People v. Crawford
People v. Crawford
Opinion of the Court
Defendant was convicted in 1981 on two counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon, MCL 750.227; MSA 28.424. Defendant was sentenced to life imprisonment on the assault convictions. On appeal to this Court, the assault and felony-firearm convictions were reversed. People v Crawford, 128 Mich App 537; 340 NW2d 323 (1983). After retrial on those charges, defendant
Defendant’s convictions arose out of a shoot-out at the Grand Rapids Hall of Justice in January, 1981. When police officers met defendant there to execute an outstanding warrant for his arrest, defendant shot two of them. At hté second trial, defendant presented a diminished capacity defense, claiming he was too intoxicated from his voluntary use of alcohol and drugs to form the requisite specific intent necessary for conviction of assault with intent to murder.
Defendant’s first claim on appeal is that the court’s jury instructions on specific intent imper-missibly shifted the burden of proof from the prosecution to defendant. Defendant did not object to the instructions at trial, when any error could have been cured. Therefore, appellate review of this issue is precluded, unless a miscarriage of justice would otherwise result. People v Morris, 139 Mich App 550, 560; 362 NW2d 830 (1984). To insure that no injustice is done defendant, we have reviewed the jury instructions and find no egregious error. Jury instructions must be read as a whole, and if they adequately inform the jury of the applicable law, no error requiring reversal is established. People v Stewart, 126 Mich App 374, 377; 337 NW2d 68 (1983). The trial court’s instructions on specific intent, when read as a whole, were proper. The court did not, as defendant argues, instruct the jurors that they could presume
Defendant raises two issues concerning his sentences. Defendant first objects that the judge gave him harsher sentences than he had received on the same convictions after his first trial, although no new information had been produced to justify the increased sentences. A defendant’s due process rights are violated if the judge, in enhancing defendant’s sentence after retrial, indicates on the record that he is imposing a harsher sentence out of vindictiveness against defendant for having successfully appealed from his first conviction. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969); People v Jones, 403 Mich 527; 271 NW2d 515 (1978), cert den 440 US 951; 99 S Ct 1432; 59 L Ed 2d 640 (1979). Where the record reveals that vindictiveness played no role in the judge’s resentencing decision, the imposition of a higher sentence does not violate defendant’s right to due process. People v Van Auker (After Remand), 132 Mich App 394, 398; 347 NW2d 466 (1984), rev’d in part and remanded 419 Mich 918 (1984).
The record indicates that the judge sentenced defendant to a term of years, rather than the life sentences imposed on his first convictions, only to effectuate his original intent to keep defendant "off the streets as long as possible.” The record does not even hint at any vindictiveness because of defendant’s successful appeal of his original convictions. Between defendant’s first sentencing and second trial, the Supreme Court ruled that a person sentenced to a parolable life term was still eligible for parole consideration after just ten years. People v Johnson, 421 Mich 494, 498; 364 NW2d 654 (1984). The trial court’s decision to impose indeterminate sentences of from sixty-five
This Court, in considering the vindictiveness issue, has held that a parolable life term is, as a matter of law, a lengthier sentence than any term of years, even though a defendant sentenced to life in prison may be eligible for parole before a defendant sentenced to á lengthy term of years. People v McNeal, 156 Mich App 379; 401 NW2d 650 (1986); People v Lindsey, 139 Mich App 412, 415; 362 NW2d 304 (1984). In People v Hurst, 155 Mich App 573; 400 NW2d 685 (1986), this Court, in considering a departure from the sentencing guidelines, expressed its frustration in attempting to review sentences with different parole consequences, especially when compounded by suggestions that the Department of Corrections considers defendants for parole after ten years despite People v Johnson, supra. Pending a response to Hurst from the Department of Corrections, we will abide by this Court’s holdings that a term of years is not harsher than a life sentence. Therefore, this issue is without merit, not only because the judge did not impose a different sentence out of vindictiveness, but also because the new sentence was not harsher than the previous one.
Defendant also argues that the court impermis-sibly considered defendant’s lack of remorse when imposing his sentence. It is neither clearly erroneous nor improper for a trial court to consider a defendant’s lack of remorse in imposing sentence. People v Federico, 146 Mich App 776, 800; 381 NW2d 819 (1985).
Finally, defendant objects that the prosecution
Affirmed.
Dissenting Opinion
(dissenting in part). I dissent only as to the sentence imposed on defendant of from sixty-five to one hundred years on each of the assault with intent to commit murder counts. I do not disagree with the majority <?n the vindictiveness question. It is not my presumption to quarrel with the sentiment of this learned trial judge that defendant should be "off the streets forever.” But I am in the dead of midnight as to a trial judge’s sentencing power in terms of a defendant’s passage through time to eternity. The Legislature has said that a life sentence (other than hard life, for first-degree murder and major drug traffic) is pa-rolable.
I see the issue here as being whether the holding in People v Payne, 386 Mich 84, 97; 191 NW2d 375 (1971), is implicated. There the Supreme Court held that "the imposition of a harsher sentence upon reconviction following appellant’s] successful appeal was constitutionally impermissible . . . .” See, North Carolina v Pearce, 395 US 711, 726; 89 S Ct 2072; 23 L Ed 2d 656 (1969). It is obvious to me that at the time the learned trial judge first
In the meantime, I would reverse and remand for entry of life sentences on each of the assault with intent to murder
MCL 791.234(4); MSA 28.2304(4).
MCL 791.233b; MSA 28.2303(3)
See n 1.
People v Lindsey, 139 Mich App 412; 362 NW2d 304 (1984), and People v McNeal, 156 Mich App 379; 401 NW2d 650 (1986), are wrongly decided. If the parole board can’t reach an indeterminate sentence because of the time clock it is a harsher sentence than parolable life.
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