People v. Tullie

141 Mich. App. 156 (1985) 366 N.W.2d 224

PEOPLE
v.
TULLIE

Docket No. 74315.

Michigan Court of Appeals.

Decided January 24, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and A. George Best II, Assistant Prosecuting Attorney, for the people.

John McCloskey, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and CYNAR and C.W. SIMON, JR.,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to a minimum of 8 years and a maximum of 20 years imprisonment. Defendant appeals to this Court as of right.

Defendant's first claim is that there was insufficient evidence to satisfy the armed element of the crime of armed robbery. At trial the complainant, Mary Conry, testified that the assailant held his hand in his pocket indicating he had a gun. This evidence was sufficient to support conviction for armed robbery. A defendant may be convicted for armed robbery even if the weapon was not actually seen by the complainant. People v Hayden, 132 Mich. App. 273, 293; 348 NW2d 672 (1984); People v McCadney, 111 Mich. App. 545; 315 NW2d 175 (1981); People v Krist, 93 Mich. App. 425; 287 NW2d 251 (1979), lv den 407 Mich. 963 (1980). This case is unlike People v Parker, 417 Mich. 556; 339 NW2d 455 (1983), cert den ___ US ___; 104 S. Ct. 2180; 80 L. Ed. 2d 561 (1984), where no evidence of the presence of a weapon was adduced at trial. The evidence when viewed in the light most favorable to the prosecution is sufficient as to each element of the offense, so as to warrant a finding of guilt beyond a reasonable doubt. People v Hampton, 407 Mich. 354; 285 NW2d 284 (1979), reh den 407 Mich. 1164 (1980).

Defendant also suggests that he was denied effective assistance of counsel. The test for effective assistance of counsel is stated in People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976), reh den 399 Mich. 1041 (1977). It is a two-pronged test. A lawyer must perform at least as well as a lawyer with ordinary training and skill in the criminal law. A defendant may also be deprived of effective assistance of counsel if trial counsel makes a serious error but for which defendant would have had a reasonable chance of acquittal. Garcia, supra. This test parallels the test for effective assistance of counsel recently announced in Strickland v Washington, ___ US ___; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). Under Strickland there is a strong presumption of effective assistance of counsel.

To support his position, defendant points to the fact that trial counsel did not make a motion to quash the information or to suppress evidence nor did he object to an identification obtained during a line-up conducted in the presence of counsel. We disagree. The motions would have been frivolous. The police arrested defendant based on probable cause. Beck v Ohio, 379 U.S. 89; 85 S. Ct. 223; 13 L. Ed. 2d 142 (1964). A search incident to a lawful arrest is valid. People v Nelson, 29 Mich. App. 251; 185 NW2d 183 (1970). The police line-up was constitutionally valid; the subsequent in-court identification was admissible. People v Johnson, 113 Mich. App. 414, 419; 317 NW2d 645 (1982). Defense counsel is not required to make useless motions. People v Viaene, 119 Mich. App. 690; 326 NW2d 607 (1982). Defense counsel's representation of defendant did not fall below the standard stated in Garcia and Strickland.

Defendant's conviction is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.