People v. Armstrong

• Decision Date: 06 October 1980
• Docket Number: Docket No. 78-4918
• Citation: 298 N.W.2d 752,100 Mich.App. 423
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry E. ARMSTRONG, Defendant-Appellant. 100 Mich.App. 423, 298 N.W.2d 752
• Court: Court of Appeal of Michigan — District of US

Page 752

298 N.W.2d 752

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry E. ARMSTRONG, Defendant-Appellant.

Docket No. 78-4918.

100 Mich.App. 423, 298 N.W.2d 752

Court of Appeals of Michigan.

Oct. 6, 1980.

Released for Publication Dec. 9, 1980.

[100 MICHAPP 425] James R. Neuhard, State Appellate Defender, F. Martin Tieber, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George Mullison, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P. J., and T. M. BURNS and BORRADAILE, ^* JJ.

HOLBROOK, Presiding Judge.

Defendant was convicted by a jury of three counts of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), one count of second-degree criminal sexual conduct, M.C.L. § 750.520c; M.S.A. § 28.788(3), and one count of breaking and entering, M.C.L. § 750.110; M.S.A. § 28.305. Thereafter sentenced to three 10 to 20 year prison terms and two 5 to 10 year prison terms respectively, he appeals as of right.

Defendant contends that it was reversible error for the prosecutor to cross-examine him regarding his past troubles with the law. We disagree. In defense counsel's opening statement and on direct examination defendant admitted he had been in trouble before. He initiated the testimony on this subject. Moreover, there was no objection to the line of questioning. People v. Johnson, 382 Mich. 632, 172 N.W.2d 369 (1969), cert. den., 397 U.S. 1079, 90 S.Ct. 1533, 25 L.Ed.2d 816 (1970).

Defendant also contends that he was denied effective assistance of counsel and a fair trial [100 MICHAPP 426] because of a series of mistakes by his trial counsel. As previously mentioned, the defense attorney in his opening remarks referred to defendant's prior record and on direct examination questioned defendant regarding previous crimes. A motion in limine to exclude prior misdemeanor convictions was not made. Defendant claims that no lawyer with ordinary training and skill in the criminal law would have twice "opened the door" for the admission of prejudicial material. We are not persuaded. This was a matter relating to trial strategy and as such will not support a claim of ineffective assistance of counsel. Even the intentional introduction by defense counsel of a prior criminal record does not constitute a serious mistake of counsel depriving defendant of a fair trial or of effective assistance of counsel where the record was introduced as a trial tactic. People v. Karasek, 63 Mich.App. 706, 234 N.W.2d 761 (1975).

The test to be applied where a mistake of defense counsel is alleged to have denied a defendant adequate representation is whether it appears that a new trial, wherein the mistake complained of would not be repeated, would in all likelihood result in an acquittal. People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976). After reviewing the record of the instant case, we cannot say that there would have been a likelihood of acquittal had the criminal record been excluded. A cigarette package bearing defendant's fingerprint was found on the bed. The complainant, a babysitter, positively identified defendant as the man who broke down the trailer door, grabbed her by the hair and dragged her into the bedroom where she was raped. Despite alibi testimony to the contrary, the evidence against defendant was overwhelming.

We disagree with defendant's contention that [100 MICHAPP 427] the breaking and entering was an essential element of the offense of criminal sexual conduct in the first degree. People v. Swearington, 84 Mich.App. 372, 269 N.W.2d 467 (1978), is clearly distinguishable from the present case. In Swearington, the aggravated circumstance which raised criminal sexual conduct in the third degree to criminal sexual conduct in the first degree was that the sexual conduct occurred during the commission of another felony, specifically, breaking and entering. In the instant case, the aggravating factor which raised criminal sexual conduct in the third degree to criminal sexual conduct in the first degree was not the breaking and entering, but the fact that defendant used force and coercion causing personal injury to the victim. Therefore, the breaking and entering was not an underlying felony of the criminal sexual conduct in the first degree but a totally unrelated charge and proof of one did not require proof of the other. In such cases, a defendant can be convicted of both charges. A similar factual situation is found in People v. Flores, 92 Mich.App. 130, 137, 284 N.W.2d 510 (1979),...