People v. Foster

Citation77 Mich.App. 604,259 N.W.2d 153
Decision Date23 August 1977
Docket NumberDocket No. 29567
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. King Dee FOSTER, Defendant-Appellant. 77 Mich.App. 604, 259 N.W.2d 153
CourtCourt of Appeal of Michigan — District of US

[77 MICHAPP 606] David A. Goldstein, Detroit, for defendant-appellant.

[77 MICHAPP 605] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Arthur N. Bishop, Jr. Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and WALSH and O'BRIEN, * JJ.

V. J. BRENNAN, Presiding Judge.

Defendant King Dee Foster was convicted by a Detroit Recorder's Court jury on May 27, 1976, of felony murder, contrary to M.C.L.A. § 750.316; M.S.A. § 28.548. On June 27, 1976, defendant was sentenced to life in prison. He appeals as of right under GCR 1963, 806.1.

At about 8 a. m. on February 13, 1976, Clay Honor, Jr., was shot and killed in Detroit during an attempted robbery. Four disinterested witnesses saw two men run from the shooting to a parked car in which another man was sitting. At least one of the witnesses was able to get the license number of the car and identify the car, but no one was able to positively identify any of the three men. One witness picked two men out of a lineup by their builds, but in court the witness could identify only codefendant Donald Woods.

The car was traced to Karlotta Hill, the girlfriend of Ronald Foster, who is a first cousin of Donald Woods and King Foster. However, the police could find no fingerprints of either Woods or King Foster in the car.

The evidence against the three men was indecisive and, in an effort to break the case, the prosecution offered full immunity to Ronald Foster in exchange for his testimony against Woods and King Foster. Ronald Foster accepted. The order granting immunity was issued on February 25, [77 MICHAPP 607] 1976. Ronald Foster testified at the preliminary examination on February 25, 1976, and codefendants Woods and King Foster were bound over for trial on the charge of first-degree murder. Ronald Foster had previously led police to the murder weapon.

At trial, Ronald Foster testified that on February 13, 1976, he went to King Foster's house after 6:45 a. m. in Karlotta Hill's car. Both Woods and King Foster were there. The three discussed their lack of money and decided to commit a robbery. They drove around for a while and then chose the Home Juice delivery man as their target. Ronald Foster had a gun. When Ronald Foster borrowed the car, King Foster took the gun. Ronald Foster stayed in the car while King Foster and Woods went around the corner. A few seconds later, Ronald Foster heard a shot, and Woods and King Foster came running back to the car. According to Ronald Foster, King Foster said he had to shoot the guy.

Defendants Woods and King Foster took the stand in their defense and testified that Ronald Foster had solicited their participation in an armed robbery on February 13, 1976, but they had refused. King Foster also stated that Ronald Foster told him he had just shot somebody. Both defendants testified that they stayed at King Foster's place until about noon on February 13, 1976. Geraldine Flowers, King Foster's girlfriend, corroborated their testimony.

Defendants Woods and King Foster were subsequently convicted and defendant King Foster raises several allegations of error on appeal.

Defendant first contends that the prosecutor's attempt to impeach defense witness Geraldine Flowers by use of a misdemeanor conviction [77 MICHAPP 608] amounted to reversible error where defense counsel objected and the court directed the jury to disregard the information.

The general rule in Michigan is that only prior felony convictions can be used to impeach a witness. People v. Renno, 392 Mich. 45, 55, 219 N.W.2d 422 (1974), People v. Jenkins, 70 Mich.App. 234, 235, 245 N.W.2d 578 (1976), People v. Kelly, 66 Mich.App. 634, 636, 239 N.W.2d 691 (1976).

However, even if the prosecution impeaches a witness by use of a misdemeanor, Renno does not establish a per se reversible rule. The error can be harmless. People v. Jenkins, supra, 70 Mich.App. at 235, 245 N.W.2d 578; People v. McMillan, 68 Mich.App. 113, 122, 242 N.W.2d 518 (1976). Thus, the question becomes whether the error was harmless beyond a reasonable doubt in the present case. We believe that the error was harmless beyond a reasonable doubt. The actual offense was never revealed to the jury, and the question and answer were stricken by the trial judge. Furthermore, the judge's subsequent instruction cured any error possibly caused by the exchange.

Defendant next alleges that the case be remanded to the trial court for an evidentiary hearing on the allegation that he was provided ineffective assistance of counsel at trial.

