Opinion
Docket No. 7,476.
Decided June 1, 1970.
Appeal from Wayne, Victor J. Baum, J. Submitted Division 1 April 7, 1970, at Detroit. (Docket No. 7,476.) Decided June 1, 1970.
Robert Lee Townsend was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Owen J. Galligan, Assistant Prosecuting Attorney, for the people.
David A. Chaplan, for defendant on appeal.
Defendant Robert Lee Townsend appeals as of right from a jury conviction of armed robbery, entered on December 10, 1968, in the Wayne county circuit court. He asserts two arguments on appeal, neither of which entails reversal.
MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797).
Near the end of the trial, and while the jury was recessed, a discussion lasting only a minute or so was held by the court, the prosecutor, and defense counsel in the defendant's absence. No objection was directed at his absence. The discussion, which appears on the record, involved two inconsequential changes in the wording of the proposed instruction on the elements of armed robbery, the general content of the instruction itself, and the propriety of an instruction on the lesser, included offense of unarmed robbery. Defense counsel expressly approved both the content of the proposed instruction and the changes in wording. Argument on the propriety of an instruction on the lesser, included offense, just begun when the defendant entered the courtroom, was carried on fully in his presence. On these facts, defendant concludes he was denied his constitutional and statutory right to be present at the trial. People v. Medcoff (1955), 344 Mich. 108.
Const 1963, art 1, § 20.
MCLA § 768.3 (Stat Ann 1954 Rev § 28.1026).
We disagree. Nothing in the nature of evidence was introduced in the defendant's absence. People v. Hull (1891), 86 Mich. 449; People v. Raider (1931), 256 Mich. 131. And, unlike Medcoff, supra, defense counsel was present throughout. See People v. Kregger (1953), 335 Mich. 457. With these considerations in mind, it cannot be said from this record that defendant's absence from the courtroom requires reversal of his conviction.
Defendant's second argument is that he was denied adequate assistance of counsel. The allegations underlying this argument are either unsupported by the record or insubstantial, and therefore require no discussion. It is our conclusion that the representation was adequate.
"As we have said on several occasions, counsel that is `only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation' is not effective representation. People v. Wynn (1968), 14 Mich. App. 268, 269; People v. Davison (1968), 12 Mich. App. 429, 434; People v. Crawford (1969), 16 Mich. App. 92, 96. However, defendant's trial counsel cannot be so characterized. Effective representation does not mean successful representation." People v. Higginbotham (1970), 21 Mich. App. 489.
Affirmed.