People v. Perez, Docket No. 30084

• Decision Date: 04 October 1978
• Docket Number: Docket No. 30084
• Citation: 273 N.W.2d 496,86 Mich.App. 604
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Miguel A. PEREZ, Defendant-Appellant. 86 Mich.App. 604, 273 N.W.2d 496
• Court: Court of Appeal of Michigan — District of US

Page 496

273 N.W.2d 496

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Miguel A. PEREZ, Defendant-Appellant.

Docket No. 30084.

86 Mich.App. 604, 273 N.W.2d 496

Court of Appeals of Michigan.

Oct. 4, 1978.

Released for Publication Jan. 12, 1979.

[86 MICHAPP 605] Kimbal R. Smith, III, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Michael G. Woodworth, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

PER CURIAM.

Defendant was tried in the Ingham County Circuit Court commencing May 11, 1976, on two counts of criminal sexual conduct in the first degree, contrary to MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). He was convicted by the jury on both counts and sentenced June 18, 1976, to two concurrent terms of 20 to 40 years in prison. He appeals of right.

Typical of cases involving alleged sexual misconduct the trial boiled down to a one-on-one confrontation, with the complaining witness testifying [86 MICHAPP 606] that defendant assaulted her when she was asleep in her apartment with her two children, and defendant testifying that the conduct was consensual. Because the jury was left with deciding which witness to believe, defendant argues that his trial counsel grossly misrepresented him by eliciting on direct examination the fact that while living in New York, the defendant had been involved in grand larceny in connection with a theft of an automobile. Appellate counsel asserts that it is now established that the charge of grand larceny resulted in a dismissal and not a conviction, and in the one-on-one situation counsel's error denied defendant effective assistance of counsel. People v. Degraffenreid, 19 Mich.App. 702, 709, 173 N.W.2d 317 (1969), Beasley v. United States, 491 F.2d 687, 696 (C.A.6, 1974).

We are not persuaded. Trial counsel skillfully avoided asking his client whether he had been convicted, and defendant's response was not that he had been convicted of grand larceny but that he had been involved. Trial counsel sought to paint a picture of his client as a man who had totally reformed after coming to Michigan from New York. He could best do so and still maintain a high professional standard by having his client tell the truth. Given the situation with which he was confronted, we believe this was probably the best tactic counsel could use. The most recent Supreme Court pronouncement on effective assistance of counsel appears in People v. Garcia, 398 Mich. 250, 264, 247 N.W.2d 547 (1976). In that opinion the Court adopted the test formulated in Beasley v. United States, 491 F.2d 687, 696 (C.A.6, 1974):

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal [86 MICHAPP 607] law and must conscientiously protect his client's interest, undeflected by conflicting considerations."

We have carefully reviewed the entire record, including the action...