PEOPLE OF MI V CAREY HELMAR DUNN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 14, 1998
Plaintiff-Appellee,
v
No. 198881
Oakland Circuit Court
LC No. 95-141971-FC
CAREY HELMAR DUNN,
Defendant-Appellant.
Before: Gribbs, P.J., and Cavanagh and Saad, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to commit great bodily
harm less than murder, MCL 750.84; MSA 28.279. Defendant was sentenced to four to ten years’
imprisonment. The court then vacated that sentence and sentenced defendant, as an habitual offender,
second offense, MCL 769.10; MSA 28.1082, to four to fifteen years’ imprisonment. Defendant now
appeals as of right. We affirm defendant’s conviction, but remand for resentencing.
Defendant first argues on appeal that he was denied the effective assistance of counsel. We
disagree. To establish whether a defendant’s right to effective assistance of counsel has been so
undermined that it justifies reversal of an otherwise valid conviction, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness and that the representation
was so prejudicial as to deprive him of a fair trial. People v Price, 214 Mich App 538, 547; 543
NW2d 49 (1995). This Court will not substitute its judgment for that of counsel regarding matters of
trial strategy, nor will it assess counsel’s competence with the benefit of hindsight. People v Barnett,
163 Mich App 331, 338; 414 NW2d 378 (1987).
Defendant claims that his trial counsel was ineffective for failing to request a jury instruction of
intoxication. There is no merit to this claim. Although there was evidence that defendant had consumed
alcohol prior to the assault, there was no evidence that defendant was actually intoxicated at the time of
the assault or was intoxicated to the point where he was incapable of forming the intent to commit the
assault. Defendant denied that he was drunk at the time of the incident or that alcohol had any effect on
his judgment. Police officers testified that defendant did not have difficulty understanding or following
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directions, and that he did not have trouble with his movements or walking. In addition, both the
officers and a paramedic testified that nothing in defendant’s attitude indicated that he had been drinking.
Defendant’s trial counsel was not ineffective for failing to ask for an instruction that was not supported
by the evidence. People v Mills, 450 Mich 61, 82; 537 NW2d 909, mod 450 Mich 1212 (1995);
People v Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997).
Defendant also contends that trial counsel was ineffective by failing to request an independent
forensic exam when the one forensic report indicated that he suffered from depression, seizures and had
contemplated suicide. We disagree. A psychologist who examined defendant and his medical records
testified that defendant was not presently mentally ill and that although defendant had been diagnosed as
depressed the summer prior to the incident and may have been depressed at the time she examined him,
it did not impair his ability to cooperate and defend himself. Defendant’s trial counsel did not fall below
an objective standard of reasonableness in not requesting another forensic examination when the results
of the first one and the testimony elicited at trial did not show diminished capacity.
Defendant also argues that his trial counsel was ineffective for failing to object to testimony by a
police evidence technician that the blood spatters in the condominium were consistent with the
prosecution’s theory, when the technician admitted that he was not an expert. We disagree. Decisions
concerning which witnesses to call, what evidence to present, or the questioning of witnesses are
considered part of trial strategy. People v Julian, 171 Mich App 153, 158-159; 429 NW2d 615
(1988). Here, during cross-examination, defendant’s trial counsel elicited the admission from the
technician that his training only “touched” on the examination of blood spattering and that he was not an
expert in blood spattering. In addition, defendant’s trial counsel obtained testimony from the technician
which supported defendant’s case. Defense counsel’s decision to allow the technician to testify
regarding the blood spattering on direct and then to instill doubt in the minds of the jury regarding the
accuracy of the technician’s opinions regarding blood splattering and to elicit testimony favorable to
defendant was a matter of trial strategy which this Court will not second guess.
Defendant also argues on appeal that due process was violated when the trial court failed to
instruct the jury on the defense of intoxication. We disagree. As discussed previously, a jury instruction
regarding intoxication was not supported by the record. There was no testimony that defendant was
actually intoxicated to the point where he was incapable of forming the intent to commit an assault with
the intent to commit great bodily harm less than murder. A trial court need not give requested
instructions that are not sustained by the evidence. Piper, supra at 648. Moreover, an instruction on
intoxication would have been contrary to both defendant’s testimony and his theory of the case.
Next, defendant argues that the jury’s verdict was against the great weight of the evidence
because the complainant’s testimony was inconsistent. We disagree. The discrepancies in
complainant’s testimony go solely to the credibility of the complainant’s testimony and should be left for
the jury. Resolving credibility questions is the exclusive province of the jury even where the trial court
could have reached a different result. People v DeLisle, 202 Mich App 658, 662; 509 NW2d 885
(1993).
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It was undisputed that complainant was injured. Complainant testified that defendant caused
her injuries and that during the assault defendant told her that, although he loved her, he would have to
kill her. The trial court did not abuse its discretion in denying defendant’s motion for a new trial.
Defendant also argues that there was not sufficient evidence to support the jury’s verdict.
Viewing the evidence in the light most favorable to the prosecution, it is clear that sufficient evidence
was presented for a rational trier of fact to find the essential elements of assault with the intent to commit
great bodily harm less than murder. People v Lugo, 214 Mich App 699, 710; 542 NW2d 921 (1995).
Finally, defendant argues that the trial court erred when it increased his sentence pursuant to the
habitual offender information which was filed ten months after the arraignment. We agree.
The issue regarding whether the notice of filing an habitual offender charge was timely is a
question of law. This Court reviews questions of law de novo. People v Conner, 209 Mich App 419,
423; 531 NW2d 734 (1995).
A prosecutor who knows a defendant has prior convictions must proceed promptly, if at all,
against the person as an habitual offender. People v Ellis, 224 Mich App 752, 754; 569 NW2d 917
(1997). MCL 769.13(1); MSA 28.1085(1), establishes a bright-line test for determining whether the
supplemental information was filed promptly. People v Bollinger, 224 Mich App 491; 569 NW2d
646 (1997). MCL 769.13(1); MSA 28.1085(1) states:
(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of
the defendant as provided under section 10, 11, or 12 of this chapter, by filing a written
notice of his or her intent to do so within 21 days after the defendant's arraignment on
the information charging the underlying offense or, if arraignment is waived, within 21
days after the filing of the information charging the underlying offense.
In this case, defendant waived arraignment on November 17, 1995. The notice seeking sentence
enhancement was filed on September 16, 1996, with no explanation of the delay in filing. In its answer
in opposition to defendant’s motion for resentencing/correction of error, the only excuse for the
untimeliness of the notice was an unsupported statement that the prosecution needed “to locate and
verify the prior convictions where defendant utilized an alias.” The prosecution does not indicate when
it first became aware of the prior conviction.
This Court finds that the prosecution should have been aware of the prior conviction as early as
October 20, 1995. On that date, a bond recommendation was filed which indicated that defendant,
under the name of Bernard Darden, was on probation for receiving and concealing stolen property over
$100, in Recorders Court, docket no. 92-4244. Therefore, we find that the prosecutor failed to timely
file an habitual offender charge and should be precluded from pursuing the charge. Defendant should be
resentenced for the underlying conviction.
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Affirmed, but remanded for resentencing. We do not retain jurisdiction.
/s/ Roman S. Gribbs
/s/ Mark J. Cavanagh
/s/ Henry William Saad
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