PEOPLE
v.
BENTLEY
Docket No. 57951.
Supreme Court of Michigan.
Decided January 23, 1978.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmzrek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Daniel J. Wright) for defendant.
PER CURIAM:
The defendant-appellant's delayed application for leave to appeal raises the question whether he was denied his right to counsel because his trial attorney also represented a co-defendant with conflicting interests.
Defendant Bentley and codefendant Jordan were charged with armed robbery and convicted by a jury of that offense on July 24, 1973. One attorney was appointed to represent both defendants. The defendants made a pretrial motion for separate trials on the grounds that a witness had confused the two defendants in earlier identifications, only one defendant would present an alibi defense, and circumstantial evidence which incriminated one defendant would be difficult to separate from that which incriminated the other. The trial judge denied the motion after noting the policy favoring joint trials and determining that there were no statements by either defendant which incriminated the other defendant.
The Court of Appeals affirmed the convictions on July 24, 1975, holding that the defendants had not shown that the joint trial prejudiced their rights. In a concurring opinion, Judge KAUFMAN found that the judge should have sua sponte ordered the appointment of separate counsel for each defendant but concluded that the error was harmless beyond a reasonable doubt.
*123 Although Bentley made no formal objection to the joint representation, possible conflicts of interests were brought to the judge's attention in the motion for separate trials. His attorney told the judge that a witness who identified Jordan at the lineup pointed to Bentley during the preliminary examination and said he was the person she had identified at the lineup. An argument by the attorney that the identification at the preliminary examination was not as reliable as the lineup identification would have impaired Jordan's defense. In addition, the stolen goods were found in the basement of the home of Jordan's sister. Jordan was found in the basement and Bentley was arrested outside the home. An argument stressing the relative weakness of this circumstantial evidence against Bentley would have been made at the expense of Jordan.
The defense of misidentification was raised but the attorney's cross-examination of an eyewitness may have been inhibited by conflicting loyalties. An argument stressing the greater reliability of lineup identification might have helped Bentley but it was foreclosed because of possible prejudice to Jordan. The argument that Jordan's link to incriminating evidence was stronger than the defendant's link to the evidence was not made. Thus, this joint representation resulted in at least some prejudice to Bentley. The potential for this prejudice had been brought to the attention of the trial court by the motion for separate trials, even though no formal objection was made to the joint representation. Despite that fact the trial judge made no attempt to determine whether Bentley was personally aware of this potential prejudice but nonetheless chose to waive his right to separate counsel.
*124 Absent any showing of a voluntary and informed waiver of this right in this case, we hold that Bentley was denied his right to the effective assistance of counsel. Const 1963, art 1, § 20.
Having determined that Bentley was denied his right to counsel, we reach the remaining question, whether this error can be said to have been harmless beyond a reasonable doubt. We conclude that denial of the right to effective assistance of counsel in this case is so offensive to the maintenance of a sound judicial process that it cannot be regarded as harmless error. See People v Mobley, 390 Mich 57, 65-66; 210 NW2d 327 (1973); People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). The application for leave to appeal is considered, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse Bentley's armed robbery conviction and remand the cause to Saginaw Circuit Court for further proceedings.
KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.