People v. Gallagher

• Decision Date: 01 September 1982
• Docket Number: Docket No. 54497
• Citation: 116 Mich.App. 283,323 N.W.2d 366
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Raymond GALLAGHER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 366

323 N.W.2d 366

116 Mich.App. 283

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Raymond GALLAGHER, Defendant-Appellee.

Docket No. 54497.

Court of Appeals of Michigan.

Submitted June 12, 1981.

Decided May 19, 1982.

Rehearing Denied July 6, 1982.

Released for Publication Sept. 1, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst.Pros. Atty., and A. George Best II, Asst. Pros. Atty., for the People.

Robert H. Roether, Bloomfield Hills, for defendant on appeal.

Before RILEY, P. J., and CYNAR and GAGE, ^* JJ.

RILEY, Presiding Judge.

On November 28, 1978, defendant was charged, along with codefendant Henry Hence, Jr., with first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and conspiracy to commit first-degree murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). Also named as coconspirators, but not codefendants, were Phillip Edmonds and Norman Robinson. Following a lengthy joint jury trial, both defendants were convicted as charged. On November 29, 1979, defendant Gallagher was sentenced to concurrent terms of life imprisonment on each count. The people appeal from an order granting defendant a new trial. Defendant Hence has appealed his conviction separately.

This case arose from the fatal shooting of Leon Sommers on May 11, 1978, at his home in Taylor, Michigan. The victim was found lying on a couch in the living room of his home with his hands bound behind his back. He had been shot through the head four times at close range.

The transcript reveals that Sommers was allegedly involved in stolen auto parts and/or drug trafficking in the downriver Detroit area. Many of the trial witnesses were allegedly involved in these illegal activities, as were defendant and codefendant Hence.

Five weeks prior to Sommers's death, defendant was convicted of interstate transportation of a stolen motor vehicle by an Ohio Federal District Court, based largely on the testimony of Sommers. The prosecution's theory in the instant case was that between April 18, 1978, and May 13, 1978 (i.e., postconviction and presentencing on his federal conviction), a conspiratorial meeting was held at which Gallagher, outraged by Sommers's testimony against him, hired Phillip Edmonds, who in turn hired Robinson and Hence, the "hit men", to kill Sommers.

According to defense counsel, the defense strategy was to establish that defendant was not guilty beyond a reasonable doubt. This was sought to be accomplished in three ways. First, defendant denied any complicity in the conspiracy to kill Sommers. While he admitted that he attended a meeting with some of the "conspirators", defendant claimed that the purpose of the meeting was not to plan a murder but to arrange the theft of a car. Second, defendant sought to show that the prosecution witnesses were not credible in their rendition of the events which occurred. Finally, while not attempting to "prove" who actually arranged the contract on Sommers, defendant attempted to show that others had a motive to kill Sommers.

Following his conviction, defendant's trial counsel moved for a new trial alleging, essentially, a miscarriage of justice and newly discovered evidence. Trial counsel was then replaced by present appellate counsel who obtained permission to review the trial record for additional potential error.

Appellate counsel subsequently filed a series of amended motions for new trial. Although these motions alleged numerous trial errors, the decisive issue, and the issue upon which this appeal hinges, concerned whether defendant was denied the effective assistance of counsel due to an alleged conflict of interest between defense counsel and Mr. X, a former client. The motion alleged that defense counsel failed to investigate the possibility that Mr. X ordered the "hit" on Sommers and that defense counsel failed to present Mr. X adequately as an "alternate suspect".

The various motions for new trial were argued by defendant's appellate counsel at hearings held in early July, 1980. Defendant's trial counsel, although informed of the hearings, failed to appear. Approximately twelve witnesses testified at the hearing, including trial counsel's investigator.

In an oral opinion rendered July 15, 1980, the trial judge granted the motion for a new trial based on the ground that counsel's conflict of interest had denied defendant effective assistance of counsel. While specifically noting that his finding of ineffective assistance of counsel did not result from any want of skill on the part of counsel, he nevertheless concluded that there was "strong evidence" showing that defense counsel had managed and shaped the preparation of the defense at trial so as to shield his former client, Mr. X.

