People v. Lotter

• Decision Date: 03 February 1981
• Docket Number: No. 44833,44833
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lee LOTTER, Defendant-Appellant. 103 Mich.App. 386, 302 N.W.2d 879
• Court: Court of Appeal of Michigan — District of US

Page 879

302 N.W.2d 879

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lee LOTTER, Defendant-Appellant.

No. 44833.

103 Mich.App. 386, 302 N.W.2d 879

Court of Appeals of Michigan.

Feb. 3, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 388] George Geddis, III, Owosso, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Earl Morgan, Jr., Pros. Atty., Nick O. Holowka, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and KAUFMAN and MacKENZIE, JJ.

KAUFMAN, Judge.

Defendant was charged with assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and was convicted by a jury in Lapeer County Circuit Court of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. On October 11, 1977, defendant was sentenced to from 6 to 10 years imprisonment. The trial court denied defendant's motion for a new trial. This Court granted his application for delayed appeal.

The facts of this case are ably set forth in the dissenting opinion and need not be restated here. Defendant's primary contention on appeal is that he was denied the effective assistance of counsel [103 MICHAPP 389] and thus a fair trial by the failure of his attorney to pursue a defense of temporary insanity based upon intoxication.

In People v. Degraffenreid, 19 Mich.App. 702, 712, 173 N.W.2d 317 (1969), this Court adopted a strict standard for review of claims of ineffective assistance of counsel:

"The constitutional right to counsel does not guarantee an accused person that his lawyer will not make a big mistake. The constitution guarantees only that the accused person will enjoy representation by an attorney adequately equipped by his training in the law to undertake the case and who will diligently, conscientiously and honestly represent the accused person."

As Judge Riley's dissent notes, it is, nevertheless, true that even where the assistance of counsel satisfies the constitutional requirements the defendant still has the right to a fair trial and may be denied this right if an adequate counsel makes a serious mistake, People v. Garcia, 398 Mich. 250, 266, 247 N.W.2d 547 (1976). Even given a serious mistake, however, "a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance of acquittal. Degraffenreid, supra (19 Mich.App.) at 718 (173 N.W.2d 317)".

The Supreme Court in Garcia made it clear that if " 'action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective' ". Id.

On the facts of the instant case, it does not appear that the standards enunciated in Garcia, have been violated. Although hindsight indicates that pursuit of the insanity defense might possibly [103 MICHAPP 390] have been advantageous, this is not the test for ineffective assistance of counsel. Id.

In the case sub judice, defendant's counsel filed notice of intent to assert an insanity defense and arranged for a Forensic Center evaluation of defendant. It was the conclusion of the examining physician that defendant was competent to stand trial and was legally sane at the time of the commission of the offense. Defendant himself admitted that trial counsel had explored with him the possibility of an insanity based on alcoholism defense and that trial counsel had felt that such defense would be detrimental to defendant's case. It thus seems that counsel was aware of the law relating to the insanity defense and fully investigated and evaluated the possibility of raising this defense before concluding that it was not the best tactical choice.

Defendant's counsel chose to pursue a defense premised on lack of specific intent or accident rather than of insanity. Based on the briefs and records of this case, it clearly cannot be said that this decision rendered the assistance of defendant's counsel constitutionally ineffective.

It is well established that this Court is reluctant to substitute its judgment for that of trial counsel in matters of trial strategy. People v. Crosby, 19 Mich.App. 135, 172 N.W.2d 506 (1969); People v. Mays, 64 Mich.App. 453, 236 N.W.2d 513 (1975). As this Court stated in People v. Penn, 70 Mich.App. 638, 648, 247 N.W.2d 575 (1976):

"We do recognize the right of every defendant to effective assistance of counsel. * * * However, a difference of opinion as to trial tactics does not amount to ineffective assistance of counsel. * * * We do not wish to second guess trial counsel, for we have none of his knowledge of the existing state of facts at the time of trial. Every criminal trial could be subject to some [103 MICHAPP 391] disagreement as to tactics or conduct of defense with the benefit of hindsight. We find that defendant did receive effective representation at trial and a fair trial." (Footnotes omitted; emphasis in original.)

Our review of the record in the instant case convinces us that trial counsel's failure to rely on defendant's insanity defense was a question of trial strategy. We cannot, therefore, say that the trial court's determination that defendant was afforded effective assistance of counsel was clearly erroneous. See People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).

We find defendant's second claim of error to be without merit. Defendant contends that he was prejudiced by the prosecution's failure to endorse and produce certain res gestae witnesses and is, thus, entitled to a new trial. Our perusal of the motion-hearing testimony of the three witnesses in question convinces us that their testimony at trial would have been, at best cumulative and, at worst, detrimental to defendant's case.

Affirmed.

RILEY, Presiding Judge (dissenting).

I respectfully dissent.

Defendant asserts that he was denied the effective assistance of counsel and thus a fair trial, based upon the failure of his attorney to pursue an insanity or intoxication defense, to object to improper cross-examination, and to move for the sequestration of the prosecution's witnesses. I agree, for the reasons given below, that the defendant was denied the effective assistance of counsel.

For a proper understanding of my disposition of this case, a rather detailed statement of facts is [103 MICHAPP 392] necessary. On the evening of September 15, 1976, defendant broke into the mobile home of his wife, armed with a .22-caliber semi-automatic rifle, and threatened to kill himself. The couple was in the process of seeking a divorce. Defendant's wife fled the premises, and shortly thereafter the police arrived. For approximately one and one-half hours, the police attempted to talk defendant out of killing himself.

At one point, one of the officers saw defendant remove his finger from the trigger to the stock of the gun. Seeing a chance to overpower defendant, a second officer threw a flashlight at defendant and lunged for the rifle, grabbing the barrel. The officer who grabbed the gun testified that defendant then brought the gun down, placed his finger on the trigger, and fired. In the ensuing struggle for the rifle, defendant fired three shots, two of which struck the police officer.

Defendant testified on his own behalf. His defense was essentially that the shooting was an accident which occurred as the result of the officer's grabbing the gun. In response to questions from defense counsel, defendant stated that he had retired from Chevrolet on disability due to drinking and nerves, had consumed six to eight beers on the date of the incident, had been under psychiatric care in the past, and was under such care at the time of trial.

Prior to trial, defense counsel filed a notice of an insanity defense and moved for a forensic examination. The forensic report disclosed that it was the opinion of the Forensic Center that defendant was competent to stand trial, and, following a competency hearing, defendant was adjudged competent to stand trial.

Subsequent to conviction, with the assistance of [103 MICHAPP 393] appellate counsel, defendant filed a motion for new trial. At the hearing on the motion, a psychiatrist testified that he had treated defendant numerous times beginning in 1969 or 1970, up through within two weeks prior to the shooting and thereafter. The psychiatrist expressed the opinion that on September 3, 1976, two weeks before the shooting, defendant was immature and hostile, with an element of infantile thinking which became simple schizophrenia. The doctor also testified that defendant's case was one of the worst he had handled and that, at the time of the shooting, defendant was mentally ill (as defined by statute), that he did not have the intent to shoot, and that his judgment was disturbed and impaired.

On cross-examination, the doctor expressed the view that defendant's primary problem was alcoholism and in-law difficulties and that his mental illness was not primarily the result of alcoholism, that alcoholism "came second".

Finally, the psychiatrist read a letter from defendant's trial counsel dated February 22, 1977, which contained a release signed by defendant...