Summary
In People v Green, 96 Mich. App. 104, 109; 292 N.W.2d 142 (1980), this Court held that a determination of ineffective assistance, based upon counsel's failure to raise a defense, would depend on "whether the defense which counsel failed to raise was a substantial one".
Summary of this case from People v. GrantOpinion
Docket Nos. 46458, 46459.
Decided February 13, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Martin M. Holmes, Prosecuting Attorney (by Mary C. Smith, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.
Parmenter, Forsythe, Rude, Gavigan, Van Epps Briggs (by Roger H. Anderson), for defendant on appeal.
Before: D.F. WALSH, P.J., and R.B. BURNS and J.H. GILLIS, JJ.
On January 16, 1979, the defendant pled guilty to two separate counts of possession of marijuana with intent to deliver, MCL 335.341(1)(c); MSA 18.1070(41)(1)(c), lower court numbers 7-206 and 7-212. He was sentenced to three years probation on the first count and to one year imprisonment on the other.
Approximately six months later, the defendant moved to withdraw the guilty pleas, contending that the appointed counsel who represented him at his preliminary examination on the first charged offense had a conflict of interest and that he was denied the effective assistance of counsel in entering his plea to the second offense. In support of the latter contention, the defendant asserted that his substituted appointed counsel failed to inform him of a potential fifth amendment defense.
A hearing was held in the trial court on June 21, 1979. In an opinion dated July 12, 1979, the lower court denied the defendant's motion. The defendant appeals from the denial as a matter of right. GCR 1963, 806.1.
On appeal, defendant claims that the appointed counsel's conflict of interest and the substituted counsel's failure to inform him of a potential defense evince ineffective assistance of counsel. An ineffective assistance of counsel claim is reviewable after a guilty plea. People v McDonnell, 91 Mich. App. 458, 460; 283 N.W.2d 773 (1979).
We note that the Court in McDonnell cites People v Kyllonen, 80 Mich. App. 327; 263 N.W.2d 55 (1977), as authority for this proposition. The citation is unwarranted. An examination of the opinion in Kyllonen discloses that the issue of the applicability of the guilty plea waiver doctrine was neither addressed nor decided. Kyllonen, supra, at 330, fn 1. We decide, however, that the rule as stated is correct notwithstanding such unwarranted reliance.
We first address the defendant's claim with respect to the asserted conflict of interest. In case # 7-206, the court appointed counsel to represent the defendant. At the preliminary examination, appointed counsel indicated to the court that he had represented the key prosecution witness in the past and that another member of his firm was presently representing the witness on a pending charge. Counsel stated that he had discussed the matter with the defendant, who had no objection to counsel conducting the preliminary examination. Counsel further stated that if the defendant were bound over for trial, he would withdraw as defendant's attorney. The examination commenced and resulted in the defendant being bound over. Counsel promptly moved to and did withdraw.
Defendant argues first that representation of a defendant and a key prosecution witness amounts to ineffective assistance of counsel per se. We decline to apply a per se rule under the facts of the present case. See People v Van Brocklin, 76 Mich. App. 427, 430; 257 N.W.2d 107 (1977). The facts underlying this declination are that counsel was not presently representing the witness, that the representation of the defendant took place at the preliminary examination and that defendant consented to such representation after having discussed the matter with counsel. We hold that, absent some showing of prejudice arising from the conflict of interest, the defendant was not denied effective assistance of counsel. We further hold that no such prejudice was extant here.
A review of the record shows that the defendant was accorded full and effective representation at his preliminary examination. Counsel fully participated in the examination, raising timely objections and cross-examining the prosecution witness. Counsel performed at least as well as a lawyer with ordinary training and skill in the criminal law. See People v Garcia, 398 Mich. 250, 264; 247 N.W.2d 547 (1976). He did not sacrifice the interest of the defendant in any manner.
The defendant next argues that he was denied the effective assistance of counsel as the result of substituted counsel's failure to raise an assertedly substantial defense. We disagree.
In case # 7-212, one Gary Chimel had been arrested on charges relating to the purchase of marijuana from the defendant on or about August 14, 1978. At the request of the police, Chimel, on August 21, 1978, telephoned the defendant and inquired whether he had any additional marijuana for sale. The defendant replied that he had and a sale was arranged. Approximately 1/2 to 1 hour later, a sheriff's deputy arrived at the defendant's residence, executed a search warrant and arrested the defendant. The information obtained in the telephone conversation served as the basis for the search warrant.
The defendant maintains that Chimel, as an agent of the police, was required to give the defendant Miranda warnings prior to asking whether he had marijuana for sale, that the failure to give the warnings prevented the information that was obtained from serving as the basis for the search warrant and that the failure to raise this defense constituted ineffective assistance of counsel.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694; 10 ALR3d 974 (1966).
Defense counsel must assert all substantial defenses available to the defendant in a timely and proper manner. Beasley v United States, 491 F.2d 687 (CA 6, 1974). The question presented is whether the defense which counsel failed to raise was a substantial one. The answer is that it was not.
Under the facts of the present case, the Miranda warnings were not required. The defendant was neither in custody nor even confronted by a police officer. There were present none of the elements of compulsion or coercion which trigger the requirement that Miranda warnings be given. The incriminating statement was made freely and voluntarily. See People v Konke, 83 Mich. App. 356, 358-359; 268 N.W.2d 42 (1978). Accordingly, the claimed defense was not a defense in fact, let alone a substantial defense. The defendant was in no way deprived of the effective assistance of counsel as the result of his attorney's failure to raise this matter in the lower court.
The fact that Chimel was an agent of the police does not alter this fact. See Hoffa v United States, 385 U.S. 293; 87 S Ct 408; 17 L.Ed.2d 374 (1966).
Affirmed.