*1 Aрp 22 v KIRKLAND PEOPLE Opinion op the Court Law—Right Represent Right— 1. Criminal Self—Limitation Public Interest—Fair Trial. right represent of an accused to himself at trial is not public it absolute when conflicts with interest of the insuring trial; the. a fair when oneself con- receiving trial, flicts with the interest a fair right may be limited. Law—Right Represent Self—Discharge 2. Criminal of Counsel —Fair Trial. judge duty
A trial has a to accommodate both the defendant’s himself and the defendant’s to be represented by public expense necessary, trial; achieving end of a fair while the to counsel waived, always duty it is of the trial to determine voluntarily intelligently whether the waiver is made. Law—Right Represent Self—Discharge 3. Criminal of Coun- sel. Denying discharge appointed defendant’s motion to counsel and defend himself was not error where the defendant wanted discharged because he had not located three alibi witnesses, witnesses, attempts made to locate the other, prostitute two of whom were believed overseas and the address, very with no known the case was difficult to defend in overwhelmingly against defendant, that the evidence was adequately the court concluded that the defendant could not himself, vigorously defend the record shows that counsel de- client, fended his and the court allowed defendant to ask questions if he wanted to do so. [1, [2] [5] 3, 4, 6, 21 Am Jur 21 Am Jur 7] 21 Am Jur 2d, 2d, References Criminal Criminal 2d, Law 313. Law Criminal Law 310. for Points in Headnotes §§ 317. § v Kirkland by Lesinski, C. J. Represent Law—Right Self.
4. Criminal *2 himself; charged a to crime has defend but persоn with a A begun, to conduct is one’s defense has trial after 763.1). (Const 1963, qualified art MCLA absolute but not Self—Discharge Represent Law—Right of Coun- to 5. Criminal sel. granted represent request himself must be when A defendant’s unequivocally request made before the has been is begun. and the chosen Represent Self—Discharge Law—Right of Counsel 6. Criminal —Complexity Test. depend himself not does on A defendant’s that the defendant would court concludes whether light fairly complexity represent himself of the of unable to conceive situation it is difficult to of a where because appointed than his be more skilled a defendant would procedure. of courtroom in the intricacies Represent Self—Prejudice. Law—Right 7. Criminal required prejudice his is to show when constitu- A defendant violated; rights of defendant’s been a denial a tional have justified is not counsel’s himself complexity vigorous of the case. defense or Detroit, Court of Elvin from Recorder’s Appeal Division 1 Davenport, Fеbruary L. J. Submitted 10159.) (Docket April Detroit. No. Decided 24, 1972. breaking and Kirkland was convicted
Leroy entering building felony with intent commit ap- tools. Defendant possession burglary and peals. Affirmed. General, Robert A. Kelley, Attorney
Frank J. Cahalan, L. General, Derengoski, Solicitor William Carnovale, R. Attorney, Dominick Prosecuting Luvenia D. Chief, Appellate Department, and App op Opinion the Court Dockett, Prosecuting Attorney, Assistant for the people. Borden,
Burton for defendant appеal. L. J., Before: C. J. H. Gillis JJ. Quinn, Gillis,
J. H. Leroy J. Defendant Kirkland was breaking convicted a jury and entering a building intent to commit a felony, MCLA 28.305, 750.110; possession MSA burglary tools, 750.116; MCLA MSA 28.311. From these convictions, appeals as of right. allegation of
Defendant’s sole is error trial court committed reversible error refusing in propria persona. defend himself *3 counsel, given assigned
Defendant was Mr. Ar- Arduin, thur immediately after his arraignment Mr. February 1970. Arduin represented defendant preliminary examination appeared him with when the case assigned was fоr trial on May 1970. selected,
Before defendant ad- dressed judge, Judge Davenport, as fol- lows: respect "Defendant: With all due I court would counsel, change please.