Michigan law recognizes that a criminal defendant is entitled to the effective assistance of counsel. Traditionally, Michigan courts have applied the two tests of People v. Degraffenreid, 19 Mich.App. 702, 711-712, 173 N.W.2d 317 (1969). Those tests resulted in a new trial only (1) when the prior 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 [77 MICHAPP 609] without adequate opportunity for conference and preparation; or (2) when the defendant's otherwise constitutionally adequate attorney made a mistake which may have been decisive in obtaining defendant's conviction. People v. Degraffenreid, supra, 19 Mich.App. at 710, 716, 173 N.W.2d 317. See People v. Hendrix, 71 Mich.App. 292, 294-296, 248 N.W.2d 239 (1976), People v. Battle, 71 Mich.App. 136, 143-144, 246 N.W.2d 389 (1976), People v. Osborn, 63 Mich.App. 719, 725-726, 234 N.W.2d 767 (1975), People v. Karasek, 63 Mich.App. 706, 715, 234 N.W.2d 761 (1975).

However in People v. Lewis, 64 Mich.App. 175, 182-183, 235 N.W.2d 100 (1975), this Court adopted the view expressed in Beasley v. United States, 491 F.2d 687 (CA 6, 1974), and held that a defendant is entitled to have defense counsel investigate, prepare, and assert all substantial defenses. We stated there:

"When defendant is able to show this Court that defense counsel, through failure to investigate and prepare a substantial defense, has deprived defendant of that substantial defense, defendant shall have made a prima facie showing of incompetence." People v. Lewis, supra, 64 Mich.App. at 183-184, 235 N.W.2d at 104.

By substantial, we meant whether the assertion of a defense might have made a difference in the outcome of the trial. People v. Lewis, supra, at 185, 235 N.W.2d 100.

In People v. Bynum, 64 Mich.App. 186, 188-190, 235 N.W.2d 105 (1975), and People v. Mays, 64 Mich.App. 453, 456-458, 236 N.W.2d 513 (1975), we resolved any potential conflict between Degraffenreid and Lewis. Specifically, we found in those cases no irreconcilable clash between the different tests, determining that the Lewis-Beasley standard is only an example of Degraffenreid's second test. Subsequently, in People v. Garcia, 398 Mich. 250, [77 MICHAPP 610] 266, 247 N.W.2d 547 (1976), the Michigan Supreme Court also specifically adopted the Beasley test and rejected the first Degraffenreid test.

Applying the Garcia-Beasley-Degraffenreid standard, then, we find no merit to the claim that defense counsel committed a decisive mistake requiring retrial when he failed to interview witness Flowers until the day before trial. Though we do not believe waiting so long to interview a witness advisable, we are not willing to say such delay amounted to the kind of mistake that the Court in Garcia indicated entitled defendant to a new trial. People v. Garcia, supra, 398 Mich. at 266, 247 N.W.2d 547.

Nor do we believe defense counsel deprived defendant of a substantial defense when he failed to secure the presence and testimony of certain persons with supposedly exculpatory information. See Beasley v. United States, 491 F.2d 687, 696 (CA 6, 1974). We do find that defense counsel attempted to secure the testimony of informant Leo Bryant and Officer John Huggins. Bryant had apparently heard some discussion indicating the complicity of other persons in the crime. This information was written down by Officer Huggins on February 14, 1976. Though defense counsel diligently produced both informant Bryant and Officer Huggins at trial, the trial court ruled to exclude their testimony as hearsay.

We do not believe defense counsel's failure to pursue this incident amounts to ineffective assistance of counsel. Counsel did attempt to obtain the testimony of witnesses with whom he was familiar. The fact that he did not or could not follow the sources beyond informant Bryant and Officer Huggins does not show ineffective assistance of counsel. No certainty exists on the record as to the reliability of informant Bryant nor the accuracy of [77 MICHAPP 611] the information he provided Officer Huggins. We will not order retrial on the strength of these facts.

Finally, we find without substance defendant's claim of ineffective assistance due to defense counsel's failure to move to suppress defendant's brown leather coat as evidence. Even assuming that the coat could have been suppressed, we find any possible error harmless. Other evidence in the case is more than sufficient to sustain the conviction. The coat was a minor piece of evidence at most. People v. Hendrix, supra, 71 Mich.App. at 294-296, 248 N.W.2d 239.

Defendant next assigns as reversible error the prosecutor's rebuttal statement "Thank the good God that we were able to get the truth".

No objection was raised at the time of the rebuttal argument and so we will not consider the claim if the alleged prejudice could have been rectified by a curative instruction. People v. Gould, 61 Mich.App. 614, 625-626, 233 N.W.2d 109 (1975). When reviewing claims...

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