Opinion
Docket No. 48812.
Decided December 5, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.
Gail Rodwan, Assistant State Appellate Defender, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and ALLEN and BEASLEY, JJ.
On August 12, 1979, defendant was convicted by jury of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm in the commission of the felony, MCL 750.227b; MSA 28.424(2). Sentenced on October 4, 1979, to six months imprisonment on the felonious assault charge and two years on the felony-firearm charge, defendant appeals of right.
The assault took place after the complaining witness, owner of a Saginaw barber shop, forcefully escorted defendant out the barber shop door for being disorderly. Soon thereafter, defendant returned with a shotgun and fired two shots through the shop window. One shot grazed the complaining witness who was taken to Saginaw General Hospital where the injury was found to be minor. Defendant testified that on the day of the incident he had been drinking heavily, that he aimed his gun at the ceiling of complainant's shop, and that at no time did he intend to injure the complainant. The trial judge's instructions to the jury did not include a statement that felonious assault is a specific intent crime.
The initial question posed on appeal is whether the trial court committed reversible error when instructing the jury on the elements of felonious assault, by failing to specifically state that, in order to be found guilty, defendant must have had either an intent to injure or an intent to put the victim in a reasonable fear or apprehension of an immediate battery. Defense counsel failed to object to the omission by the trial court.
Prior to People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979), felonious assault was not a specific intent crime. People v Jordan, 51 Mich. App. 710, 718; 216 N.W.2d 71 (1974). In Joeseype Johnson, the Supreme Court ruled for the first time that a jury instruction on felonious assault is deficient unless it clearly informs the jury that "there must be an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery". 407 Mich. 196, 210. The trial court's instructions referred to intent in defining "a dangerous weapon". But this fleeting reference to intent is hardly the meaningful explanation mandated by Joeseype Johnson. Nowhere in the instructions did the court explain intent as specified by the Joeseype Johnson memorandum opinion. Consequently, reversible error did occur unless Joeseype Johnson is deemed prospective only.
"The manner in which an instrument is used or intended to be used in an assault determines whether or not it is a dangerous weapon. If an instrument is used in a manner likely to produce serious physical injury or death, it is a dangerous weapon. It is for you to determine from all the facts and circumstances disclosed by the evidence whether the shotgun in question here was a dangerous weapon." (Emphasis supplied.)
There were three separate opinions in Joeseype Johnson, viz.: a memorandum opinion, a concurring opinion, and a dissent. Seven justices signed the memorandum opinion, and at least four justices concurred in every statement of the memorandum opinion.
The instant case was tried in August, 1979, and Joeseype Johnson was decided ten weeks later on October 29, 1979. Clearly, the trial court did not have the benefit of the Joeseype Johnson ruling. The crucial question is whether Joeseype Johnson clarifies existing law and consequently is retroactive in application or whether the holding is only prospective under the principles announced in People v Hampton, 384 Mich. 669; 187 N.W.2d 404 (1971). On this issue two panels of this Court have come to opposite conclusions. In People v Starghill, 99 Mich. App. 790, 792; 298 N.W.2d 641 (1980), this Court held:
See People v Kamin, 405 Mich. 482, 494; 275 N.W.2d 777 (1979).
"However, Joeseype Johnson was decided on October 29, 1979, after defendant's conviction. We decline to apply it retroactively in these circumstances. See People v Hampton, 384 Mich. 669; 187 N.W.2d 404 (1971). Therefore, we review the trial court's decision under prior law."
On the other hand, when faced with the identical issue a different panel of this Court concluded in People v Szymanski, 102 Mich. App. 745, 747; 302 N.W.2d 316 (1981):
"We agree that Joeseype Johnson constitutes a restatement and clarification of previously-existing Michigan case law and is therefore fully applicable to the instant case. No problem of limiting the application of a new rule of law arises under such circumstances. People v Kamin, 405 Mich. 482, 494; 275 N.W.2d 777 (1979)."
We are persuaded that the better logic is expressed in Starghill. Our conclusion is reinforced by the fact that, in the instant case, no exception was taken at trial to the court's failure to instruct the jury that felonious assault was a specific intent crime. Under such circumstances, it is not necessary to decide whether Joeseype Johnson should be given retroactive application.
Finally, we have reviewed the transcript of the sentencing hearing and agree with defendant that neither defendant nor his counsel were given an opportunity to allocute prior to sentencing as required by GCR 1963, 785.8(2) and 785.9. On this point, the brief of the prosecution agrees and states that resentencing is required so that the comments of the defense may be placed on record.
Affirmed as to the convictions and remanded for resentencing.