PEOPLE OF MI V ROBERT FRANCIS GALLAGHER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 17, 2002
Plaintiff-Appellee,
v
No. 224746
Macomb Circuit Court
LC No. 99-001764-FC
ROBERT FRANCIS GALLAGHER,
Defendant-Appellant.
Before: Meter, P.J., and Saad and R.B. Burns*, JJ.
PER CURIAM.
The jury convicted defendant of assault with intent to murder, MCL 750.83, and was
sentenced to 135 to 360 months’ imprisonment. He appeals as of right, and we affirm.
While drinking at a bar during a business trip, defendant stabbed a bartender in the heart
with a pocketknife. Following the attack, other bar patrons beat defendant and held him until the
police arrived. Defendant’s primary defense at trial was that he was too intoxicated to form the
specific intent necessary to be convicted of assault with intent to murder.
I.
On appeal, defendant argues that he was denied his constitutional right to the effective
assistance of counsel because his lawyer failed to present expert testimony about the effects of
intoxication. Defendant has not shown that his trial counsel’s performance was so deficient that
it denied him the effective assistance of counsel. Strickland v Washington, 466 US 668; 104 S
Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
Indeed, because defendant has filed an in pro per supplemental brief in which he expressly
asserts that intoxication was not a legitimate defense in this case and that the presentation of that
defense at trial was based on his perjured testimony, defendant cannot demonstrate that he was
prejudiced by trial counsel’s failure to present expert testimony. To the contrary, this basis for
appeal is totally frivolous.
Defendant also says that he was denied the effective assistance of counsel because trial
counsel presented an apparent inconsistent defense. Although an evidentiary hearing was
conducted pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), there was
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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no testimony about the reasons for presenting the alternative defense and it is not apparent from
the record that counsel acted deficiently. People v Juarez, 158 Mich App 66, 73; 404 NW2d 222
(1987). The additional allegations of ineffective assistance of counsel raised in defendant’s
supplemental brief likewise are not supported by the record and were not addressed in the
Ginther hearing, thus precluding appellate review of those allegations.
II.
On the night of the incident, defendant had been drinking with another man, Steven
Spraguer, who some at the bar speculated was defendant’s friend. After defendant stabbed the
bartender, a bystander attacked Spraguer, thinking he was trying to assist defendant. Spraguer
then disappeared and some thought he might be seriously injured. After police officers arrived at
the bar, the officers went to defendant’s hotel room to see if Spraguer was there and to look for
defendant’s identification to obtain medical care for defendant. During their search of
defendant’s room, the police found a handgun which did not belong to defendant. At trial, the
court admitted into evidence a photograph of the handgun.
We reject defendant’s argument that the trial court erred by admitting into evidence a
photograph of a handgun. Defendant contends that the evidence of a gun was improper “bad
acts” evidence designed to portray him as a “bad man.” See MRE 404(b). Although defendant
challenged the legality of the search in a pretrial motion to suppress, he failed to object to the
admission of the photograph on any grounds at trial. Therefore, we review this issue for plain,
prejudicial error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). The gun simply
is irrelevant because it was owned by a roommate, and defendant was not prejudiced by the
evidence. Ownership or possession of a gun is not necessarily a “bad act.” More importantly,
and dispositively, it was established at trial that the gun belonged to defendant’s roommate and,
thus, the evidence did not reflect adversely upon defendant.
Defendant also maintains that the prosecutor committed misconduct during his closing
arguments. Defendant did not object to the allegedly improper remarks at trial and, therefore,
defendant failed to preserve this issue. Were we to review this issue, viewed in context, it is
apparent that the challenged remarks were proper commentary or the remarks were about matters
where any potential prejudice could have been cured by an appropriate instruction upon timely
objection. Therefore, this unpreserved issue does not warrant appellate relief. Carines, supra;
People v Hall, 396 Mich 650, 655; 242 NW2d 377 (1976).1
Finally, defendant argues the prosecutor abused his discretion by overcharging him. The
prosecutor has discretion to bring any charges supported by the evidence. People v Yeoman, 218
Mich App 406, 413-414; 554 NW2d 577 (1996). Defendant has failed to show that the charge of
assault with intent to commit murder was not supported by the evidence, nor has he
demonstrated clear and intentional discrimination based on an unjustifiable standard such as
1
Defendant also argues the cumulative effect of each of the errors discussed above deprived him
of a fair trial. Because there are no individual errors, there is no cumulative effect. People v
Sawyer, 215 Mich App 183, 197; 545 NW2d 6 (1996).
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race, religion, or some other arbitrary classification. In re Hawley, 238 Mich App 509, 512-513;
606 NW2d 50 (1999). We therefore reject defendant’s claim.
Affirmed.
/s/ Patrick M. Meter
/s/ Henry William Saad
/s/ Robert B. Burns
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