People v. Parker

• Decision Date: 07 June 1984
• Docket Number: Docket No. 63767
• Citation: 133 Mich.App. 358,349 N.W.2d 514
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Edwin PARKER, Defendant-Appellant. 133 Mich.App. 358, 349 N.W.2d 514
• Court: Court of Appeal of Michigan — District of US

Page 514

349 N.W.2d 514

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Edwin PARKER, Defendant-Appellant.

Docket No. 63767.

133 Mich.App. 358, 349 N.W.2d 514

Court of Appeals of Michigan.

Submitted Aug. 3, 1983.

Decided April 2, 1984.

Released for Publication June 7, 1984.

[133 MICHAPP 359] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad Sindt, Pros. Atty., and Michael J. Berezowsky, Asst. Pros. Atty., for the People.

[133 MICHAPP 360] Wilcox & Robison, P.C. by Joseph V. Wilcox, Albion, for defendant-appellant.

Before V.J. BRENNAN, P.J., and SHEPHERD and QUINNELL, ^* JJ.

V.J. BRENNAN, Presiding Judge.

Defendant was charged with five counts of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and one count of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). After a jury trial, the defendant was convicted of three counts of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, and one count of felony-firearm. The defendant was sentenced to three concurrent terms of two to four years imprisonment for the felonious assault convictions and a consecutive, two-year prison term for the felony-firearm conviction.

Defendant raises several claims regarding the trial court's instructions to the jury. We have reviewed the alleged errors and find that none merit reversal of the defendant's convictions.

First, the defendant contends that the trial court's failure to repeat the intent requirement for assault when instructing the jury on felonious assault was reversible error, even in the absence of a defense request or objection. In People v. Joeseype Johnson, 407 Mich. 196, 210, 284 N.W.2d 718 (1979), the Supreme Court held that, where the defendant is charged with felonious assault, "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". In the present case, the trial court recited this instruction verbatim during its instructions on the more serious assault offenses. [133 MICHAPP 361] Because jury instructions must be read as a whole, and because the trial court's instructions included a correct recitation of the intent requirement of assault, we find no error on the part of the trial court by not repeating the instruction in conjunction with its instructions on felonious assault.

Second, the defendant claims that the trial court's failure to define a "dangerous weapon" in its instructions on felonious assault was reversible error, even though the defendant admitted shooting three persons with a pistol. We find no reversible error. The defendant's failure to request the instruction and his failure to object to the trial court's failure to define "dangerous weapon" precludes appellate review absent a miscarriage of justice. No injustice resulted from the omission of the definition of a dangerous weapon since the defendant admitted shooting a pistol at the several victims and there was no issue as to the danger posed by the weapon.

Third, the defendant claims that the trial court's failure to define the words "felony" and "firearm" and its failure to use the standard jury instruction in its instruction on felony-firearm constituted reversible error. We disagree. A fair reading of the felony-firearm instruction reveals no error. People v. Doss, 122 Mich.App. 571, 578, 332 N.W.2d 541 (1983).

Next, the defendant argues that he was entitled to jury instructions on insanity and the trial court erred by removing the issue of insanity from the jury even before the defendant presented his formal proofs. We have reviewed the defendant's arguments and find them to be without merit. After the defendant and a clinical psychologist testified as defense witnesses, the trial court announced its intention not to instruct the jury on [133 MICHAPP 362] the defense of insanity, although it had issued an insanity instruction in its preliminary charge to the jury. The court based its ruling upon the total absence of evidence of mental illness. The court also refused to admit the testimony of two lay witnesses on the issue because defense counsel had failed to give notice of the witnesses. Because there was no evidence of mental illness or insanity, the trial court properly refused to instruct on the insanity issue. M.C.L. Sec. 768.29a(2); M.S.A. Sec. 28.1052(1)(2). The trial court did instruct the jury on the diminished capacity defense. Further, the trial court properly excluded lay testimony as to the defendant's insanity since the defendant failed to give notice of the witnesses who would testify. M.C.L. Sec. 768.21(1); M.S.A. Sec. 28.1044(1). It is noteworthy that two policemen did testify, on behalf of the defendant, as to the defendant's mental state following the commission of the offenses.

The defendant's last claim regarding jury instructions is that the trial court erred by providing the jury with supplemental written jury instructions, which the jury requested, without providing a self-defense instruction which the jury did not request. We find no error. The court's instructions were responsive to the jury's request and not misleading in any way. The defendant was not prejudiced by the failure to repeat the instruction on self-defense. People v. Sauerbier, 173 Mich. 521, 522, 139 N.W. 260 (1913).

The defendant also claims that he was denied the effective assistance of counsel by his attorney's failure to include the names of two lay witnesses in his notice of insanity defense. The defendant argues that defense counsel made a grave error in failing to give proper notice of the names of two police officers who could have testified on the issue of insanity. Defendant maintains that he was seriously [133 MICHAPP 363] prejudiced by this failure because both witnesses knew the defendant well and counsel's omission deprived the defendant of his only real defense.

Defendant does not argue that the overall assistance rendered by his trial attorney was ineffective. Rather, it is claimed that his failure to properly investigate the insanity issue and to give notice of the names of the police officers was a grave mistake which denied defendant a fair trial. Defendant is entitled to a new trial if this omission by defense counsel deprived him of a reasonably likely chance for acquittal. People v. Garcia, 398 Mich. 250, 266, 247 N.W.2d 547 (1976); People v. Peery, 119 Mich.App. 207, 215, 326 N.W.2d 451 (1982).

A criminal defend...