People v. Van Brocklin, Docket No. 24239

• Citation: 257 N.W.2d 107,76 Mich.App. 427
• Decision Date: 06 July 1977
• Docket Number: Docket No. 24239
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph VAN BROCKLIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 107

257 N.W.2d 107

76 Mich.App. 427

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph VAN BROCKLIN, Defendant-Appellant.

Docket No. 24239.

Court of Appeals of Michigan.

July 6, 1977.

Released for Publication Sept. 1, 1977.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jon S. Shepherd, Pros. Atty., Keith D. Roberts, Pros. Atty., Appellate Service, for plaintiff-appellee.

Before R. B. BURNS, P. J., and D. E. HOLBROOK and MARTIN B. BREIGHNER, ^* JJ.

R. B. BURNS, Presiding Judge.

Defendant was convicted by jury of breaking and entering an occupied dwelling contrary to M.C.L.A. § 750.110; M.S.A. § 28.305. Defense counsel also represented a prosecution witness for whom he had secured immunity. The issue on appeal is whether defendant was deprived of effective assistance of counsel through counsel's failure to cross-examine the witness as to the immunity agreement. We hold that defendant was and reverse.

The evidence connecting defendant to the crime was largely circumstantial. Complainant's home was broken into and his sporting goods stolen. Earlier that day neighbors had observed a white station wagon with a red door and several occupants parked in complainant's yard. The next day complainant searched for and found a car matching the neighbor's description parked in front of the home of Eleanor Case. Several people left the house, got in the car, and attempted to drive away, but were stopped by sheriff's deputies. Defendant was the driver. A search of the Case house turned up some of the stolen sporting goods, including a bow with one of defendant's fingerprints on it. Complainant's neighbors were able to say only that defendant resembled the driver of the car they had seen, based on hair color and length.

Counsel for defendant also represented Ms. Case, and he advised her not to testify at defendant's preliminary examination. Counsel then secured for her immunity from prosecution in exchange for her testimony against defendant at trial. However, he then advised her that she need not appear at trial because travel money was not tendered with the prosecution's subpoena. When she failed to appear, the trial judge issued a bench warrant, and she was arrested and lodged overnight in jail as a material witness. The next day, the trial judge instructed her outside the presence of the jury, that if she did not testify she would not be immune from prosecution and would be held in contempt, and that if she did not testify truthfully she could be arrested for perjury. Ms. Case thereupon testified before the jury that, on the evening of the crime, her estranged husband, his brother and defendant had come to her home, and she had seen defendant hand some fishing poles to her husband, who placed them in the attic. She also testified that defendant was the only one she had ever seen drive the station wagon. The prosecution did not bring out the immunity agreement.

Defense counsel's cross-examination merely reiterated that Ms. Case had never seen anyone else drive the station wagon, and established the fact that the fishing poles were the only stolen objects she had ever seen in defendant's possession. Defense counsel attempted no impeachment, even by the rather obvious course of bringing out the immunity.

A defendant's right to effective assistance of counsel means that:

" 'Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interests, undeflected by conflicting considerations.' " People v. Garcia, 398 Mich. 250, 264, 247 N.W.2d 547, 553 (1976); quoting Beasley v. United States, 491 F.2d 687, 696 (CA 6, 1974).

Specifically, a defendant is entitled to "the undivided loyalty of his counsel". People v. Gardner, 385 Mich. 392, 400, 189 N.W.2d 229, 234 (1971).

Where counsel have represented codefendants, we have required a showing of actual prejudice before finding reversal warranted. People v. Jones, 64 Mich.App. 659, 667-668, 236 N.W.2d 531, 536 (1975); People v. Osborn, 63 Mich.App. 719, 724, 234 N.W.2d 767, 770 (1975); People v. Marshall, 53 Mich.App. 181, 189-190, 218 N.W.2d 847, 852 (1974); People v. Hilton, 26 Mich.App. 274, 276, 182...