*1 v LOTTER PEOPLE 1980, 7, at Detroit.—Decided Submitted October 44833. Docket No. 3, applied for. February 1981. Leave to great to do with intent convicted of assault Richard L. Lotter was prison, bodily and was sentenced less than murder harm Court, Baguley, appeals by J. He Lapeer Norman A. Circuit alleging granted, denied the effective assis- that he was leave the trial tactics of a fair trial due to counsel and thus tance of prosecution’s failure to endorse and and that the during gestae resulted in produce res witnesses certain him, new trial. Held: prejudice entitled him to a that defendant was af- determination The trial court’s 1. clearly was not erroneous. assistance of counsel forded effective failure to raise an that defense counsel’s record indicates question of trial defense was a question the motion testimony of the witnesses 2. The testimony have been hearing at trial would indicated that their to defendant’s at worst detrimental at best cumulative and case. Affirmed. Riley, P.J., would hold that defendant dissented. She part incompetence
made out deprived thereby of a counsel and that possible would reverse. meritorious defense. She
Opinion of the Court Right — — Adequate Constitutional Counsel 1. Criminal Law Law. guarantee an accused does not to counsel The constitutional in Headnotes References for Points (Rev), 8, [1-6, Law 842. 2d Constitutional § 16A Am Jur 9] 2d, 315. Criminal Law §§ 21 Am Jur adequacy as to in state courts status of rules and standards Modern 4th representation 2 ALR criminal client. counsel’s of defense 27. affecting [1-6, Incompetency accused as counsel chosen 9] validity 1390. of conviction. 74 ALR2d 2d, [3, 161. 58 Am Jur New Trial § 7] big person mistake; that his will not make a guarantees only person enjoy Constitution that the will accused equipped attorney adequately training in the law to undertake the case who will dili- *2 gently, conscientiously, honestly represent and the accused person. Right Right — — Adequate 2. Fair Criminal law to a Trial to — Counsel Constitutional Law. trial, and, right A defendant has the to a fair even where the requirements of assistance counsel satisfies the constitutional counsel, adequacy a for of defendant denied this where his counsel a serious makes mistake. — — — 3. Law New Trial Criminal Courts Ineffective Assis- of Counsel. tance grant should A court not a defendant a new where defense has counsel made a serious mistake unless it finds but for reasonably likely the mistake the defendant would have had a acquittal. of chance — — 4. Law of Criminal Assistance Counsel Ineffective Assis- Appeal. — — of Counsel tance Constitutional Law constitutionally of not Assistance counsel will be held to be defective, error, even where defense counsel has made serious appears hindsight where the action that erroneous from appear for taken reasons that would to a sound attorney. Appeal — — — 5. Criminal Law Trial Tactics Assistance of Counsel. opinion A difference of toas tactics not amount does to Appeals ineffective assistance of and the Court of is judgment reluctant to substitute its for that of a trial counsel in matters of trial — 6. Criminal Law Assistance Counsel. perform
Defense counsel must least as well as ordinary training and skill the criminal law. — — 7. Law Criminal Mistakes Counsel Trial. New A mistake made defense counsel which if committed would likely acquittal requires have resulted in a defendant’s a new trial. op Opinion the Court Appeal Incompetent — — — Failure 8. Criminal Law Counsel Depend. Adequately incompetence of counsel defense is A presents sufficient evidence where established investigate trial counsel failed to to demonstrate prepare and that the defendant was a substantial defense deprived defense. — — Failure Law Ineffective Assistance Counsel 9. Criminal Adequately Defend. during by a skill a trial The exercise of utmost neglected enough necessary is not if counsel has investigation preparation of a case or failed to interview arrange for their attendance. essential witnesses or General, Robert A. Kelley, Attorney Frank J. Jr., Morgan, H. Holowka, Derengoski, Solicitor Earl General, O. Nick Chief Prosecuting Attorney, Prosecutor, the people. Assistant *3 Geddis, for defendant Fitzgerald, Dumon & on appeal. Riley, P.J., D. and N. J. Kaufman
Before: C. Mackenzie, JJ. Kaufman, charged with J. J. Defendant was
N. murder, MCL assault with intent commit 750.83; 28.278, convicted a jury MSA was of assault with Lapeer County Circuit Court murder, great less than bodily intent to do harm 11, 1977, 750.84; MCL MSA 28.279. October On years six to ten defendant was sentenced The trial court denied defendant’s imprisonment. granted motion for a trial. This Court new appeal. application delayed set forth ably The facts of this case are here. opinion and need not be restated dissenting is that Defendant’s contention primary of counsel the effective assistance he denied People Opinion op the Court attorney a fair and thus the failure of his pursue temporary a defense of upon intoxication. People Degraffenreid,
In
v
19 Mich
(1969),
adopted
712;
"The guaran- constitutional to counsel does not person tee an accused will not make a big guarantees mistake. The only constitution person accused will enjoy equipped adequately by his training in the law to undertake the case and who will diligently, conscien- tiously honestly represent person.” the accused Judge Riley’s
As
notes,
is,
dissent
it
neverthe-
less, true that even where the assistance of coun-
requirements
sel satisfies the constitutional
right
defendant still has the
to a fair trial and
adequate
be denied this
if an
mistake,
makes a serious
Garcia,
given
266;
if hindsight 'action that erroneous from appear was taken for reasons that would sound to attorney, the assistance of *4 constitutionally counsel has not been defective”’. Id.
