People v. Gardner, 30

Citation385 Mich. 392,189 N.W.2d 229
Decision Date27 August 1971
Docket NumberNo. 30,30
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnnie Sylvester GARDNER, Defendant-Appellant.
CourtSupreme Court of Michigan

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Arthur N. Bishop, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Harold Koenigsberg, Detroit, for defendant-appellant.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

The opinion of Judge Holbrook for the Court of Appeals succinctly postures this case:

'Defendants Johnnie Sylvester Gardner and Wavie R. Williams, Jr., were tried in a joint trial and convicted by a jury in the recorder's court for the city of Detroit, on June 16, 1967, of the crime of assault with intent to rob and steal being armed (C.L.1948, § 750.89 (Stat.Ann.1962 Rev. § 28.284)) and the crime of assault with intent to commit murder (C.L.1948, § 750.83 (Stat.Ann.1962 Rev. § 28.278)). Both defendants were represented at the trial by the same retained counsel. Neither defendant took the witness stand. Defendant Gardner was sentenced to prison for a term of 11 to 20 years and defendant Williams for a term of 17 to 35 years. Evidence was presented by the prosecution showing that on the evening of November 11, 1966, three men entered the Y and B Market, armed with pistols, and proceeded to demand money from owner Albert Yezbick and his son, Victor Yezbick. They departed after one of the men shot and wounded Albert Yezbick. Victor Yezbick, using a gun which was kept in the store, fired three shots at the men as they fled onto Milwaukee street from John R. Street. A passerby, Thomas Phelan, armed under a concealed weapon permit, testified to having chased the three men on foot after they fled from the store brandishing weapons, with Phelan firing shots at them and at the get-away car located on Milwaukee, around the corner from the Y and B Market. Both described the get-away car as a blue Oldsmobile convertible with white top.

Witness Phelan testified on direct exmaination in part as follows:

'Q. Do you know if there was anyone in the car, in the Oldsmobile, when they ran to it?

A. Yes, there was.

Q. When they got in there would be four persons altogether?

A. Yes.

Q. Could you identify the person that was in the car?

A. No.

Q. What did you do then when they got in the car?

A. I opened fire on the automobile.

Q. How many shots in all did you fire?

A. Six; one in the tire, one in the bumper, three into the trunk and one in the back window.'

A 1960 Oldsmobile meeting this description was examined by a patrolman at a Detroit motel on December 3, 1966. He testified that the car contained numerous holes in the body, appearing to be bullet holes, and in the convertible top, side and rear view mirror. Defendant Garner, taken into custody at that time, stated to the patrolman that the car in question was his. The car was subsequently determined to have been registered to a John S. Gardner.

Wiley Richardson, Jr., owner of a service station a block from the scene of the crime testified that he had identified defendant Gardner in a lineup sometime after November 11, 1966, 'maybe about a week later, two weeks later, * * * I couldn't recall.' The witness identified Gardner again, at the trial, as having entered his station on foot at approximately 6 o'clock on the night in question accompanied by two companions. Gardner asked to use the rest room, got the key and went to the outside rest room. The witness testified that after Gardner brought the key back the witness looked out the window and saw three men going toward the Y and B Market. He did not know whether Gardner was one of the three.

Defendant Gardner was not identified as having been in the Y and B Market at the time of the offense. Defendant Williams was identified by Victor Yezbick in a lineup and again at trial. * * *

* * * (A) customer who was in the store when the three armed men entered, identified Williams as having been one of the three men.' (19 Mich.App. 291, 294--298, 172 N.W.2d 515 (1969).)

The testimony of the police officer who questioned Gardner at the tiem he was taken into custody was in part:

'A. He told me that he was driving--that, 'We were driving down John R.' and they pulled over at Milwaukee and John R. I believe it was, so that he could go to the bathroom. He told me that he went into the bathroom, came back to the car, and when he came back to the car Wavie Williams, Herbert Farmer and John Anthony said they were going to the store to get some beer to check it out. He told me that he was scared and that he said he asked them what they were going to do, and they walked on to the store. He stated that he remained in his car. He walked back to the corner, got out of the car once and walked back to the corner and looked around the corner and he saw guns coming out and heard all of this shooting. He stated at this time that he got scared and ran and got into his car and started it up and attmepted to pull away from the curb. I believe he stated that he had a little trouble getting out. I don't know if because of the parked cars or what.

