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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DOUGLAS HOLIFIELD, Defendant-Appellant.

UNPUBLISHED July 23, 1996

No. 177958 LC No. 93-010497

Before: Reilly, P.J., and Cavanagh and R.C. Anderson,* JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions of first-degree felony murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to the mandatory term of life imprisonment for the felony murder conviction, fifteen to twenty-five years' imprisonment for the assault with intent to commit murder conviction, and two years' imprisonment for the felony-firearm conviction. We affirm. I Defendant argues that the trial court abused its discretion by failing to grant an adjournment so that defendant could obtain new counsel and adequately prepare for trial. This Court reviews the denial of a request for a continuance for an abuse of discretion. Factors to be considered include whether the defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting that right, (3) was negligent, and (4) had requested previous adjournments. A defendant must also demonstrate prejudice. People v Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992). After reviewing the record, we conclude that the trial court did not abuse its discretion in denying defendant's request for a continuance so that new counsel could be obtained. As the trial court noted, defense counsel filed motions to suppress the identification testimony and defendant's statement * Circuit judge, sitting on the Court of Appeals by assignment. -1

to the police; filed a motion for the appointment of a private investigator at public expense; had written memoranda in support of his arguments, and actively participated as an advocate at the Wade1 and Walker2 hearing. In addition, counsel had corresponded with defendant and provided him with transcripts. Counsel also spoke a number of times with defendant's family for the purpose of locating witnesses. Moreover, defendant has not asserted any prejudice resulting from the trial court's denial of the requested continuance. Under these circumstances, defendant is not entitled to relief. II Defendant raises a number of claims of instructional error. However, defendant did not object or request that the instructions at issue be given at trial. Therefore, our review is limited to the issue whether relief is necessary to avoid manifest injustice. People v Haywood, 209 Mich App 217, 230; 530 NW2d 497 (1995). Manifest injustice occurs where the erroneous or omitted instruction pertains to a basic and controlling issue in the case. People v Johnson, 187 Mich App 621, 628; 468 NW2d 307 (1991). As a general rule, this Court is hesitant to reverse a lower court because of an error in jury instructions where no objection was raised at trial. People v Hess, 214 Mich App 33; 543 NW2d 332 (1995). A Defendant argues that the trial court erred in instructing the jury that the prior inconsistent statements of the witness Cynthia Zuccarini were not substantive evidence and could be used only to impeach the witness. We disagree. In general, inconsistent statements of a witness are admissible only for impeachment purposes and cannot be used as substantive evidence of the truth of the matter asserted. When a prior inconsistent statement has been admitted in order to impeach a witness, the trial court should instruct the jury that the prior statement, not made under oath during the trial, cannot be used as substantive evidence of guilt. People v Kohler, 113 Mich App 594, 599; 318 NW2d 481 (1982); see also CJI2d 4.5. Defendant also claims that the trial court instructed the jury that they could not consider inconsistent statements made by Zuccarini at the preliminary examination regarding her identification of defendant as substantive evidence, and that since these statements were made under oath and were subject to cross-examination, they were not hearsay pursuant to MRE 801(d)(1)(A). However, the trial court instructed the jury that it could "consider any time that the witness failed to identify the defendant or made an identification or gave a description that did not agree with the identification of the defendant during the trial." Accordingly, we find no manifest injustice. B Defendant next asserts that the trial court erred in failing to sua sponte instruct on unintentional shooting because the evidence supported the instruction. We find no merit to this contention. The proffered defense at trial was not accidental shooting, but rather that defendant was home with his fianc

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