People v. Dalessandro

• Decision Date: 26 February 1988
• Docket Number: Docket No. 86081
• Citation: 419 N.W.2d 609,165 Mich.App. 569
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gene Anthony DALESSANDRO, Defendant-Appellant. 165 Mich.App. 569, 419 N.W.2d 609
• Court: Court of Appeal of Michigan — District of US

Page 609

419 N.W.2d 609

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gene Anthony DALESSANDRO, Defendant-Appellant.

Docket No. 86081.

165 Mich.App. 569, 419 N.W.2d 609

Court of Appeals of Michigan.

Submitted March 3, 1987.

Decided Jan. 19, 1988.

Released for Publication Feb. 26, 1988.

[165 MICHAPP 571] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the People.

Daniel J. Blank, Birmingham, for defendant-appellant on appeal.

Before HOOD, P.J., and HOLBROOK and STEMPIEN, ^* JJ.

HOOD, Presiding Judge.

Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and child torture, M.C.L. Sec. 750.136a; M.S.A. Sec. 28.331(1). Defendant was sentenced to two concurrent 6 1/2 to 10 year terms of imprisonment and appeals as of right. Defendant raises several issues on appeal, two of which require reversal.

Defendant's conviction arose out of the physical abuse of William Cormendy, the ten-month-old son of defendant's girlfriend, Laurie Cormendy. At the time of the incident, defendant lived with Cormendy, William, and Cormendy's two-year-old son, [165 MICHAPP 572] Matthew, in Ferndale. On the evening of February 24, 1984, defendant and Cormendy took William to the emergency room of Providence Hospital. Medical personnel observed a three-inch laceration behind William's left knee, along with bruises in various stages of healing around his eyes and on his face, wrists, buttocks and legs. He was also malnourished and underweight. X-rays revealed six bone fractures, three in his right leg and one in each arm and the left leg. According to medical testimony, the breaks were in various stages of healing, indicating that they had occurred at different times in the past. After a police investigation, defendant and Cormendy were arrested and charged with assault with intent to commit murder, assault with intent to maim, and child torture. At trial, defendant's charge of assault with intent to commit murder was reduced to the charge of assault with intent to inflict great bodily harm less than murder.

Before defendant's trial commenced, Cormendy was tried and convicted of assault with intent to do great bodily harm, assault with intent to maim, and child torture. On August 8, 1986, we reversed her conviction in an unpublished per curiam opinion, on the ground that the court erred in admitting testimony by Cormendy's mother that Cormendy had considered aborting William. (Docket No. 82261). On February 3, 1987, the Supreme Court reversed and reinstated Cormendy's conviction on the ground that no objection to the admission of the evidence had been made. 428 Mich. 858, 399 N.W.2d 395 (1987).

Defendant in the instant case first argues that he was denied the effective assistance of counsel at trial. After defendant's trial, defendant moved for [165 MICHAPP 573] and was granted by this Court a Ginther ¹ hearing to be held in the trial court. At this hearing, defense counsel testified along with an attorney, James Feinberg, claimed to be an expert in the field of conducting criminal trials. At the end of the Ginther hearing, the trial judge found that defense counsel's performance met the minimal level of performance required by the constitution, although his conduct was in some instances unprofessional and some of the legal theories advanced were "highly questionable at best."

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the test to be used in reviewing claims of ineffective assistance of counsel. First, defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant under the Sixth Amendment. The objective standard of reasonableness must be used in determining whether defense counsel meets this threshold. Strickland, supra, pp. 687-688, 104 S.Ct. pp. 2064-2065. The defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id., p. 689, 104 S.Ct. p. 2065. Second, the deficiency must be prejudicial to the defendant. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id., pp. 691-692, 104 S.Ct. pp. 2066-2067.

