People v. DeGraffenreid, Docket No. 4242

CourtCourt of Appeal of Michigan (US)
Writing for the CourtLEVIN
Citation19 Mich.App. 702,173 N.W.2d 317
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. David DeGRAFFENREID, Defendant-Appellant
Docket NumberNo. 1,Docket No. 4242
Decision Date30 October 1969

Page 317

173 N.W.2d 317
19 Mich.App. 702
PEOPLE of the State of Michigan, Plaintiff-Appellee,
David DeGRAFFENREID, Defendant-Appellant.
Docket No. 4242.
Court of Appeals of Michigan, Division No. 1.
Oct. 30, 1969.
Released for Publication Jan. 9, 1970.

[19 Mich.App. 705]

Page 318

Kenneth A. Webb, Detroit, for appellant.

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

Before HOLBROOK, P.J., and LEVIN and PRATT *, JJ.

Page 319

LEVIN, Judge.

The defendant David Degraffenreid appeals his conviction of possession of a motor vehicle which he knew or had reason to believe had been stolen. M.C.L.A. § 257.254 (Stat.Ann.1968 Rev. § 9.1954). He contends that he is entitled to a new trial because of the admission in evidence of a registration card for the stolen automobile and incriminating papers taken from it.

The registration card for the stolen automobile was found in the defendant's possession following his arrest. He asserts that his arrest was illegal and that, consequently, the seizure of the card cannot be justified on the ground that it was taken incident to the arrest. The incriminating papers [19 Mich.App. 706] were found in a warrantless search of the automobile several days after the defendant's arrest. He asserts that a warrant was required to validate the search.

We have concluded that the arrest was legal, and, therefore, reject the objection made in regard to the registration card. No objection was raised by the defendant's trial counsel to the introduction of the incriminating papers found in the automobile. We have considered the claim of his appellate counsel that the defendant was denied the effective assistance of counsel when his constitutional right to have illegally-seized evidence suppressed was not recognized and protected and have concluded, for reasons later stated, that a new trial need not be ordered in this case.


Facts and Issues

The police were giving 'special attention' to a gasoline station because it had been repeatedly robbed. At the trial, a police officer testified that at about 2 a.m. the attendant at the station hailed him and his partner and told them that 2 men (the defendant and Joseph Brown) had entered the ladies' restroom of the station and had been there quite awhile. The police assumed a position of serveillance and observed Brown and the defendant emerge from the restroom and stand alongside the building for approximately 5 minutes. After all cars had left the station Brown and the defendant approached one of the attendants. At that moment a scout car drove into the station on a routine check whereupon Brown and the defendant turned and headed away.

The officer further testified that as Brown and the defendant were walking away he observed a bulge [19 Mich.App. 707] in Brown's rear pocket. Brown and the defendant were stopped. Brown was searched and a pellet pistol was found in his rear pocket. No weapon was found on the defendant. They were both arrested and taken to the precinct station house.

The registration card for the stolen vehicle was taken from the defendant's person at the station house. At the trial the defendant's attorney objected to the introduction of the registration card on the ground that the police did not have probable cause to arrest the defendant and, thus, did not have the right to search his person and seize the registration card incident to the arrest. 1

We agree with the trial judge that there was probable cause to arrest the defendant. He and Brown had been observed loitering at 2 a.m. in the ladies' restroom of a frequently-robbed gasoline station. After remaining some time in the ladies' restroom they were seen standing for 5 minutes alongside the building. Only after all cars in the station had left did

Page 320

they approach the attendant and then they abruptly turned away when a police cruiser appeared. A bulge was seen in Brown's rear pocket before he was stopped. Cf. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The police had reason to believe that, but for the happenstance that a police cruiser drove through the station, Brown and the defendant would have committed a felony. We need not decide whether there was sufficient evidence to convict Brown and the defendant[19 Mich.App. 708] 2 of attempted armed robbery; 3 it is enough to say that the police had probable cause to arrest them for that crime. 4

In addition to the registration card, there were admitted in evidence papers found in the stolen car that were identified as belonging to the defendant. No search warrant had been obtained before the search and seizure of these papers. The defendant was arrested shortly after 2:00 a.m., September 7, 1966. The car was not located until September 8, 1966. When it was found at an intersection 4 or 5 blocks from the gasoline station, it was removed to the station house and the papers belonging to the defendant were found during a search conducted at the station house.

