People v. Viaene
| Decision Date | 03 December 1982 |
| Docket Number | Docket No. 48860 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lionel VIAENE, Sr., Defendant-Appellant. 119 Mich.App. 690, 326 N.W.2d 607 |
| Court | Court of Appeal of Michigan — District of US |
[119 MICHAPP 692] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Frank R. Del Vero, Pros. Atty. and Leonard J. Malinowski, Asst. Atty. Gen., for the People.
Reck, Reck & Ashley, P.C. (by J. David Reck), Howell, for defendant-appellant on appeal.
Before KELLY, P.J., and CAVANAGH and JOSLYN *, JJ.
Following a jury trial, the defendant was found guilty of second-degree murder in violation of M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. On appeal by right, the defendant moved for remand for an evidentiary hearing on his claim of ineffective assistance of counsel. This Court denied the defendant's motion by order, which the defendant appealed to the Michigan Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court with directions to grant the defendant's motion for a remand. 411 Mich. 881 (1981). This Court ordered the remand and, following an evidentiary hearing, the trial court concluded that the defendant had not been denied the effective assistance of counsel. We now consider the defendant's appeal by right from his conviction of second-degree murder.
[119 MICHAPP 693] Defendant first argues that he was denied the effective assistance of counsel on the basis of several alleged errors. In reviewing such a claim, we must determine whether the defendant's trial counsel performed "at least as well as a lawyer with ordinary training and skill in the criminal law" and whether, but for the alleged error, "there was a great likelihood that [the defendant] would not have been convicted". People v. Garcia, 398 Mich. 250, 264, 247 N.W.2d 547 (1976). At the evidentiary hearing held on this issue the trial court, although failing to make any findings of fact, concluded that the defendant had received a fair trial. We agree; we find no serious mistake, without which the defendant would have had a reasonable likelihood of acquittal. Garcia, supra. We need address but two of the defendant's claims regarding this issue.
First, the defendant argues that his counsel was ineffective in failing to call an expert witness to testify about the operation of the defendant's gun when the defense was that the gun had discharged accidentally. The decision to call a particular witness is a matter of trial strategy. People v. Grant, 102 Mich.App. 368, 374, 301 N.W.2d 536 (1980). On the basis of the information received at the evidentiary hearing, we cannot conclude that the defendant would have had a chance of acquittal if an expert witness had been called to testify about the functioning of his gun.
Second, the defendant argues that his attorney made a serious mistake in failing to ask for a directed verdict of acquittal on first-degree murder when insufficient evidence was introduced on the element of premeditation. In reviewing a claim regarding the sufficiency of the evidence, we must view the evidence in the light most favorable to [119 MICHAPP 694] the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Delongchamps, 103 Mich.App. 151, 159, 302 N.W.2d 626 (1981). Here, the prosecutor introduced evidence which showed the existence of bad feelings between the defendant and the deceased, that the defendant had stated he was going to "get" the deceased, that the defendant directed his son to park their van in the road so as to block the deceased's path, that the defendant argued with the deceased while holding a loaded rifle, that the defendant fired one shot, and that the defendant told his son to lie about where they had been. Viewed in the light most favorable to the prosecution, the evidence was sufficient for the jury to conclude that the defendant had planned to ambush the deceased. Since we find that sufficient evidence was introduced on the elements of first-degree murder, the defendant's claim that his trial counsel was ineffective in failing to move for a directed verdict is without merit. Counsel need not make useless motions. See People v. Krokker, 83 Mich.App. 474, 477, 268 N.W.2d 689 (1978).
Defendant next argues that the trial court impermissibly required the jury to acquit the defendant of second-degree murder before it could consider the manslaughter charge. In People v. Hurst, 396 Mich. 1, 10, 238 N.W.2d 6 (1976), the Michigan Supreme Court held that an instruction which requires all 12 jurors to agree to acquit the defendant of the charged offense before they can consider a lesser offense impermissibly interferes with the jury's deliberations. However, an instruction which only suggests an order of deliberations is proper. People v. Mays, 407 Mich. 619, 623, 288 [119 MICHAPP 695] N.W.2d 207 (1980). Therefore, we must determine whether the instruction, which was not objected to, merely suggested an order of deliberations for the jury or whether it conveyed the impression that the defendant had to be acquitted of the more serious charge before the jury could consider any lesser charge.
In differentiating between murder and involuntary manslaughter, the trial court gave the following instruction to the jury:
Upon request by the jury, the above instruction was repeated three times; no objections were raised.
An instruction such as this was given in People v. Clark, 106 Mich.App. 610, 308 N.W.2d 180 (1981). In that case, this Court found that the instruction did not require the jury to acquit the defendant of murder before considering the manslaughter charge. Rather, the Court found the instruction to be a proper delineation of the elements of the charged offenses and held that a direction to the jury to consider the greater offenses first was permissible under Mays, supra. This instruction was also held to be proper in People v. Griffin, 108 Mich.App. 625, 310 N.W.2d 829 (1981), lv. den. 412 [119 MICHAPP 696] Mich. 878 (1981). See also People v. Barker, 101 Mich.App. 599, 606, 300 N.W.2d 648 (1980). We conclude that the trial court's instruction in this case did not require the jury to first acquit the defendant of second-degree murder but rather properly suggested an order of deliberation for the jury to consider.
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