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In People v Haynie, 327 Mich App 555, 561-562; 934 NW2d 71 (2019), this Court held that assault and battery is not a necessarily included lesser offense of assault with intent to commit murder.
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No. 340377
04-16-2019
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brad Stephen HAYNIE, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Eric J. Smith, Prosecuting Attorney, and Joshua D. Abbott, Chief Appellate Attorney, for the people. Cecilia Quirindongo Baunsoe for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Eric J. Smith, Prosecuting Attorney, and Joshua D. Abbott, Chief Appellate Attorney, for the people.
Cecilia Quirindongo Baunsoe for defendant.
Before: Jansen, P.J., and Meter and Gleicher, JJ.
Jansen, P.J. Defendant appeals as of right his jury-trial conviction of guilty but mentally ill of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84. Defendant was sentenced to 67 to 120 months’ imprisonment. We affirm. I. RELEVANT FACTUAL BACKGROUND
This case arose out of defendant’s assault of his mother, Patricia Haynie, in his condominium. Patricia had been sitting on the couch while defendant cooked dinner. The two had joked and teased each other while defendant cooked. A short time later, defendant walked to the kitchen counter and put down the knife that he had been using. Defendant looked at Patricia with a terrified look on his face and said, "[M]om, I’ve got to save you, Lucifer has you, your eyes are big black coals." Defendant rushed toward Patricia and snatched the cane out of her hands that she was using to try to keep defendant away. Defendant told Patricia that he was "going to have to twist [her] arms into knots and lift [her] up and shake [her] until he got Lucifer to let go of [her] and [her] eyes came back to normal," and he did just that. Defendant let go of Patricia, who called 911 before defendant grabbed her again. Patricia bit defendant, who then punched her, and she lost consciousness.
Defendant was arrested and charged with assault with intent to commit murder, MCL 750.83. At trial, defendant argued that the trial court should give jury instructions for the lesser included offenses of AWIGBH, aggravated assault, and assault and battery. The prosecution agreed that an instruction for AWIGBH was proper but argued that the trial court should not give instructions for aggravated assault or assault and battery. The trial court agreed with the prosecution. As stated, the jury found defendant guilty but mentally ill of the lesser included offense of AWIGBH.
II. JURY INSTRUCTIONS
Defendant first argues that the trial court erred by refusing to give a jury instruction for the lesser included offense of assault and battery. We disagree.
"Claims of instructional error are generally reviewed de novo by this Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion." People v. Dobek , 274 Mich. App. 58, 82, 732 N.W.2d 546 (2007). "A defendant has the right to have a properly instructed jury consider the evidence against him or her, and it is the trial court’s role to clearly present the case to the jury and to instruct it on the applicable law." People v. Henderson , 306 Mich. App. 1, 4, 854 N.W.2d 234 (2014) (quotation marks and citation omitted). "The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence." People v. McGhee , 268 Mich. App. 600, 606, 709 N.W.2d 595 (2005). "[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." People v. Cornell , 466 Mich. 335, 357, 646 N.W.2d 127 (2002). "Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense." People v. Nickens , 470 Mich. 622, 626, 685 N.W.2d 657 (2004), quoting People v. Mendoza , 468 Mich. 527, 532 n. 3, 664 N.W.2d 685 (2003). See also People v. Nyx , 479 Mich. 112, 121, 734 N.W.2d 548 (2007) (opinion by TAYLOR , C.J.) ("[A]n offense is only inferior when all the elements of the lesser offense are included within the greater offense.") Comparatively, " MCL 768.32(1) does not permit cognate lesser instructions." Cornell , 466 Mich. at 357, 646 N.W.2d 127. Moreover, "[a]n inferior-offense instruction is appropriate only when a rational view of the evidence supports a conviction for the lesser offense." Mendoza , 468 Mich. at 545, 664 N.W.2d 685. A trial court’s failure to give a lesser-included-offense instruction is harmless error if "the evidence did not clearly support a conviction for the lesser included [offense]." Cornell , 466 Mich. at 365-366, 646 N.W.2d 127. "There must be more than a modicum of evidence" to show that the defendant could have been convicted of the lesser included offense. People v. Cheeks , 216 Mich. App. 470, 479-480, 549 N.W.2d 584 (1996).