The defendant's trial counsel did not object to the introduction in evidence of the papers. The defendant's appellate counsel argues that had a timely motion to suppress been made the trial court would have been obliged to grant the motion. From this [19 Mich.App. 709] postulate, the accuracy of which we need not decide, 5 the defendant's appellate counsel argues that the failure of trial counsel to object to the admission of the seized evidence deprived the defendant of the effective assistance of counsel and that the defendant should not on that account suffer loss of his right to have illegally obtained evidence suppressed.


The Right to the Effective Assistance of Counsel

Once the right of the indigent to the assignment of counsel was recognized, the courts understandably insisted that the lawyer assigned be adequate to the task. 6

Page 321

Without a minimum criterion of competence the right might prove in many cases to be meaningless. This led to the concept that an accused person is entitled to the 'effective assistance of counsel,' 7 rounding out the newly defined constitutional right.

With increasing frequency, we are confronted with claims on appeal grounded on alleged errors of trial counsel. The claim that a convicted person was denied the effective assistance of counsel is frequently coupled with an assertion that he was thereby deprived of his constitutional right to counsel. 8 [19 Mich.App. 710] Such claims are measured against a strict standard; typical of the judicial statements is the following:

'It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.' Williams v. Beto (C.A. 5, 1963), 354 F.2d 698, 704. 9

The development of the sham trial standard is probably explainable in pragmatic terms. Every accused person cannot be represented by a lawyer of outstanding ability and experience. Some defendants are represented by comparatively inexperienced advocates. An inordinate number of cases would have to be retried unless claims that the accused was denied his right to counsel were measured against a strict standard. This consideration, no doubt, influence the courts to back away from giving the words 'effective assistance' their fullest possible meaning.

"Effective' assistance of counsel obviously means something other than successful assistance.' Mitchell v. United States (1958), 104 U.S.App.D.C. 57, 259 F.2d 787, 789.

[19 Mich.App. 711] 'The fact that a different or better result may have been obtained by a different lawyer does not mean that the defendant has not had the effective assistance of counsel.' Scott v. United States (C.A. 6, 1964), 334 F.2d 72, 73.

The sham trial standard focuses attention on the entire representation of the accused by his lawyer. Since most lawyers are conscientious and at least minimally adequate for the task to which they are assigned, few claims that a case was mishandled will be recognized as valid when measured against this standard.

Most post-conviction claims of disgruntled clients are indeed insubstantial. Those

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that have some foundation frequently can be legitimately rejected on the ground that the lawyer's conduct was proper 'trial tactics.' 10 Even where the lawyer makes an egregious mistake which conceivably convicted his client, ordinarily it cannot properly be said that the trial was a sham if, putting that mistake aside, the [19 Mich.App. 712] case was well handled or even adequately handled by the lawyer. 11 In this case it is not contended that, apart from the failure to seek suppression of the papers found in the stolen car, the defendant's trial counsel mishandled the case; it is not asserted that, viewed as a whole, the representation provided for the defendant or his trial was a sham.

The constitutional right to counsel does not guarantee an accused person that his lawyer will not make a big mistake. The constitution guarantees only that the accused person will enjoy representation by an attorney adequately equipped by his training in the law to undertake the case and who will diligently, conscientiously and honestly represent the accused person. 12

The most able and conscientious lawyers make mistakes, sometimes big mistakes. Clearly, mere error of counsel, however serious, will not ordinarily establish that the lawyer making the mistake is inadequate in the constitutional sense. The fact that a lawyer does not, because of ignorance of a particular rule of law or misconception, miscalculation or misadventure, assert a particular...

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