People v. Crawford, Docket No. 4678

• Citation: 167 N.W.2d 814,16 Mich.App. 92
• Decision Date: 25 February 1969
• Docket Number: No. 1,Docket No. 4678,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene CRAWFORD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 814

167 N.W.2d 814

16 Mich.App. 92

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene CRAWFORD, Defendant-Appellant.

Docket No. 4678.

Court of Appeals of Michigan, Division No. 1.

Feb. 25, 1969.

Rehearing Denied May 13, 1969.

Released for Publication May 27, 1969.

John C. Emery, Jr., Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel J. Torina, Chief Appellate Lawyer, William L. Cahalan, Pros. Atty., Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before McGREGOR, P.J., and FITZGERALD and CYNAR, ^* JJ.

FITZGERALD, Judge.

Defendant was charged with committing a robbery at a Detroit A & P store at approximately 4 p.m. on March 28, 1967. The complaining witness, a check-out cashier, testified that she had observed the defendant in the store for about a half hour before he appeared in the line to pay for some cat food. Simultaneously, he demanded money, and according to complainant, 'he had a small gun in his hand.' She gave him $125 and notified police after he departed.

The defendant was picked up by 2 patrolmen when they stopped a taxicab in which he was riding about 3 blocks from the store. A 'starter' pistol was confiscated from the floor of the cab at the time of arrest as was $32 in cash.

A charge of robbery armed ¹ was lodged against defendant. He waived trial by jury and was tried in the recorder's court of the city of Detroit and found guilty.

On appeal, several issues are raised, chief of which is an allegation that defendant was deprived of the effective assistance of counsel when his court-appointed attorney undermined his defense of alibi during the opening statement. Specifically, the statement was as follows:

'Mr. Ward: May it please the Court, our defense in this matter will be a general denial. It borders on the verge of an alibi, But we cannot prove definitely just where the defendant was.

'The Court: Do the People rest at this time?

'Mr. Hayes: Yes, your Honor, the People have rested.

'Mr. Ward: We cannot prove an alibi, because we do not know definitely where the defendant was at the approximate time of this hold-up.

'The story that he tells me is that he was in the general neighborhood; he lives there. That he was at several places, and he ended up at the home of a Mrs. Doris Evans at 3438 Garfield.

'So since it was such a wide divergence in the time of the hold-up and the time of the different places where this defendant was, I can't say--I could say with any degree of certainty where he was. So that the only defense that I have is his general denial.' (Emphasis supplied.)

It is now contended that this statement 'in effect blotted out the essence of a substantial defense', quoting Bruce v. United States (1967), 126 U.S.App.D.C. 336, 379 F.2d 113, 117. With this argument we are not impressed. The hard fact remains that despite the testimony of defendant when he took the stand, the defense of alibi was not properly pleaded (by filing of notice) ² and as such cannot be considered a part of the defense Per se. No allegation of incompetence for failure to plead alibi is raised on appeal. The case of People v. Foster (1966), 377 Mich. 233, 140 N.W.2d 513, furnished little support for defendant, being based as it is on a holding that a trial judge is burdened with the duty to supervise the work of court-appointed counsel so as to 'insure reasonable competence' of such counsel. That the trial court was satisfied with the defense's presentation and that defendant at the time held his attorney blameless is borne out by the following colloquy at time of sentence:

'The Court: Do you have anything to say, Mr. Crawford?

'The Defendant: Yes, sir, your Honor. I have never committed a crime of violence in my life, and this trial--I'm not guilty of this crime, I'm not blaming my attorney, but some of the facts in this case were not brought before this Court, because I had certain things, as to the time of my whereabouts were not brought out correctly.

'The Court: Well, I recall this matter, and I do recall in fact that your attorney did an excellent job.

'You have, as Mr. Ward and I will explain to you, a review right; appeal right in this matter, in other words.

'In my estimation, after reviewing this case quite thoroughly, the matter was handled very diligently, and you were convicted because, in the estimation of this Court, because you were guilty. The charges were presented to the Court, and they were proven beyond a reasonable doubt.'

Chief among cases in the area of competence of counsel is People v. Ibarra (1963), 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, in which a test is suggested in the words, 'It must appear that counsel's lack of diligence or competence reduced the trial to a 'farce or a sham." The case further suggests that counsel must investigate all defenses of fact and law that may be available to the...