People v. Barclay , 208 Mich. App. 670 ( 1995 )

Jansen, P.J.

Defendant was convicted, following a jury trial in the Recorder’s Court for the City of Detroit, of two counts of armed robbery, MCL 750.529; MSA 28.797, two counts of assault with intent to murder, MCL 750.83; MSA 28.278, and one count of arson, MCL 750.73; MSA 28.268. Subsequently, he was sentenced to concurrent terms of life imprisonment for the armed robbery convictions, thirty to sixty years for the assault convictions, and 80 to 120 months for the arson conviction. Defendant appeals by delayed leave granted. We affirm his convictions, but remand for resentencing.

Defendant first argues that he was denied effective assistance of counsel. To establish a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance fell below an objective standard of reasonableness and that counsel’s representation prejudiced the defendant so as to deprive him of a fair trial. People v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994). Defendant did not move for a new trial or an evidentiary hearing on this basis below. Failure to so move forecloses appellate review unless the record contains sufficient detail to support defendant’s claims, and, if so, review is limited to the record. People v Armendarez, 188 Mich App 61, 74; 468 NW2d 893 (1991).

Defendant’s first claim, that he was denied effective assistance of counsel at the preliminary examination because he and his codefendant were represented by the same attorney, is not supported by the record. Our review of the preliminary examination transcript reveals that defendant specifically acknowledged any potential conflict and indicated that he still wished to be represented by that attorney. Defendant cannot now predicate error where he acquiesced to counsel’s representation. "To hold otherwise would allow defendant to harbor error as an appellate parachute.” People v Shuler, 188 Mich App 548, 552; 470 NW2d 492 (1991).

Defendant’s other claims also are contradicted by the record. Contrary to defendant’s assertion, defense counsel did move to suppress the in-court identification of defendant, but that motion was denied by the trial court. Further, regarding the issue of severance, defense counsel agreed that defendant would be tried before the same jury as his codefendants. Defendant may not assign error on appeal to something that his own counsel deemed proper at trial. People v McCurdy, 185 Mich App 503, 507; 462 NW2d 775 (1990). In any event, we find that the defenses were not antagonistic because codefendant Lodrick Parker’s statement to the police did not incriminate defendant. Defendant was not entitled to a separate trial. People v Harris, 201 Mich App 147, 152-153; 505 NW2d 889 (1993). Accordingly, on the basis of the record before us, defendant was not denied effective assistance.

Defendant next argues that the admission of the deceased complainant’s preliminary examination testimony at trial violated his right to confrontation. We first note that defendant did not object to the admission at trial of the preliminary examination testimony of Charles Byrd, except for that portion of the testimony concerning Byrd’s identification of defendant as a participant. Therefore, this issue is reviewed only to the extent that a substantial right of defendant’s was affected. MRE 103(a)(1). Because Byrd was deceased at the time of trial, his preliminary examination testimony was admissible. MRE 804(b)(1). Further, the preliminary examination transcript reveals that defense counsel had the opportunity to cross-examine Byrd and exercised the opportunity to do so. Defendant’s right to confrontation was not denied.

Defendant next argues that there was insufficient evidence to support his convictions of assault with intent to murder. When determining whether sufficient evidence was presented to sustain a conviction, a court must review the evidence in a light most favorable to 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 Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).

The elements of assault with intent to murder are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder. People v Warren (After Remand), 200 Mich App 586, 588; 504 NW2d 907 (1993). Circumstantial evidence and reasonable inferences arising therefrom may constitute satisfactory proof of the elements of the offense. The intent to kill may be proven by inference from any facts in evidence. Id.

Taken in a light most favorable to the prosecution, we find that there was sufficient evidence to sustain defendant’s convictions of two counts of assault with intent to murder. The evidence revealed that defendant and his two codefendants entered a religious candle shop on January 11, 1990, in. the City of Detroit. Codefendant Parker ordered the cashier, Geraldine Anderson, at gunpoint to open the cash register and lie on the floor. Defendant then doused the store with gasoline. Both people in the store were ordered to. lie down and avert their eyes. Because there were several burning candles at the time, an explosion ensued before defendant or his codefendants actually lit the gasoline. However, the gasoline was poured intentionally throughout the store, and, after the explosion, defendant and his codefendants fled from the store and did not make any effort to see that the two people in the store were safe. The two victims in the store were badly burned.

On the basis of defendant’s actions in intentionally pouring gasoline in the store, knowing that there were lit candles in the store, and in fleeing from the store immediately after the explosion, we find that the elements of assault with intent to murder, including the intent to kill, were proven beyond a reasonable doubt.

Defendant next argues that he was denied a fair trial because of the trial court’s failure to sever his trial from that of his codefendants. However, defense counsel agreed before trial that severance would not be necessary. As we have stated, defendant may not assign error on appeal to an act that his own counsel deemed proper at trial. McCurdy, supra, p 507.

Defendant next claims that the trial court erred in failing to suppress the in-court identification of defendant by Byrd. The trial court’s decision to admit identification evidence will not be reversed unless it is clearly erroneous. People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). A decision is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.

The need to establish an independent basis for an in-court identification arises where the pretrial identification is tainted by improper procedure or is unduly suggestive. People y Laidlaw, 169 Mich App 84, 92; 425 NW2d 738 (1988); People v Syakovich, 182 Mich App 85, 89; 452 NW2d 211 (1989). At no point has defendant argued that the lineup procedure was improper or. unduly suggestive. Rather, defendant’s argument is premised on the fact that Byrd did not identify defendant at a pretrial corporeal lineup, but identified him in court (at the preliminary examination) as the man who poured the gasoline in the store. The fact that Byrd did not identify defendant at the lineup did not render his subsequent in-court identification inadmissible. Id. Rather, this was a credibility issue that was properly before the jury to determine. The trial court did not commit clear error in allowing the in-court identification testimony.

Finally, defendant argues that his sentence violates the principle of proportionality. Although defendant does not argue specifically whether his sentences for the assault convictions or the armed robbery convictions violate the principle of proportionality, our review of the record leads us to conclude that defendant’s sentences for both armed robbery (life) and assault with intent to murder (thirty to sixty years) violate the principle of proportionality. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).

The recommended sentences under the sentencing guidelines for the assault convictions were seven to fifteen years. The trial court exceeded the guidelines range, stating that the range was grossly inadequate and that the victims were burned badly and were scarred permanently.' Although lengthy sentences for both the armed robbery and assault convictions may be warranted in this case, we find that the trial court’s reasons for exceeding the guidelines range were not sufficient in light of the substantial departure. Further, the trial court failed to complete a Sentencing Information Report (sir) departure form. People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987).

Accordingly, we remand this case for resentencing with regard to the armed robbery and assault convictions. Should the trial court exceed the guidelines range, it must articulate both on the record and on the SIR factors not included within the guidelines range or factors not accounted for adequately by the guidelines. Fleming, supra, p 428; Milbourn, supra, pp 657, 660.

Defendant’s convictions are affirmed, but the case is remanded for resentencing with respect to the convictions of armed robbery and assault with intent to murder. We do not retain jurisdiction.

Holbrook, Jr. J., concurred.