PEOPLE OF MI V KIM ANTHONY TERRELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 1, 2000
Plaintiff-Appellee,
v
No. 219000
Calhoun Circuit Court
LC No. 98-003589-FC
KIM ANTHONY TERRELL,
Defendant-Appellant.
Before: Doctoroff, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant was charged with assault with intent to commit murder, MCL 750.83; MSA
28.278, malicious destruction of property over $100, MCL 750.377a; MSA 28.609(1), operating
a vehicle while impaired, MCL 257.625(3); MSA 9.2325(3), and operating a vehicle with
expired license plates, MCL 257.255(1); MSA 9.1955(1).1 After a trial by jury, defendant was
convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA
28.279, and operating a vehicle while impaired, MCL 257.625(3); MSA 9.2325(3). Defendant
was sentenced to five to ten years’ imprisonment for the assault conviction and ninety days’
incarceration for the operating a vehicle while impaired conviction. Defendant appeals as of
right. We affirm.
Defendant and Vicky Blanchard-Terrell, his estranged wife, got into an argument at a
local tavern. Blanchard-Terrell left the tavern, with defendant following, and the argument
continued in the parking lot. Blanchard-Terrell refused defendant’s offer for a ride, and began
walking home. Defendant drove his truck to Blanchard-Terrell’s residence and rear-ended a
vehicle parked in the driveway, pushing it through the garage.
Defendant then returned to where Blanchard-Terrell was walking and told her to get in
the truck. When Blanchard-Terrell refused, defendant turned the truck around, drove to where
Blanchard-Terrell was walking, hit her with the truck, and dragged her approximately ten feet
until he ran into a station wagon. A bystander pulled Blanchard-Terrell out from under the truck
1
Plaintiff dismissed the counts of malicious destruction of property and operating a vehicle with
expired license plates before trial.
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before defendant fled the scene. Defendant eventually ran the truck into a telephone pole and
brick utility building down the street. At trial, defendant did not dispute that the incident
occurred, arguing instead that it was a drunk driving accident.
The first issue presented for review is whether defendant’s trial counsel was ineffective
because he failed to request the jury instruction CJI2d 7.3a, and failed to present the defense of
diminished capacity. Allegations of ineffective assistance of counsel should be heard by the trial
court to establish a record of the facts pertaining to the allegations. People v Ginther, 390 Mich
436, 443; 212 NW2d 922 (1973). In cases such as this, where no Ginther hearing was held, our
review is limited to the existing record. People v Snider, 239 Mich App 393, 423; 608 NW2d
502 (2000).
To establish a claim of ineffective assistance of counsel justifying reversal, a defendant
must show that defense counsel’s representation fell below an objective standard of
reasonableness and the representation was so prejudicial that the defendant was denied a fair
trial. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). To demonstrate
prejudice, the defendant must show that, but for counsel’s error, there was a reasonable
probability that the result of the proceedings would have been different. People v Henry, 239
Mich App 140, 146; 607 NW2d 767 (1999). Defendant must also overcome the strong
presumption that the challenged action or omission was sound trial strategy. People v Rice (On
Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999). This Court will not second-guess
counsel’s trial tactics, nor will it assess counsel’s competence with benefit of hindsight. People v
Emerson (On Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994); People v Rockey, 237
Mich App 74, 76-77; 601 NW2d 887 (1999).
This Court agrees with defendant’s contention that his trial counsel’s representation was
not objectively reasonable because he did not request CJI2d 7.3a, the accident as defense to
specific intent crime jury instruction2. Defendant is entitled to have instructions given if they are
at all supported by the evidence. People v Mills, 450 Mich 61, 81; 537 NW2d 909 (1995).
Defendant testified that he did not intend to hit his wife with his truck and claimed he lost control
of his truck. In addition, defendant’s trial counsel emphasized repeatedly during closing
argument that this was a “drunk driving accident.” Yet, defendant’s trial counsel did not request
the jury instruction. We find that this omission was objectively unreasonable because it deprived
the jury of an instruction on defendant’s theory of the case.
Although defense counsel’s performance was deficient, defendant’s claim of ineffective
assistance of counsel fails because he cannot demonstrate that he was prejudiced by the lack of
2
CJI2d 7.3a states:
The defendant says that he is not guilty of [state crime] because he did not
intend to [state specific intent required]. The defendant says that his conduct was
accidental. If the defendant did not intend to [state specific intent required], he is
not guilty. The prosecutor must prove beyond a reasonable doubt that the
defendant intended to [state specific intent required].
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the accident instruction. Contrary to defendant’s theory of a drunk-driving accident, the
testimony presented at trial supported a finding that he intentionally struck his wife with his
truck. Defendant drove at a high rate of speed to Blanchard-Terrell’s home and rear-ended a
vehicle, pushing it through the garage. Blanchard-Terrell testified that she heard squealing of
tires and turned around to see defendant’s truck coming at her at 15 to 20 mph. BlanchardTerrell explained how the truck’s engine continued to whine as she was dragged underneath it. A
witness stated that defendant waited until Blanchard-Terrell walked in front of the truck, revved
up the engine, and drove forward hitting her as she turned around. Given the overwhelming
evidence of intentional conduct, defendant’s accident theory was not a viable defense. We
conclude that defendant did not demonstrate that it was probable that the outcome of the trial
would have been different had the jury instruction been given.
Defendant also contends that his trial counsel was ineffective because he failed to raise a
diminished capacity defense. We disagree. Where there is a claim that counsel was ineffective
for failing to raise a defense, the defendant must show that he made a good-faith effort to avail
himself of the right to present the defense and the defense of which he was deprived was
substantial. In re Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999). A defense is substantial if
it might have made a difference in the outcome of the trial. Id.
In order to assert diminished capacity, defendant must give pretrial notice of his intention
to raise the defense. People v Denton, 138 Mich App 568, 570; 360 NW2d 245 (1984). A claim
of diminished capacity does not require a showing that a defendant is legally insane, but that he
lacked the mental capacity to entertain the specific intent necessary for conviction of a particular
crime. Id. at 570-571. The circumstances of this case clearly demonstrate that defendant did not
lack the mental capacity to entertain the specific intent necessary to prove the crime charged.
Trial counsel is not required to argue a meritless defense. People v Rodriguez, 212 Mich App
351, 356; 538 NW2d 42 (1995). We conclude that defendant was not deprived of a substantial
defense and his allegation of ineffective assistance of counsel fails.
The second issue raised by defendant is whether the trial court should have sua sponte
given CJI2d 7.3a to the jury. A trial court is required to instruct the jury concerning the law
applicable to the case and to present the case fully and fairly to the jury in an understandable
manner. Henry, supra at 151. However, in accordance with MCL 768.29; MSA 28.1052:
The court shall instruct the jury as to the law applicable to the case and in
his charge make such comment on the evidence, the testimony and character of
any witnesses, as in his opinion the interest of justice may require. The failure of
the court to instruct on any point of law shall not be ground for setting aside the
verdict of the jury unless such instruction is requested by the accused. [Emphasis
added.]
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We find no error in this case because defendant did not request the instruction.
Affirmed.
/s/ Martin M. Doctoroff
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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