People v. Strong

• Decision Date: 29 August 1985
• Docket Number: Docket No. 72106
• Citation: 143 Mich.App. 442,372 N.W.2d 335
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. L.C. STRONG, Defendant-Appellant. 143 Mich.App. 442, 372 N.W.2d 335
• Court: Court of Appeal of Michigan — District of US

Page 335

372 N.W.2d 335

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. L.C. STRONG, Defendant-Appellant.

Docket No. 72106.

143 Mich.App. 442, 372 N.W.2d 335

Court of Appeals of Michigan.

Submitted Jan. 8, 1985.

Decided June 4, 1985.

Released for Publication Aug. 29, 1985.

[143 MICHAPP 444] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, First Asst. Pros. Atty., for the people.

Dale J. Crowe, Ann Arbor, for defendant-appellant on appeal.

Before ALLEN, P.J., and J.H. GILLIS and GIOVAN, ^* JJ.

PER CURIAM.

On September 29, 1982, defendant was convicted by jury of felonious assault. Sentenced on November 18, 1982, to prison for a term of from one and one-half to four years, defendant appeals by leave granted. Four issues are raised. We affirm.

[143 MICHAPP 445] At about 1:00 a.m. on May 3, 1982, Annetta Grima, then 17 years of age, was proceeding on foot in Ypsilanti to find a pay phone to call her father in Romulus for a ride. Two city policemen saw her walking and took her to a Dunkin Donuts restaurant to use the phone there. After learning that her father couldn't pick her up, she again started walking. Defendant pulled out of the Dunkin Donuts parking lot, honked and offered to take her to a friend's house where they could get directions to Romulus. After a short visit at the friend's house, defendant poured some whiskey in a cup and returned to the car where defendant drank the whiskey and threw the cup into the back seat. Defendant then drove to a deserted factory area near some railroad tracks and turned off the car lights.

When Grima reached for the car's passenger door, defendant leaned over and brought a five-to-six-inch hook knife to Grima's throat. When Grima again reached to open the car door, defendant came back with the knife cutting Grima's upper arm. Grima managed to open the door, swing her knees out and escape. As she ran down the railroad tracks her arm began bleeding badly. Upon reaching the street, she stopped two women who were driving by, who took her to the Ypsilanti hospital. She was transferred to University Hospital in Ann Arbor where she had 47 external and 12 to 15 internal stitches.

The day after her release from the hospital, Grima was taken by detectives to an impound lot where she was unable to identify defendant's car but did identify a cup found in the back seat. She also noted that the car's radio was tuned to the station which she had previously told the detectives was playing that night in the automobile in which she had been assaulted. She did not see [143 MICHAPP 446] blood on the car seat. Sometime later, she identified someone other than the defendant in a photo lineup as her assailant.

Defendant testified that sometime after midnight on May 3, 1982, Grima came up to his car at Dunkin Donuts and asked for a ride to Detroit. He replied that he did not have enough gas to go to Detroit, but the girl got in the car anyway and asked where she could get marijuana. Defendant took her to the house of a friend, who said he had no marijuana. Defendant then drove around looking for friends who might have marijuana and, after finding none, took Grima back to Dunkin Donuts because he had to get back to Ann Arbor. When he got to Ann Arbor, he was arrested for drunk driving after he ran a red light.

I

In his first issue on appeal defendant argues that the trial judge erred by failing to instruct the jury that the crime of felonious assault requires specific intent. In his charge to the jury, the trial court did not use the words "specific intent". Instead the court instructed:

"In this case the Defendant is charged with what we refer to as felonious assault. Any person who shall assault another with a knife without intending to commit the crime of murder, without intending to do great bodily harm less than murder, is guilty of this charge. Defendant has pled not guilty and to establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt. First, that the Defendant did a forceful or violent act intending to put the victim in reasonable fear or apprehension of an immediate battery. Second, that the act was such as would cause a reasonable person to be fearful of injury and did so frighten another person. Lastly, that the [143 MICHAPP 447] Defendant committed such an assault by the use of a dangerous weapon. That is as alleged in this case, a knife." (Emphasis supplied.)

No objection was raised to this instruction. While the jury was instructed on specific intent, the trial judge did not give CJI 3:1:16, and no objection was raised. In fact, in discussing the appropriate instructions prior to the charge, defense counsel specifically agreed to the instructions as given,

"THE COURT: Do you want specific intent? You have requested it? Are you waiving that now?

