecution's theory of the case, the trial court read the following as the defendant's theory:

"The defendant's theory is that the People have failed to prove each and every element of the crime alleged or any lesser included offense beyond a reasonable doubt and that the defendant is therefore not guilty as to both counts one and two."

The jury returned a verdict of guilty of felonious assault on Count I, and guilty as charged on Count II.

Defendant argues that his conviction for both possession of a firearm during the commission of a felony and felonious assault violates his constitutional right not to be twice placed in jeopardy. We consider the decision of the Supreme Court in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), dispositive of this issue. Conviction on both counts does not place the defendant in double jeopardy.

Defendant was sentenced to an eight-year minimum term based upon a plea agreement to the habitual offender charge. He now argues that he was not informed and was unaware that this term would be "flat time", and he would be ineligible for good time or special good time credit, under the statute as interpreted by the courts. People ex rel. Oakland Prosecuting Attorney v. Bureau of Pardons & Paroles, 78 Mich.App. 111, 259 N.W.2d 385 (1977). We first note that Oakland Prosecuting Attorney explicitly left open the option of special parole with judicial approval, under M.C.L. § 791.233(b); M.S.A. § 28.2303(b). Id., 119, fn. 5, 259 N.W.2d 385.

In a habitual offender proceeding, a court must comply with the requirements of GCR 1963, 785.7 to establish that a plea is intelligently, understandingly and voluntarily given. People v. Stevens, 88 Mich.App. 421, 276 N.W.2d 910 (1979). See also Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975).

However, the trial record reflects that the trial court complied with the provisions of GCR 1963, 785.7 in this case. The trial judge clearly explained the minimum term to the defendant. While statutory good time is not available to a habitual offender, special parole is still an open option. Further, nothing in the language of GCR 1963, 785.7 requires an explanation of good time to a defendant. Consequently, we find this alleged error on the part of the trial judge without merit.

Defendant also argues that the trial court failed to instruct the jury that felonious assault is a specific intent crime and that the decision of the Supreme Court in People v. Joeseype Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979), compels us to reverse. Joeseype Johnson held that a jury should be instructed that there must be either an intent to injure or an intent to put a victim in reasonable fear or apprehension of an immediate battery to sustain a conviction of felonious assault. Id., 210, 284 N.W.2d 718.

However, Joeseype Johnson was decided after defendant's conviction in this matter, and we decline to give it retroactive application in this case. People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971). See also People v. Starghill, 99 Mich.App. 790, 298 N.W.2d 641 (1980). The great weight of prior case law in Michigan indicated that felonious assault was not a specific intent crime. People v. Burk, 238 Mich. 485, 213 N.W. 717 (1927), People v. Jordan, 51 Mich.App. 710, 216 N.W.2d 71 (1974), People v. Rohr, 45 Mich.App. 535, 206 N.W.2d 788 (1973). Consequently, the failure of the trial court to instruct on the requisite intent as established by Joeseype Johnson, supra, is not reversible error.

Central to the defendant's case and to this Court's opinion is the defense theory that the shooting of Mr. Reeves was accidental. Defendant argues on appeal that the lower court did not adequately instruct the jury on this theory. The line which separates felonious assault from a simple assault and battery in this case is the gun. People v. VanDiver, 80 Mich.App. 352, 263 N.W.2d 370 (1977), M.C.L. § 750.82; M.S.A. § 28.277. If the defense theory of accident was accepted by a jury, it would be a complete defense to the charged crimes. Consequently, it was of extreme importance that the jury receive adequate instructions regarding the defense of accident.

The instructions given were, at best, limited. The trial court referred to the defense theory of accident when setting forth the elements of assault with intent to commit murder. Further reference was not made to the theory of accident when giving the elements of the lesser offenses. In summarizing the defendant's theory, the court did not mention the defense of accident. We are unable to ascertain from the record whether the theory of the defendant, as read by the trial judge, was drafted by defense counsel. The record clearly reflects that defense counsel indicated his general satisfaction with the instructions as given.

As a general rule, this Court is hesitant to reverse a lower court because of an error in jury instruction where no objection is raised at trial. GCR 1963, 516.2, M.C.L. § 769.26; M.S.A. § 28.1096. Failure of counsel to object at the trial level precludes immediate correction, and it involves the criminal justice system in needless appeals and delay. Jury instructions must be read and considered as a whole to determine if there is error and, if there...