Order Michigan Supreme Court
Lansing, Michigan
October 3, 2008 Clifford W. Taylor,
Chief Justice
136517 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman,
Plaintiff-Appellant, Justices
v SC: 136517
COA: 277140
Wayne CC: 06-009624-01
JERRELL ANTHONY FOX,
Defendant-Appellee.
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On order of the Court, the application for leave to appeal the May 13, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
WEAVER, J., would grant leave to appeal.
CORRIGAN, J. (dissenting).
I would grant leave to appeal. I question the Court of Appeals determination that
the trial court’s error in convicting defendant of the cognate lesser offense of felonious
assault, MCL 750.82, requires vacation of his convictions and sentences. The prosecutor
argues convincingly that defense counsel at trial acquiesced in the consideration of the
cognate offense, thereby extinguishing the error. See People v Carter, 462 Mich 206,
215 (2000).
Defendant was charged with eight counts of assault with intent to commit murder,
MCL 750.83. At defendant’s bench trial, the prosecutor conceded that the evidence did
not show an intent to commit murder and asked the court to consider the lesser offenses
of assault with intent to do great bodily harm, MCL 750.84, and felonious assault.
Defense counsel argued that the evidence did not show an intent to commit murder or to
do great bodily harm and then stated, “I don’t really want to concede on the lesser of
Felonious Assault. However, I think certainly there was no intent to do any great bodily
harm to anyone by Mr. Fox.” Defense counsel then concluded, “I think that this is not a
2
case of Assault With Intent to do—to Commit Murder or to do Great Bodily Harm. I
would ask the court to find the appropriate sentence—appropriate verdict.”
The trial court found defendant guilty of three counts of felonious assault. The
Court of Appeals vacated the convictions on the ground that felonious assault is a cognate
lesser offense of assault with intent to commit murder. See People v Cornell, 466 Mich
335, 357 (2002) (holding that MCL 768.32(1) does not permit consideration of cognate
lesser offenses), and People v Otterbridge, 477 Mich 875 (2006) (holding that felonious
assault is a cognate lesser offense of assault with intent to commit murder).
Nevertheless, I agree with the prosecutor that defense counsel’s comments reflect
his acquiescence in the consideration of felonious assault. Counsel’s assertion that he did
not “really want to concede on the lesser of Felonious Assault” was a declination to
concede defendant’s guilt of that offense. Counsel left open the possibility that the court
could consider a felonious assault conviction by stating, “I think that this is not a case of
Assault with Intent to do—to Commit Murder or to do Great Bodily Harm. I would ask
the court to find the appropriate sentence—appropriate verdict.” By acquiescing in the
consideration of felonious assault, defendant waived this issue, thereby extinguishing the
error. See Carter, supra (explaining that waiver is the intentional relinquishment or
abandonment of a known right, and that it extinguishes any error).
Even if the error was not waived, defendant failed to object to the consideration of
felonious assault. In light of this forfeiture, defendant must establish a plain error that
affected the outcome of the lower court proceedings. He must show that he is actually
innocent or that the error seriously affected the fairness, integrity, or public reputation of
the proceedings. People v Carines, 460 Mich 750, 763-764 (1999). Defendant has not
met these requirements. “Neither defendant nor the majority has offered any explanation
regarding how the defense at trial would have been any different if he had been formally
charged with felonious assault.” Otterbridge, supra at 876 (Corrigan, J., dissenting).
For these reasons, I would grant leave to appeal to consider more fully the
prosecutor’s arguments in this case.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 3, 2008 _________________________________________
l0930 Clerk