People v. Strand , 213 Mich. App. 100 ( 1995 )

213 Mich. App. 100 (1995) 539 N.W.2d 739

PEOPLE
v.
STRAND

Docket No. 164788.

Michigan Court of Appeals.

Submitted May 16, 1995, at Marquette. Decided August 29, 1995, at 9:10 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jay S. Finch, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.

State Appellate Defender (by Ralph C. Simpson), for the defendant on appeal.

Before: GRIFFIN, P.J., and SMOLENSKI and R.L. ZIOLKOWSKI,^[*] JJ.

GRIFFIN, P.J.

Following a jury trial, defendant was convicted of one count of "assault with intent to commit attempted kidnapping," two counts of felonious assault, MCL 750.82; MSA 28.277, and one count of attempted kidnapping, MCL 750.349; MSA 28.581. He later pleaded guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant was sentenced to concurrent prison terms of eight to fifteen years for the conviction of assault with intent to commit attempted kidnapping, 2 1/2 to 4 years for the felonious assault convictions, and three to five years for the attempted kidnapping conviction. Defendant now appeals as of right. We affirm in part and reverse in part.

Defendant first argues on appeal that his conviction of assault with intent to commit attempted kidnapping should be vacated because such a crime does not exist as a matter of law. We agree. The elements of the crime of assault with intent to commit a felony are set forth in MCL 750.87; MSA 28.282. The statute provides as follows:

Any person who shall assault another, with intent to commit any burglary, or any other felony, the punishment of which assault is not otherwise in this act prescribed, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years, or by fine of not more than 5,000 dollars.

Although the scope of the statute is broad, it does not include all felonies because the statute requires a specific intent. People v Lipski, 328 Mich 194, 197; 43 NW2d 325 (1950); People v Lilley, 43 Mich. 521, 529; 5 N.W. 982 (1880).

Because the essence of the crime of assault with intent to commit a felony is the specific intent to commit the predicate felony, we find it logically inconsistent that an attempt would satisfy the statute. See People v Hammond, 187 Mich. App. 105, 108; 466 NW2d 335 (1991). Although the crime of attempt requires the specific intent to commit a crime, it is essentially a crime that, through various circumstances, remains uncompleted. One does not commit an assault intending to attempt to commit a crime. Because of this logical inconsistency, we conclude as a matter of law that there is no crime of assault with intent to commit attempted kidnapping. Accordingly, we reverse defendant's conviction and sentence for assault with intent to commit attempted kidnapping. Id.

Defendant further argues that he was denied a fair trial because the prosecutor improperly elicited testimony by the investigating officers that they received an anonymous tip that defendant was involved in the crime. However, any error in the admission of this testimony was harmless in light of other, overwhelming evidence of defendant's guilt. MCR 2.613(A); People v Hubbard, 209 Mich. App. 234, 243; 530 NW2d 130 (1995).

Next, defendant argues that he was denied a fair trial when two jurors testified at a posttrial hearing that they had learned during the course of the trial that defendant had a prior sexual assault conviction. It is well settled that misconduct on the part of a juror will not automatically warrant a new trial. People v Nick, 360 Mich. 219, 230; 103 NW2d 435 (1960); People v Sowders, 164 Mich. App. 36, 47; 417 NW2d 78 (1987). A new trial will not be granted for misconduct unless it affects the impartiality of the jury. People v Rohrer, 174 Mich. App. 732, 740; 436 NW2d 743 (1989).

Although both jurors admitted learning that defendant had a prior sexual assault conviction, they testified that they did not disclose this information to the other jurors. Rather, the jurors indicated that because they questioned the truth of this information, it did not affect the impartiality of their verdicts. Under these circumstances, we conclude that the trial court did not abuse its discretion in denying defendant's motion for a new trial.

Finally, defendant argues that he was denied a fair trial by the prosecutor's improper use of a photographic lineup when defendant was readily available for a corporeal lineup. We disagree. Identification by photograph should not be used "when a suspect is in custody or when he can be compelled by the state to appear at a corporeal lineup." People v Kurylczyk, 443 Mich. 289, 298, n 8; 505 NW2d 528 (1993), cert den ___ US ___; 114 S. Ct. 725; 126 L. Ed. 2d 689 (1994), citing People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974).

In this case, defendant was not in custody at the time of the photographic lineup. Similarly, because defendant was also not under arrest, he could not be compelled to participate in a corporeal lineup. In any event, any error in the admission of this evidence was harmless beyond a reasonable doubt in light of other, overwhelming evidence of defendant's guilt. Kurylczyk, supra at 315. Accordingly, we conclude that defendant was not denied a fair trial by the admission of the identification testimony.

Defendant's conviction of assault with intent to commit attempted kidnapping is reversed and vacated. Defendant's remaining convictions and sentences are affirmed.

SMOLENSKI, J., concurred.

R.L. ZIOLKOWSKI, J. (concurring in part and dissenting in part).

I agree with the majority that any error in the admission of the photographic show-up evidence was harmless and did not deny defendant a fair trial by its admission.

However, I am not persuaded that defendant was not readily available to participate in a corporeal lineup. People v Derbeck, 202 Mich. App. 443, 445; 509 NW2d 534 (1993). Therefore, I must dissent.

Defendant had agreed to and did participate in several corporeal lineups where he was tentatively identified. The prosecutor, apparently dissatisfied with the quality of the identification, conducted a photographic show-up, without counsel, while defendant was present at the police station and without advising defendant.

Though defendant was not in custody as defined by case law, he nonetheless had agreed to and did participate in several corporeal lineups. Therefore, defendant should be characterized as being readily available for a corporeal lineup and receive its safeguards.

To establish a precedent that the police may take and use photographs for identification purposes where a suspect, albeit not in custody, consents to participate in a corporeal lineup and is present seems inappropriate in light of this Court's ruling in People v Cotton, 38 Mich. App. 763; 197 NW2d 90 (1972). Notwithstanding that corporeal identification is superior to a photographic identification, Simmons v United States, 390 U.S. 377, 383; 88 S. Ct. 967; 19 L. Ed. 2d 1247 (1968), the majority would permit the police to exercise unfettered discretion over which type of identification to employ, thus affording an opportunity to circumvent the protection of a corporeal lineup.

Nevertheless, I believe the error in the admission of this evidence was harmless beyond a reasonable doubt in light of the other, overwhelming evidence of defendant's guilt. People v Kurylczyk, 443 Mich. 289; 505 NW2d 528 (1993), cert den ___ US ___; 114 S. Ct. 725; 126 L. Ed. 2d 689 (1994).

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.