People v. Adams

256 N.W.2d 605, 76 Mich. App. 384, 1977 Mich. App. LEXIS 925

Opinion

Per Curiam.

Defendant was convicted by a jury of first-degree murder for the shooting death of Anna Lykins, MCLA 750.316; MSA 28.548, and sentenced to life imprisonment. He appeals as of right.

Defendant claims that he was denied his constitutional right to effective assistance of counsel, alleging that defense counsel at trial simultaneously represented the Ypsilanti Police Officers Association without defendant’s knowledge or consent and that two of the officers who testified at his trial were members of the YPOA.

The allegations have not been established on this record, but defense counsel offered to prove them while arguing a motion for new trial before the trial court.¹ No offer was made to prove any prejudice to defendant arising out of the alleged relationship, however. The argument made on appeal is that the alleged simultaneous representation was per se prejudicial.

We are not of the opinion that the alleged simultaneous representation of the defendant and the YPOA in the instant case is so inherently prejudicial as automatically to be deemed ineffective assistance of counsel.² Since defendant did not offer to prove prejudice, and the record of his trial reveals none,³ it is unnecessary to remand for a hearing.

Defendant also raises issues concerning the trial court’s restriction on examination of decedent’s son, the exclusion of a letter written by decedent and the court’s refusal to give a requested jury instruction. These matters were all within the trial court’s discretion and the record discloses no abuse of that discretion.

Affirmed.

1 A defendant claiming a denial of effective assistance of counsel must establish a record factually supporting his claim. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). For purposes of this appeal we may assume that the facts which defendant offered to prove are in fact true.

2 We note that under Formal Opinion C-215 (released February 25, 1977), the simultaneous representation alleged in the instant case would probably not even be unethical. Of course, Formal Opinions of the State Bar on ethical matters do not control this Court’s determination of whether there was ineffective assistance of counsel in a particular case.

3 In fact, the record indicates that defense counsel strongly criticized the investigating officers in cross-examination and closing argument for obliterating fingerprints on the alleged murder weapon, not conducting a paraffin test and, in general, for improperly concluding before investigation that defendant was guilty.