PEOPLE OF MI V PATRICK MICHAEL PETERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 12, 2000
Plaintiff-Appellee,
v
No. 215574
Oakland Circuit Court
LC No. 98-160729-FH
PATRICK MICHAEL PETERS,
Defendant-Appellant.
Before: Zahra, P.J., and Hood and McDonald, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction for felonious assault, MCL 750.82;
MSA 28.277. Defendant was sentenced to thirty days in jail and two years’ probation. We
affirm.
Defendant first argues that the jury’s verdict was against the great weight of the evidence.
To preserve this issue for appellate review, a defendant must move for a new trial before the trial
court. People v Bradshaw, 165 Mich App 562, 565; 419 NW2d 33 (1988). Because defendant
failed to move for a new trial below, this challenge was waived and we decline to address the
issue. See People v Winters, 225 Mich App 718, 729; 571 NW2d 764 (1997).
Defendant next argues that there was insufficient evidence for the jury to convict him of
felonious assault. We disagree. The prosecution must introduce evidence sufficient to justify a
trier of fact in concluding that the defendant is guilty beyond a reasonable doubt. People v
Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999). In reviewing the sufficiency of the
evidence, this Court must view the evidence in the light most favorable to the prosecution and
determine whether a rational trier of fact could find that the essential elements of the crime were
proved beyond a reasonable doubt. Id. at 723; People v Godbold, 230 Mich App 508, 522; 585
NW2d 13 (1998).
Felonious assault is established by evidence of: (1) a simple assault, (2) use of a weapon,
and (3) a present ability or apparent present ability to commit a battery. People v Grant, 211
Mich App 200, 202; 535 NW2d 581 (1995). A simple assault is an attempted battery or an
unlawful act that places the victim in reasonable apprehension of receiving an imminent battery.
Id. Here, the complainant testified that during an argument with defendant, defendant pointed a
gun at him from a distance of approximately arm’s length for a duration of a few seconds. As the
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complainant backed away, defendant said, “I’m going to get you.” The complainant testified
that, while defendant was pointing the gun at him, he was scared and in fear. After the police
arrived, they removed a gun from defendant’s home that was identified at trial by the
complainant as the gun that was pointed at him. Defendant admitted to owning the gun and
stated that he took the gun to the door at the time of the incident. Viewing the evidence in the
light most favorable to the prosecution, we conclude that the prosecution presented sufficient
evidence for the jury to find that each element of the felonious assault was proven beyond a
reasonable doubt.
Defendant further argues that he was denied the effective assistance of counsel. We
disagree. Because defendant did not move for a new trial or a Ginther1 hearing, we review this
issue on the existing record. People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989).
To establish ineffective assistance of counsel, defendant must prove that: (1) trial counsel’s
performance fell below an objective standard of reasonableness; and (2) but for counsel’s
unprofessional errors, the result of the proceeding would have been different. People v Pickens,
446 Mich 298, 303; 521 NW2d 797 (1994). Regarding the first element, competent counsel is
presumed as a matter of law. People v Wilson, 180 Mich App 12, 17; 446 NW2d 571 (1989). A
reviewing court starts with a strong presumption that any challenged conduct was sound trial
strategy. Appellate courts should refrain from substituting their collective judgment reached with
the benefit of hindsight, for that of trial counsel, whose judgment was exercised in the heat of
trial. As our Supreme Court warned, “it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful [or later deemed incorrect], to conclude that a particular act or
omission of counsel was unreasonable.” People v Reed, 449 Mich 375, 396; 535 NW2d 496
(1995), quoting Strickland v Washington, 446 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674
(1984).
In the present case, defendant claims that his trial counsel’s performance fell below an
objective standard of reasonableness in two ways: (1) by failing to interview a police officer
witness; and (2) by allegedly instructing defendant to lie on the witness stand. The failure to
interview witnesses does not alone establish inadequate preparation by defense counsel. People v
Caballero, 184 Mich App 636, 640, 642; 459 NW2d 80 (1990). Moreover, there is no indication
in the record that defense counsel failed to interview the witness in question. Likewise, nothing
in the existing record supports the conclusion that defendant was instructed by his counsel to lie
on the witness stand. We therefore conclude that defendant has failed to establish that defense
counsel’s performance was deficient.
Last, defendant argues that he was denied a fair trial due to prosecutorial misconduct.
The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial
trial. People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995). Claims of
prosecutorial misconduct are decided on a case by case basis. We examine the record and
evaluate the alleged improper remarks in context. Id.
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Defendant claims that the prosecutor intentionally inflamed the jury during crossexamination by asking defendant whether he previously pointed his gun at people in boats on a
lake. After an objection from defense counsel, the prosecutor explained that his question was
based on the fact that he was told by the complainant that defendant previously engaged in that
specific conduct.
Contrary to defendant’s assertion, the prosecutor was not arguing facts not in evidence,
but rather, was properly impeaching defendant’s direct testimony that he had never pointed a gun
at anyone. The prosecutor was within his right to challenge defendant’s direct testimony with
information that he had obtained from the complainant. See People v Figgures, 451 Mich 390,
399-400; 547 NW2d 673 (1996). Therefore, we find that the prosecutor’s question was not
improper.
Defendant also claims that the prosecutor violated the discovery order by failing to
provide the defense with the evidence introduced during the prosecutor’s rebuttal. In his case in
chief, defendant testified that complainant knocked frantically on defendant’s door and defendant
answered the door holding a gun at his side. Defendant testified that when complainant’s
conduct became confrontational, he lifted the gun to his chest, but never pointed the gun at
complainant. On rebuttal, an investigating police officer testified that, contrary to what
defendant testified to at trial, defendant told the officer that he did not move the gun from his
side during the incident. Defendant claims that the substance of this rebuttal testimony should
have been provided to the defense.
There are three situations where a defendant’s due process rights to discovery may be
implicated. People v Tracey, 221 Mich App 321, 324; 561 NW2d 133 (1997). First, where the
prosecution allows false testimony to stand uncorrected. Second, where the prosecution
suppresses material evidence favorable to the defendant after the defendant requested discovery.
Third, where the prosecution suppresses exculpatory evidence. Id. We conclude that none of
these circumstances are present in this case.
Pursuant to MCR 6.201(B), the prosecutor, upon request, must provide defendant: (1) any
exculpatory information or evidence known to the prosecutor; (2) any police reports concerning
the case; (3) any written or recorded statements by the defendant; (4) all search and seizure
information; and (5) any plea agreements or immunity agreements in connection with the case.
In this case, there is no indication that defendant made a request for MCR 6.201(B) discovery.
Further, the pretrial discovery order entered by the court indicated that no further discovery was
sought by defendant and discovery was complete.
Defendant further claims that regardless of the discovery request, the prosecution was
required to provide him any exculpatory evidence. See Brady v Maryland, 373 US 83, 87-88; 83
S Ct 1194; 10 L Ed 2d 215 (1963). It is questionable whether the statement defendant initially
made to the police officer was favorable to defendant. After telling the officer that he did not
move the gun from his side, defendant made a subsequent written statement to police that he
brought the gun up to his chest. While the initial statement by itself is exculpatory, when taken
in context with his subsequent written statement, the initial statement is not favorable, but instead
is contradictory. Because the prosecutor did not violate the discovery order or withhold
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exculpatory evidence in violation of Brady, we conclude that the prosecution did not engage in
misconduct that denied defendant a fair trial.
Affirmed.
/s/ Brian K. Zahra
/s/ Harold Hood
/s/ Gary R. McDonald
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