People v. Etchison , 123 Mich. App. 448 ( 1983 )

123 Mich. App. 448 (1983) 333 N.W.2d 309

PEOPLE
v.
ETCHISON

Docket No. 55572.

Michigan Court of Appeals.

Decided February 24, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and John H. MacFarlane, Chief Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by P.E. Bennett), for defendant on appeal.

Before: V.J. BRENNAN, P.J., and D.E. HOLBROOK, JR., and J.R. ERNST,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2). Thereafter sentenced to two terms of life imprisonment on the murder and assault charges and two years on the felony-firearm charge, defendant appeals as of right.

First defendant claims that the trial court erred in allowing rebuttal evidence which did not contradict the exact testimony of an earlier witness. Defendant presented six alibi witnesses, one of whom was Roosevelt Hunt. They all testified that they were present with defendant at defendant's residence on the evening in question. The prosecutor asked Hunt if he remembered certain of the alibi witnesses being at the house. However, he did not ask Hunt if he remembered Ronnie Armstrong's being there. Officer Belote testified in rebuttal to Hunt's testimony. The prosecutor asked Belote if Hunt had given him a statement as to the whereabouts of Ronnie Armstrong. At this point, defense counsel objected on the grounds of improper hearsay and rebuttal. Belote then stated that Hunt previously told him Ronnie Armstrong was at defendant's home on the evening of January 16. In closing argument, the prosecutor used the alleged inconsistency in Hunt's testimony to impeach his credibility. Defense counsel did not object to these remarks.

Belote's testimony was improper rebuttal evidence. As stated above, Hunt was never asked as to the whereabouts of Armstrong. It was therefore improper to question Belote as to Hunt's statement in which he allegedly said that Armstrong had been present. Generally, the only type of contradictory evidence admissible on rebuttal is that which directly tends to disprove the exact testimony given by a witness. People v McGillen # 1, 392 Mich. 251; 220 NW2d 677 (1974); People v Lee Dyson, 106 Mich. App. 90; 307 NW2d 739 (1981).

The standard of review of improperly admitted rebuttal testimony is whether the error was so egregious as to result in a miscarriage of justice. People v Bell, 101 Mich. App. 779; 300 NW2d 691 (1980). We hold there was no reversible error. There was no evidence of lack of good faith by the prosecutor and the remark, occurring after a seven-day jury trial, should more properly be construed as inadvertent and isolated, rather than deliberately or grossly prejudicial. Furthermore, five other alibi witnesses testified for defendant; Hunt was not defendant's only alibi witness. His testimony was not as crucial as defendant contends it to be on appeal.

Second, defendant claims that the prosecutor's misstatement of the evidence during closing argument requires reversal of his conviction. Defense counsel failed to object to the prosecutor's misstatement. Hence, appellate review is precluded absent a miscarriage of justice. People v LaPorte, 103 Mich. App. 444; 303 NW2d 222 (1981). Although it is true that the prosecutor misstated the circumstances surrounding the physical lineup, the misstatements were indeed minor. Instead of stating that Nancy Edwards identified defendant when individual # 5 stepped forward, the prosecutor stated that she interrupted the proceedings when individual # 3 stepped forward. This statement was untrue; however, it is undisputed from reviewing the record that Nancy identified defendant and was positive of her identification. We hold the error to be harmless.

Finally, defendant claims that the trial court erred in refusing to instruct the jury on attempted felony-firearm and attempted assault with intent to commit murder.

With regard to attempted felony-firearm, there was no reversible error. An instruction under the general attempt statute, MCL 750.92; MSA 28.287, is appropriate only where no express provision for attempt exists in the statute under which a defendant is charged. People v Kamin, 405 Mich. 482; 275 NW2d 777 (1979); People v Denmark, 74 Mich. App. 402, 416; 254 NW2d 61 (1977). The felony-firearm statute proscribes the carrying or possession of a firearm during the commission or attempted commission of any felony. Moreover, since the Legislature clearly intended to punish possession of a firearm during an abortive felony, it could have additionally made attempted possession of a firearm a crime. It did not do so. Hence, we hold there is no such offense as attempted felony-firearm.

Additionally, we hold there is no error in the court's refusal to instruct on attempted assault with intent to commit murder. In People v Banks, 51 Mich. App. 685; 216 NW2d 461 (1974), and People v Patskan, 29 Mich. App. 354; 185 NW2d 398 (1971), rev'd on other grounds 387 Mich. 701; 199 NW2d 458 (1972), the notion of attempt to assault was rejected. These cases defined assault as an attempt to offer with force and violence to do bodily hurt to another with the present means of accomplishing the hurt. In other words, an attempted battery. Therefore, an attempt to assault would, by definition, include an attempt to attempt or offer. Patskan, supra, 357.

The Supreme Court's recent definition of assault in People v Joeseype Johnson, 407 Mich. 196; 284 NW2d 718 (1979), may in some circumstances make an attempt to assault instruction appropriate. The Court defines an assault as either an attempted battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery. A trial court would be required, upon timely request, to give an instruction on the necessarily lesser included offense of the "attempted unlawful act" type of assault if such crime actually existed. See People v Ora Jones, 395 Mich. 379; 236 NW2d 461 (1975).

In our case, however, defendant was charged with assault with intent to commit murder, which is of the "attempted battery" type, not of the "unlawful act" type. Joeseype Johnson, supra, does not change prior law with respect to the "attempted battery" type of assault but merely expands the definition of assault. Hence, failure to instruct on attempted assault with intent to commit murder herein was not reversible error.

Affirmed.

NOTES

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