People v. Gardner

406 Mich. 369 (1979)

279 N.W.2d 785

PEOPLE v. GARDNER

Docket No. 58924, (Calendar No. 10).

Supreme Court of Michigan.

Argued January 10, 1979.

Decided June 25, 1979.

Certiorari denied February 19, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by F. Martin Tieber and Gail Meyer) for defendant.

Decided June 25, 1979. Rehearing denied 407 Mich 1150.

Certiorari denied by the Supreme Court of the United States February 19, 1980.

PER CURIAM:

We granted leave to appeal to consider whether the defendant Linzie Gardner was denied his right to effective assistance of counsel because of the joint representation in this case. We conclude that he was.

I

Linzie Gardner and Michael Kidder were charged with assault with intent to commit murder in an attack made by them on a prison guard while they were incarcerated in State Prison of Southern Michigan. At trial, both were represented *371 by the same attorney. Gardner was convicted of assault with intent to commit murder and was sentenced to a term of 50 to 75 years, to be served consecutively to the sentence he was serving at the time of the commission of the offense. Kidder was convicted of assault with intent to do great bodily harm less than murder and was sentenced to a term of 5 to 10 years in prison, to run concurrently with the term he was serving at the time of the commission of the offense.

Gardner appealed to the Court of Appeals. The prosecutor filed a motion to affirm. By order dated June 7, 1976, the Court of Appeals granted the prosecution's motion.

II

At trial, both Gardner and Kidder admitted that each committed an assault on the prison guard. The prison guard who was assaulted testified that the first blow which was struck was an "awful hard blow, terrible blow". Kidder admitted striking the first blow. Kidder's testimony, however, was that the blow which he struck was not very hard. Gardner corroborated Kidder's version; he likened the blow which Kidder struck to a "baby tap". Gardner admitted hitting the prison guard over the head with a board about four times and subsequently striking the prison guard with a crowbar. Both Gardner and Kidder, while admitting their participation in the assault, contended that neither intended to murder the guard who had discovered them in an area of the prison where they were not supposed to be.

While the defenses of Gardner and Kidder were not necessarily inconsistent, it should have been apparent to defense counsel at the very outset of this case that the testimony would portray differing *372 degrees of culpability, most notably less culpability on the part of Kidder and greater culpability on the part of Gardner. Furthermore, the record reveals that at some time after the commission of the offense, Gardner made a statement to the police in which he, inter alia, at least implied that he was willing to take the blame for the crime in an effort to aid Kidder. When the prosecutor attempted to impeach Gardner at trial by virtue of this statement, defense counsel objected on the basis that the statement would prove harmful to Kidder. Thus we have a situation in which the attorney objected to the admission of a statement which, at least inferentially, would cast Gardner in a more favorable light on the basis that to admit the statement would harm counsel's other client, Kidder. The trial judge recognized the potential for conflict, but the matter ended when the prosecutor said that he would not use the statement.

In addition, the closing argument of defense counsel indicates that he emphasized the limited role of Kidder in the assault and indeed urged the jury to find Kidder guilty of nothing greater than felonious assault. On the other hand, in closing argument, defense counsel felt compelled to indicate to the jury:

"* * * and that is my duty again as counsel to point out to you that if either one of these men, and we are talking primarily about Linzie Gardner, if Linzie Gardner had wanted to kill Officer Schultz number 1, he would have gone back to see whether he was living, and number 2 if he had gone back and wanted to kill him and found that he was breathing, he would have `finished him off' in the word of Mr. Grant."

Thus, a single defense attorney, representing both *373 the defendant and his codefendant, felt it necessary to draw a line of demarcation as to the relative culpability of his two clients. We conclude that under the circumstances of this case, joint representation deprived Gardner of the effective assistance of counsel. People v Bentley, 402 Mich 121; 261 NW2d 716 (1978). Accordingly, we reverse the defendant's conviction and remand for a new trial.

In addition, we have concluded that the time has come for the promulgation by this Court of a procedure whereby the rights of defendants to the effective assistance of counsel in a joint representation situation are protected. Accordingly, a proposed amendment to GCR 1963, 785 will be published for comment under GCR 1963, 933.

Reversed and remanded for new trial.

COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.