Before Strickland was decided, Michigan followed the two-part test of People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976). According to Garcia, a defendant was denied the effective assistance of counsel and deserved a new trial where [165 MICHAPP 574] defense counsel did not perform at least as well as a lawyer with ordinary training and skill in the criminal law, conscientiously protecting his client's interests undeflected by conflicting considerations. A defendant was also allowed relief where his trial counsel made a serious mistake, without which defendant would have had a reasonably likely chance for acquittal. Garcia, supra, pp. 264-266, 247 N.W.2d 547. This Court has stated that Strickland is to be applied to claims of ineffective assistance of counsel brought under the United States Constitution, and Garcia is to be applied to claims brought under the Michigan Constitution, until the Michigan Supreme Court states otherwise. People v. Vicuna, 141 Mich.App. 486, 498, 367 N.W.2d 887 (1985); People v. White, 142 Mich.App. 581, 588-89, 370 N.W.2d 405 (1985), lv. den. 422 Mich. 968 (1985). However, we now conclude that the Strickland test is the proper test to be applied in either instance, since Strickland was decided after Garcia. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the United States Supreme Court held that it would not review a decision from a state supreme court if the state court decision indicates clearly and expressly that it is based on separate, adequate and independent state grounds. Long, supra, p. 1041, 103 S.Ct. p. 3476. The Court stated that when a state court decision fairly appears to rest primarily on federal law or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, the Court would accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. On the other hand, if the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent [165 MICHAPP 575] state grounds, the Court would not review the decision. Long, supra, p. 1041, 103 S.Ct. p. 3476. We interpret this to mean that unless a state court decision specifically states that it is based on separate, adequate, and independent state grounds, it is overruled by an opposing decision of the United States Supreme Court. The first prong of the Garcia test was taken from a federal case, Beasley v. United States, 491 F.2d 687 (CA 6, 1974). The second prong was taken from a Michigan case, People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). However, a review of Degraffenreid reveals that it relied primarily on federal law in establishing its test. Thus, the Garcia two-part test fairly appears to be interwoven with federal law, and the Court did not state that it was basing its decision on separate, adequate, and independent state grounds. This leads to the conclusion that Strickland has overruled Garcia, and is the test which must be applied. We now agree with Judge Michael Harrison who adopted this view in People v. Dalton, 155 Mich.App. 591, 601-603, 400 N.W.2d 689 (1986) (M.G. Harrison, J., concurring).

Defendant's first allegation of ineffective assistance of counsel involves defense counsel's decision to call Cormendy to the stand as a witness for defendant. ² Cormendy testified upon direct examination that the laceration on William's leg occurred accidently when she was holding William and a butter knife while arguing with her mother about laundry, and that William's bruises resulted from Matthew's throwing toys at him. She testified that she had never seen defendant be mean to William and that defendant was a good father to him. Upon cross-examination, the prosecutor impeached Cormendy by introducing a written statement[165 MICHAPP 576] which Cormendy had made to an officer of the Ferndale Police Department after she was arrested. In this statement, Cormendy stated that defendant was very mean to William, that defendant pushed her down while she was holding William, that defendant called William names, and that defendant would only give William milk when defendant wanted to. The prosecutor also introduced a tape-recorded statement Cormendy made to Oakland County Assistant Prosecutor Lawrence Kozma on December 12, 1984. The recording was played to the jury. In it, Cormendy accused defendant of causing the laceration on William's leg, of picking William up the wrong way, of calling William a "retard," of twisting William's arms and legs, of yelling at William, and of encouraging Matthew to throw toys at William. Before the tape was played, defense counsel elicited from Cormendy that a family friend had told her to call Kozma and implicate defendant. Cormendy also stated that she made the written statement while she was scared and upset. These prior inconsistent statements were the only incriminating evidence against defendant at trial.

Defense counsel testified at the Ginther hearing that he knew that Cormendy would be impeached by these incriminating statements. Nevertheless, he chose to put Cormendy on the stand for three reasons. First, he wanted to counter any negative inference that had occurred when, after Cormendy initially refused to testify when...