People v. Gallagher

H. R. Gage, J.

(concurring in part and dissenting in part). I respectfully dissent. Although the majority accepts the trial court’s determination that a conflict of interest existed and focuses its attention *300 on whether the conflict affected counsel’s performance, I find no basis for concluding that a conflict was established.

In order to establish ineffective assistance of counsel, defendant must demonstrate an actual conflict of interest which adversely affects his lawyer’s performance. He must show that his counsel actively represented conflicting interests. Cuyler v Sullivan, 446 US 335 ; 100 S Ct 1708 ; 64 L Ed 2d 333 (1980). The trial court was of the opinion that a conflict existed because counsel had represented Mr. X on a prior occasion and because of an alleged personal relationship between the two. I find neither to be supported by the evidence. 1

There can be no question that, at all times relevant to the case at bar, counsel was not retained by Mr. X in any professional capacity, particularly in any matter connected to this action. Although counsel had previously represented Mr. X in an unrelated matter, that relationship had terminated well before counsel was retained to represent defendant in the instant case. Further, defendant presented no evidence indicating that counsel acquired any information during the course of his representation of Mr. X which might have been favorable to defendant but which counsel was precluded from using at trial because of any ethical obligation to Mr. X. Finally, defendant failed to present any evidence from which it could be inferred that counsel has received or, at the time of trial, anticipated receiving any further business from Mr. X. Any conclusion that counsel actively represented conflicting interests because of this prior attorney-client relationship is based upon speculation and conjecture only, not upon *301 the evidence. Counsel was not serving two masters. See Olshen v McMann, 378 F2d 993 (CA 2, 1967), United States ex rel Kachinski v Cavell, 453 F2d 581 (CA 3, 1971) (counsel formerly represented a prosecution witness).

The absence of the attorney-client relationship distinguishes the case at bar from People v Bentley, 402 Mich 121 ; 261 NW2d 716 (1978), relied upon by the majority. The dangers inherent in joint representation cases are simply not present here. Counsel did not have two clients to whom he owed his undivided loyalty. He was not confronted with a situation where his efforts to protect the interests of one client would cause him to sacrifice the interests of the other client which he was also ethically obligated to protect. No actual conflict of interest existed because of counsel’s former representation of Mr. X.

The trial court was also of the opinion that because of a continuing personal relationship between counsel and Mr. X, counsel sought to protect Mr. X at defendant’s expense. 2 1 do not believe that the evidence justifies such a determination.

The evidence indicated that counsel knew of Mr. X during high school because each lived in the same community. They did not attend the same high school. There was no evidence that they developed any type of personal relationship at that time which carried over to the time of defendant’s trial. The trial court stated in its opinion that both counsel and Mr. X were in their early forties at *302 the time of trial. Clearly, a good deal of time had passed since each was in high school. This factor does not demonstrate the existence of an actual conflict of interest.

There was also evidence that counsel and Mr. X had dinner on one occasion during the time that counsel represented him on the federal narcotics charge and that because of similar interests they happened, upon a couple of occasions, to be at the same social gatherings. The evidence showed that on these occasions numerous other people were also present. None of these social events took place during the course of counsel’s representation of defendant. Defendant failed to meet his burden of establishing an actual conflict of interest simply by showing these limited social contacts. Were such the case, members of the bench and bar would constantly have to be aware of who is present at the social gatherings they attend because their presence may someday result in a finding of ineffective assistance of counsel.

In addition to the above evidence the trial court also placed a great deal of emphasis on the testimony of counsel’s investigator to find that a conflict of interest existed. A review of the testimony in its entirety does not justify a conclusion that counsel prevented his investigator from pursuing Mr. X should the evidence warrant it. The investigator testified that, had he obtained any evidence of Mr. X’s involvement which he believed to be credible, he would have pursued It. He testified that he found no such evidence, despite the fact that he interviewed 40 or more witnesses and put approximately 400 hours of actual investigative work into the project. The trial court noted in its opinion that the investigator had a great deal of training and experience in his field, including 20 *303 years as an agent with the Federal Bureau of Investigation. He was clearly in a better position than the court to determine whether a particular matter should be pursued. Counsel’s actions resulted from the information obtained during the investigation and not from any personal relationship with Mr. X.

I also wish to express my concern with what I perceive to be a rule of law advanced by the majority. I interpret the majority opinion as finding ineffective assistance of counsel upon its belief that the defense could have been more effective but for the possible conflict of interest. Counsel’s representation was masterful and effective. I dare say that a case shall never exist where an unsuccessful defendant or a reviewing court cannot justifiably argue that a more effective defense may have been presented had some other course been followed. The role of the courts, however, is not to second-guess trial counsel, determine what in hindsight it believes to be a more proper course and then find that counsel was ineffective for his or her failure to follow that course. If as a matter of trial strategy counsel chooses an avenue of defense which he or she believes will be successful and effectively pursues that defense, neither the trial court nor this court should deem such representation to be ineffective because of a belief that a different avenue may have been even more effective. People v Crosby, 19 Mich App 135 ; 172 NW2d 506 (1969), People v Mays, 64 Mich App 453 ; 236 NW2d 513 (1975), People v Penn, 70 Mich App 638 ; 247 NW2d 575 (1976). In the case at bar counsel sought to advance the theory that any discussions between defendant and the other alleged conspirators concerned the theft of an automobile, not the murder of Sommers. Counsel also *304 sought to attack the credibility of those witnesses who testified against defendant. Given the background of these individuals such an approach was one that a skilled attorney could reasonably and logically follow.

As with virtually any case, several avenues of defense were available. Counsel chose those avenues which he believed would most likely be successful based upon the information obtained through his investigation. Just as a reviewing court is very reluctant to second-guess a trial court on a matter involving the exercise of its discretion, so too should the courts be equally reluctant to second-guess trial counsel on a matter involving legitimate trial strategy. Counsel’s representation of defendant was effective.

I concur with the majority’s determination that no miscarriage of justice was demonstrated. Defendant’s conviction should be affirmed.

Although the trial court’s opinion is rather long, consisting of 80 pages, its treatment of this initial question is very short, consisting of approximately 7 pages only.

It should be noted that no evidence was presented indicating that Mr. X was seriously considered or investigated as a suspect by the police. The assertion that he was involved in the conspiracy came primarily from defendant and Phillip Edmonds, a coconspirator who was granted immunity from prosecution in return for his testimony. Counsel’s investigator testified that Edmonds had given conflicting statements to the police and that it was his opinion that Edmonds was a liar.