People v. O'Guin

• Decision Date: 27 August 1970
• Docket Number: Docket No. 6370,No. 1,1
• Citation: 26 Mich.App. 305,182 N.W.2d 103
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William D. O'GUIN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 103

182 N.W.2d 103

26 Mich.App. 305

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William D. O'GUIN, Defendant-Appellant.

Docket No. 6370.

Court of Appeals of Michigan, Division No. 1.

Aug. 27, 1970.

Released for Publication Jan. 5, 1971.

Sol E. Goldberg, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and LEVIN and BORRADAILE, ^* JJ.

PER CURIAM.

On June 28, 1965, defendant and a codefendant were convicted by a jury of murder in the first degree. M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548). The murder was allegedly committed in the perpetration of a robbery.

On appeal, defendant contends that he was denied effective representation of counsel because his appointed counsel was 'fresh out of law school.' The right to effective assistance of counsel does not necessarily mean successful assistance and the possibility that a different attorney could have obtained a better result does not imply that defendant did not have the effective assistance of counsel. People v. Degraffenreid (1969), 19 Mich.App. 702, 173 N.W.2d 317. ^* If the representation is 'only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation' then it is not effective representation. People v. Higginbotham (1970), 21 Mich.App. 489, 175 N.W.2d 557. No such showing is made here. Competence or effectiveness of counsel cannot be measured by number of witnesses cross-examined and the number of objections made. People v. Lundberg (1961), 364 Mich. 596, 111 N.W.2d 809. In the same trial, very experienced counsel also saw his client convicted.

As for defendant's contention that his arrest was illegal,

'He pleaded not guilty, stood trial, and was convicted by a jury. He cannot now be heard to complain of the alleged illegality of his arrest.' People v. Gologonoff (1969), 6 Mich.App. 332, 334, 149 N.W.2d 201.

Defendant further contends that pre-trial publicity denied him a fair trial. In particular, defendant contends that the witnesses were influenced in their testimony, that the trial court erred in denying defendant's motion for a change of venue, and that the Voir dire examination failed to insure defendant of a trial by impartial jury.

Defendant's allegations are conclusional and are not supported by specific references to the record as required by GCR 1963, 813.3. Moreover, while several of the prospective jurors stated they had heard of the crime, this, without more, is not a sufficient showing that the trial court abused its discretion in denying defendant's motion for a change of venue. People v. Freeman (1969), 16 Mich.App. 63, 167 N.W.2d 810. Those who indicated they had opinions were excused for cause.

The trial court conducted the Voir dire pursuant to GCR 1963, 511.3. While defendant contends that the trial court conducted the Voir dire improperly, defendant makes no showing of error on which a finding of substantial prejudice might be based.

Defendant alleges additional error with respect to the trial court's failure to give 2 requested jury instructions. The trial court charged the jury that the only 2 possible verdicts as to each defendant were guilty of first degree murder or not guilty. Defendant alleges error in the trial court's failure to instruct the jury that murder in the second degree and manslaughter were also possible verdicts. Defendant has made no reference to any specific evidence in the record to support an instruction on the 2 additional verdicts....