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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DAVID PARKER SMITH, Defendant-Appellant.

UNPUBLISHED September 23, 2010

No. 292701 Allegan Circuit Court LC No. 08-015850-FC

Before: MURPHY, P.J., and SAWYER and MURRAY, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions of unlawful imprisonment, MCL 750.349b, arson (preparation to burn property of $20,000 or more), MCL 750.77(1)(d)(i), felonious assault, MCL 750.82, and two counts of felony-firearm, MCL 750.227b.1 Defendant was sentenced to concurrent prison terms of 60 to 180 months for unlawful imprisonment, 60 to 120 months for arson, and 18 to 48 months for felonious assault. These were to be served consecutive to defendant's two-year concurrent prison sentences for the felony-firearm convictions. We affirm defendant's convictions, but remand for correction of the judgment of sentence as set forth in this opinion. The genesis of this case stretches back to April 7, 2008, when defendant's wife, Kendra Smith, informed defendant she wanted to end their 24-year marriage to explore a relationship with her supervisor at work. When Mrs. Smith returned home from work later the next day, defendant dragged her into their bedroom and threatened, "unlike your mom, this one's going to do you in" before firing a shotgun shell into the bedroom ceiling. Mrs. Smith explained this comment was a reference to when her father shot her mother in 1969. Still holding the gun, defendant then told his wife "the next one is for you and I, babe." Afraid for her life, Mrs. Smith managed to escape through the bedroom window before any other shots were fired. Defendant went outside, and still holding the gun, grabbed his wife by the neck. However, Mrs. Smith again managed to escape and called 911. Police arrived and, after a brief stand-off, subdued defendant with a taser and arrested him. Notably, after Mrs.

The jury acquitted defendant of assault with intent to murder, MCL 750.83, as well as the felony-firearm charge related to that offense.

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Smith's second escape but before defendant's arrest, defendant had poured gasoline throughout the house, left the stove on, twice shot Mrs. Smith's vehicle that was parked in the driveway, left suicide notes on the vehicle's windshield, removed clothing from the house, and called 911 to warn that unless the police left, there would be "suicide by cop." Despite his words and actions, defendant testified that his intent never was to harm his wife, but rather to force her to watch his suicide. On this note, defendant elaborated that he had planned to kill himself earlier in the day, but his plans were thwarted when his dog jumped into the bathtub with him where had planned to slit his wrists. Evidence was also presented that defendant suffered from depression and had consumed a large amount of alcohol and prescription medication before his wife arrived home on the day in question. A jury subsequently convicted defendant of the aforementioned offenses, and this appeal ensued. As his first assignment of error, defendant argues that trial counsel's eliciting inadmissible testimony that defendant had given Mrs. Smith black eyes on two prior occasions rendered his representation constitutionally ineffective. The United States and Michigan Constitutions guarantee a defendant the right to the effective assistance of counsel. US Const, Am VI; Const 1963, art 1,

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Michigan Law