People v. Anderson

These cases present the issue of when and under what circumstance a defendant may properly dismiss his attorney and assert his right to represent himself.

On November 9, 1972, defendant Anderson was charged with armed robbery. MCLA 750.529; MSA 28.797. The trial was held on January 30 and 31, 1973, following which the jury returned a verdict of guilty as charged. Defendant was sentenced to from 7 years and 6 months to 20 years in prison.

On the first day of defendant Anderson’s trial, but prior to the selection of a jury, the defendant replied as follows to the court’s inquiry as to whether he wished to represent himself:

"Yes. Not at this moment. I wish to represent myself and have a little more time to get affiliated with the case.”

Defendant Anderson predicates his appeal on the trial court’s refusal to permit him to discharge his attorney and proceed with the trial in pro per. The Court of Appeals found merit in defendant’s contentions and reversed and remanded for a new trial. 55 Mich App 317; 222 NW2d 226 (1974). We reverse and reinstate the conviction.

Defendant Overby and two codefendants were charged with armed robbery, MCLA 750.529; MSA 28.797 and assault with intent to commit murder, MCLA 750.83; MSA 28.278. The jury convicted him on both counts and he was sentenced to serve 15-to-30 years incarceration on each count, the sentences to be concurrent.

During voir dire, and after he had expressed certain reasons for his dissatisfaction with his appointed counsel, defendant Overby addressed the court, quoted the applicable provision of the Michigan Constitution, and requested permission to defend himself. Error is predicated upon the trial court’s refusal to grant this request. The Court of Appeals saw no merit in this argument and affirmed the conviction. 42 Mich App 1; 201 NW2d 303 (1972). We reverse and remand for a new trial.

The right of self-representation under Michigan law is secured by both Constitution and statute. Const 1963, art 1, § 13 reads: "A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney”. MCLA 763.1; MSA 28.854 provides: "On the trial of every indictment or other criminal accusation, the party accused shall be allowed to be heard by counsel and may defend himself, and he shall have a right to produce witnesses and proofs in his favor, and meet the witnesses who are produced against him face to face”. The United States Supreme Court has held that this right is also implicitly guaranteed in the Sixth Amendment to the United States Constitution. Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975). None of these provisions, however, guarantees an absolute right to proceed to trial without counsel.

In People v Henley, 382 Mich 143, 148-149; 169 NW2d 299 (1969), wherein the defendant moved to dismiss his attorney and represent himself after the trial was well underway, we held that under Michigan law the defendant’s right to do so was a qualified one, and that the trial judge should exercise his discretion.

The question presented in Faretta was whether a constitutional right to self-representation should be recognized. Questions associated with administering the right during the course of the litigation were not addressed. However, the Court carefully noted the circumstances under which Faretta was. deprived of his constitutional right to conduct his own defense. The circumstances, affirmatively shown by the record, involved a clear and unequivocal request, weeks before trial, by a literate, competent, and understanding individual. In People v Holcomb, 395 Mich 326, 335; 235 NW2d 343 (1975), we reversed and remanded for a new trial; there was no affirmative showing, as there was in Faretta, that the defendant was "literate, competent, and understanding, and that he was voluntarily exercising his informed free will”.

The foregoing cases suggest that several requirements should be met before a defendant’s request to dismiss his counsel and proceed in proper person is granted.

First, the request must be unequivocal. This requirement will abort frivolous appeals by defendants who wish to upset adverse verdicts after trials at which they had been represented by counsel. This requirement of "unequivocality” is well established in the courts of this state and others, with many of the decisions relying on United States, ex rel Maldonado v Denno, 348 F2d 12, 15 (CA 2, 1965). See, e.g., People v Payne, 27 Mich App 133; 183 NW2d 371 (1970).

Second, once the defendant has unequivocally declared his desire to proceed pro se the trial court must determine whether, defendant is asserting his right knowingly, intelligently and voluntarily. Faretta, supra, 422 US 835; Holcomb, supra, at 337. The trial court must make the pro se defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. Id. Defendant’s competence is a pertinent consideration in making this determination. Westbrook v Arizona, 384 US 150; 86 S Ct 1320; 16 L Ed 2d 429 (1966). But his competence does not refer to legal skills, "[f]or his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself’. Faretta, supra.