This Court has previously determined that assault and battery is not a lesser included offense of assault with intent to murder. People v. Ross , 73 Mich. App. 588, 592, 252 N.W.2d 526 (1977). Because Ross was decided by this Court before November 1, 1990, it is not binding authority. MCR 7.215(J)(1). We now reaffirm Ross to the extent that it concludes assault and battery is not a lesser included offense of assault with intent to murder. Rather, we conclude that misdemeanor assault and battery is a cognate offense of assault with intent to commit murder because all the elements of misdemeanor assault and battery are not included within the greater offense of assault with intent to murder. Indeed, "[t]he elements of assault with intent to commit murder are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder." People v. Brown , 267 Mich. App. 141, 147-148; 703 N.W.2d 230 (2005) (quotation marks and citations omitted). Comparatively, assault is "either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery." People v. Starks , 473 Mich. 227, 234, 701 N.W.2d 136 (2005). Battery is "an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." Id . (quotation marks and citations omitted). In short, assault and battery contains an element that assault with intent to murder does not contain, i.e., a harmful or offensive touching. Therefore, the trial court’s determination to not give a lesser-included-offense instruction for assault and battery was proper.
Contrary to the dissent’s assertion, we do not seek to contravene our Supreme Court’s opinions in Hanna v. People , 19 Mich. 316, 320-322 (1869), People v. Prague , 72 Mich. 178, 180, 40 N.W. 243 (1888), and Cornell , 466 Mich. at 357, 646 N.W.2d 127. We take no issue with our Supreme Court’s holding that a defendant is entitled to request that the jury be instructed on all lesser included offenses so long as " ‘all the elements of the lesser offense are included in the greater offense,’ " Nyx , 479 Mich. at 120, 734 N.W.2d 548, quoting Mendoza , 468 Mich. at 533, 664 N.W.2d 685, and "a rational view of the evidence would support it," Cornell , 466 Mich. at 357, 646 N.W.2d 127. However, we do take issue with the dissent relying merely on the syllabus of Hanna , which is now 150 years old and factually dissimilar, to suggest that the majority disagrees with established Michigan jurisprudence.
Moreover, even if we were to conclude that assault and battery was a lesser included offense, we disagree with the dissent that the facts of this case would support such an instruction. As noted earlier in this opinion, a rational view of the evidence must support an instruction on a lesser included offense. "There must be more than a modicum of evidence" to show that defendant could have been convicted of assault and battery. Cheeks , 216 Mich. App. at 479-480, 549 N.W.2d 584. Our review of the evidence in this case simply does not reflect that a misdemeanor assault and battery was committed. As noted by the dissent, defendant’s intent is central to this determination. Defendant’s intent can be inferred from "the act, means, or the manner employed to commit the offense." People v. Hawkins , 245 Mich. App. 439, 458, 628 N.W.2d 105 (2001). The victim’s injuries are also relevant. People v. Dillard , 303 Mich. App. 372, 378, 845 N.W.2d 518 (2013), abrogated on other grounds by People v. Barrera , 500 Mich. 14, 892 N.W.2d 789 (2017).
At trial, Patricia testified that defendant told her that he was "going to have to twist [her] arms into knots and lift [her] up and shake [her] until he got Lucifer to let go of [her] and [her] eyes came back to normal." Defendant then took her hands, lifted her off the couch, and shook her twice. After the second shake, defendant punched Patricia and knocked her unconscious. When Deputy Brandon Cleland arrived at defendant’s condominium, he saw that Patricia’s face was covered in blood, and he believed that she might have crawled to the door. Patricia’s head wound required 16 or 17 staples to close. Detective Anthony Stone, an evidence technician, took pictures of the scene of the assault after defendant was arrested. By the couch where Patricia was assaulted, Detective Stone photographed a metal bar that had wood on it and horseshoes on either end. The wood on the bar was "splintered," and there were "red stains" on the cracked portion of the bar. There were also bloodstains on the couch. Because of the brutality of the assault, no rational view of the evidence could support a finding of simple assault and battery.