On the facts case, of the instant it does not appear that the Garcia, standards enunciated in Although hindsight have been violated. indicates pursuit insanity might possibly that of the defense App 103 Mich 386 390 op Opinion the Court the not test advantageous, this is have been of Id. ineffective assistance counsel. filed defendant’s counsel judice,
In the case sub
defense and
insanity
intent
to assert an
notice of
center evaluation of defen-
arranged for a forensic
examining
of the
physi-
It was the conclusion
dant.
to stand trial
was competent
cian that defendant
the
of the commission
sane at
time
legally
and was
admitted
that
the
himself
of
offense.
him the
explored
possibility
trial counsel had
alcoholism defense
insanity
of an
felt
defense would
trial counsel had
that such
that
It thus seems
to defendant’s
case.
be detrimental
relating
of
law
was aware
the
that counsel
fully investigated
and evalu-
defense and
this
before
raising
of
defense
possibility
ated
not
tactical
concluding
it was
the best
choice.
pursue a
counsel chose to
Defendant’s
specific
of
intent
or accident
on lack
premised
on the briefs and
insanity.
than of
Based
rather
case,
be
it
cannot
said
clearly
records
this
this decision rendered
assistance
constitutionally
ineffective.
counsel
Court
is reluctant
It is well established
this
of trial
its
for that
judgment
to substitute
v
People
Crosby,
matters of trial
(1969), People v
App 135;
Mich
ence ineffective assistance of counsel. as * * * We do not wish have of his guess to second for we none existing time of knowledge of of facts at the state subject Every to some trial. could *5 People v Lotter 391 Riley, Dissent D. P.J. C. disagreement as to tactics or of defense conduct with hindsight. the benefit of We find that defendant did receive effective trial fair at and a trial.” (Footnotes original.) omitted; emphasis in the review of record the instant case Our trial to convinces us that counsel’s failure rely insanity defendant’s defense was a question of cannot, therefore, trial We that the say court’s determination afforded effective assistance of counsel was clearly People Ginther, erroneous. See Mich 436; 212 NW2d
findWe second claim of error to be merit. Defendant without contends that he was prosecution’s the prejudiced by failure endorse produce gestae is, certain res witnesses thus, entitled to a new perusal trial. Our of the motion-hearing testimony of the three witnesses in us question convinces their at testimony been, best, and, would have at cumulative worst, detrimental to defendant’s case.
Affirmed.
Mackenzie, J., concurred. (dissenting). Riley,
D. C. P.J. I dis- respectfully sent. asserts that he was denied effec-
tive assistance trial, of counsel and thus fair upon the failure of pursue defense, or intoxication to im- object proper cross-examination, and to move sequestration the prosecution’s of I witnesses. agree, for below, given reasons the defen- dant was denied the effective assistance counsel.
For a proper understanding my disposition of case, this a rather detailed statement facts is 103 evening September necessary. On the wife, home of his broke into mobile rifle, .22-caliber semi-automatic armed couple in the to kill himself. The threatened process seeking fled Defendant’s wife *6 a divorce. police premises, shortly thereafter the the and approximately hours, one and one-half arrived. For attempted police to talk defendant out the killing himself. point, the saw defendant one of officers
At one trigger finger the to from the stock his remove overpower gun. Seeing defendant, a chance to the flashlight at threw defendant a second officer grabbing lunged rifle, The the barrel. for the and gun grabbed the testified that defen- officer who finger gun placed brought down, then the dant ensuing struggle trigger, fired. In the the on rifle, shots, three two of the defendant fired police the officer. which struck on own behalf. His de- testified shooting essentially that the was fense was result of offi- which occurred as the the accident gun. response questions grabbing In to the cer’s he had defense defendant stated that disability due to drink- from Chevrolet retired eight ing nerves, to beers on had consumed six incident, psychiat- under the date of the had been past, under such care care the and was ric time of trial. the of an trial, filed a notice
Prior defense counsel exami- and moved for a forensic report it was nation. forensic disclosed opinion of the forensic center defendant following and, trial, to stand was hearing, adjudged competency com- petent to stand trial.
