Opinion
Docket No. 78-3398.
Decided August 25, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Melvin Turner, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and R.M. MAHER and D.E. WALSH, JJ.
Following trial by jury, defendant was convicted of assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). He now appeals as of right.
The sole issue raised on appeal is whether or not defendant was denied the effective assistance of counsel. In People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), the Michigan Supreme Court adopted the test outlined in Beasley v United States, 491 F.2d 687, 696 (CA 6, 1974), which states:
"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interest, undeflected by conflicting considerations."
Where defense counsel has not performed at a minimal level of competence, harmless error tests are not applied in Garcia, supra, Beasley v United States, supra, 696. Thus, failure to establish prejudice by the ineffective representation is not a necessity.
Rarely does the trial record so graphically depict a defense counsel falling short of the standard as in the instant case. It would serve no useful purpose to quote excerpts from the trial transcript to support our conclusion. Suffice it to say, that the term "ineffective" is most probably an understatement when applied to the representation afforded the defendant in this case. Defense counsel left the courtroom during voir dire of the jury and indicated magnanimously that he would take the first 12 jurors picked just to save time. He also absented himself from the courtroom during a portion of the prosecutor's closing argument. His cross-examination in most instances was damaging to the defendant and it was interrupted only by his sporadic fits of unexplained laughter. To say his conduct was bizarre during the trial, is to state the obvious. At the time of sentencing, defendant indicated that he had wanted to testify at trial, originally wanted to plead to a lesser offense, had wished to present available witnesses on his own behalf, but was told he would be unable to do so by defense counsel.
We are aware that the evidence of the defendant's guilt in this case was overwhelming. Nonetheless, even under the old "sham trial" and "farce and mockery" standards, reversal would be required in this case. Our disposition, however, does not end with our reversal and remand for a new trial. In addition, we herewith order defendant's trial counsel to remit to the County of Wayne any monies he received in connection with this case. Finally, by copy of this opinion, we invite the State Bar Grievance Board to review the conduct of defense counsel in this cause.
Reversed and remanded for a new trial.