135 Mich. App. 617 | Mich. Ct. App. | 1984
Defendant was convicted by a jury of felonious assault, MCL 750.82; MSA 28.277. Thereafter, defendant was sentenced to two years probation subject to the following conditions: Defendant was to pay a $2,000 fine, attend a personal counseling program and serve six months in the Charlevoix County Jail beginning on January 14, 1982, for 60 days with the balance to be held in abeyance. Defendant appeals as of right.
First, defendant claims that he was denied effective assistance of counsel because his trial counsel failed to assert the substantial defense that defendant was reasonably defending his proprietary rights in the property in dispute. We have reviewed the facts of this case and find that defendant’s claim is meritorious. We find that the assertion of the theory of defense of a proprietary interest might well have made a difference in the outcome of the trial at bar. See People v Foss, 80 Mich 559; 45 NW 480 (1890); People v Lewis, 64 Mich App 175, 184; 235 NW2d 100 (1975). Defense
Defendant also claims that he was denied effective assistance of counsel because defense counsel did not properly prepare to introduce independent witness Joseph Fitzek’s testimony. Having reviewed the record we agree.
Under a claim of unpreparedness of counsel, defendant is required to show prejudice. People v Grant, 102 Mich App 368, 374; 301 NW2d 536 (1980). Fitzek’s testimony was important to defendant’s case in general to lend credibility to his version of the facts. Because of the two very different accounts of the incident, credibility was a crucial issue. Fitzek was a neutral witness in the sense that he had no interest in the dispute of the parties and, indeed, his testimony was against his own interests. His testimony would therefore have been of much help to defendant’s case. Had the jurors heard this testimony, one or more of them may well have accepted defendant’s version of the facts and his theory of the case. Fitzek’s testimony becomes especially crucial in light of the defense of defending a proprietary interest. Defendant would otherwise be hard put to prove, on his say-so alone, that he reasonably believed the disputed property was for his use.
Resolution of the foregoing being dispositive, we need not address defendant’s remaining allegations of error, which we have reviewed and find to be without merit. See People v Nickson, 120 Mich App 681, 685; 327 NW2d 333 (1982); People v Caldwell, 78 Mich App 690, 692; 261 NW2d 1 (1977).
Reversed.
