PEOPLE
v.
MEANS.
Docket No. 46252.
Michigan Court of Appeals.
Decided May 1, 1980.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, and Stephen C. Corwin, Senior Assistant Prosecuting Attorney, for the people.
*644 Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
Before: ALLEN, P.J., and M.F. CAVANAGH and C.W. SIMON, JR.,[*] JJ.
ON REMAND
PER CURIAM:
Defendant was indicted by a grand jury in June, 1974, for the offense of armed robbery allegedly committed on May 5, 1971. He was arrested on June 27, 1974, and, following a jury trial, was convicted of armed robbery on October 23, 1974. MCL 750.529; MSA 28.797. On December 3, 1974, defendant was sentenced to 5 to 15 years imprisonment. He appealed to the Court of Appeals, which affirmed. He filed application for leave to appeal in the Supreme Court. That Court, in lieu of granting leave, remanded to the Court of Appeals for consideration of the issues raised in the application for leave to appeal. See 406 Mich. 989 (1979).
The sole issue raised on appeal is whether defendant received effective assistance of counsel. The inadequacy of an accused's trial counsel entitles him to a new trial if counsel does not perform "at least as well as a lawyer with ordinary training and skill in the criminal law", and does not conscientiously protect his client's interests undeflected by conflicting considerations. People v Garcia, 398 Mich. 250, 264; 247 NW2d 547 (1976). In addition to meeting this standard, defense counsel must not have made a "serious mistake" without which defendant would have had a reasonable likelihood of acquittal. Garcia, supra, 266, People v Hanna, *645 85 Mich. App. 516, 523; 271 NW2d 299 (1978), lv den 406 Mich. 893 (1979).
Ordinarily, where a convicted person attacks the adequacy of his trial counsel, he must be able to point to a lower court record which supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately. People v Ginther, 390 Mich. 436, 442-443; 212 NW2d 922 (1973), People v Jelks, 33 Mich. App. 425, 431; 190 NW2d 291 (1971). Here the facts and circumstances surrounding the alleged deficiencies of defendant's trial counsel were fully explored at trial, and the record contains sufficient facts to reach the issue. People v Moore, 391 Mich. 426, 431; 216 NW2d 770 (1974), People v Krokker, 83 Mich. App. 474, 477; 268 NW2d 689 (1978). Accordingly, the absence of a motion for new trial or evidentiary hearing on the issue is not fatal to defendant's claim on appeal. Compare, People v McKenzie, 67 Mich. App. 356, 362; 241 NW2d 205 (1976), lv den 406 Mich. 958 (1979), and People v Clemons, 74 Mich. App. 448, 454-455; 253 NW2d 795 (1977), with People v Michael Anthony Williams, 391 Mich. 832 (1974), and Moore, supra, 431.
The record makes clear that the police officers investigating the case showed photographs to the victim, for the purpose of identifying the defendant, after defendant was taken into custody. In addition, the photographic show-up was conducted in the absence of legal counsel. Testimony concerning the victim's photographic identification was admitted at trial. The victim also made an in-court identification of the defendant.
The parties agree that the foregoing procedure violated defendant's rights under the rule set forth in People v Anderson, 389 Mich. 155, 186-187; 205 *646 NW2d 461 (1973), and People v Jackson, 391 Mich. 323, 338-339; 217 NW2d 22 (1974). The display of photographs to the victim after the defendant was arrested and placed in custody on this charge, and more than three years after the commission of the crime, constituted an erroneous procedure on the part of the investigating officers. As such, the evidence of identification should have been excluded from trial. Id. Defendant's trial counsel failed to move to suppress this evidence. On appeal, defendant claims that this failure demonstrates the inadequacy of his trial counsel.
The prosecution contends that the reason defense counsel may not have moved to suppress this evidence is because he may have concluded, in light of the facts in the case and this Court's decision in People v Stewart, 63 Mich. App. 6; 233 NW2d 870 (1975), that the victim's in-court identification had a basis independent of the improper pretrial identification procedure. Had this been true, we would be inclined to agree that the in-court identification would have been proper. People v Kachar, 400 Mich. 78, 83; 252 NW2d 807 (1977), Anderson, supra, 188. However, though we decline to specifically rule on the merits of the argument, especially in the absence of a full hearing on the matter, Kachar, supra, People v Hill, 84 Mich. App. 90, 95; 269 NW2d 492 (1978), we note the existence of persuasive evidence that the victim-witness did not have a basis independent of her tainted pretrial identification for her in-court identification of the defendant. During cross-examination, the witness testified that her in-court identification of defendant was not wholly based upon her memory of the incident:
"Q. Is your identification in court today based upon the fact that Eddie Means is sitting there, and the fact *647 that you have previously picked him out of a picture, or is that identification based upon your current memory of what happened in May of 1971?
