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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CHARLES PRIOR, Defendant-Appellant.

UNPUBLISHED January 16, 1998

No. 181645 Jackson Circuit Court LC No. 94-068714-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MICHAEL ANTHONY FOSTER, Defendant-Appellant. No. 184024 Jackson Circuit Court LC No. 94-068708-FC

Before: White, P.J., and Cavanagh and Reilly, JJ. PER CURIAM. Defendants were tried before a jury along with six other defendants for an attack on prison guards in the State Prison of Southern Michigan at Jackson. Defendants Prior and Foster were each convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and prisoner in possession of a weapon, MCL 800.283 & 800.285; MSA 28.1623 & 28.1625. Defendant Foster was also convicted of habitual offender, second offense, MCL 769.10; MSA 28.1082, while defendant Prior pleaded guilty to the same. Both defendants received sentences of ten to fifteen years' imprisonment on the assault convictions and sixty to ninety months' imprisonment on the weapons convictions. The sentences were ordered to run consecutively. Defendants filed separate appeals as of right, which were consolidated for our review. We affirm defendants' convictions and sentences but remand for correction of the judgments of sentence.

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Issues Raised by Both Defendants I Both defendants challenge the trial court's decision requiring that all eight defendants wear chains around their waists during the trial. We review the trial court's decision regarding shackling for an abuse of discretion under the totality of the circumstances. People v Dixon, 217 Mich App 400, 404-405; 552 NW2d 663 (1996). A defendant's freedom from shackling is an important part of the right to a fair trial and, as a result, shackling of a defendant during a trial is permitted only under extraordinary circumstances. Id. at 404. Ordinarily, shackling should only be permitted to prevent escape, to protect bystanders or officers of the court from injury, or to maintain a quiet and peaceable trial. People v Dunn, 446 Mich 409, 426; 521 NW2d 255 (1994). In the case at bar, all eight defendants were on trial together and all eight were convicted felons still serving prison sentences. In light of the charges in this case and defendants' past records of violent crimes, the trial court was justified in requiring defendants to remain shackled during the trial to prevent injury to court personnel and to maintain a peaceful and orderly trial. The court limited the use of chains so that defendants' hands were free to take notes. Accordingly, the trial court did not abuse its discretion. II Defendants argue that they were entitled to a mistrial when a prison guard communicated with the jury while the jury was visiting Jackson Prison. We disagree. Neither defendant was prejudiced by improper verbal communications between the guard and the jury. Any comments made by the guard were cumulative of evidence the jury had already heard regarding the operation of the prison cell doors. Accordingly, defendants were not prejudiced and a mistrial was not required. See People v Lugo, 214 Mich App 699, 704; 542 NW2d 921 (1995). Both defendants were present at the prison at the time of the jury view, although they were kept fifty feet away from the jurors during the view. They therefore were not denied their right to be present. See MCR 6.414(D). III Defendants argue that the trial court violated their right to a unanimous jury verdict by refusing to use a special verdict form. We reject defendants' argument because in both cases, neither party presented evidence that materially distinguished any of the alleged multiple acts from the others. People v Cooks, 446 Mich 503, 512; 521 NW2d 275 (1994). One continuous transaction occurred, rather than materially distinct acts, and both defendants defended on the basis that they were not present and were not involved in any part of the transaction. Further, defendants have not shown that the jurors could have been confused or in disagreement about the factual basis of defendants' guilt. Id. at 519. Under these circumstances, the trial court's general instructions to the jury about a unanimous verdict

