People v. Hunter , 141 Mich. App. 225 ( 1985 )

141 Mich. App. 225 (1985) 367 N.W.2d 70

PEOPLE
v.
HUNTER

Docket No. 74913.

Michigan Court of Appeals.

Decided March 4, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Curtis W. Smith, Assistant Prosecuting Attorney, for the people.

Elizabeth L. Jacobs, for defendant on appeal.

Before: CYNAR, P.J., and BEASLEY and R.E. ROBINSON,^[*] JJ.

BEASLEY, J.

In a bench trial, defendant, Willie Jeffrey Hunter, was convicted of criminal sexual conduct, first degree, in violation of MCL 750.520b; MSA 28.788(2), assault with intent to murder, in violation of MCL 750.83; MSA 28.278, and felony-firearm, in violation of MCL 750.227b; MSA 28.424(2). In addition, with respect to an armed robbery charge, defendant was convicted of the lesser included offense of larceny from a person, in violation of MCL 750.357; MSA 28.589.

Defendant was sentenced to serve not less than 25 years nor more than 40 years in prison on the criminal sexual conduct, first degree, conviction, not less than 30 nor more than 50 years in prison on the assault with intent to murder conviction, not less than 6 nor more than 10 years in prison on the larceny from a person conviction, and the mandatory two years on the felony-firearm conviction. Defendant appeals as of right, raising four issues.

First, defendant claims he was denied the effective assistance of counsel. Generally, a motion for a new trial is a prerequisite to appellate review of a claim of ineffective assistance of counsel.^[1] However, in People v Cicotte,^[2] we relaxed this rule to hold that the absence of a motion for new trial or an evidentiary hearing is not fatal to appellate review where the details relating to the alleged deficiencies of the defendant's trial counsel are sufficiently contained in the record to permit the appellate court to reach and decide the issue. Since, in the instant case, defendant did not make a motion for new trial, we limit our review of defendant's appellate claims to the present record.

Defendant's argument that he was denied the effective assistance of counsel is based upon three alleged errors by his trial counsel. For convenience, after detailing the applicable standard for effective assistance claims, each of the alleged errors will be dealt with separately, as was done by the parties.

The Michigan courts recognize a two-pronged test in assessing ineffective assistance of counsel claims.^[3] The first branch of the inquiry focuses on the Sixth Amendment right to counsel and requires that defense counsel perform at least as well as a lawyer with ordinary skills and training in the criminal law and must conscientiously protect his client's interest undeflected by conflicting considerations. Second, ineffectiveness of counsel may also be shown where defense counsel makes a serious mistake but for which defendant would have had a reasonably likely chance of acquittal.^[4] In this connection, we presume trial counsel afforded his client effective representation.^[5] The burden of proving ineffectiveness of counsel is on the defendant.^[6]

In Strickland v Washington,^[7] the United States Supreme Court held that when a convicted defendant claims under the Sixth Amendment that counsel's assistance was so defective as to require reversal, he must establish the following: (1) that counsel's performance was deficient, a performance inquiry to determine whether counsel's assistance was reasonable considering all the circumstances; and (2) that the deficient performance prejudiced the defense, that there is a reasonable probability that, absent the error, the fact finder would have had a reasonable doubt respecting guilt. The Court further held that, under the Sixth Amendment, "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result".^[8] The reasonableness of counsel's challenged conduct must be judged based upon the facts of the particular case, viewed at the time of counsel's conduct.

On appeal, defendant argues that the introduction into evidence of the fact of defendant's previous conviction of a felony denied him the effective assistance of counsel. It is not unusual for defense counsel to slip into a trial, at a presumably inauspicious time, the fact of a defendant's previous conviction. The accepted strategy is that the trial judge will let it in anyway, that it is better brought in by defense counsel than by the prosecutor, and that defense counsel can limit its impact by the manner and time of bringing it in.

We are reluctant to substitute our judgment for that of trial counsel in matters of trial strategy.^[9] In People v Armstrong,^[10] we held, in response to a claim of ineffective assistance of counsel based on the intentional introduction at trial of defendant's prior criminal history by defense counsel, that:

"Even the intentional introduction by defense counsel of a prior criminal record does not constitute a serious mistake of counsel depriving defendant of a fair trial or of effective assistance of counsel where the record was introduced as a trial tactic. People v Karasek, 63 Mich. App. 706; 234 NW2d 761 (1975)."

In the within case, the introduction by defense counsel of evidence of defendant's prior conviction was a matter relating to trial strategy and, as such, will not support a claim of ineffective assistance of counsel.^[11]

Defendant also argues that it was ineffective assistance of counsel to fail to object to the introduction of serological evidence regarding blood types. There is a conflict in this Court concerning the admissibility of blood type evidence used solely for inclusory purposes.^[12] In the present case, however, even if it was an error to permit the admission of such evidence, the error must be considered harmless beyond a reasonable doubt.^[13] Generally, harmless error has been found where the victim has positively identified the defendant and had a sufficient opportunity to observe him at the time of the attack.^[14] The complainant herein had known defendant for several months prior to the attack and had ample opportunity to observe defendant during the attack and positively identified him to the police. Complainant's testimony, if beleived, is sufficient evidence to convict. Thus, any error injected into defendant's trial by the admission of the blood type evidence was harmless beyond a reasonable doubt and, thus, defense counsel's failure to object cannot be considered a serious error.

