
    PEOPLE v JOHNSON
    Docket No. 72232.
    Submitted November 15, 1984, at Detroit. —
    Decided April 1, 1985.
    Defendant, Gary Johnson, was charged in the Recorder’s Court of Detroit with felonious assault and possession of a firearm during the commission or attempted commission of a felony. A jury found defendant not guilty of felonious assault and guilty of the felony-firearm charge. The defendant then moved to have the guilty verdict set aside on the ground that the verdicts were inconsistent. The trial court, Donald L. Hobson, J., granted the motion to set aside the guilty verdict as inconsistent and discharged the defendant. The people appealed and the Court of Appeals affirmed in an unpublished memorandum opinion (Docket No. 47489, decided May 13, 1980). The people appealed to the Michigan Supreme Court, which reversed the Court of Appeals, reinstated the felony-firearm conviction and remanded to the trial court for sentencing. Defendant’s case had been consolidated with two others for argument on appeal to the Supreme Court. People v Lewis, 415 Mich 443 (1982). Defendant appeals as of right from his conviction on the felony-firearm charge. Held:
    
    1. There is no merit to defendant’s argument that application of Lewis would constitute a denial of due process or violate the prohibition against ex post facto laws.
    2. The Supreme Court did address the application of its decision in Lewis to the defendant. Although not explicitly addressed in terms of retroactivity, it is clear that the Supreme Court intended its decision in Lewis to apply to the case at bar. _The Supreme Court’s treatment of defendant is consistent with the marked preference it has shown for applying its overruling decisions to the cases before it unless explicitly stated otherwise.
    
      References for Points in Headnotes
    [1, 3] 20 Am Jur 2d, Courts §§ 233, 236.
    Prospective or retroactive operation of overruling decision. 10 ALR3d 1371.
    [2] 20 Am Jur 2d, Courts § 201.
    [3] 6 Am Jur 2d, Assault and Battery § 20.
    Intent to do physical harm as essential element of crime of assault with deadly or dangerous weapon. 92 ALR2d 635.
    [4] 5 Am Jur 2d, Appeal and Error § 624 et seq.
    
    
      3. Retroactive application should not be given to the Michigan Supreme Court opinion in People v Joeseype Johnson, 407 Mich 196 (1979), which compels reversal where a trial court fails to instruct the jury that felonious assault is a specific intent crime.
    4. The alleged improprieties in the prosecutor’s cross-examination of the defendant or in his closing argument did not deny the defendant his right to a fair trial.
    Affirmed.
    1. Constitutional Law — Retroactivity.
    The retroactive application of an overruling decision is not prohibited by the constitution; such retroactivity does not constitute a denial of due process or a violation of the prohibition against ex post facto laws.
    2. Courts — Court of Appeals — Law of the Case.
    The Court of Appeals is powerless to alter a Supreme Court holding.
    3. Assault and Battery — Felonious Assault — Specific Intent.
    The rule announced in People v Joeseype Johnson, 407 Mich 196 (1979), that felonious assault is a specific intent crime, has prospective application only.
    4. Criminal Law — Prosecutorial Comment — Preserving Question.
    Appellate review of alleged improprieties in a prosecutor’s cross-examination of the defendant and in his closing argument is foreclosed in the absence of objection unless failure to consider the issues would result in a miscarriage of justice.
    
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O’Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Timothy A. Baughman, Principal Attorney, Research, Training and Appeals, for the people.
    State Appellate Defender (by Kim Robert Fawcett), for defendant on appeal.
    
      Before: Hood, P.J., and Bronson and R. L. Tahvonen, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

On October 23, 1979, after a jury trial in the Detroit Recorder’s Court, defendant was found not guilty of felonious assault, MCL 750.82; MSA 28.277, and guilty of possession of a firearm at the time of the commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant moved to have the guilty verdict set aside on the ground that the verdicts were inconsistent. The trial judge granted the motion to set aside the guilty verdict as inconsistent and discharged the defendant. The people appealed and this Court affirmed in an unpublished memorandum opinion (Docket No. 47489, decided May 13, 1980). The people appealed and the Supreme Court reversed the Court of Appeals, reinstated the felony-firearm conviction and remanded for sentencing in an opinion in which defendant’s case was consolidated with two others for argument on appeal. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). Defendant now appeals as of right from his conviction.

