People v. Lewis

• Decision Date: 10 September 1975
• Docket Number: Docket No. 20103
• Citation: 64 Mich.App. 175,235 N.W.2d 100
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Bentley LEWIS, Defendant-Appellant. 64 Mich.App. 175, 235 N.W.2d 100
• Court: Court of Appeal of Michigan — District of US

Page 100

235 N.W.2d 100

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Bentley LEWIS, Defendant-Appellant.

Docket No. 20103.

64 Mich.App. 175, 235 N.W.2d 100

Court of Appeals of Michigan.

Sept. 10, 1975.

Released for Publication Nov. 18, 1975.

Leave to Appeal Denied Dec. 17, 1975.

Randolph P. Piper, Flint, for defendant-appellant.

[64 MICHAPP 176] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

[64 MICHAPP 177] Before BASHARA, P.J., and J. H. GILLIS and CAVANAGH, JJ.

J. H. GILLIS, Judge.

On November 29, 1973 a jury found defendant guilty of delivering a controlled substance (heroin), contrary to M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41) (1)(a). He received a 13--to--20 year jail sentence, and appeals as of right.

The sole issue we deal with on appeal is whether defendant received effective assistance from his trial counsel. Normally, when defendant seeks to challenge the competency of his trial attorney, he must first file a motion for a new trial and an evidentiary hearing. People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973); People v. Moore, 391 Mich. 426, 216 N.W.2d 770 (1974). In the instant case, defendant's trial counsel filed a motion for a new trial, but it is unclear upon what ground this motion rested. The trial judge temporarily denied the motion because no trial transcripts were available at that time. The motion was never renewed. As stated earlier, this failure to renew the motion would usually preclude review. However, in Ginther, supra, the court recognized an exception to this rule by holding that a motion for a new trial is required only when defendant's assertion of incompetence 'depends on facts not of record'. ¹ Because, in the instant case, there is substantial support in the record for defendant's contention, we feel that his failure to renew his motion does not bar our review.

Turning now to the merits of this case, it is first necessary to give a detailed statement of its underlying[64 MICHAPP 178] facts in order to put defendant's allegation in its proper perspective.

On April 18, 1973, the prosecution filed an information charging defendant with the unlawful sale of heroin. According to the prosecutor's theory of the case, defendant sold $10 worth of heroin to one Robert Roach, a police informer, on February 27, 1973. Prior to the sale, Roach had been searched at his own home by the police, he had been wired with a transmitting device, ² and he had been given $25. Roach then drove in his own car to defendant's house, followed by the police in a separate unmarked auto. Roach entered defendant's house and allegedly purchased $10 worth of heroin. The transmitting device malfunctioned; the police were unable to see or hear anything that occurred in the Lewis' home. After the alleged purchase, Roach drove back to his house in his own car and then gave the police 15 and some heroin.

By April 30, 1973, defendant had been arraigned, a preliminary examination had been held, ³ and assigned counsel had filed an appearance. On May 9, 1973, defendant was granted bail and trial was set for August 1. On July 12, assigned counsel filed a motion for the 'production of exculpatory evidence', said motion being unsupported by a brief.

On August 2, defendant fled before the second day of his trial could begin. A mistrial was then declared. Soon afterwards, defendant was rearrested and trial was reset for November 27. On [64 MICHAPP 179] November 13, defense counsel made a motion for a polygraph test of defendant at state expense 'because my client informs me he is completely innocent'. The motion was denied, and on November 27, defendant's trial began anew.

On the morning of November 28, defense counsel made a motion for a mistrial on the basis that he had forgotten to file a notice of alibi. ⁴ Defense counsel admitted that defendant had informed him of the alibi in April. He also admitted that he and defendant's wife had discussed the alibi in 'May or June'. The prosecutor 'vaguely' remembered discussing the alibi with defense counsel prior to the aborted August 1 trial. Defense counsel stated that he only remembered defendant telling him about the alibi back in April, and claimed that defendant did not give him the names of the potential alibi witnesses. He further stated that although he had spoken many times with defendant since April, defendant did not give him the names of the alibi witnesses until that morning, November 28. Counsel did not claim to have asked for the names. The trial judge denied the motion for a mistrial, but waived the notice requirement and allowed defense counsel the remainder of the day to produce the alibi witnesses.

