182 N.W.2d 103 | Mich. Ct. App. | 1970
PEOPLE
v.
O'GUIN
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Division, Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Sol E. Goldberg, for defendant on appeal.
Before: J.H. GILLIS, P.J., and LEVIN and BORRADAILE,[*] JJ.
PER CURIAM.
On June 28, 1965, defendant and a codefendant were convicted by a jury of murder in the first degree. MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). The murder was allegedly committed in the perpetration of a robbery.
On appeal, defendant contends that he was denied effective representation of counsel because his appointed counsel was "fresh out of law school." The right to effective assistance of counsel does not necessarily mean successful assistance and the possibility that a different attorney could have obtained a better result does not imply that defendant did not have the effective assistance of counsel. People v. Degraffenreid (1969), 19 Mich. App. 702.[**] If the representation is "only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity *307 for conference and preparation" then it is not effective representation. People v. Higginbotham (1970), 21 Mich. App. 489. No such showing is made here. Competence or effectiveness of counsel cannot be measured by number of witnesses cross-examined and the number of objections made. People v. Lundberg (1961), 364 Mich. 596. In the same trial, very experienced counsel also saw his client convicted.
As for defendant's contention that his arrest was illegal,
"He pleaded not guilty, stood trial, and was convicted by a jury. He cannot now be heard to complain of the alleged illegality of his arrest." People v. Gologonoff (1969), 6 Mich. App. 332, 334.
Defendant further contends that pre-trial publicity denied him a fair trial. In particular, defendant contends that the witnesses were influenced in their testimony, that the trial court erred in denying defendant's motion for a change of venue, and that the voir dire examination failed to insure defendant of a trial by impartial jury.
Defendant's allegations are conclusional and are not supported by specific references to the record as required by GCR 1963, 813.3. Moreover, while several of the prospective jurors stated they had heard of the crime, this, without more, is not a sufficient showing that the trial court abused its discretion in denying defendant's motion for a change of venue. People v. Freeman (1969), 16 Mich. App. 63. Those who indicated they had opinions were excused for cause.
The trial court conducted the voir dire pursuant to GCR 1963, 511.3. While defendant contends that the trial court conducted the voir dire improperly, *308 defendant makes no showing of error on which a finding of substantial prejudice might be based.
Defendant alleges additional error with respect to the trial court's failure to give two requested jury instructions. The trial court charged the jury that the only two possible verdicts as to each defendant were guilty of first-degree murder or not guilty. Defendant alleges error in the trial court's failure to instruct the jury that murder in the second degree and manslaughter were also possible verdicts. Defendant has made no reference to any specific evidence in the record to support an instruction on the two additional verdicts. The instruction as given was proper. People v. Treichel (1924), 229 Mich. 303; People v. Stevens (1968), 9 Mich. App. 531.
Defendant also contends that the trial court erred in failing to give his requested instruction that certain testimony was to be considered only for the purpose of affecting the credibility of the witness. A careful reading of the jury instructions in their entirety reveals that the matter of credibility was adequately charged. There is no showing of a miscarriage of justice. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[**] Clark v. Page (Okla Crim, 1963), 384 P2d 405; United States, ex rel. Koffel, v. Myers (ED Pa, 1958), 167 F Supp 510.
