People v. Wilson

• Decision Date: 05 June 1987
• Docket Number: Docket No. 86445
• Citation: 406 N.W.2d 294,159 Mich.App. 345
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Leon WILSON, Defendant-Appellant. 159 Mich.App. 345, 406 N.W.2d 294
• Court: Court of Appeal of Michigan — District of US

Page 294

406 N.W.2d 294

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Leon WILSON, Defendant-Appellant.

Docket No. 86445.

159 Mich.App. 345, 406 N.W.2d 294

Court of Appeals of Michigan.

Submitted Nov. 12, 1986.

Decided April 20, 1987.

Released for Publication June 5, 1987.

[159 MICHAPP 347] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal

Div., Research, Training and Appeals, and Ernest Hornung, Asst. Pros. Atty., for the People.

Steven J. Parzen, Detroit, for defendant-appellant on appeal.

Before BRONSON, P.J., and BEASLEY and HORN ^*, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of assault with intent to rob while armed, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, two counts of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to a term of from eight to thirty years in prison for the assault with intent to rob conviction. Sentences of from two and one-half to ten years in prison were imposed on each of the assault with intent to do great bodily harm convictions. These three sentences were to run concurrently. A mandatory two-year consecutive sentence was imposed for the felony-firearm conviction. Defendant now appeals as of right, raising five claims of error.

[159 MICHAPP 348] On the evening of July 8, 1984, sixteen-year-old Toie Smith, was hosting a party in the backyard of her parents' home in Detroit. At approximately midnight, a group of seven or eight young people, including Sonya Walton, Ronald Alex and Arlene Bankhead, left the party on foot. They were subsequently accosted by defendant and two other men, one of whom was later identified as Tyrone Vincent. Defendant attempted to force one young man in the group to give up his jacket. Defendant also put a gun in Ronald Alex's face and struck him, sending Alex's glasses flying into the street. Defendant and Vincent then approached Michael Grafton and Alicia Leonard who were returning to the party on a moped. Either defendant or Vincent grabbed the moped and struck Leonard in an attempt to stop the moped. Leonard got off the moped and ran to the house where the party was being held. Michael Grafton testified that Vincent struck him, and that the defendant ordered him off the moped and pointed a gun at him. Defendant fired one shot in the air. Michael Grafton then released his hold on the moped and Vincent got on. A struggle ensued between Michael Grafton and Vincent. Tony Grafton, who had been assisting at the party, heard someone scream that his cousin Michael Grafton was being threatened with a gun. Tony Grafton grabbed a baseball bat and went into the street. Michael Grafton released Vincent when he saw his cousin. The defendant then shot Michael Grafton. Defendant also fired three shots at Tony Grafton, but missed. Defendant, Vincent and the third man (Tony Kiler) then fled in Kiler's car. The defendant was arrested at his home a few hours later.

At trial, defendant related a different scenario of the events on the evening in question. The defendant testified that when he left the party seven or [159 MICHAPP 349] eight men followed him. A general melee ensued in which bats, bricks, and bottles were thrown. He claimed that shots were fired by a man standing behind him. Then he, Vincent, and Kiler escaped in Kiler's car.

I

Defendant first claims that the trial court erred by allowing the prosecutor to impeach the defendant with evidence of his prior conviction because the prosecution did not move for admission of the evidence before the defendant took the stand. Defendant relies on People v. Ash, 128 Mich.App. 265, 268-269, 340 N.W.2d 646 (1983), in which this Court stated:

"Defendant was entitled to know before he took the stand whether evidence of his prior record would be used for impeachment. People v. Hayes, 410 Mich. 422, 426-427, 301 N.W.2d 828 (1981). Furthermore, it was the prosecutor's responsibility, not defendant's, to insist on a ruling on the issue before defendant took the stand. People v. Lytal, 415 Mich. 603, 609-610, 329 N.W.2d 738 (1982)."