"A. Both."
Despite this concession by the witness, defense counsel never moved to suppress her in-court identification as the "illegal fruit" of an improper pretrial identification procedure. In addition, defense counsel did not even object to the witness's testimony concerning her pretrial photographic identification of the defendant, a procedure which all acknowledge was clearly improper. Anderson, supra, Jackson, supra.
In view of these apparently serious errors, we could remand to the trial court for a hearing to determine whether, in fact, the witness had an independent basis for her in-court identification, Kachar, supra. However, we note that, even if the trial judge resolved the issue in favor of admissibility, there would remain the problem of the witness's testimony concerning her pretrial identification. Consequently, rather than remand for such a hearing, we are required to determine whether defense counsel's failure to move for suppression of the identification testimony constituted a decisive error or evinces a failure to perform "at least as well as a lawyer with ordinary training and skill in the criminal law". Garcia, supra, 264.
In light of the other factors revealed in the record, demonstrating that defense counsel failed to conscientiously protect his client's interests,[1] we *648 are inclined to hold that defense counsel's inaction concerning the identification testimony did not meet the standards of representation expected of "a lawyer with ordinary training and skill in the criminal law". In this regard, People v Phelps, 57 Mich. App. 300, 306; 225 NW2d 738 (1975), is distinguishable from the instant case because there, counsel had requested a pretrial evidentiary hearing, and a ruling denying the challenge had been made by the trial court. In addition, defense counsel in Phelps argued the suggestiveness of the entire identification procedure during his closing argument. Nothing in the instant record demonstrates that defense counsel's complete failure to consider the issue was "clearly a trial tactic". People v Bowen, 77 Mich. App. 684, 690; 259 NW2d 189 (1977).
Even if this inaction could be considered as an appropriate trial tactic,[2] we find that defense counsel made a "serious mistake" in adopting this tactic which was decisive to the outcome of the trial. People v Karasek, 63 Mich. App. 706, 715; 234 NW2d 761 (1975), People v Degraffenreid, 19 Mich. App. 702, 718; 173 NW2d 317 (1969), Garcia, supra, 266. Although the identification testimony was not the only evidence offered by the prosecution in its case against the defendant,[3] without the victim-witness's *649 in-court identification of the defendant the prosecution's case against the defendant would have been considerably weakened, to the point that "in all likelihood" acquittal would result from a new trial without the mistake. Karasek, supra, People v Tumpkin, 49 Mich. App. 262, 264; 212 NW2d 38 (1973). See People v Till, 406 Mich. 641, 645-646; 281 NW2d 297 (1979).
Accordingly, because we are persuaded that defendant was denied effective assistance of counsel at his first trial, we are required to reverse his conviction and remand this matter for a new trial.
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] On appeal, defendant cites two other instances which evince the inadequacy of his trial counsel. First, the voluntariness of defendant's confession, which was admitted at trial, was subject to serious doubt. Nevertheless, defense counsel failed to move for a Walker hearing. People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965). Second, defense counsel failed to object to certain prejudicial remarks by the prosecutor or prosecution witness which failure, though possibly due to counsel's trial strategy, was, based upon our review of the record, more likely caused by counsel's oversight. We are not convinced that either instance is sufficient to mandate a finding that defendant was denied effective assistance of counsel as a matter of law. However, we observe that the cumulative effect of these apparent errors, combined with the error noted in the text of the opinion, requires a finding that defendant was denied his right to effective assistance of counsel.
[2] The prosecution asserts that defense counsel "may have considered that interrogation of the witness on the stand * * * may have given the witness the opportunity to `practice' her testimony in advance of actually delivering same before a jury" and that he had "the enviable opportunity of observing the witness' demeanor" and "the certainty with which she testified".
[3] In addition to the victim-witness's testimony, the prosecution primarily relied on the testimony of the defendant's in-custody admissions (see fn 1) and the testimony of an accomplice who had been granted immunity. See People v Till, 406 Mich. 641, 646; 281 NW2d 297 (1979).