But by this time he heard all the shooting and Wavie Williams came and got in the car and he asked him, 'Man, what have you done?' and he stated, 'Get out of here quick.' And Wavie Williams was followed in the car by John Anthony and at this time he almost pulled away but Herbert Farmer jumped in and at the last minute, and he stated that bullets were flying everywhere and one flew by his head and one went by the right window and either bullets or glass nicked Herbert Farmer on the head and he stated that he drove home at this time and told his wife that he was in serious trouble or that the car was in serious trouble. I don't remember which. And he asked her to report it stolen, which she did.'

The Court of Appeals affirmed defendant Gardner's conviction and although four errors were asserted on appeal, we find three to be without merit: 1) Defendant's 'exculpatory statement' was improperly admitted 2) There is no evidence of common enterprise 3) The evidence, being entirely circumstantial does not negative every theory of innocence consistent with the facts proven.

The trial court's instruction accurately and adequately covered the elements of intent and common enterprise and if the jury believed the witnesses produced, there is ample evidence from which to infer defendant's guilt beyond a reasonable doubt.

Regarding the 'exculpatory statement' of the defendant Gardner which was recounted by the police officer, there appears no evidence of physiological or psychological coercion in obtaining it, and the testimony that defendant's rights were fully explained to him before he told his story was unrebutted. We conclude that no error was committed in receiving the testimony.

The one asserted error which requires our reversal of defendant's conviction, however, is complex and convoluted.

The defendant's appellate counsel states it:

'(a) Joint representation by single retained counsel of Defendant Gardner and his co-defendant was reversible error where the defenses of the two parties charged were inconsistent and conflicting and where Gardner's representation was undoubtedly not as effective as it might have been if single counsel with undivided loyalties had represented him, and where there was no intelligent and knowing waiver of Gardner's right to effective assistance of counsel.

(1) If counsel's joint representation of co-defendants with conflicting interest is not deemed reversible error, then Defendant Gardner for this and other reasons was denied his constitutional right to effective assistance of counsel.'

This very statement of the claimed error underscores the unacceptability of the course of conduct pursued here.

No inconsistent defenses were offered by defense counsel, and the trial court's instructions to the jury that they were offered is the error we find requiring reversal.

The formal defenses offered on behalf of both defendants were simply their pleas of not guilty. Such plea puts in issue every element of the crime, and by itself advances no explanation or exculpatory...

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6 cases
  • People v. Osborn
    • United States
    • Court of Appeal of Michigan (US)
    • 27 Agosto 1975
    ...denial of effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). People v. Gardner, 385 Mich. 392, 189 N.W.2d 229 (1971). Joint representation results in prejudice where the interests of one defendant conflict with another defendant such t......
  • People v. Villarreal
    • United States
    • Court of Appeal of Michigan (US)
    • 6 Octubre 1980
    ...showing of actual prejudice: "Specifically, a defendant is entitled to 'the undivided loyalty of his counsel'. People v. Gardner, 385 Mich. 392, 400, 189 N.W.2d 229, 234 (1971). "Where counsel have represented codefendants, we have required a showing of actual prejudice before finding rever......
  • People v. Jones
    • United States
    • Court of Appeal of Michigan (US)
    • 13 Octubre 1975
    ...a defendant of his right to counsel. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); People v. Gardner, 385 Mich. 392, 189 N.W.2d 229 (1971). Such will not be the case, however, unless the interests of one defendant so conflict with the interests of another defenda......
  • People v. Gallagher
    • United States
    • Court of Appeal of Michigan (US)
    • 1 Septiembre 1982
    ...same. In either situation, the concern is that a defendant is entitled to the undivided loyalty of his counsel, People v. Gardner, 385 Mich. 392, 400, 189 N.W.2d 229 (1971), and that that loyalty may be compromised when a lawyer, wittingly or unwittingly, is placed in the precarious positio......
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