"MR. WEST: Yes, I would waive the specific intent. I think the Court covers that."

Defendant now contends that the court's instruction was inadequate. According to defendant, intent to put the victim in fear of possible harm or injury is not enough, there must be the specific intent to actually harm or injure the victim and the jury must be explicitly so instructed. We disagree on the basis of People v. Yarborough, 131 Mich.App. 579, 345 N.W.2d 650 (1983). In that case, as in the instant case, the trial court instructed the jury on only one prong of the Joeseype Johnson ¹ instruction. There, the court informed the jury that they must find that the defendant intended to injure his victim in order to be convicted of felonious assault; the court did not instruct that the necessary intent could also be found where the defendant intended to put the victim in reasonable fear or apprehension of an immediate battery. The situation was the reverse of the present case, where the judge gave only the "menacing"[143 MICHAPP 448] prong of the Joeseype Johnson instruction. ² In Yarborough, this Court stated that failure to instruct on both forms of intent was not error:

"The instruction given here did not prejudice the defendant. The judge told the jury that they must find an intent to injure, but ignored the possibility that the jury might find an intent to put the victim in reasonable fear or apprehension of an immediate battery. The instruction given favored the defendant rather than prejudicing him. The instruction properly informed the jury of the elements of the offense which it would have to find proven beyond a reasonable doubt to convict the defendant." 131 Mich.App. at 581, 345 N.W.2d 650.

In our opinion the same result should prevail in the instant case. We see no reason to instruct on both prongs of intent where, as here, the victim is actually harmed and the jury is informed that they must find the defendant intended to put the victim in reasonable fear of immediate injury.

Finally, on this issue we note that defense counsel affirmatively waived an instruction on specific intent. In such circumstances, the court did not err in failing to give such an instruction. See People v. Johnson, 409 Mich. 552, 562, 297 N.W.2d 115 (1980). This Court examined a similar withdrawal of a requested jury instruction in People v. Jankowski, 130 Mich.App. 143, 342 N.W.2d 911 (1983). In that case, defendant asserted that the trial court erred in failing to instruct on a lesser included offense. Defense counsel initially made a written request for such an instruction but later abandoned the request. This Court stated: "Since [143 MICHAPP 449] defendant ultimately abandoned his request for an instruction * * * the trial court did not err in failing to give such an instruction." Jankowski, supra, p. 151, 342 N.W.2d 911.

II

We are not persuaded that effective assistance of counsel was denied because counsel did not pursue the defense of intoxication and failed to request an instruction on specific intent. The defense in this case was misidentification. To establish this defense, it was important to defendant's theory of the case that he knew what he was doing and where he had been the night of May 2, 1982, and the early morning hours of May 3, 1982. This knowledge allowed defense counsel at trial to bring in the testimony of defendant that he had dropped the victim off at Dunkin Donuts unharmed. The defense of voluntary intoxication would have been inconsistent with the defense that defendant knew what he was doing all that night and clearly remembered that he returned the victim to Dunkin Donuts unharmed. This Court is reluctant to substitute its judgment for that of trial counsel in matters of trial strategy. People v. Avery, 114 Mich.App. 159, 168, 318 N.W.2d 685 (1982), lv. den. 417 Mich. 861 (1983). A court cannot conclude that merely because a trial strategy backfires, effective assistance of counsel is denied. People v. Currelley, 99 Mich.App. 561, 568, 297 N.W.2d 924 (1980), lv. den. 411 Mich. 904 (1981).

Defendant also contends that his counsel's failure to request a jury instruction on specific intent rendered his counsel ineffective. For the reasons set forth in issue I, supra, we disagree. Under Yarborough, supra, the instruction given by the court was adequate. Further, based upon the transcript,[143 MICHAPP 450] it is apparent that defense counsel was well aware of the rules governing instructions on specific intent and in all respects performed well above the required standard of a lawyer with ordinary training and skill in the criminal law. People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976).

III

Defendant contends that there were so many factual inconsistencies adduced at trial that, as a matter of law, the verdict of the jury was contrary to the great weight of the evidence. An objection going to the weight of the evidence can be raised only by motion for a new trial. On appeal, this Court reviews a denial of such a motion for abuse of discretion. People v. Mattison, 26 Mich.App. 453, 459-460, 182...