People v. Coyle

• Citation: 104 Mich.App. 636,305 N.W.2d 275
• Decision Date: 17 March 1981
• Docket Number: Docket No. 45446
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky COYLE, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 275

305 N.W.2d 275

104 Mich.App. 636

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky COYLE, Defendant-Appellant.

Docket No. 45446.

Court of Appeals of Michigan.

March 17, 1981.

Released for Publication May 15, 1981.

James R. Neuhard, State Appellate Defender, Janet M. Tooley, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, III, Chief Appellate Atty., Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and J. H. GILLIS and CYNAR, JJ.

PER CURIAM.

On February 16, 1979, defendant was convicted of breaking and entering, M.C.L. § 750.110; M.S.A. § 28.305, and sentenced to 5 to 15 years imprisonment. He appeals as of right.

Defendant asserts two claims of error. The first alleges ineffective assistance of trial counsel. The second alleges error in the credit given against his sentence.

The charges against defendant arose out of a breaking and entering at the home of Steven Taylor's parents. Steven was then 15 years old. He arrived home from school on April 7, 1978, to find a red van parked in the driveway. While he noted the type of van, and memorized the license number, two men walked around the side of the house from the backyard. One, carrying a shotgun, told Steven that they were "investigating". When Steven asked for identification, the men silently entered the van and drove off.

When Steven entered the house, he found that the family room door had been pulled off its hinges, a television had been moved, and a gun box had been placed on his parent's bed. Mr. Taylor's shotgun was missing from the box. Steven then called the state police and Troopers Monfette and Meladore soon arrived to take his report.

A week later, the troopers asked Steven to look through some photographs. After initially choosing defendant's photo together with two others, Steven three times picked out defendant's photograph as a picture of the man carrying the shotgun.

Approximately ten months after the offense, trial began and defendant was convicted.

I

In Michigan, the merit of claims of ineffective assistance of counsel is determined by applying a bifurcated test. People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976), reh. den., 399 Mich. 1041 (1977). The first branch of the inquiry focuses on the Sixth Amendment right to counsel, for which the Supreme Court has endorsed the standard established in Beasley v. United States, 491 F.2d 687, 696 (C.A.6, 1974). People v. Garcia, supra, at 264, 247 N.W.2d 547. To satisfy defendant's right to counsel, his lawyer "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 interests, undeflected by conflicting considerations". Id. Aside from reviewing the overall performance of counsel, an appellate court will also examine particular mistakes of counsel to safeguard defendant's right to a fair trial, which is the other branch of the inquiry. For this purpose, the Garcia Court adopted the standard developed in People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969):

"However, even where assistance of counsel satisfies the constitutional requirements, defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance for acquittal." Garcia, supra, at 266, 247 N.W.2d 547.

Initially, we note that defense counsel's overall performance was capable. He filed a motion to suppress the photographic identification of defendant and adequately argued at the evidentiary hearing that the procedures used were suggestive. He argued at trial that the identification of defendant was the product of repeated exposure to defendant. He effectively persuaded the trial court to deny the prosecution's use of two prior felony convictions by arguing that their prejudicial impact outweighed the probative value of their introduction into evidence.

Defendant's ineffective assistance of counsel argument is also predicated on four specific mistakes allegedly made by trial counsel. Defendant first notes that counsel erred in asking defendant if he had had a shotgun in his possession within the last ten months. Defendant had been arrested for possession of a shotgun one day short of ten months from the date the question was asked. At trial, however, defendant initially answered the question in the negative. It was not until defense counsel indicated that he had completed his direct examination of defendant that defendant stated that he had been arrested on April 16, 1978. The court reporter transcribed the statement as involving shoplifting. After the jury began to deliberate, however, they asked to have defendant's unsolicited comment read back to them and the judge and the two attorneys thought that defendant had said he had been arrested with a shotgun, rather than for shoplifting. Ultimately, the jury was instructed to use their recollection of what was said in reaching a verdict.