Subsequent conviction, the assistance
appellate counsel, defendant filed a motion for new hearing psychiatrist motion, At trial. on the testified that he had treated defendant numerous beginning up through times 1969 or prior shooting within two weeks and there- psychiatrist expressed opinion after. The September 3, 1976, on ing, two weeks before the shoot- hostile,
defendant was immature and with an thinking simple element of infantile which became schizophrenia. The doctor also testified that defen- dant’s case was one of the worst he had handled shooting, that, at the time of the (as statute), mentally ill defined that he did judg- shoot, not have the intent and that his impaired. ment was disturbed and expressed cross-examination, On the doctor primary problem view that defendant’s was alco- holism and in-law difficulties and that his mental primarily *7 illness was not alcoholism, the result of that alcoholism "came second”.
Finally, psychiatrist read a letter from de- February fendant’s trial counsel dated signed by which contained a release defendant and request report setting for a forth the doctor’s diagnosis, prognosis, treatment, forth, and so re- garding defendant. The doctor testified that he reply request could not find his to this and that he inquiry could not recall if he did answer the or speak with defense counsel. He indicated further prior request appellate that, no opinion concerning one had asked him to form an sanity. (an Brighton Hospital A medical director of facility) charge alcoholic rehabilitation of alco- therapy hospital hol at the testified that defendant hospitalized was on two occasions several months prior long- to trial. The doctor related defendant’s App 386 103 Mich Riley, P.J. previ- standing drinking history four and noted being attempts. After advised of the ous suicide opined insanity, statutory the doctor definition legally on the date of was insane shooting, irrespective of whether defendant alcohol. had consumed the stand at the motion also took
hearing. counsel knew that he He stated that trial psychiatric undergoing treatments was psychiatrist requested attorney to call his he testify his stated that he did not at trial. Defendant pursued. request why However, not know psychiatrist, defendant stated as to the forensic psychiatrist him that the that trial counsel advised could located and no record be could psychiatrist had moved. found as to where the Finally, redirect-examination, defendant tes- knowledge, that, to his trial counsel never tified mother, his brother or both whom interviewed history. At one knew point, defendant’s alcoholic about told that trial counsel him defendant stated mild medical indicated schizo- one of the records phrenia, never defendant claims that he saw but reports if he did not know and that reports. counsel had such guarantees that an accused Constitution enjoy ade-
will training quately equipped in the law diligently undertake a case and who will conscientiously represent accused. Degraffenreid, 702, 712; NW2d of counsel Even where the assistance requirement, a defen- the constitutional satisfies *8 and is entitled to a fair trial dant still a serious trial if makes denied a fair People 250, Garcia, 266; 247 v 398 Mich mistake. (1976). grant A a new NW2d 547 court should People trial, however, unless it determines that but for mistake, such a a defendant would have had a reasonably likely acquittal. Degraffen chance of supra, supra, reid, 718, Garcia, 266. Supreme rejected Garcia,
In Court Degraffenreid "sham” test and held that counsel perform must ordinary at least as well as a
training
and skill
the criminal
law.
The Court also observed that a mistake which if
likely
acquittal
not committed would
result
supra,
in an
requires
Garcia,
a new trial.
266. The Court
stressed, however,
that,
if the actions of defense
appear
hindsight
erroneous
appear
were taken for reasons that would
sound to
attorney,
the assistance of
constitutionally
counsel has not been
defective. Id.
second-guess
While this Court is reluctant
tactics utilized
counsel since we do not
possess
knowledge
the same
of the facts and cir-
they
cumstances as
existed at
trial,
the time of the
e.g., People
App
see,
Penn,
v
638,
70 Mich
648; 247
(1976),
present
NW2d
if the defendant can
sufficient evidence on
to demonstrate investigate
prepare
trial counsel failed and
substantial defense and that defendant was de-
prived
defense,
of that
incompetence
has
established,
been
Lewis, 64
183-184;
with the directed to report, questions psychiatrist for a defendant’s asked of defendant at pertaining defense counsel disability pension psychiatric to his treatment indicate that defense was well possible insanity Nevertheless, aware of a defense. clearly that defense counsel the record reflects providing thoroughly investigate, no bases failed to for an intelligent determination as to whether a investigation valid defense existed. What example, ineptly. was, For there counsel handled report follow-up request there was no for a psychiatrist. Further, there is no indication that trial counsel contacted the medical medical Brighton Hospital. Finally, director at hearing testimony insanity disclosed that an the motion since the testi- was substantial Nothing mony amply supported such defense. the up important counsel followed record indicates that defense bearing on defendant’s
evidence mental state at the time of the incident.
Defendant has made out a Lotter incompetence. Through investigate failure to prepare and deprived defense, substantial possible
of a meritorious defense. would, I therefore, reverse defendant’s convic- tion.