People v. Lotter

302 N.W.2d 879, 103 Mich. App. 386, 1981 Mich. App. LEXIS 2709

• Court: Michigan Court of Appeals
• Decided: February 3, 1981
• Docket: Docket 44833
• Status: Published

Opinions

N. J. Kaufman, J.

Defendant was charged with assault with intent to commit murder, MCL 750.83; MSA 28.278, and was convicted by a jury in Lapeer County Circuit Court of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. On October 11, 1977, defendant was sentenced to from six to ten years imprisonment. The trial court denied defendant’s motion for a new trial. This Court granted his application for delayed appeal.

The facts of this case are ably set forth in the dissenting opinion and need not be restated here. Defendant’s primary contention on appeal is that he was denied the effective assistance of counsel and thus a fair trial by the failure of his attorney to pursue a defense of temporary insanity based upon intoxication.

In People v Degraffenreid, 19 Mich App 702, 712; 173 NW2d 317 (1969), this Court adopted a strict standard for review of claims of ineffective assistance of counsel:

"The constitutional right to counsel does not guarantee an accused person that his lawyer will not make a big mistake. The constitution guarantees only that the accused person will enjoy representation by an attorney adequately equipped by his training in the law to undertake the case and who will diligently, conscientiously and honestly represent the accused person.”

As Judge Riley’s dissent notes, it is, nevertheless, true that even where the assistance of counsel satisfies the constitutional requirements the defendant still has the right to a fair trial and may be denied this right if an adequate counsel makes a serious mistake, People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976). Even given a serious mistake, however, "a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance of acquittal. Degraffenreid, supra at 718”.

The Supreme Court in Garcia made it clear that if " 'action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective”’. Id.

On the facts of the instant case, it does not appear that the standards enunciated in Garcia, have been violated. Although hindsight indicates that pursuit of the insanity defense might possibly have been advantageous, this is not the test for ineffective assistance of counsel. Id.

In the case sub judice, defendant’s counsel filed notice of intent to assert an insanity defense and arranged for a forensic center evaluation of defendant. It was the conclusion of the examining physician that defendant was competent to stand trial and was legally sane at the time of the commission of the offense. Defendant himself admitted that trial counsel had explored with him the possibility of an insanity based on alcoholism defense and that trial counsel had felt that such defense would be detrimental to defendant’s case. It thus seems that counsel was aware of the law relating to the insanity defense and fully investigated and evaluated the possibility of raising this defense before concluding that it was not the best tactical choice.

Defendant’s counsel chose to pursue a defense premised on lack of specific intent or accident rather than of insanity. Based on the briefs and records of this case, it clearly cannot be said that this decision rendered the assistance of defendant’s counsel constitutionally ineffective.

It is well established that this Court is reluctant to substitute its judgment for that of trial counsel in matters of trial strategy. People v Crosby, 19 Mich App 135; 172 NW2d 506 (1969), People v Mays, 64 Mich App 453; 236 NW2d 513 (1975). As this Court stated in People v Penn, 70 Mich App 638, 648; 247 NW2d 575 (1976):

"We do recognize the right of every defendant to effective assistance of counsel. * * * However, a difference of opinion as to trial tactics does not amount to ineffective assistance of counsel. * * * We do not wish to second guess trial counsel, for we have none of his knowledge of the existing state of facts at the time of trial. Every criminal trial could be subject to some disagreement as to tactics or conduct of defense with the benefit of hindsight. We find that defendant did receive effective representation at trial and a fair trial.” (Footnotes omitted; emphasis in original.)

Our review of the record in the instant case convinces us that trial counsel’s failure to rely on defendant’s insanity defense was a question of trial strategy. We cannot, therefore, say that the trial court’s determination that defendant was afforded effective assistance of counsel was clearly erroneous. See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

We find defendant’s second claim of error to be without merit. Defendant contends that he was prejudiced by the prosecution’s failure to endorse and produce certain res gestae witnesses and is, thus, entitled to a new trial. Our perusal of the motion-hearing testimony of the three witnesses in question convinces us that their testimony at trial would have been, at best, cumulative and, at worst, detrimental to defendant’s case.

Affirmed.

Mackenzie, J., concurred.