Defendant next contends that he was denied the effective assistance of counsel by his attorney's failure to subpoena defendant's alibi witnesses in advance of trial. Defendant argues that his trial counsel's failure to subpoena his alibi witnesses prior to trial and then his trial counsel's consent to their arrest to bring them to court denied him the effective assistance of counsel and was a serious mistake which affected the outcome of the trial. Defendant's entire argument in this connection, that such actions by his attorney amounted to ineffective assistance of counsel, borders upon the ridiculous where, as here, the witnesses did testify.

Second, defendant claims that the trial court denied him a fair trial by warning two of his alibi witnesses that there was a penalty for perjury. Relying primarily on Webb v Texas,^[15] defendant argues that the arrest of his alibi witnesses to compel their attendance, coupled with the court's warning about perjury, served to intimidate the witnesses and denied him a fair trial.

In Webb, after the trial court singled out the only potential defense witness and, in strong and treatening terms, warned him that he would be prosecuted for perjury if he lied while testifying, that witness refused to testify. Nothing analogous to the extraordinary circumstances on which Webb was based is present here. Even after the witnesses were informed that there was a penalty for perjury, they voluntarily agreed to testify. No witness was singled out by the trial judge and threatened so that he was effectively driven off the witness stand.^[16] Thus, under the facts of this case, no error occurred.

Third, defendant claims that the trial court erred in ordering that defendant's sentences on his assault with intent to commit murder and larceny from a person convictions should run consecutively to his sentence for felony-firearm. At defendant's sentencing, the trial judge imposed a mandatory two-year term on defendant for his conviction for felony-firearm and ordered that defendant was to serve the mandatory two-year sentence prior to all other sentences given. Yet, defendant was convicted of felony-firearm only in connection with his commission of the offense of criminal sexual conduct, first degree.

The trial judge specifically found that defendant had not been armed when he committed the offenses of assualt with intent to murder and larceny from a person. Under MCL 750.227b; MSA 28.424(2), the Legislature ordered that the mandatory two-year prison term for felony-firearm be served prior to and consecutively with any term of imprisonment imposed for the felony. In this case, the mandatory two-year term was ordered to run prior to all other sentences, including those sentences given for offenses during which defendant did not use a firearm. Under a clear reading of the statute, it was an error to order that the sentences not underlying the possession of a firearm conviction run consecutively.^[17] Thus, the case must be remanded for resentencing.

Last, defendant claims that it was reversible error for the trial court to admit expert testimony that an examination of the complainant was consistent with forceable entry into the vagina and on the condition of complainant when she was brought to the hospital.

In this case, the examining physician testified that he performed a formal sexual assault examination on complainant and found evidence of trauma in the genital area. In addition, the doctor testified that the trauma discovered was consistent with forcible entry into the vagina by either a penis or a blunt instrument. Such evidence was proper and did not invade the province of the jury. The testimony did not violate the rules set forth in People v McGillen #2.^[18]

Defendant also argues that the trial judge erred when he relied upon testimony that the complainant would have died if she had not been treated in finding that defendant was guilty of assault with intent to commit murder. In order to be convicted of assault with intent to commit murder, it must be established beyond a reasonable doubt that the defendant tried to physically injure another person, that the defendant had the present ability to cause an injury, and that at the time he committed the assault the defendant intended to kill the complainant, under circumstances that did not justify, excuse or mitigate the crime. Thus, it was not error to admit the doctor's testimony.

Affirmed, but remanded for resentencing pursuant to this opinion.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment.

[1] People v Lawson, 124 Mich. App. 371; 335 NW2d 43 (1983).

[2] 133 Mich. App. 630; 349 NW2d 167 (1984).

[3] People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976), reh den 399 Mich. 1041 (1977).

[4] People v Degraffenreid, 19 Mich. App. 702; 173 NW2d 317 (1969).

[5] People v Tranchida, 131 Mich. App. 446; 346 NW2d 338 (1984).

[6] People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).

[7] ___ US ___; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984).

[8] Id., 80 L Ed 2d 692-693.

[9] People v Lotter, 103 Mich. App. 386; 302 NW2d 879 (1981), lv den 412 Mich. 852 (1981).

[10] 100 Mich. App. 423, 426; 298 NW2d 752 (1980), lv den 412 Mich. 865 (1981).

[11] Strickland v Washington, supra.

[12] Compare People v Sturdivant, 91 Mich. App. 128; 283 NW2d 669 (1979), lv den 407 Mich. 933 (1979), with People v Horton, 99 Mich. App. 40; 297 NW2d 857 (1980), vacated and remanded on other grounds 410 Mich. 865 (1980), and People v White, 102 Mich. App. 156; 301 NW2d 837 (1980). See also, People v McMillen, 126 Mich. App. 211; 336 NW2d 895 (1983).

[13] People v Sturdivant, supra, p 134.

[14] People v Baker, 114 Mich. App. 524; 319 NW2d 597 (1982); People v McMillen, supra, p 218.

[15] 409 U.S. 95; 93 S. Ct. 351; 34 L. Ed. 2d 330 (1972).

[16] People v Jackson, 114 Mich. App. 649; 319 NW2d 613 (1982), lv granted 417 Mich. 885 (1983).

[17] See People v Sawyer, 410 Mich. 531; 302 NW2d 534 (1981).

[18] 392 Mich. 278; 220 NW2d 689 (1974).