At this juncture, it is appropriate to detail the particulars of defendant's alibi defense. Essentially, defendant contends that on the date in question, he, his cousin Michael Holbrook, and his brother-in-law Allen Jones left Flint at approximately 10:30 a.m. to visit a cousin, Clyde Anderson, in Saginaw. The four men remained together in Saginaw until 3:30 p.m. At that time defendant, Holbrook, and Jones left Saginaw and returned to [64 MICHAPP 180] Flint. Defendant and Holbrook then dropped Jones off and proceeded to Holbrook's house, where they remained until 9 p.m. Defendant's wife, Modie Lewis, concurred in this version of the story. She also stated that Roach came to their house at 6:30 p.m., asked for heroin, and was told that they had none. According to Ms. Lewis, Roach left soon afterwards. This alibi, if effectively set forth and verified by all the witnesses at trial, would have presented a direct conflict with the prosecution's theory that defendant sold heroin to Robert Roach at 6:30 p.m. the same day.

On the morning of November 29, defendant's trial began again. Defense counsel called Modie Lewis to the stand. She testified that she had attempted to get in touch with Michael Holbrook the previous day, and that a friend of his told her that Michael was now in the army and stationed in California. She further testified that defendant's brother-in-law, Allen Jones, had died a few days after the alleged sale occurred. A death certificate was introduced into evidence to verify this. No mention was made of the Saginaw cousin, Clyde Anderson. This testimony is the sole evidence in the record relating to any effort to contact the alibi witnesses.

After Modie Lewis testified, defense counsel put James Siebel, a General Motors' employee, on the stand. Siebel testified that he was in charge of the employees' work records at a certain General Motors' plant, and that Michael Holbrook was an employee at that plant. In response to a question from defense counsel, Siebel stated that Holbrook had worked from 6:30 a.m. to 3 p.m. on February 27, 1973, the day he supposedly in defendant's company. ⁵

[64 MICHAPP 181] It is fairly obvious that Siebel's testimony severely damaged defendant's attempt at an alibi defense. While there are feasible explanations to negate the damaging effect of this testimony, ⁶ on its face it destroyed defendant's credibility. The only explanation that this Court can devise for defense counsel's introduction of this testimony is that defense counsel did not know what this witness would say on the stand. Under the strange circumstances of this case, that explanation seems consistent.

The issue we must decide then is whether, on the facts of this case, defendant was denied the effective assistance of counsel.

The question of what constitutes 'effective assistance of counsel' is a difficult one; the law in this area is in constant evolution. Different jurisdictions employ different standards. ⁷ In Michigan, a standard was first put forward in People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). In Degraffenreid, supra, the Court held that the Sixth Amendment right to counsel guaranteed defendant only that his trial would not be a 'sham, farce or mockery of justice,' and that he would receive some sort of minimal assistance of counsel. ⁸ Degraffenreid, supra, did recognize that [64 MICHAPP 182] often times defense counsel will make a 'serious mistake' in a specific case, even though that attorney has otherwise adequately represented defendant. In certain cases where such a mistake has occurred, defendant will be entitled to retrial. ⁹ This right to retrial is not based on the Sixth Amendment right to counsel, but rather on the constitutional right to a fair trial, and on appellate courts' power to control the administration of justice. ¹⁰

In Beasley v. United States, 491 F.2d 687 (CA6, 1974), the Sixth Circuit rejected the 'farce and mockery of justice' test. It joined itself with a growing number of jurisdictions in holding that the Sixth Amendment requires '* * * counsel reasonably likely to render and rendering reasonably effective assistance'. Beasley, supra, at 696. In doing so, the court recognized that phrases such as 'farce or mockery of justice', and for that matter 'reasonably effective assistance' mean nothing in the abstract. What was important was to look at each case individually, and to decide whether defendant had received a fair trial.

The Beasley court did indicate that defendant was denied effective assistance if defense counsel [64 MICHAPP 183] 'deprive(d) a criminal defendant of a substantial defense by his own ineffectiveness or incompetence'. ¹¹ Beasley, supra, found an obligation on defense counsel's part to '* * * investigate all apparently substantial defenses available to the defendant and * * * assert them in a proper and timely manner'. ¹²

The requirement of Beasley, supra, that defense counsel investigate potential defenses and assert them is a duty that numerous jurisdictions recognize. ¹³ The rationale of these cases is irrefutable. The importance of defense counsel's pretrial investigation and preparation cannot be overemphasized. The...