People v. Pauli, Docket No. 70273

• Decision Date: 07 January 1985
• Docket Number: Docket No. 70273
• Citation: 361 N.W.2d 359,138 Mich.App. 530
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick PAULI, Defendant-Appellant. 138 Mich.App. 530, 361 N.W.2d 359
• Court: Court of Appeal of Michigan — District of US

Page 359

361 N.W.2d 359

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick PAULI, Defendant-Appellant.

Docket No. 70273.

138 Mich.App. 530, 361 N.W.2d 359

Court of Appeals of Michigan.

Submitted May 15, 1984.

Decided Nov. 5, 1984.

Released for Publication Jan. 7, 1985.

[138 MICHAPP 532] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Arthur J. Tarnow, Detroit, for defendant-appellant.

Before KELLY, P.J., and BRONSON and SIMON, ^* JJ.

BRONSON, Judge.

In February, 1978, a jury found defendant guilty of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Defendant was sentenced to life imprisonment. Defendant appealed as of right to this Court and we affirmed defendant's conviction in a memorandum opinion dated July 30, 1979 (Docket No. 78-1439). Defendant's delayed application in propria persona for leave to appeal was denied by the Michigan Supreme Court on May 5, 1981. 411 Mich. 894 (1981). On December 13, 1982, defendant filed an application for leave to file a delayed motion for new trial. In an order dated March 11, 1983, the trial court denied defendant's motion for new trial. Defendant then applied to this Court for leave to file a delayed appeal. This Court granted leave in an order dated December 8, 1983.

In his application for delayed appeal, defendant sought to appeal from the judgment of conviction and sentence. I have previously expressed my view [138 MICHAPP 533] that the delayed appeal procedure provided in GCR 1963, 803.3 was not intended to provide a second appeal to a litigant who has previously taken advantage of his right to appeal. People v. Tubbs, 64 Mich.App. 341, 345, 347-348, 236 N.W.2d 77 (1975) (Bronson, J., concurring).

"There is good reason for restricting repeated and unlimited availability of appellate review to a criminal defendant. He already has a constitutional right to appeal his conviction to this Court. If unsatisfied with our treatment of that appeal, he may request rehearing. GCR 1963, 819.4. He may also request Supreme Court review. GCR 1963, 853.

* * *

"There should be but one opportunity to raise nonjurisdictional errors on appeal. That is the rule elsewhere. * * * Otherwise, finality is never achieved. The appeal process becomes a battle of attrition, waged by a relentless prisoner with nothing to lose and everything to gain on an adversarial battlefield the conditions of which--through the mere passage of time--necessarily begin to take on an apperance very different from those prevailing at the time of trial. As the Pickett [People v. Pickett, 391 Mich. 305, 215 N.W.2d 695 (1974) ] Court stressed:

" 'Since a period of years may very well be involved, the problems of finding witnesses in our mobile society, the state of their memory, the availability of records and exhibits, etc., are very real and very significant.' People v. Pickett, supra, at 308 ." (Footnotes and citations omitted.)

Although in People v. Pickett, supra, the Supreme Court granted defendants an appeal as of right following determination of probation violation and sentence, the Court limited the appeal to matters relating to the probation violation. The Court stated:

"We have given defendant the opportunity to raise [138 MICHAPP 534] any questions concerning his trial on his first appeal as of right. To allow him to raise trial related matters on this second appeal would, in effect, be granting two rights of appeal to the same final determination and make the 60-day requirement of GCR 1963, 803.1 in taking an appeal as of right meaningless." People v. Pickett, supra, pp. 316-317, 215 N.W.2d 695.

The state's interest in "finality" does not, however, override a defendant's right to effective assistance of appellate counsel. Certainly, a criminal defendant's appeal as of right and right to appointed appellate counsel encompass the right to effective assistance of appellate counsel. People v. Gorka, 381 Mich. 515, 521-522, 164 N.W.2d 30 (1969); People v. Militello, 33 Mich.App. 93, 94, 189 N.W.2d 838 (1971). Also see Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), reh. den. 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967).

In my opinion, before this Court entertains a second appeal which raises trial-related issues (and before this Court grants leave to file that appeal), a defendant must first establish that he did not receive effective assistance from his former appellate counsel. Such a prerequisite is especially important where defendant's claim of ineffective assistance of appellate counsel is based on counsel's failure to raise certain issues on appeal; otherwise, a defendant could file appeals ad infinitum. I believe that conditioning a defendant's right to raise pretrial and trial issues in a second appeal on a showing of deprivation of effective assistance of appellate counsel serves to protect the people's interest in "finality" as well as the defendant's right to a meaningful appeal.

