People v. Caffray, Docket No. 19630

• Decision Date: 21 July 1975
• Docket Number: Docket No. 19630
• Citation: 233 N.W.2d 625,62 Mich.App. 486
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George CAFFRAY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 625

233 N.W.2d 625

62 Mich.App. 486

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George CAFFRAY, Defendant-Appellant.

Docket No. 19630.

Court of Appeals of Michigan.

July 21, 1975.

Released for Publication Oct 21, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

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

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

McGREGOR, Presiding Judge.

On November 1, 1973, defendant was found guilty by a jury of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to serve a prison term of 20 to 40 years and now appeals his conviction as of right.

By complaint and warrant issued September 16, 1972, defendant was charged with the September 15, 1972 armed robbery of Ken's Food Town. After defendant had been bound over to circuit court for trial, plaintiff filed a motion in the trial court, on November 22, 1972, to consolidate defendant's case with the case of one Roger Craig--defendant's alleged companion in the robbery of the store. On November 27, 1972, a combined arraignment and hearing on plaintiff's motion to consolidate was held, at which time defense counsel--who had been appointed to represent Both defendant and co-defendant Craig--objected to the proposed consolidation on the grounds that defendant had a prior criminal record while Craig did not, and that the motion might in fact be premature due to the fact that counsel intended to file a motion regarding evidence submitted at the defendant's preliminary examination. The trial judge, however, rejected defense counsel's arguments and ordered consolidation of the two cases for trial.

Defendant's joint trial with co-defendant Roger Craig commenced on October 30, 1973, both defendants being represented by appointed counsel Richard Globensky.

During the plaintiff's case in chief, Benton Township police officer Roger Peters recounted a statement that co-defendant Craig allegedly gave to him after Craig's arrest, confessing Craig's perpetration of the robbery and implicating defendant as Craig's accomplice in the holdup. The trial judge thereafter, Sua sponte, warned the jury that nothing contained in Craig's confession could be utilized by the jury against defendant Caffray, since the statement had been made outside defendant Caffray's presence.

After plaintiff had rested and the trial judge had denied defense counsel's motion for directed verdict as to both defendants, the defense counsel presented co-defendant Craig as the sole witness. At this time, Craig categorically denied both his and the defendant's participation in the robbery and emphatically denied having made any statement to the police officers following his arrest. At the conclusion of this testimony, defense counsel moved for a mistrial for defendant Caffray on the ground that Craig's confession implicating the defendant had prejudiced defendant's case. The trial judge denied this motion.

During his closing argument, the prosecutor again stated that Craig's statement had named defendant Caffray as one of the robbers. However, in his charge to the jury, the trial judge reiterated the fact that Craig's statement that defendant Caffray had participated in the robbery could not be considered against him due to its hearsay nature. The jury shortly thereafter convicted both this defendant and co-defendant of the crime charged.

Defendant raises six assignments of error. We need only consider one, as it warrants the reversal of defendant's conviction in this case.

This Court is asked to determine whether this defendant has been deprived of his right to effective assistance of counsel due to the fact that both he and his co-defendant were represented by the same attorney during their joint trial, wherein the plaintiff introduced evidence of a confession by the co-defendant implicating this defendant and wherein the co-defendant subsequently took the stand to testify on his own behalf.

In analyzing the question presented, we must begin with the case of Bruton v. United States, 391 U.S. 123, p. 126, 88 S.Ct. 1620, p. 1622, 20 L.Ed.2d 476 (1968), wherein the Supreme Court stated:

'We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' (co-defendant's) confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli (Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957)) and reverse.'

It is important to note that a crucial element present in Bruton was the fact that the confessing co-defendant did not take the stand and, therefore, Bruton did not have an opportunity to cross-examine the confessing co-defendant in regard to his statements.

In the instant case, however, Craig, the confessing co-defendant, did take the stand and was therefore subject to cross-examination by defendant's counsel, who also represented Craig.

A fact situation identical to that of the instant case was present in Baker v. Wainwright, 422 F.2d 145 (C.A.5, 1970). There, Baker had been a non-confessing defendant in a joint trial with the confessing defendant, where both individuals had been represented by the same court-appointed counsel, and where evidence of an oral confession implicating Baker in the crime had been introduced into evidence. Additionally, as in the instant case, the confessing defendant had taken the stand to testify and, likewise, the trial judge in that case had also given the standard hearsay instruction restricting only consideration of the confession to the confessing defendant only.

The Baker court noted that since the confessing defendant had taken the stand to testify and was therefore subject to cross-examination by defense counsel, no confrontation problem existed under Bruton. ¹

However, in next specifically addressing itself to the question of effective counsel, the Baker court said, p. 148:

'However, resolution of the confrontation question does not end our inquiry. Baker also presents the issue of Bruton's effect where co-defendants are represented by the same court appointed attorney. It is this issue that requires reversal for a new trial. The classic in this area of the law is Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Its teachings are the basis for our holding here. Glasser, an attorney charged in a conspiracy action, objected when the court appointed his attorney, Stewart, to represent another defendant, Kretske, being tried jointly with Glasser. The appointment was nevertheless made. Glasser's conviction was reversed principally because the joint appointment deprived Glasser of effective counsel.

'However, Glasser does not hold that the mere fact that a single attorney is appointed to represent two defendants in a joint criminal trial is Ipso facto evidence of lack of effective counsel. Some prejudice must be shown by one who would successfully object. But, since we hold that Bruton's post-trial retroactive impact on the case at bar created a definite conflict between the interests of the joint defendants at the instant that the prosecution introduced its evidence of Damron's implication of Baker, Baker did not have to produce any specific proof of...