This Court initially denied the people's application for leave to appeal but on rehearing granted a remand for the taking of additional testimony, especially that of trial counsel. Following the remand hearing, which took place in September, 1980, the trial judge filed a written opinion in which he reaffirmed his belief that a new trial was necessary. This decision was based on two grounds, (1) that defense counsel failed to provide defendant effective assistance of counsel as a result of a conflict of interest, and (2) that a miscarriage of justice had occurred. The people have brought this appeal by leave granted, GCR 1963, 806.2, challenging the propriety of the grant of a new trial.

At the September remand hearing, trial counsel testified that he had known an individual by the name of Mr. X since high school and that he had represented him in 1975 and 1976 in a Federal narcotics case. The record also reflects that trial counsel had had several social contacts with Mr. X.

The most crucial testimony, and that which the trial judge appears to have afforded the greatest weight, came from the trial counsel's investigator who interviewed 40 or more witnesses during his investigation and had put approximately 400 hours of actual work into the project.

A major area of inquiry, with regard to the investigator, concerned the initial strategy meeting which had taken place in March of 1979, shortly after trial counsel employed the investigator. According to the investigator, by the time of the strategy meeting, he had already interviewed one witness who claimed that Mr. X possibly may have been involved in the killing of Sommers. It appears to be undisputed, therefore, that by the time of the initial strategy meeting, the name of Mr. X had surfaced as at least a possible participant in the Sommers killing.

The investigator testified that trial counsel first directed him to ascertain exactly what happened at the so-called conspiratorial meetings and to locate and interview the participants who allegedly were there. Further, the investigator testified that counsel told him not to pursue inquiries regarding Mr. X. In addition, on cross-examination, it was established that defendant had provided the investigator with certain information regarding Mr. X, information which reasonably inferred that Mr. X also had a motive to kill Sommers. This information, the investigator claimed, was forwarded to defense counsel. It also appears undisputed that trial counsel told the investigator that Mr. X was not the "killer type" in counsel's opinion and that counsel never expressly told the investigator to investigate Mr. X.

Trial counsel vigorously denied that his former representation of and social contacts with Mr. X, in any way prevented him from zealously representing defendant. He testified that he told defendant, during his first prison visit with defendant, that he had represented Mr. X prior to defendant's case. According to counsel, during the various interviews he had with defendant, defendant never told him whom he believed ordered the killing although defendant did constantly suggest alternate suspects. In short, counsel defended his actions as constituting legitimate trial strategy. He denied any cover-up or conflict of interest.

In his written opinion, the trial judge concluded that a conflict of interest did arise at the time counsel received information that Mr. X very well may have been involved in the conspiracy to kill Sommers and at the time was the principal "alternate suspect". In the judge's opinion, it was clear that pursuing Mr. X as an "alternative suspect" would jeopardize Mr. X's interests, and to not pursue Mr. X as an alternative suspect would jeopardize defendant's interests.

To substantiate his conclusion, the trial judge noted the following examples of the extent to which trial counsel's defense of Gallagher was deflected by his concern for protecting Mr. X. First, he noted that, although counsel had sufficient information from several sources which pointed toward Mr. X as the principal alternate suspect, he nevertheless instructed his investigator to pursue no leads implicating Mr. X. In addition, he noted other instances where Mr. X's name had surfaced during the investigation, in spite of the directives from trial counsel to focus the investigation on other areas and, again, the thrust of the investigation, pursuant to counsel's initial directives, remained unchanged. The trial judge held that a lawyer of ordinary training and skill, having in his possession the host of leads and information arising before trial pointing toward Mr. X, would certainly have seen to it that the information and leads were fully investigated.

Second, the judge pointed out that trial counsel avoided focusing suspicion on Mr. X during the trial. In support of this conclusion, the judge noted that substantial evidence which could have been introduced at trial about the alternative mastermind of the conspiracy showing that person to be a real person, namely Mr. X, was ignored.

Third, the judge noted in his opinion that trial counsel was less than candid with his law firm associate,...