People v. Herold

321 N.W.2d 684, 116 Mich. App. 176

• Court: Michigan Court of Appeals
• Decided: April 28, 1982
• Docket: Docket 27191
• Status: Published

Opinion

On Rehearing

Before: J. H. Gillis, P.J., and Bashara and K. N. Sanborn, * JJ.

J. H. Gillis, P.J.

The facts of this case and the issues raised are adequately set forth in our original opinion, People v Iaconnelli, 112 Mich App 725; 317 NW2d 540 (1982). On rehearing, we adopt that opinion except as to that portion wherein we found that defendant Richard Herold was entitled to a new trial on the ground that his Sixth Amendment right to counsel was impermissibly invaded by the prosecution’s successful efforts to obtain the testimony of a codefendant who had been represented by the same attorney.

In light of United States v Morrison, 449 US 361; 101 S Ct 665; 66 L Ed 2d 564 (1981), reh den 450 US 960; 101 S Ct 1420; 67 L Ed 2d 385 (1981), and considering the knowledge and approval of defendant Herold’s attorney regarding contacts made by the prosecution with witness Lopez during the joint representation and the lack of evidence showing that any trial strategy was in fact communicated to the prosecution as a result of such conduct, we are persuaded that, contrary to our original decision, defendant Herold’s conviction must be affirmed. This result is mandated in particular by the focus in Morrison on the question of the existence of prejudice and the tailoring of a remedy to the circumstances of each case. Although our original opinion referred to testimony regarding conversations among the codefen dants, it appears that none of the evidence in question constituted privileged communications.

For these reasons, we vacate our earlier decision to reverse defendant Herold’s conviction, and hereby affirm same. With respect to all other issues and defendants, our decision remains unchanged.