DocketNumber： Docket 30084
Citation Numbers： 273 N.W.2d 496, 86 Mich. App. 604
Judges： Allen, P.J., and V.J. Brennan and M.F. Cavanagh
Filed Date： 10/4/1978
Status： Precedential
Modified Date： 8/26/2023
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Counsel, for the people.
Kulick, Smith & Kistler, for defendant on appeal.
Before: ALLEN, P.J., and V.J. BRENNAN and M.F. CAVANAGH, JJ.
PER CURIAM.
Defendant was tried in the Ingham County Circuit Court commencing May 11, 1976, on two counts of criminal sexual conduct in the first degree, contrary to MCL 750.520(b)(1)(f); MSA 28.788(2)(1)(f). He was convicted by the jury on both counts and sentenced June 18, 1976, to two concurrent terms of 20 to 40 years in prison. He appeals of right.
Typical of cases involving alleged sexual misconduct the trial boiled down to a one-on-one confrontation, with the complaining witness testifying *606 that defendant assaulted her when she was asleep in her apartment with her two children, and defendant testifying that the conduct was consensual. Because the jury was left with deciding which witness to believe, defendant argues that his trial counsel grossly misrepresented him by eliciting on direct examination the fact that while living in New York, the defendant had been involved in grand larceny in connection with a theft of an automobile. Appellate counsel asserts that it is now established that the charge of grand larceny resulted in a dismissal and not a conviction, and in the one-on-one situation counsel's error denied defendant effective assistance of counsel. People v Degraffenreid, 19 Mich. App. 702, 709; 173 NW2d 317 (1969), Beasley v United States, 491 F2d 687, 696 (CA 6, 1974).
We are not persuaded. Trial counsel skillfully avoided asking his client whether he had been convicted, and defendant's response was not that he had been convicted of grand larceny but that he had been involved. Trial counsel sought to paint a picture of his client as a man who had totally reformed after coming to Michigan from New York. He could best do so and still maintain a high professional standard by having his client tell the truth. Given the situation with which he was confronted, we believe this was probably the best tactic counsel could use. The most recent Supreme Court pronouncement on effective assistance of counsel appears in People v Garcia, 398 Mich. 250, 264; 247 NW2d 547 (1976). In that opinion the Court adopted the test formulated in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974):
"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal *607 law and must conscientiously protect his client's interest, undeflected by conflicting considerations."
We have carefully reviewed the entire record, including the action of defense counsel alleged to be erroneous. We find that the line of questioning would appear to be a reasonable choice of trial strategy to a competent criminal attorney and that defense counsel's performance satisfied the Garcia standards. We also do not believe that defendant would have a reasonably likely chance of acquittal given a new trial absent any error by counsel. People v Degraffenreid, 19 Mich. App. 702, 716, 718; 173 NW2d 317 (1969).
Defendant's second claim of error concerns allegedly prejudicial cross-examination of defendant about his admitted use of drugs. Since the crucial issue was consent, the issue of drug usage was material to possibly show that defendant's ability to judge consent was impaired by his use of drugs earlier that day. Also, it was defendant who first raised the question of drug usage and naturally the prosecutor was entitled to pursue the subject. Additionally, we find that the line of prosecutorial questioning was not so prejudicial that a curative instruction would not have eliminated any harmful effect. Therefore, in the absence of a timely defense objection and request for a curative instruction we find no basis for reversal. People v Gould, 61 Mich. App. 614, 625; 233 NW2d 109 (1975).
We believe that defendant's conviction resulted from a fair trial and it is, therefore, affirmed.