People v. Mays

• Decision Date: 23 September 1975
• Docket Number: Docket No. 19913
• Citation: 64 Mich.App. 453,236 N.W.2d 513
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl Leroy MAYS, Defendant-Appellant. 64 Mich.App. 453, 236 N.W.2d 513
• Court: Court of Appeal of Michigan — District of US

Page 513

236 N.W.2d 513

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl Leroy MAYS, Defendant-Appellant.

Docket No. 19913.

64 Mich.App. 453, 236 N.W.2d 513

Court of Appeals of Michigan.

Sept. 23, 1975.

Released for Publication Dec. 18, 1975.

Gerald S. Surowiec, Detroit, for defendant-appellant.

[64 MICHAPP 454] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, App. Chief, Gerard A. Poehlman, Asst. Pros. Attys., for plaintiff-appellee.

Before T. M. BURNS, P.J., and CAVANAGH and KELLY, JJ.

T. M. BURNS, Presiding Judge.

On March 29, 1973, defendant was convicted in a non-jury trial of carrying a concealed weapon. M.C.L.A. § 750.227; M.S.A. § 28.424. He was sentenced on October 23, 1973, to a term of [64 MICHAPP 455] from 2 to 5 years in prison. On March 27, 1974, defendant's motion for a new trial was denied. Defendant now appeals as of right.

At trial, officer Ronald Martin testified that on March 8, 1972, he and his partners Virgil Starkey and James Harris observed a 1969 Cadillac at the north curb of Euclid west of 12th Street in the City of Detroit. Two individuals were outside of the car walking away from it, but when they saw the policemen one of them ran back to the car and threw a gun inside it. Officer Martin then observed several tinfoil packets, which contained suspected narcotics, being thrown out of the car. The policemen then apprehended the two individuals on the street and orderd everyone out of the car. Defendant was identified as one of the individuals inside the car as was a 15-year-old juvenile, Elma Griffin. The police then searched the parties involved and found a .32-caliber blue steel revolver in defendant's waistband. Officer Harris also identified the defendant as one of the individuals arrested that night.

After officer Harris's testimony, defense counsel waived the production of the three remaining prosecution witnesses, all policemen, because their testimony would have only been cumulative and added nothing material to the case. The people then made a motion to admit into evidence the revolver seized from the defendant. The motion was granted by the trial court.

The trial court then raised this issue of Elma Griffin's involvement in this case. The prosecutor argued that Ms. Griffin was a codefendant and, therefore, not a res gestae witness. Defense counsel argued that she was not a codefendant, pointing out that she had not been charged. Officer Martin was recalled, and he testified that he had [64 MICHAPP 456] no personal knowledge of seeing her doing anything and that there was nothing in his preliminary complaint report to indicate that she was doing anything on the night in question.

The defendant took the stand on his own behalf and admitted that he was a passenger in the car but denied carrying a gun. Defendant claimed that Ms. Griffin was the party from whom the police took the gun.

Defendant has raised four assignments of error. We have considered them all. Those to which we do not specifically refer have not been disregarded. Rather, we consider them to be of insufficient substance to merit decisional discussion.

Defendant first claims on appeal that he was denied the effective assistance of counsel by his trial counsel's actions in failing to move to suppress certain evidence, in waiving the production of three prosecution witnesses and in not moving for indorsement of Elma Griffin as a res gestae witness. Defendant argues that but for these mistakes, a different verdict could have been reached by the trial court. We have reviewed the record and are not so persuaded.

The standard for reviewing a claim that a lawyer's mistakes resulted in the denial of the effective assistance of counsel was set forth in People v. Degraffenreid, 19 Mich.App. 702, 718, 173 N.W.2d 317, 326 (1969):

'In deciding whether to grant a new trial because of a serious mistake a court applies concepts akin to those implicit in the harmless error rule, balancing the public interest in avoiding purposeless retrials against the defendant's interest in having all his rights recognized and asserted. Ordinarily a new trial will not be granted unless it appears that if a new trial is ordered during [64 MICHAPP 457] the conduct of which the mistake is not repeated the defendant may very well be acquitted.'

Moreover, the Sixth Amendment guarantees only that a defendant is entitled to an attorney with ordinary training and skill in the criminal law who will diligently, conscientiously, and honestly represent him. People v. Degraffenreid, supra, at 712, 173 N.W.2d 317; Beasley v. United States, 491 F.2d 687, 696 (CA 6, 1974). The Court will not substitute its judgment for that of trial counsel on matters of trial strategy. In the case at bar, defense counsel's waiver of the production of the three prosecution witnesses and his decison not to object to the admission of the revolver into evidence were matters of trial strategy which will not be second-guessed by this Court. People v. McLeod, 45 Mich.App. 332, 334, 206 N.W.2d 528 (1973); People v. Phelps, 57 Mich.App. 300, 325 N.W.2d 738 (1975).

As to defendant's claim that his lawyer made a serious mistake in not moving for the indorsement of Elma Griffin as a res gestae witness, after reviewing the record in this case, we find this claim to be meritless. We find that defense counsel's failure to move for Ms. Griffin's indorsement as a res gestae witness may have been a tactical decision, but that if it was not, defendant was not prejudiced thereby. Officer Martin testified that the gun was taken from defendant's person. Defendant testified that it was taken from Ms. Griffin. While at first blush it seems that Ms. Griffin's testimony could have...