The issues raised on appeal do not require a comprehensive statement of the facts. Briefly, defendant’s car struck complainant’s car. Complainant and defendant both got out of their cars and exchanged driver’s licenses and car registrations. Defendant then allegedly pulled out a gun and struck it in complainant’s stomach. Complainant pushed defendant away, jumped into his car and drove away. Upon seeing police officers who had stopped defendant, complainant stopped his car and informed the police about his encounter with defendant only moments before.

Defendant’s first and second arguments on appeal concern the scope and effect of our Supreme Court’s opinion reversing this Court, reinstating defendant’s conviction and remanding for sentencing. Defendant first argues that although the Supreme Court reinstated defendant’s conviction and remanded for sentencing, id., pp 448, 456, it did not address the issue of retroactivity. Defendant therefore requests that we not apply the Supreme Court’s decision in this case retroactively, and that we reverse defendant’s conviction. In addition, defendant argues that to retroactively apply the Supreme Court’s decision to the instant case would be a denial of due process and a violation of the ex post facto clause of the United States Constitution.

Defendant’s arguments center on the Supreme Court’s opinion in People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), where the Court allowed an inconsistent jury verdict finding defendant guilty of assault with a dangerous weapon and not guilty of felony-firearm. In People v Blondell Smith, 108 Mich App 466; 310 NW2d 425 (1981), lv den 417 Mich 982 (1983), we held the Vaughn would not be given retroactive effect in cases tried before the opinion was released. Defendant in the instant case was tried before the Supreme Court’s opinion in Vaughn, and on appeal the Supreme Court extended Vaughn to allow defendant’s inconsistent jury verdict. In a recent case, we applied Lewis, supra, retroactively to cases tried after Vaughn was released, but before the decisional date in Lewis. People v Eady, 131 Mich App 627; 345 NW2d 653 (1983). In holding that Lewis applied retroactively we held:

"People v Lewis, supra, did not announce a new rule of law or abrogate existing standards. Rather, the Supreme Court applied in a felony-firearm context the rule of People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), which permits inconsistent verdicts. While it is true that Vaughn, supra, abrogated the old rule barring inconsistent verdicts, the Supreme Court’s decision in that case was rendered on April 28, 1980, long before this trial. In short, Vaughn is the case which established the new rule and Lewis is not.” 131 Mich App 629-630.

Defendant thus argues that given this Court’s decision in Eady and Blondell Smith, we should not apply Lewis to defendant’s case since his trial preceded the Supreme Court’s opinion in Vaughn. Even though the Supreme Court reinstated defendant’s conviction and remanded for sentencing in the instant case, defendant argues that the Supreme Court did not address the retroactivity question now raised. We disagree.

Although there are a great variety of ways in which a new rule of law may be given effect, application normally falls within one of three main categories. A new rule can be (1) made applicable to all cases in which a cause of action has accrued and which are still lawfully pending and all future cases, (2) made applicable to the case at bar and all future cases, or (3) made to exclude the case at bar, but made applicable to all cases filed hereafter or after an arbitrary control date specified in the opinion. Placek v Sterling Heights, 405 Mich 638, 662; 275 NW2d 511 (1979); Myers v Genesee County Auditor, 375 Mich 1, 11; 133 NW2d 190 (1965).

It is well established that the retroactive application of an overruling decision is not prohibited by the constitution and, specifically, that such retroactivity does not constitute a denial of due process or a violation of the prohibition against ex post facto laws. Anno: United States Supreme Court’s Views as to Retroactive Effect of Its Own Decisions Announcing New Rules, 22 L Ed 2d 821, 825; Anno: Retroactive or Merely Prospective Operation of New Rule Adopted by Court in Overruling Precedent-Federal Cases, 14 L Ed 2d 992, 1002-1003; Anno: Prospective or Retroactive Operation of Overruling Decision, 10 ALR3d 1371, 1391-1393, and cases cited therein. We therefore find no merit to defendant’s argument that application of Lewis, supra, would constitute a denial of due process or violate the prohibition against ex post facto laws.

