People v. Long ( 1981 )

Markewich, J.

(concurring in the result). While I concur in the direction for a new trial, I cannot join my colleagues in their characterization of defense counsel as incompetent. Defendant was undoubtedly the difficult sort of client who takes control of the litigation where, as here, he is paying for representation. The record shows that he took the witness stand in direct contravention of his counsel’s advice that he not testify. It would also appear that, as part of counsel’s problem, he did not check too well his client’s statement about his claimed alibi. After all, defendant’s own “wife” testified at first to the incorrect date, easily confused because, even though the attempted alibi actually addressed itself to a time after the charged crime, the elicited evidence addressed itself to the same numbered day as that on which the crime had occurred; her evidence was corrected on cross-examination. Counsel did commit an error, but this one slip does not justify a charge of incompetence, nor do we actually know how it came about. Defendant is, however, entitled to a new trial on the score of pervasive prosecutorial misconduct. The District Attorney’s summation was concentrated to a great extent in personal attacks on defense counsel, accusing him directly and by innuendo of using smoke screens, and attempts to conceal evidence from the jury. One such attack charged counsel with dishonest, limited cross-examination, designed to keep the prosecutor from eliciting prior consistent statements, from “the officer [who] had information,” thus bolstering that witness’ testimony. He accused his adversary, without justification in the record, of having collaborated with the defendant himself in an unsuccessful endeavor to avoid the. court’s direction to defendant to display the tattoos on his arm to the jury.^* And beyond both of these attacks, and not content with the debacle of the aborted alibi defense which provides the basis for my colleagues’ conclusion of incompetence of counsel, he charged his adversary with a deliberate attempt at deception in its presentation and with taking “a calculated risk that the time would go unnoticed.” No lawyer, let alone one with quasi-judicial obligations, should descend to such tactics, and it cannot be said that they contributed to a fair trial.

* The tattoos had been part of the description of his assailant given by the complainant.