People v. Nickson

• Decision Date: 06 January 1983
• Docket Number: Docket No. 55698
• Citation: People v. Nickson, 327 N.W.2d 333, 120 Mich.App. 681 (Mich. App. 1983)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randy Carl NICKSON, Defendant-Appellant. 120 Mich.App. 681, 327 N.W.2d 333
• Court: Court of Appeal of Michigan

Page 333

327 N.W.2d 333

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randy Carl NICKSON, Defendant-Appellant.

Docket No. 55698.

120 Mich.App. 681, 327 N.W.2d 333

Court of Appeals of Michigan.

Submitted May 18, 1982.

Decided Sept. 13, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 682] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Larry L. Roberts, Asst. Pros. Atty., for the People.

James R. Neuhard State Appellate Defender by James Krogsrud, Detroit, for defendant-appellant on appeal.

Before CAVANAGH, P.J., and KAUFMAN and BENSON ^*, JJ.

PER CURIAM.

Defendant was charged with second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, [120 MICHAPP 683] and possession of a firearm while in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). A jury found him guilty of manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and possession of a firearm while in the commission of a felony. Defendant was sentenced to prison terms of 10 to 15 years for manslaughter and 2 years for the firearm conviction. He appeals as of right.

The charges against defendant arose out of the October 24, 1979, shooting death of Willie Tigue in Ecorse. Sometime prior to the shooting, Tigue had apparently sold defendant a defective dictating machine that he had represented to be a telephone answering device. On the night in question, defendant, a paraplegic, called Tigue over to his specially equipped van to demand his money back. Tigue summoned two of his friends, Deshon Harris and Chester Bryant, who accompanied him into the van. During the course of the argument that followed, defendant drew a pistol from his waistband. Defendant and Tigue struggled over the weapon and five shots were fired, one fatally wounding Tigue. Defendant was wounded in the leg. Defendant testified that he pulled out the weapon because no one was listening to him and because he was afraid of the odds against him in the dispute. He stated that Tigue immediately placed his hand over the weapon and grabbed him by the neck. According to defendant, when the gun first discharged, he was struck in the leg. He denied intentionally shooting Tigue. Both Harris and Bryant testified that defendant drew the gun and pointed it at Tigue. Bryant indicated that the first shot was at Tigue and that it preceded the struggle over the weapon. Harris and Bryant each fled the van as the shooting began. Tigue also ran from the vehicle, but collapsed about 15 feet away. Although defendant drove away from the scene, he [120 MICHAPP 684] promptly turned himself in to the police and was then taken to a hospital.

Defendant argues on appeal that he was denied effective assistance of counsel based upon trial counsel's failure to discover the prior felony convictions of prosecution witnesses Deshon Harris and Chester Bryant, convictions which might have been used for impeachment purposes. Evidence at a Ginther ¹ hearing revealed that Harris was convicted in 1976 for attempted larceny from a building and that Bryant was convicted the same year for receiving and concealing stolen property over $100 and also in 1978 for possession of heroin. The information was obtained by appellate counsel by requesting LEIN Criminal Matter Histories from the state police. Apparently, defendant advised trial counsel prior to trial that he believed the witnesses had criminal records. Trial counsel neither requested such criminal histories nor made a pretrial motion for discovery of the witnesses' prior convictions. Instead, trial counsel relied upon the unverified representations of the Ecorse Police Department that Harris had no prior convictions and that Bryant's only prior conviction was for heroin possession. Bryant's conviction for possession of heroin was not utilized at trial for impeachment.

A criminal defendant is provided with effective assistance of counsel when his attorney performs at least as well as a lawyer with ordinary training and skill in the criminal law and conscientiously protects the defendant's interests, undeflected by conflicting considerations. People v. Garcia, 398 Mich. 250, 264, 247 N.W.2d 547 (1976). Where a defendant alleges on appeal a specific mistake by counsel resulting in a denial of effective assistance [120 MICHAPP 685] of counsel, the test employed is whether in a trial free of mistake the defendant would have had a reasonably likely chance of acquittal. Garcia, 266, 247 N.W.2d 547; People v. Degraffenreid, 19 Mich.App. 702, 718, 173 N.W.2d 317 (1969). Here, we believe counsel's failure to discover and utilize the prior criminal records of witnesses Harris and Bryant was a serious mistake that deprived defendant of a fair trial.

Although we sympathize with trial counsel, who assumed that he could rely upon the initial representation of the police, a defendant is entitled to a more complete investigation into matters directly related to the credibility of prosecution witnesses. As appellate counsel's investigation has demonstrated, discovery of the prior convictions was not a difficult matter. Moreover, had at least a motion for discovery been made, the onus of verifying the witnesses' records might have been placed on the police.

During the Ginther hearing, trial counsel indicated that, had he been aware of the prior convictions, he might have declined to use them to impeach the witnesses. Generally, we will not substitute our judgment for that of trial counsel in matters of trial strategy. A difference of trial tactics does not amount to ineffective assistance of counsel. E.g., People v. Penn, 70 Mich.App. 638, 648, 247 N.W.2d 575 (1976). Trial counsel noted that the jury was apprised of the fact that Harris and Bryant were close friends of the victim, Willie Tigue. Further, he believed, based on the witnesses' performances at the preliminary examination, that their credibility could sufficiently be called into question by cross-examination regarding inconsistencies between their trial and exam testimony. Finally, counsel felt that the witnesses would be tainted by the implication at trial that [120 MICHAPP 686] the dictating machine sold to defendant by Tigue was stolen. Obviously, there are many methods to attack the credibility of a trial witness. However, the presence of additional methods would hardly make a decision to forego impeachment by evidence of a prior conviction a plausible trial strategy. Trial counsel did not reveal, nor can we conceive of, any strategic advantage that would be obtained by the defense by excluding the prior convictions of Harris and Bryant. ²

Finally, we cannot agree with the trial court's conclusion that counsel's error was unimportant because the testimony of Harris and Bryant did not go to the very heart of the crime charged. The trial court reasoned that because the two fled defendant's van as the shooting began their testimony was not crucial. The trial record reveals that defendant testified that Tigue grabbed at the revolver before it was even fully drawn, and that the first gunshot struck the defendant in the leg. He stated that he did not intend to shoot Tigue, but that the gun was fired during their struggle over the weapon. Harris and Bryant each testified that defendant drew the weapon and pointed it at Tigue prior to any struggle. Bryant stated that defendant pointed the gun toward Tigue's face and fired the first shot. Harris also indicated that the shooting was preceded by defendant's threat to Tigue that he had "killed niggers before". The discrepancies between defenda...