People v. Osborn, Docket No. 20943

• Court: Court of Appeal of Michigan (US)
• Citation: 63 Mich.App. 719,234 N.W.2d 767
• Docket Number: Docket No. 20943
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Dale OSBORN, Defendant-Appellant. 63 Mich.App. 719, 234 N.W.2d 767
• Decision Date: 27 August 1975

Page 767

234 N.W.2d 767 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Norman Dale OSBORN, Defendant-Appellant. Docket No. 20943. 63 Mich.App. 719, 234 N.W.2d 767 Court of Appeals of Michigan. Aug. 27, 1975.
Released for Publication Nov. 12, 1975.
Leave to Appeal Denied Dec. 2, 1975.

Page 769

[63 MICHAPP 721] Arthur J. Tarnow, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lawrence L. Hayes, Jr., Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and J. H. GILLIS and CAVANAGH, JJ.

CAVANAGH, Judge.

The defendant appeals from his conviction of unarmed robbery, M.C.L.A. § 750.530; M.S.A. § 28.798, by a jury trial in Hillsdale County Circuit Court. He was sentenced to a term of five to fifteen years in prison.

After selection of the jury, the trial judge informed the defendant and his codefendant, Douglas Dunning, that they had a right to employ their own attorney or to be represented by the county public defender, who had represented them at their joint preliminary examination. They chose to continue with the public defender.

George Burlew testified for the prosecution that he had been invited by three women to go with them to their apartment. While they were on their way in his car, Burlew sat in the back seat while the women occupied the front seat. A car which had been following overtook them on a gravel road. The women got out of Burlew's car and left the scene. Burlew testified that he exited the car [63 MICHAPP 722] with a lug wrench in his hand to protect himself. Three men from the other car approached him and beat him until he was unconscious. He was unable to recognize any of the three men. When he awoke, his wallet containing $38 was missing.

The next witness was Chris Marsh, who at the time of trial was in the county jail on other charges. He testified that he discussed Burlew having a lot of money on his person with Osborn, Dunning, and the three women. The six planned to rob Burlew. The three men followed Burlew's car and overtook it. Marsh testified that after Osborn and Dunning had beaten Burlew, Marsh took his wallet. Marsh had not been charged with any crime stemming from the events of that night.

Two of the three women testified that they had related Burlew's proposal to take them to a motel to the defendants. They also testified that the group had planned to rob Burlew. One received $5 from Marsh several days after the robbery, but did not see money being given to anyone else. The other testified that either Osborn or Dunning stated that they had beaten Burlew. Apparently, the third woman was defendant Osborn's sister.

The defense theory was that Chris Marsh was the only one who intended to rob Burlew and that the two defendants assaulted him in order 'to protect the honor' of the women. Defendant Osborn was the only defense witness to testify. He stated that he followed Burlew's car until it became apparent that they were not going to his sister's home. When it stopped in a secluded area, the defendant pulled up behind Burlew's car. Burlew came at Osborn with the lug wrench, and Osborn struck him in self-defense a number of times. Osborn testified that he did not know that Marsh had taken the money until after they had [63 MICHAPP 723] returned to the car. Defendant Dunning did not take the witness stand.

On appeal, defendant Osborn argues that error was committed when he was denied his constitutional right to effective assistance of counsel. Second, he contends that the trial court issued erroneous instructions which affirmatively excluded the possibility of a jury verdict on lesser included offenses and which omitted defendant's theory of the case. The defendant also contends that admission of certain allegedly inflammatory

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pictures was erroneous. Fourth, he contends the testimony of a prosecution witness violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Finally, he asserts that the district court lacked proper jurisdiction to conduct the preliminary examination.

The right to counsel under the United States and Michigan Constitutions does not guarantee separate counsel for each codefendant. People v. Marshall, 53 Mich.App. 181, 189, 218 N.W.2d 847 (1974). People v. Hilton, 26 Mich.App. 274, 276, 182 N.W.2d 29 (1970). See also People v. Chacon, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106, 111 (1968). However, joint representation becomes improper where prejudice results in a denial of effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). People v. Gardner, 385 Mich. 392, 189 N.W.2d 229 (1971). Joint representation results in prejudice where the interests of one defendant conflict with another defendant such that defense counsel had to, or did in fact, slight the defense of one defendant for that of another. People v. Marshall, 53 Mich.App. 181, 190, 218 N.W.2d 847. See also Sanchez v. Nelson, 446 F.2d 849, 850 (C.A. 9, 1971).

Thus, we must examine the circumstances of the [63 MICHAPP 724] present case to determine whether defendant Osborn was deprived of the undivided loyalty of counsel. The defendant maintains that a conflict of interest was manifested by the following: failure to request instructions on defendant's theory of the case perhaps for fear of emphasizing the codefendant's silence; making a brief closing argument for the same reason; attributing defendant Osborn's theory to the codefendant also; failure to pursue certain testimony by a prosecution...