Opinion
Docket No. 62490.
Decided July 7, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Neil K. Disney, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Terence R. Flanagan), for defendant on appeal.
Defendant was convicted of assault with intent to murder, MCL 750.83; MSA 28.278, and was sentenced to five to ten years imprisonment. Defendant moved for a new trial alleging ineffective assistance of counsel. That motion was denied by the trial court. Defendant brings this appeal of right.
Defendant contends that he did not receive effective assistance of counsel because of defense counsel's failure to raise an insanity defense. We agree that defendant did not receive effective assistance of counsel, but for slightly different reasons than those advanced by defendant.
At the hearing on the motion for new trial, defense counsel testified that he had originally intended to have an independent psychiatric evaluation of defendant to support his insanity defense. Defense counsel submitted the names of three psychiatrists to defendant's father, who was paying defendant's legal expenses. Defendant's father did not wish to proceed with any of the proferred physicians. Apparently, defendant's father was not willing to pay the cost of their services. Defense counsel approached the father again but was again rebuffed. Finally, counsel concluded that defendant's father did not wish to retain a psychiatrist. Without the testimony of such a physician, defense counsel decided there would be no point in pursuing an insanity defense. Thus, he did not file a notice of insanity defense.
In evaluating an effective assistance of counsel claim, Michigan courts apply a two-prong test. See People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976). First, we assess defense counsel's conduct in light of the standard of performance set forth in Beasley v United States, 491 F.2d 687, 696 (CA 6, 1974):
"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interests, undeflected by conflicting considerations."
We also consider whether counsel made a "serious mistake" and, if so, whether "but for this mistake defendant would have had a reasonably likely chance of acquittal". People v Garcia, supra, p 266.
In the present case, we find that defense counsel's conduct did not satisfy the Beasley standard, for he did not "conscientiously protect his client's interests, undeflected by conflicting considerations".
An attorney is under a duty to represent his client. He shall not permit a person who pays him to render legal services for another to direct or regulate his professional judgment in rendering those services. DR 5-107(B). On the record in this case, defense counsel was more concerned with the desires of defendant's father, who retained him, than with the best interests of his client. Such representation does not meet the Beasley standard and constitutes ineffective assistance of counsel. Therefore, we reverse defendant's conviction and remand the case to the circuit court for a new trial.
Reversed and remanded.