Assuming arguendo that trial counsel knew of defendant's arrest, the question is whether, in a trial free of the error, even one juror might have voted to acquit him. Since the crucial issue at trial was defendant's identity as one of the men Steven Taylor saw on April 7, 1978, we do not believe that defendant's statement (no matter which version) caused a guilty verdict when otherwise the jury would have voted to acquit. See, e. g., People v. Armstrong, 100 Mich.App. 423, 298 N.W.2d 752 (1980).

Defendant next claims that trial counsel erred because he failed to impeach Steven Taylor's identification testimony with his preliminary examination testimony regarding the photographic lineup. We disagree. Although counsel did not use the preliminary examination testimony specifically, he did devote substantial time to the issue. He noted that the witness was unable to describe defendant for defense counsel, although he was able to give descriptive answers to the prosecutor's questions about defendant's appearance. He urged in closing argument that Steven's in-court identification of defendant was the result of repeated exposure to defendant in court. Further, the decision not to use the preliminary examination testimony was a reasonable trial tactic, People v. Robideau, 94 Mich.App. 663, 669, 289 N.W.2d 846 (1980), since the prosecutor could have shown that Steven eventually picked defendant's picture three times.

Another assertion is that counsel's failure to object to a hearsay statement constituted a serious mistake requiring a new trial.

The van which Steven found parked in the driveway belonged to Edward Konarske, who testified at trial that he recalled talking to Trooper Monfette about the van but he could not "recall * * * for positive * * *" whether he told Monfette that defendant and a friend had borrowed the van on April 7, 1978. Thereafter, Trooper Muladore testified that he and Monfette went to Konarske's house one day after the break-in and were told by Konarske that defendant and an unknown man had borrowed the van on April 7. Defense counsel did not object to this testimony or to Muladore's later statement that defendant admitted he had borrowed the van. Trooper Monfette subsequently testified that Konarske stated he had been serving a three-day sentence in DeHoCo on April 7, 1978, which statement was subsequently verified, and that defendant admitted having borrowed the van while Konarske was in DeHoCo, but he remembered nothing about the day of the crime. Again, there was no objection from defense counsel.

The statement to which defendant objects is that made by Trooper Muladore to the effect that Konarske said defendant had the van on April 7, 1978. Defendant states that this was inadmissible hearsay. It was not. Rather than being introduced to prove the truth of the matter asserted therein, MRE 801(c) it was introduced to impeach Konarske's credibility. See, People v. Hallaway, 389 Mich. 265, 276, 205 N.W.2d 451 (1973).

The question now is whether the attempted impeachment was proper. Konarske was called by the prosecution, so our initial inquiry is whether he could properly have been impeached by the party who called him. MRE 607 permits a calling party to impeach a witness if "the calling party is the prosecutor and he is obliged to call the witness". MRE 607(2)(A), or if "the witness's testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party's case". MRE 607(2)(C).

Konarske was not a res gestae witness; he was not an eyewitness to the crime nor did he have any "independent personal knowledge of any part of the criminal transaction". People v. Carter, 87 Mich.App. 778, 784, 276 N.W.2d 493 (1979). Thus, MRE 607(2)(A) is inapplicable here.

Under MRE 697(2)(C), Konarske's testimony was contrary to that which the prosecutor could reasonably have anticipated. Konarske did not testify at the preliminary examination, so the first time the prosecutor could have known that Konarske would not recall telling the state police that he loaned the van to defendant was at trial. However, Konarske's testimony was not actually injurious to the prosecutor's case. At first blush, it would appear that Konarske's testimony was injurious because he did not testify as the prosecutor expected. However, the focus of the rule is whether what was said, not what was not said, injured the calling party's case. If we were confronted with a witness who affirmatively stated that defendant did not have the van on April 7, such testimony might be actually injurious to the calling party's case because it would aid his opponent. Where the witness's testimony is neutral, however, although it disappoints the calling party's expectations, it does...