Turning to defendant’s retroactivity argument, we believe that the Supreme Court did address the application of its decision in Lewis, supra, to defendant. The Supreme Court specifically stated that defendant Johnson’s conviction was reinstated and his case remanded for sentencing. Id., pp 448, 456. Although not explicitly addressed in terms of retroactivity, it is clear that the Court intended its decision to apply to the case at bar. The Supreme Court’s treatment of defendant is consistent with the marked preference it has shown for applying its overruling decisions to the cases before it unless explicitly stated otherwise. Compare Sherbutte v Marine City, 374 Mich 48; 130 NW2d 920 (1964), with People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982).

Further, we believe that defendant’s reliance on People v Blondell Smith, supra, is misplaced given the Supreme Court’s retroactive treatment of its holding in People v Vaughn, supra. Although we held in Blondell Smith that Vaughn would not be given retroactive application, the Supreme Court applied its decision to defendant Vaughn by reinstating his conviction. In People v Horton, 99 Mich App 40; 297 NW2d 857 (1980), we reversed defendant’s conviction in part because of inconsistent jury verdicts. Horton was decided prior to the Supreme Court’s opinion in Vaughn. The Supreme Court, however, vacated our judgment and remanded the case to us for reconsideration in light of its opinion in Vaughn. People v Horton, 410 Mich 865; 301 NW2d 775 (1980). On remand, we held that Vaughn was applicable, and reinstated defendant’s conviction. People v Horton (On Remand), 107 Mich App 739; 310 NW2d 34 (1981); lv den 418 Mich 942 (1984). Our decision on remand, however, followed our decision in People v Blondell Smith, and was necessitated by the Supreme Court’s order. It appears from the Supreme Court’s treatment of Vaughn that the validity of our holding in People v Blondell Smith is questionable. In any event, the Supreme Court’s application of its holding in Vaughn to the defendant at bar and its order in Horton reinforces our view that the Court intended its decision to apply to the instant defendant. As the Court gave partial retroactive effect to its decision in the instant case, this Court is powerless to alter it. Schwartz v Flint (After Remand), 120 Mich App 449; 329 NW2d 26 (1982).

Defendant next argues that the trial court failed to instruct the jury that felonious assault is a specific intent crime, and that the decision of our Supreme Court in People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979), compels us to reverse. Joeseype Johnson, however, was decided after defendant’s conviction in this case. Therefore, the issue is whether we must give that decision retroactive application in this case.

We recognize that there is a split among the panels of this Court which have addressed this retroactivity question. Compare People v Owens, 108 Mich App 600; 310 NW2d 819 (1981); People v Braddock, 106 Mich App 11; 307 NW2d 341 (1980); People v Slager, 105 Mich App 593; 307 NW2d 376 (1981) (T. M. Burns, P.J., dissenting); People v Vinson, 105 Mich App 583; 307 NW2d 100 (1981) (T. M. Burns, J., dissenting); with People v Wilson, 113 Mich App 591; 318 NW2d 479 (1981); People v McMaster, 105 Mich App 162; 306 NW2d 434 (1981) (MacKenzie, J., dissenting); People v Rae, 103 Mich App 293; 302 NW2d 845 (1980); People v Szymanski, 102 Mich App 745; 302 NW2d 316 (1981); People v Ideis, 101 Mich App 179; 300 NW2d 489 (1980) (Bashara, P.J., dissenting). See, also, People v Yarborough, 131 Mich App 579; 345 NW2d 650 (1983); People v Norwood, 123 Mich App 287; 333 NW2d 255 (1983) (M. J. Kelly, P.J., dissenting); People v Rivera, 120 Mich App 50; 327 NW2d 386 (1982); People v Korona, 119 Mich App 369; 326 NW2d 143 (1982); People v Davis, 126 Mich App 66; 337 NW2d 315 (1983).

A conflict of this magnitude must be resolved definitively by the Supreme Court. We, however, agree with those panels which have held that Joeseype Johnson, supra, should not be given retroactive application. See, e.g., Slager, supra.

Defendant further argues that the prosecutor’s cross-examination of defendant and closing argument denied defendant a fair trial. We note that defendant failed to object either during the cross-examination or closing argument, and, therefore, appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977); People v Stoudemire, 65 Mich App 664; 238 NW2d 365 (1975). We have thoroughly reviewed the record in this case, and do not believe that the prosecutor’s cross-examination or closing argument denied defendant his right to a fair trial.

Affirmed.  