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were sufficient to protect defendants' right to a unanimous jury verdict. Id. at 530; see United States v Bryan, 868 F2d 1032 (CA 9, 1989). IV Defendants argue that the trial court improperly allowed the jury to consider the charge of conspiracy to commit assault with intent to murder because there is no such crime. Defendants contend that conspiracy to commit assault with intent to murder would require an agreement to fail to commit a murder. We disagree. The elements of assault with intent to murder are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder. People v Barclay, 208 Mich App 670, 674; 528 NW2d 842 (1995). Thus, the crime of conspiracy to commit assault with intent to murder does not involve a plan to fail to commit murder. The conspiracy need only involve an actual intent to commit murder. Even though the victim is not actually killed, the intent to commit murder still exists and the conspiracy to commit the murder itself constitutes a completed offense. Foster relies on People v Strand, 213 Mich App 100, 102-103; 539 NW2d 739 (1995), and People v Hammond, 187 Mich App 105, 107-109; 466 NW2d 335 (1991). However, these cases are distinguishable. The crime of assault with intent to murder is a completed offense, unlike the attempt to commit a crime, as was at issue in Strand, supra. Furthermore, assault with intent to commit murder is a specific intent crime, People v Lipps, 167 Mich App 99, 105; 421 NW2d 586 (1988), unlike second-degree murder, the object of the conspiracy in Hammond, supra. Defendants were both properly charged with the offense of conspiracy to commit assault with intent to murder. Further, any error was harmless, as both defendants were acquitted of the conspiracy charge and convicted of a lesser included offense on a second, separate charge. See People v Swartz, 171 Mich App 364, 379; 429 NW2d 905 (1988). V Defendants next argue that the warrants for their arrests were improperly issued. We disagree. There was probable cause presented to the magistrate to support issuing the warrants. See People v Franklin, 117 Mich App 393, 396; 323 NW2d 716 (1982); MCL 764.1a; MSA 28.860(1); MCR 6.102(A). The investigating officer's sworn testimony at the probable cause hearing provided the magistrate with sufficient facts to issue the warrants. See People v Brown, 21 Mich App 579, 581; 175 NW2d 782 (1970). Neither of defendants' attorneys was ineffective for not moving to quash the warrants as there were no grounds to challenge the warrants. See People v Torres (On Remand), 222 Mich App 411, 425; 564 NW2d 149 (1997). Defendant Prior's Issues VI Defendant Prior first asserts that the trial court erred in not granting him a separate trial from his codefendants. However, defendant Prior failed to move on his own for a separate trial, and his -3

codefendants' motions for separate trials were inadequate to preserve this issue for review. See People v Loy-Rafuls, 198 Mich App 594, 600; 500 NW2d 480 (1993), rev'd in part on other grounds 442 Mich 915; 503 NW2d 453 (1993). Defendant Prior failed to provide the trial court with the necessary offer of proof on the issue regarding prejudice to his substantial rights by a joint trial. See People v Cadle (On Remand), 209 Mich App 467, 469; 531 NW2d 761 (1995). As a result, this issue is waived on appeal. See People v Hoffman, 205 Mich App 1, 19; 518 NW2d 817 (1994). Nevertheless, we note that the defenses in this case were not mutually exclusive or irreconcilable and there would have been no basis for granting the motion. See Cadle, supra. VII Defendant Prior argues that the trial court improperly allowed religious issues to be presented into evidence. We conclude that the trial court did not abuse its discretion by allowing in evidence related to defendants' religious practices in the prison. See People v McAlister, 203 Mich App 495, 505; 513 NW2d 431 (1994). Membership in a religious organization became an issue in this case because it was the prosecution's theory that prison religious organizations were behind the plan to attack the guards. The trial court did not allow testimony regarding specific religious beliefs or opinions. Therefore, MRE 610 and MCL 600.1436; MSA 27A.1436 were not violated. See People v Vasher, 449 Mich 494, 499-500; 537 NW2d 168 (1995). Accordingly, we find no error requiring reversal. VIII Defendant Prior asserts that he was denied due process, equal protection, and his right to an impartial jury when he was judged by a jury in which African-Americans were under-represented. A challenge to a jury array is timely if it is made before the jury has been impaneled and sworn. People v Hubbard (After Remand), 217 Mich App 459, 465; 552 NW2d 593 (1996). Defendant concedes that he made no objection below. However, because the issue was raised below by counsel for a co-defendant, we address it here. There was no evidence presented, either before or after trial, which would establish the third prong required for establishing a prima facie violation of the Sixth Amendment's fair cross-section guarantee: 1) that the group alleged to be excluded is a "distinctive" group in the community; 2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. [Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979).] Although defendant argues that "the vast majority of the county's largest city, where almost all of the county's black population lives, is systematically excluded from Circuit Court jury participation," defendant has presented no evidence to support that assertion. Because defendant failed to establish a