The third and final requirement is that the trial judge determine that the defendant’s acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business. The people would have us announce a guideline which would preclude the assertion of the right to proceed without counsel if it is not made before the trial begins. We cannot accede to this request. Although the potential for delay and inconvenience to the court may be greater if the request is made during trial, that will not invariably be the case.

The foregoing requirements do not impermissibly infringe on the constitutional right to act as one’s own counsel. Importantly, they do support the imperative that criminal adjudications must proceed in an orderly fashion and result in trustworthy guilt determinations.

Defendant Anderson indicated that he wanted his assigned counsel dismissed for "lack of evidence”. The court, in an attempt to discover what "new evidence” made it impossible for assigned counsel to continue in the case, engaged the defendant in this colloquy:

"The Court: You say you are aware of new evidence?

"The Defendant: Yes.

"The Court: What is that?

"The Defendant: I mean, like, I came across a little piece of evidence of the Supreme Court.

"The Court: A case?

’’The Defendant: Yes, a case.

’’The Court: Some decision by the United States Supreme Court?

’’The Defendant: That is correct.

’’The Court: And what about that?

"The Defendant: I mean, the case concerned of Jessie James, the mask ruling of it.

’’The Court: Would you stand up, sir? What?

”The Defendant: The mask ruling of Jessie James’ case concerning the Supreme Court, the waiving of the masked bandit.

’’The Court: The waiving of a masked bandit?

’’The Defendant: Yes.

’’The Court: All right. Is that your only piece of new evidence?

’’The Defendant: Yes.”

Neither defendant nor his present counsel have been able to cite the so-called "mask ruling of Jessie James’ case concerning the Supreme Court” on appeal.

The above exchange reveals that defendant was not competent to waive his right knowingly and voluntarily.

Defendant Overby’s situation is different. First, his request to proceed as his own counsel was unequivocal. After indicating several reasons for his dissatisfaction with appointed counsel, defendant addressed the court as follows:

"Speaking in my own behalf, Your Honor, I would like to ask the court to enter this also. The Constitution of the State of Michigan, § 13, a citizen in any court in this state has the right to prosecute or defend any suit. I know I don’t have much education, but since it seems, and it should seem to the court that I have no defense counsel that will agree with me on anything in this matter, and he is going to be forced on me, I ask that this part of the Constitution apply to me also and I’ll do the best I can in defending myself.” (Emphasis supplied.)

At the close of jury selection, Overby stated that he wanted an additional juror removed and that his attorney had refused. He then asked the court to clarify his right to self-representation. The judge told Overby that he had a competent attorney, that Overby wasn’t entitled to counsel of his own choice, and that he would have to let appointed counsel handle the trial.

Second, the record demonstrates that defendant Overby asserted his right knowingly, intelligently and voluntarily. The Faretta requirement of a "knowing, intelligent and voluntary” relinquishment of the traditional benefits associated with the right to counsel when a defendant asserts his right to proceed as his own counsel stems from the language in Johnson v Zerbst, 304 US 458, 464-465; 58 S Ct 1019; 82 L Ed 1461 (1938). In Johnson, the Court indicated that the existence of a knowing and intelligent waiver must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. Here, the trial court did not explicitly inform defendant Overby of the dangers and disadvantages of self-representation. However, the sophisticated and comprehensive nature of defendant Overby’s expressed reasons for dissatisfaction with his appointed counsel, together with his history of personal involvement with the criminal justice system, indicates that he knew what he was doing and made his choice with eyes open.

Finally, it does not appear that defendant Over-by’s acting as his own counsel would disrupt, unduly inconvenience and burden the court and the administration of the court’s business. Rather, the trial court apparently denied Overby’s motion on the sole basis that his court-appointed counsel was competent.

Because we find that the trial court’s refusal to allow Overby to represent himself is reversible error, we do not reach the other issues he raises on appeal.

The Court of Appeals in People v Anderson is reversed and defendant Anderson’s conviction is reinstated. The Court of Appeals in People v Overby is reversed and the case is remanded for a new trial.

Kavanagh, C. J., and Williams, Coleman, and Fitzgerald, JJ., concurred with Lindemer, J.

Levin, J., concurred with Lindemer, J., as to People v Overby.