The dissent takes issue with our conclusion that "no rational view of the evidence could support a finding of simple assault and battery." However, the dissent relies solely on Patricia’s belief that her son did not intend to kill or grievously wound her when he attacked her in concluding that a rational view of the evidence supported defendant’s request for an assault and battery instruction. However, Patricia’s belief regarding her son’s intent is irrelevant and is contrary to her own testimony that defendant intended to twist her arms and shake her until "Lucifer ... let go of [her]." See Hawkins , 245 Mich. App. at 458, 628 N.W.2d 105 ; Dillard , 303 Mich. App. at 378, 845 N.W.2d 518.
Given the foregoing, we conclude that the trial court did not err by refusing to give an instruction on assault and battery.
III. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that there was sufficient evidence to prove his insanity defense. We disagree.
Defendant does not challenge the sufficiency of the evidence regarding the elements of his AWIGBH conviction; rather, he contends that there was sufficient evidence to prove his insanity defense. This Court treats such an argument as a sufficiency-of-the-evidence issue. See People v. McRunels , 237 Mich. App. 168, 181-182, 603 N.W.2d 95 (1999). "A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, viewing the evidence in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v. Gaines , 306 Mich. App. 289, 296, 856 N.W.2d 222 (2014).
"In the criminal law, a person is presumed to be sane." People v. Walker , 142 Mich. App. 523, 525, 370 N.W.2d 394 (1985). "It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the offense." MCL 768.21a(1). "The defendant has the burden of proving the defense of insanity by a preponderance of the evidence." MCL 768.21a(3). The prosecution must prove every element of the crime beyond a reasonable doubt, but the prosecution is not required to rebut an affirmative defense. People v. Mette , 243 Mich. App. 318, 330, 621 N.W.2d 713 (2000).
Legal insanity requires "proof that, as a result of mental illness or being mentally retarded as defined in the mental health code, the defendant lacked ‘substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or [to] conform his or her conduct to the requirements of the law.’ " People v. Carpenter , 464 Mich. 223, 230-231, 627 N.W.2d 276 (2001), quoting MCL 768.21a(1). A mental illness is "a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life." MCL 330.1400(g). "[I]f a defendant produces sufficient evidence of the elements of the defense, then the question whether the defendant has asserted a valid defense is for the jury to decide." People v. Kolanek , 491 Mich. 382, 411-412, 817 N.W.2d 528 (2012).
At trial, defendant presented Dr. Iren Assar, Dr. Emily Escott, and Dr. Michael Abramsky as expert witnesses. Dr. Assar testified that she determined defendant had a mental illness from his medical records and Patricia’s account of the assault. Those medical records noted his history of bipolar disorder and schizophrenia and also contained reports of his delusions—defendant believed that his neighbor, Fred Yaks, was trying to kick defendant out of his condominium; that Yaks was burying dead bodies; and that a masonic order was interfering in defendant’s life. Dr. Assar also talked with defendant about the day of the assault. Defendant told Dr. Assar that he began drinking alcohol in the basement to stop the voices in his head. When defendant came out of the basement, he saw Yaks on the porch and he saw Patricia in a chair, rocking back and forth while chanting. However, defendant reported that he did not have any memory of the assault, and he believed that Yaks assaulted Patricia. Dr. Assar believed on the basis of his statements during the assault that defendant lacked the capacity to appreciate the nature and consequences of actions. Defendant’s statements during the assault, that he needed to get Lucifer out of Patricia and that she was not his mother, indicated that defendant was "operating from his delusions," that he "was not in contact with reality," and that he believed what he did was necessary.
Dr. Escott testified that she gave defendant a neuropsychological evaluation, and based on the scores from the evaluation, she believed he had damage to his brain in the left temporal lobe and part of the frontal lobe. Dr. Escott further testified that people with damage to the left temporal lobe often suffer from hallucinations and delusional thoughts, and damage to the frontal lobe is associated with difficulty with executive functions, planning, and decision-making. Additionally, it was likely that defendant had this brain damage on the day of the assault, and the brain damage could have contributed to his behavior.
