People v. Osborn

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

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.

[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 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 witness.

We can discern no conflict of interest after carefully examining the present record. A prejudicial conflict must be based upon something more than mere speculation. People v. Marshall, 53 Mich.App. 181, 191, 218 N.W.2d 847. The codefendant's failure to testify and the fact that a blanket defense was used could not, under these facts, have harmed defendant Osborn. Cf. People v. Dockery, 20 Mich.App. 201, 173 N.W.2d 726 (1969), Morgan v. United States, 396 F.2d 110 (CA. 2, 1968). The two defendants chose to present the same theory to the jury as to what had happened on the night in question. Nothing in the evidence tended to exculpate one of the two or tended to present one as more culpable than the other. Under these circumstances, joint representation was not erroneous.

The next issue is whether defendant was denied effective assistance of counsel by the manner in which his counsel conducted his defense. In addition to the allegations listed previously, he asserts incompetence in certain comments made during closing argument, in the failure to request instructions on self-defense and on lesser included offenses, and in failing to move for a separate trial.

The circumstances of this case do not justify reversal under either the sham standard or the serious error standard of People v. Degraffenreid, [63 MICHAPP 725] 19 Mich.App. 702, 173 N.W.2d 317 (1969). Many of the examples of alleged incompetence could at the time have appeared to be proper trial tactics. The primary defense theory was that the defendant was unaware of Marsh's plan to rob Burlew. The defendant made this clear during his testimony, and the trial court instructed the jury as to this theory.

As to defense counsel's remarks during closing argument, none conflicted with the defendant's own testimony. Counsel only admitted that the defendant had struck the victim several times and pointed out that it was Marsh who had had larcenous intent at the time of the beating. Further, we cannot say, after studying the record, that if a new trial is ordered the defendant may well be acquitted. Id. at 718, 173 N.W.2d 317.

The next defense argument is that the trial court issued erroneous instructions which affirmatively excluded the possibility of a jury verdict on lesser included offenses. The trial court stated 'There are two separate verdicts for each of the two defendants. One verdict would be not guilty; the other would be guilty as charged.'

In addition, the trial court gave the jury a form containing only the possible verdicts under the principal charge. There was no defense request for instructions on lesser included offenses.

Contrary to the appellate prosecutor's assertions, there was evidence to support the offenses of assault and battery or aggravated assault. Defendant's testimony that he did not intend to rob made that element a question of fact for the jury. As a result, it would have been erroneous to refuse a request for an instruction on either of these lesser included offenses. People v. Van Smith, [63 MICHAPP 726] Jr., 388 Mich. 457, 203 N.W.2d 94 (1972). However, since no request was made, error occurred only if the instructions had the effect of...