This Court has already granted defendant leave to file this delayed appeal. It would therefore be inappropriate for this panel to decline to hear the [138 MICHAPP 535] appeal already granted. We proceed to the merits of the issues raised in this appeal with the understanding that the only order which could be appealed at this time under GCR 1963, 803.3 is the trial court's order denying defendant's motion for new trial. The decision to grant a delayed motion for new trial rests within the sound discretion of the trial court and will not be disturbed unless a clear abuse is shown. People v. Barrows, 358 Mich. 267, 272, 99 N.W.2d 347 (1959). ¹

Defendant's conviction stems from the brutal murder of Judith Gale Wing on August 27, 1977. The cause of Wing's death was strangulation by ligature. After death occurred, the victim sustained a massive crush injury to her head. A clothes pole, eight-to-ten-feet long with a four-to-five-foot crossbar at its top, which was encased in an approximately two-and-one-half-foot length of concrete, was found next to Wing's nude body.

The prosecution's theory was that defendant and Kenneth Copley participated in the murder. Copley pled guilty to second-degree murder in exchange for his testimony against defendant. Apart from some circumstantial evidence which tended to support equally the theories of the prosecution and the defense, the prosecution's case completely rested on Copley's testimony.

Copley testified that he was at the Beginning Lounge on August 26, 1977, with a friend, Frank Rex, and became friendly with Wing. A mutual friend arranged for Copley to give defendant a ride to the halfway house where defendant was residing. Before the night of the crime, defendant and [138 MICHAPP 536] Copley were acquainted, but did not know each other well.

Copley, Rex, defendant, and Wing left the lounge in Copley's car and went to a motorcycle clubhouse. The testimony established that Copley and defendant's brother were members of the Iron Coffin Motorcycle Club, but defendant was not a member of any motorcycle club. After consuming more alcohol at the clubhouse, the four left and dropped off Rex. Copley stopped at his house so defendant could telephone the halfway house to say that he was coming home. The three then went in Copley's car to Rouge Park where the police told them to leave because the park was closed. Defendant testified that he was sleeping on and off as they drove around in Copley's car.

Copley then drove to a park on Wadsworth Street, where he and Wing engaged in consensual sexual relations. Defendant's and Copley's testimony differ as to what subsequently occurred. Copley testified that at some point during the evening, defendant had asked him if he could "get some" and that Copley had replied, "I don't know if you can get it; you might as well take it. I don't know if she's willing." Copley claimed that after he finished having sex with Wing, defendant proceeded to have sexual intercourse with her. Although Wing resisted, Copley and defendant, alternatively, engaged in sexual intercourse and oral sex with her.

According to Copley, he then said to defendant, "Why don't you get that bitch quiet", and "What the hell are we gonna do with her?". Copley testified that defendant then said, "Why don't we kill the bitch with that pole?" and that Copley responded, "If we have to do it we'll strangle her". Copley claimed that the two men wrapped a sock belonging to defendant around Wing's neck and [138 MICHAPP 537] strangled her for about four or five minutes. At defendant's suggestion, the two men carried the pole to where Wing was lying and dropped it on her head three times.

Defendant testified that he awoke in Copley's car to see Wing standing naked at the car door and pulling him to come out. Defendant followed Wing, began to kiss her, and, at Wing's request, engaged in oral sex and sexual intercourse with her. Defendant testified he then walked back toward the car, looked out and observed Copley kneeling on Wing, and then fell asleep in the car.

According to defendant, he was awakened when Copley opened the car door dropped some clothes inside, and asked defendant to help look for Copley's wallet. As he was looking for the wallet, defendant encountered Wing's body. Defendant asked Copley if he realized what he had done. Copley told defendant not to worry, that he had "done it before". When defendant asked Copley what he meant, Copley explained that he had once killed a man by "shooting him up" with heroin. In response to defendant's question why Copley had never been "busted" for the prior killing, Copley stated he had been in the penitentiary in Ohio. ²

Later that day, defendant agreed with Copley that, if asked, they would say they "left the bar with Judy and we dropped her in front with some guy". When asked why he agreed to...