Dr. Abramsky testified that in his opinion defendant was legally insane at the time of the assault based on defendant’s history of mental illness and his statements during the assault. Dr. Abramsky also testified that although defendant drank alcohol on the day of the assault and it likely contributed to the assault, the assault was not the product of the alcohol because defendant had delusions and "bizarre behaviors" while he was sober. Dr. Abramsky further testified that he believed defendant did not know the difference between right and wrong at the time of the assault because he did not know what was real and what was not real.
While defendant presented three experts whose testimony supported the conclusion that defendant was legally insane at the time of the assault, the prosecution impeached the witnesses by calling into question the reliability of their assessments through the possibility that defendant lied to the doctors. The prosecution questioned the reliability of the experts’ opinions by highlighting a result of Dr. Escott’s evaluation in which she reported that part of defendant’s personality was that he "like[d] to manipulate others for his own gratification[.]" The prosecution used Dr. Escott’s finding to try to undermine the reliability of the experts’ opinions by questioning whether defendant could simply be lying to the experts during their evaluations. The prosecution also highlighted that the experts’ testimony regarding defendant’s state of mind represented only the experts’ opinions and not provable facts.
It is the jury’s role, not this Court’s, to weigh the evidence and the credibility of witnesses. People v. Eisen , 296 Mich. App. 326, 331, 820 N.W.2d 229 (2012). There was also evidence that defendant was not legally insane; Patricia testified that defendant acted normally before the assault. While defendant cooked dinner, he got food from the freezer, defrosted the food, retrieved spices from the cabinets, and had several pans cooking on the stove. In addition, Deputy Cleland also testified that defendant cooperated with him after the assault when Deputy Cleland commanded defendant to come out of the basement, turn around, get on his knees, and place his hands behind his back. And Dr. Assar testified that defendant reported that he was drinking the day of the assault, which was supported by the three bottles of alcohol in the condominium.
The trial court instructed the jury that it was free to believe or disbelieve the opinions of the experts:
Experts are allowed to give opinions in court about matters they are experts on. However, you do not have to believe an expert’s opinion, instead, you should decide whether you believe it and how important you think that is. When you decide whether you believe an expert’s opinion, think carefully about the reasons and facts he or she gave her [sic] for her opinion, or his opinion, and whether those facts are true.
"[J]urors are presumed to follow their instructions ...." People v. Stevens , 498 Mich. 162, 177, 869 N.W.2d 233 (2015) (quotation marks and citation omitted). The verdict shows that the jury followed the trial court’s instructions. The jury did not believe the experts’ opinions that defendant was legally insane at the time of the assault. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to support the jury’s determination that defendant was not legally insane at the time of the assault.
Affirmed.
Meter, J., concurred with Jansen, P.J.
Gleicher, J. (dissenting).
The majority holds that assault and battery is not a lesser included offense of assault with intent to commit murder and that no rational view of the evidence in this case could support a conviction for assault and battery. I respectfully dissent from both holdings.
I
Advancing no analysis, the majority reaffirms this Court’s holding in People v. Ross , 73 Mich. App. 588, 592, 252 N.W.2d 526 (1977), that "[a]ssault and battery is not an offense necessarily included within the crime of assault with intent to murder." Ross ’s reasoning rested on a 1975 case called People v. Ora Jones , 395 Mich. 379, 236 N.W.2d 461 (1975). But Ora Jones is no longer the law. The case that overruled it— People v. Cornell , 466 Mich. 335, 646 N.W.2d 127 (2002) —instructs that a much older Michigan case, Hanna v. People , 19 Mich. 316 (1869), correctly describes the process for determining whether a crime is a lesser included offense. And Hanna holds that assault and battery is a lesser included offense of assault with intent to commit murder. Hanna , 19 Mich. at 322-323. In Cornell , the Supreme Court examined this state’s lesser-included-offense jurisprudence, found it in disarray, and retethered the law to the language of a statute first enacted in 1846. That statutory language remains substantially similar, in relevant part, today:
[U]pon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense. [ MCL 768.32(1).]
