Opinion
Docket No. 49841.
Decided June 22, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Prosecuting Attorney, for the people.
Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and BRONSON and BEASLEY, JJ.
After a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, carrying a concealed weapon, MCL 750.227; MSA 28.424, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424 (2). He appeals by right.
Defendant claims that he was denied the right to effective assistance of counsel due to a conflict of interest arising from his attorney's representation of defendant's brother, a codefendant. Because defendant's trial commenced on October 10, 1979, GCR 1963, 785.4 (4) does not apply.
In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v Sullivan, 446 U.S. 335, 348; 100 S Ct 1708; 64 L Ed 2d 333 (1980). Although the Michigan Supreme Court has not articulated the same test for assistance of counsel under Const 1963, art 1, § 20, we believe this was the test implicitly applied in People v Gardner, 406 Mich. 369; 279 N.W.2d 785 (1979), People v Bentley, 402 Mich. 121; 261 N.W.2d 716 (1978). See also People v Aguilar, 105 Mich. App. 258, 260-262; 306 N.W.2d 472 (1981).
We agree with defendant's claim that a conflict of interest arises when codefendants, represented by the same counsel, each claim the least culpable role in the commission of a crime. Defendant's brother claimed that he was the driver of the getaway car and not the gunman in offering his guilty plea five months before defendant came to trial. At his own trial defendant claimed that he was the driver. Nothing in the record indicates when defendant told his attorney he would also claim to have been the driver and not the gunman. It is incumbent upon defendant to make a testimonial record at the trial court level supporting his claim of an actual conflict. See People v Ginther, 390 Mich. 436, 442-444; 212 N.W.2d 922 (1973).
Defendant also has not shown any adverse effect on his lawyer's performance. The claim that his counsel's pretrial investigation was inadequate is not sufficiently specific and lacks support in the record. See People v Ginther, supra. We do not agree that counsel's representation of defendant's brother at the taking of his guilty plea showed that he was "committed" to the belief that the brother was the driver and defendant the gunman. Defendant must, in any case, show an adverse effect on his lawyer's performance, not on his lawyer's beliefs. Defense counsel did not have to choose between defendant's claim of least culpability and the same claim by his brother; both claims were presented with counsel's assistance. Defense counsel was not precluded from calling defendant's brother as a witness. There is no support in the record for a claim that the brother would have testified in support of defendant's claim. Even if he had, he would have been impeached with the statement he made in support of his plea. Finally, the failure of defense counsel to address the court at the sentencing may have been the result of a tactical decision. In any event, it has not been shown to have been the result of a conflict of interest.
Defendant's claim that his trial counsel's assistance was generally ineffective is without merit as is his claim that his confession to police, subsequently introduced at the trial, was involuntary.
We agree with defendant's claim that the rebuttal testimony of Detective Juras was improper. The subject of the question was irrelevant and the witness was not qualified to answer it. Nonetheless, we find that the trial judge's curative instruction protected defendant from prejudice.
The prosecutor did not improperly comment on the defendant's exercise of his right to remain silent. He commented on defendant's inconsistent statements. See People v Karam, 106 Mich. App. 383, 390; 308 N.W.2d 220 (1981). Defendant's other claims of improper argument also lack merit.
We do not find that the judge's instructions required the jury to acquit defendant of greater charges before it considered lesser charges. Such instructions are improper because they may block adequate jury consideration of lesser included offenses. People v Mays, 407 Mich. 619; 288 N.W.2d 207 (1980). It is error to condition the right to consideration of lesser included offenses upon acquittal of the principal offense charged. People v West, 408 Mich. 332, 342; 291 N.W.2d 48 (1980). The instruction given by the trial judge in this case did not depart substantially from that suggested in People v Mays, supra, 623, fn 1, and was not error.
Defendant next claims that the Legislature did not intend to allow a person to be convicted of both carrying a concealed weapon and felony-firearm where the charges are based on possession of the same weapon.
In People v Carter, 96 Mich. App. 694; 293 N.W.2d 681 (1980), this Court held that separate convictions for carrying a concealed weapon and felony-firearm, based on possession of one firearm, could not be sustained because the Legislature had not clearly authorized multiple punishments. Carter, supra, 705. In its holding, the Court relied on the Supreme Court's opinion in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 399-402; 280 N.W.2d 793 (1979), app dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). The Supreme Court, in that case, analyzed a line of cases barring prosecutions based on one factual occurrence on double jeopardy grounds.
In People v Cook, 236 Mich. 333; 210 N.W. 296 (1926), the defendant was convicted of possessing liquor and transporting liquor, both convictions being based on the same act, transporting one load of liquor to one place. In People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976), and People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), defendants were convicted of both delivering and possessing heroin. In both cases, possession of the heroin was that which was necessary to effect its delivery. In each case, one charge was factually included within the other. All facts required to prove the lesser charge were required to prove the greater.
The facts supporting the CCW charge in Carter, supra, were the same as those required to prove felony-firearm. The Cook-Martin-Stewart rule cannot be applied in the present case, because defendant was convicted of carrying a concealed weapon based on the act of carrying pistols in his car. The requirement of proof of this element precludes the application of the Cook-Martin-Stewart rule.
Although the Legislature explicitly prohibited a felony-firearm conviction based on carrying a concealed weapon, this does not mean there cannot be convictions of both where another felony is the basis for the felony-firearm conviction and the two convictions are not based on a single factual occurrence as that term is used in Wayne County Prosecutor, supra.
Plaintiff relies on this Court's decision in People v Shelton, 93 Mich. App. 782; 286 N.W.2d 922 (1979). Although the defendant in Shelton was convicted of both carrying a concealed weapon and felony-firearm, he did not claim that those two convictions placed him in double jeopardy. He was also convicted of felonious assault and challenged, on double jeopardy grounds, his convictions of (1) felonious assault and felony-firearm, and (2) felonious assault and carrying a concealed weapon.
We do not agree with defendant's contention that, in sentencing, the trial judge based his sentence on defendant's refusal to admit guilt. The judge's comment on defendant's claim that he had never been guilty of any offense must be viewed in light of defendant's guilty pleas to earlier offenses. The comments of the trial judge in this case are not similar to those condemned in People v Yennior, 399 Mich. 892; 282 N.W.2d 920 (1977), People v Grable, 57 Mich. App. 184; 225 N.W.2d 724 (1974), and People v Bottany, 43 Mich. App. 375, 382; 204 N.W.2d 230 (1972). See also People v Stubbs, 99 Mich. App. 643; 298 N.W.2d 612 (1980).
We remand sua sponte for resentencing on the armed robbery charge because the trial judge apparently intended to sentence defendant to a parolable life term (i.e., life imprisonment as it had been interpreted prior to the adoption of Proposal B, now, MCL 791.233; MSA 28.2303). See this Court's decisions in People v Penn, 102 Mich. App. 731; 302 N.W.2d 298 (1981), and People v Anderson, 112 Mich. App. 640; 317 N.W.2d 205 (1981).
Defendant's convictions are affirmed. The case is remanded for resentencing on the armed robbery conviction.