In the instant case, the prosecutor informed defense counsel, prior to defendant's taking the stand, that she intended to impeach defendant with evidence of the prior conviction and asked whether defense counsel would move to suppress. Defense counsel did not respond. When the prosecutor began to question defendant about his prior conviction on cross-examination, defense counsel immediately objected, citing Ash. A hearing was held outside the presence of the jury. The trial court complied with MRE 609(a)(2) by weighing the probative value of evidence of the prior [159 MICHAPP 350] conviction with its prejudicial effect and decided to allow the admission of the evidence.

A review of the facts in Ash reveals that defense counsel was unaware of the prosecutor's intent to use the defendant's prior conviction to impeach until after the defendant had taken the stand, while in the instant case, defense counsel knew that the prosecutor intended to impeach defendant with his prior convictions; yet, defense counsel failed to move to suppress. Under these circumstances, we decline to follow the rule set forth in Ash.

We disagree with the blanket holding in Ash, supra, pp. 268-269, 340 N.W.2d 646, that the defendant is entitled to know before taking the stand whether evidence of a prior conviction will be used for impeachment. Such a holding would add a procedural requirement not contained in MRE 609 itself. The authority cited by the Ash Court in support of this holding is People v. Lytal, 415 Mich. 603, 609-610, 329 N.W.2d 738 (1982). However, we conclude that the Ash Court's reliance on Lytal is misplaced.

In Lytal, the trial judge reserved his ruling on the prosecutor's motion to admit evidence of a prior conviction until after the defendant testified. The trial court decided that his ruling on the motion was dependent upon the defendant's testimony. Evidence of the defendant's prior conviction was ultimately admitted. In reviewing the case, our Supreme Court held that the defendant was entitled to know, before he took the stand, whether evidence of his prior conviction could be used for impeachment purposes. Lytal, supra, p. 609, 329 N.W.2d 738, citing People v. Hayes, 410 Mich. 422, 301 N.W.2d 828 (1981). We note that although this language can be found in Hayes, it should be read in context with the holding in that case (where our Supreme Court held that it was an impermissible [159 MICHAPP 351] abdication of judicial discretion when the trial judge insisted that the defendant not impeach the prosecutor's witnesses with evidence of prior convictions as a quid pro quo for the prosecutor's promise not to impeach defendant's witnesses with evidence of prior convictions). The Lytal Court further held that defendant had not waived his objection to the use of evidence of the prior conviction for impeachment by not insisting on a ruling prior to defendant's taking the stand because the trial judge had specifically indicated he would not rule on the admissibility of the prior conviction until he had heard defendant's testimony. Lytal, supra, pp. 609-610, 329 N.W.2d 738. The Court concluded that defense counsel's insistence on a ruling would have antagonized the trial judge. The basic holding of Lytal on this issue was that the trial court may not reserve its ruling on admissibility of evidence of prior convictions depending on defendant's testimony. Nowhere in Lytal is the principle relied on in Ash espoused.

In addition, nothing in MRE 609 indicates who must initiate the trial court's determination on the admissibility of prior convictions for impeachment. We decline to adopt the Ash Court's placement of the burden upon the prosecutor in all instances. The defendant here was afforded procedural due process. No error requiring reversal was committed.

II

Next, defendant argues that the trial court committed error by failing to instruct the jury on specific intent. We disagree. In felonious assault cases the jury must be instructed that the defendant must have possessed either an intent to injure the victim or an intent to put the victim in [159 MICHAPP 352] reasonable fear or apprehension of immediate battery. People v. Joeseype Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979). In People v. Yarborough, 131 Mich.App. 579, 581, 345 N.W.2d 650 (1983), where defendant had been convicted of felonious assault, this Court held that failure to give an instruction on specific intent was not an error requiring reversal when the jury had been instructed on the requisite intent. "Even where requested the refusal to give the specific intent instruction has been found to be harmless where the jury was properly instructed on the requisite intent." Yarborough, supra, p. 581, 345 N.W.2d 650, citing People v. American Medical Centers of Michigan, Ltd., 118 Mich.App. 135, 153-154, 324 N.W.2d 782 (1982).

In the instant case, similar to Yarborough, the trial judge, in instructing on an assault with intent to do great bodily harm, instructed the jury that defendant must have intended to do great bodily harm. Further, the instructions given on felonious assault included both prongs required in Joeseype Johnson, supra. We...