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prima facie violation of the fair cross-section guarantee, he is not entitled to relief. See Hubbard, supra at 473. IX Defendant Prior argues that it was a violation of double jeopardy principles for the prosecutor to charge him w ith both assault with intent to murder, MCL 750.83; MSA 28.278, and assault of a prison employee, MCL 750.197c; MSA 28.394(3). The trial court agreed with this argument and granted a motion to dismiss the charge of assault of a prison employee against all defendants. The jury did not deliberate on the charge of assault of a prison employee. Because the trial court agreed with defendant's argument and dismissed one of the charges, this issue is moot. See People v Greenberg, 176 Mich App 296, 302-303; 439 NW2d 336 (1989). X In his next issue, defendant Prior contends that the trial court erred in refusing to exclude or limit Wilbert Robinson's testimony. Defendant Prior maintains that Robinson falsely identified another defendant as one of the mock fighters in the recreational yard. We find no abuse of discretion. See McAlister, supra at 505. Questions of the credibility of the witnesses are for the trier of fact. People v Velasquez, 189 Mich App 14, 16; 472 NW2d 289 (1991). The admission of the evidence was not unfairly prejudicial to defendant Prior. See People v Fisher, 449 Mich 441, 451-452; 537 NW2d 577 (1995). XI Defendant Prior also maintains that the trial court erred in admitting the testimony of fellow inmate Derrick Fountain about threats the latter received from other inmates as a result of his cooperation with the prosecution. We find no abuse of discretion. See McAlister, supra. Fountain did not identify any inmates that threatened him, and the court instructed the jury that the threats made to Fountain were not made by any of the defendants. XII Defendant Prior further asserts that the trial court erred in denying a motion for a directed verdict on the charge of conspiracy. In reviewing a trial court's decision regarding a motion for a directed verdict, this Court views the evidence presented up to the time the motion was made in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime proved beyond a reasonable doubt. People v Peebles, 216 Mich App 661, 664; 550 NW2d 589 (1996). Viewing the evidence in a light most favorable to the prosecution, there was sufficient evidence presented for the jury to have found defendant Prior guilty of conspiracy to commit assault with intent to murder and assault with intent to murder even though the jury ultimately acquitted him of the conspiracy charge and convicted him of a lesser assault offense. There was evidence that defendant Prior stabbed one of the guards while wearing a mask over his face, and that two or three co-defendants had also -5

worn masks at the time of the assault, and had wielded homemade knives. Moreover, there was circumstantial evidence of defendant Prior's participation in the conspiracy to assault the guards. See People v Justice (After Remand), 454 Mich 334, 347; 562 NW2d 652 (1997). Furthermore, the prosecution was not required to prove that defendant Prior intended to assault all four guards, given that he was charged with only one count of assault with intent to murder. The evidence showed that the defendants intended to murder the guards on duty at the time the plan was implemented. See Barclay, supra. XIII Defendant Prior also contends that the trial court erred by failing to instruct the jury on all included offenses. We disagree. The trial court instructed the jury on felonious assault as a lesser included offense. There is nothing in the record to show that defendant Prior requested that the court instruct on the crime of simple assault. In the absence of a request for this instruction, the trial court was not required to instruct the jury on it as a lesser included offense. See People v Hendricks, 446 Mich 435, 440-442; 521 NW2d 546 (1994). XIV Next, defendant Prior argues that he was deprived of his rights when the trial court allowed in evidence about his previous conviction. We find no abuse of discretion. See McAlister, supra. Defendant Prior has not provided a citation to the record indicating where specific evidence of his previous conviction was admitted. All the defendants stipulated that they had prior criminal records, but the details of their convictions were not explained to the jury. The jury was obviously aware that defendant Prior had a criminal record because he was serving time at Jackson Prison when the crime at issue in this case was committed. Accordingly, defendant has not shown error requiring reversal. XV Defendant Prior argues that he was deprived of due process when the trial court considered an alleged lack of remorse on his part in determining his sentence. Defendant argues that his sentence may not be based, in whole or in part, on his refusal to admit guilt and that he may not be given a longer sentence on the basis that he maintains his innocence. We find no error requiring reversal. The court's reference to and consideration of defendant's lack of remorse was proper under People v Houston, 448 Mich 312, 317; 532 NW2d 508 (1995). The court's reference to defendant's continuing to assert his innocence was made in the context of discussing the likelihood, or lack thereof, of rehabilitation, see People v Wesley, 148 Mich App 758, 762; 384 NW2d 783 (1985), and did not indicate that the trial court improperly enhanced defendant's sentence for refusing to admit guilt. XVI Defendant Prior next claims that the trial court erred in considering at sentencing letters written by persons other than the victims. We disagree. Such information is properly considered by a court at -6

sentencing in addition to the rights granted victims to address the court on sentencing. See People v Kisielewicz, 156 Mich App 724, 728-729; 402 NW2d 497 (1986).

XVII In his next issue, defendant Prior argues that the trial court's recommendation that defendant Prior serve his sentences in administrative segregation or maximum security violated his constitutional right to be free from cruel and/or unusual punishment. See US Const, Am VIII; Const 1963, art 1,

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