People v. Bynum
| Citation | 64 Mich.App. 186,235 N.W.2d 105 |
| Decision Date | 10 September 1975 |
| Docket Number | Docket No. 20239 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Louis BYNUM, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Durant, Talbot, Grant & McQuarrie by James Howard Grant, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Chief Asst. Pros. Atty., Robert M. Morgan, Asst. Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and R. B. BURNS and MAHER, JJ.
Defendant appeals his conviction by a Detroit Recorder's Court jury of the lesser included offense of attempted kidnapping. He alleges that he was denied a fair trial.
Defendant and two codefendants were charged originally with kidnapping and armed robbery of one Raymond Noonan. Noonan was driving a semi-tractor trailer containing a shipment of appliances when three men in a blue automobile accosted him at the point of a sawed-off shotgun. The gunman, whom he subsequently identified as codefendant Slate, ordered him to dismount the truck and get into the trunk of the car, and as he obeyed he had an opportunity to observe the other two men (identified as defendant Bynum and codefendant Parker) standing by the rear of the car.
After the trunk was closed, Noonan heard the truck pull off, followed by the automobile. He managed to disassemble the trunk lock and leap out of the vehicle onto the roadbed of the I--75 Freeway. He was picked up by a passing motorist and driven to the police station. He testified at trial that he selected defendant from a lineup.
On December 26, 1973, some nine days after trial commenced, defendant's counsel inquired of the court as to whether his request to call alibi witnesses had been denied. The court noted counsel's failure to comply with the statutory notice provision for alibi witnesses, M.C.L.A. § 768.21; M.S.A. § 28.1044, and ruled to deny the witnesses. Further review of the record reveals the court's December 21 ruling that codefendant Slate would be allowed to call alibi witnesses despite improper notice because of an effort to comply with the statute. Defendant's counsel then announced a similar intention to use an alibi defense, asserting that he had verbally so notified the prosecutor on December 17. The court's query as to his continuing failure to file notice was met by an assertion of 'misunderstanding probably on my part' by counsel. The court ruled that the requirements of the alibi statute had not been met. Counsel stated that he would supply the prosecutor with the required information, and the court suggested that he attempt to make arrangements agreeable with the prosecutor.
Counsel did nothing until December 24, Christmas Eve, when he filed a motion on a day when court was not in session and when any prosecutorial investigation would have been difficult at best. In its December 26 ruling the court noticed the difference between counsel's activity and that of counsel for codefendant Slate; specifically, that the latter had filed a notice earlier (December 17), and that he had presented his witnesses for interviewing and investigation by the prosecution.
Defendant rested without presentation of a defense. On appeal, he does not aver that the court abused its discretion, but contends that counsel's failure to comply with the notice of alibi statute was ineffective assistance of counsel sufficient to deny him a fair trial.
The standard adopted by this Court relative to ineffective assistance of counsel is expressed in People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). The Court adopted the language of Williams v. Beto, 354 F.2d 698, 704 (C.A. 5, 1965), to the effect that defendant must show that the 'trial was a farce, or a mockery of justice' or the representation of counsel 'was only perfunctory, in bad faith, a sham, a pretense * * *'.
It is instructive to observe that the Fifth Circuit Court of Appeals has itself rejected the 'low standard' of Williams v. Beto and reinterpreted the right to effective counsel as 'counsel reasonably likely to render And rendering reasonably effective assistance'. (Citation omitted; emphasis in original.) West v. Louisiana, 478 F.2d 1026, 1033 (C.A. 5, 1973). The Sixth Circuit has likewise rejected the 'sham' trial standard by approving the language of West and by requiring defense counsel to 'perform at least as well as a lawyer with ordinary training and skill in the criminal law * * *'. Beasley v. United States, 491 F.2d 687, 696 (C.A. 6, 1974). See also Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).
Thus appears a trend away from the strict 'sham' standard. Nevertheless, we believe that a complete reading of Degraffenreid relieves any apparent necessity for major surgery on that opinion. It is necessary to recognize the varying implications of the terms 'incompetence', 'diligence', and 'mistake'. Degraffenreid specifically applies the sham standard where defendant asserts that he was represented by a 'bad lawyer', I.e., an incompetent, as revealed by focusing on 'the totality of his representation of his client'. Degraffenreid, supra, 19 Mich.App. 717, 173 N.W.2d 325. However, '(i)t is not the correct standard by which to judge a claim that the defendant is entitled to a new trial because of a serious mistake made by a good lawyer'. Degraffenreid, supra.
By all appearances, it is this latter type of claim that defendant brings herein. He does not allge that he was represented by a constitutionally inadequate lawyer manifesting incompetence 'grave (enough) to be raised to the constitutional level of no assistance of counsel'. People v. Lawrence, 32 Mich.App. 591, 594, 189 N.W.2d 48, 50 (1971). Rather, he maintains that it was counsel's lack of diligence that resulted in a serious mistake sufficient to deny him a fair trial. And in this instance Degraffenreid allows a new trial '(w)here the lawyer's mistake is of such serious proportion that it may have been decisive, where but for the lawyer's mistake the defendant might not have been convicted, the court may * * * grant a new trial'. Degraffenreid, supra, 19 Mich.App. 716, 173 N.W.2d 324.
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People v. Foster
...might have made a difference in the outcome of the trial. People v. Lewis, supra, at 185, 235 N.W.2d 100. In People v. Bynum, 64 Mich.App. 186, 188-190, 235 N.W.2d 105 (1975), and People v. Mays, 64 Mich.App. 453, 456-458, 236 N.W.2d 513 (1975), we resolved any potential conflict between De......
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People v. Bedford
...alibi testimony from being presented. Defendant Walk was not precluded from presenting an alibi defense. Cf. People v. Bynum, 64 Mich.App. 186, 235 N.W.2d 105 (1975). V. Defendant Walk next contends that the trial judge failed to state specifically the facts upon which he based his verdict ......