Based on the statute, the Cornell Court concluded that a defendant is entitled to a requested instruction on a necessarily included lesser offense "if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." Cornell , 466 Mich. at 357, 646 N.W.2d 127.
Our Supreme Court recently reaffirmed Hanna ’s contribution to lesser-included-offense calculations, noting that " Cornell returned MCL 768.32(1) to its original construction as given by this Court in Hanna [.]" People v. Jones , 497 Mich. 155, 165, 860 N.W.2d 112 (2014). Hanna answers the question presented in this case.
According to the opinion’s syllabus, John Hanna was charged with assault with intent to commit murder after he beat John Shine with a piece of iron. Hanna , 19 Mich. at 317. Over Hanna’s objection, the prosecuting attorney requested that the court charge the jury on assault and battery in addition to assault with intent to commit murder. Id . The jury acquitted Hanna of assault with intent to commit murder but convicted him of assault and battery. Id . Hanna appealed. The Supreme Court held that assault was a lesser included offense of "assaults with various degrees of aggravation," including assault with intent to commit murder:
[A]ssaults are substantially and in effect divided by the statute into degrees; and ... an indictment for any of the higher grades, or assaults with various degrees of aggravation, must include the inferior degree of simple assault; or, if the higher degree is charged, including a battery, as in the present case, the simple assault and battery are included, and ... the defendant may be convicted of the included offense under this section. [ Id . at 322-323.]
The Supreme Court reaffirmed Hanna ’s holding in People v. Prague , 72 Mich. 178, 180, 40 N.W. 243 (1888), and has never retreated from it.
The majority faults me for "relying merely" on Hanna ’s syllabus. The majority is in error. Only the facts surrounding Hanna’s prosecution were drawn from the syllabus. The holding and analysis are contained within the opinion of the Court. Further, I am unaware of any rule of law directing that the clear and unambiguous holding of a case decided by our Supreme Court 150 years ago may be disregarded due to its age. I had thought that the rule of stare decisis requires us to adhere to the law as given to us by the Supreme Court, regardless of when the governing case was decided. The majority’s quarrel with relying on a case "now 150 years old" is ultimately inconsequential, as the Supreme Court reinvigorated Hanna only 17 years ago in Cornell .
By reinvigorating Ross the majority contravenes our Supreme Court’s opinions in Hanna , Prague , and Cornell . But that isn’t the majority’s only error.
II
Logical and legal principles dictate that in this case, the judge should have instructed the jury on the lesser included offense of assault and battery. Under Cornell , the question to be answered is: does assault with intent to commit murder (the charged greater offense) require the jury to find a disputed factual element that is not part of assault and battery (the asserted lesser included offense)? The answer is yes, and the disputed element is intent to kill.
The majority holds that "[b]ecause of the brutality of the assault, no rational view of the evidence could support a finding of simple assault and battery." I respectfully disagree, as there is no quantum of injury necessarily associated with an assault and battery. An assault and battery can result in horrific injuries, including death. For example, in People v. Datema , 448 Mich. 585, 533 N.W.2d 272 (1995), the Supreme Court held that a conviction for involuntary manslaughter may be premised on an assault and battery. Rather than the severity of injury, what distinguishes an assault and battery from an assault with intent to commit murder is the perpetrator’s intent. The former crime requires proof that the defendant intended to commit a battery. To prove assault with intent to commit murder, the prosecutor must convince the jury that the defendant intended to kill the victim.
Defendant’s intent was at the center of this case. Although the prosecution charged defendant with harboring an intent to kill his mother, the jury found him guilty but mentally ill of the lesser included offense of assault with intent to do great bodily harm less than murder. Defendant’s mother testified that she believed her son did not intend to kill her, or even to grievously wound her:
Q. Do you think he intended to cause you great bodily injury?
A. Never. He’s gone out of his way his whole life, even as a toddler, to keep me from any kind of pain.
In my view, this testimony would have permitted a jury to convict defendant of assault and battery, or guilty but mentally ill of assault and battery. Defense counsel’s request for an assault and battery instruction should have been granted, as a rational view of the evidence supported it. I would reverse defendant’s conviction on this ground and remand for a new trial.