like to ask for a you your Court: Will hire own? "Defendant: am not able to.” explained court assigning the difficulty of different and asked the defendant to ex- plain he why did not want Mr. Arduin. The de- stated, fendant "I my cannot communicate lawyer”. In the colloquy follows, appeared dissatisfaction to be based on Mr. Ar- Pеople v Kirkland op Opinion the Court alleged inability locate three alibi duin’s wit- thought nesses, were to be two of whom overseas Corps, and a in the Marine third who was a prostitute with no known address. Defendant had apparently Mr. Arduin advised that he would have him, the woman contact which she failed to do. explained that Mr. Arduin separate trips he had made four allegedly a bar that she fre- quented in order to locate her. He further indi- cated that he had conferred with his client on county jail. numerous occasions There were additional written communications between coun- sel and defendant. judge discussion,
After considerable justify concluded that there was no evidence to discharging assigned counsel. Court was then ad- journed with the announcement trial would following morning. start the morning, requestéd The next defendant an ad- journment so that could obtain sufficient funds attorney. judge to hire his own stated that the proceed, trial would he had the overall and further commented that
impression the just quite didn’t want to to trial. The defendant candidly admitted, "That be true”. The de- repre- fendant then stated that he would like to sent himself because he did not have confidence in attorney, and did not trust him.
The advised the defendant that he to, could himself if he wanted but that *4 lawyer he would have the sit with him to advise questions him, and that the defendant could ask if he so desired. response prosecutor’s query
In as to represent himself, whether defendant would the judge declared that the defendant would be unable enough try to do so because he did not know his App 22 Opinion of the Court lawyer he could confer own but that with his questions about wanted asked. he apparent to It was the trial court that this was a case that most difficult would be to defend. The by police exiting defendant was observed officers shop, door florist hand, rear of a crowbar in apprehended hiding porch and was under a after a short chase. outer door and аn inner office shop pried open, door in the had been and numer- burglar ous tools were found at the scene. Defend- ant admitted that had been in the area but attempted run stated he had to hide porch under when someone "hollered 'Police’ ”. just He ran because he had left an after-hours drinking establishment, and was afraid that he apprehended charged violating be would parole. prior Defendant had convictions for burglaries receiving property. stolen circumstances,
In these had am- ple reason to conclude that the defendant would be fairly represent unable to himself. There can be no argument counsel’s work was excellent throughout especially light trial, of overwhelming against evidence the defendant. accused himself is not absolute when it conflicts with the public ensuring interest of the a fair trial. For instance, limited, has been held to commenced, asserted after trial has of in the interest preventing justice by obstruction of criminal calculated manufacture of new hindrances and speculations People Henley, novel of error. Mich
itWhen conflicts with the defendant’s inter- receiving trial, est in a fair equal Certainly himself importance be likewise limited. repre-
to the accused is the to be *5 27 v op Opinion the Court public expense if necessary. sented judge the first instance to trial It falls of both these equally accommodate attempt achieving the of end fair rights, important waived, the counsel be it may trial. While of the trial court to determine the always duty is voluntarily and intelligently waiver is the whether made. Bar of the American Associ- tentative draft the of relating to function the
ation Standards guidelines: offers sound permitted at his election to "A should of his case without assistance of proceed in the trial thorough inquiry court makes only after counsel and is satisfied that "(a) intelligence capacity appreci- and possesses the decision; consequеnces of his and ate the "(b) charges pro- comprehends the nature of punishments, permissible ceedings, any range understanding essential to a broad additional facts case.
"Commentary 1654) (28 "Although Federal statutes USC § constitutions, 1, 9, e.g., Art many Constitution state in Pennsylvania, authorize defendants criminal cases themselves, is not absolute. right to Sixth Amendment the assistance defendant’s counsel cannot be telligently abrogated knowingly unless and in- waived, strongly however the defendant Gillies, 332 proсeed alone. Von Moltke v desire to See (1948); Standards, Providing US 708 vices, ABA Defense Ser- 1968). Draft, (Approved Particularly 7.1-7.3 §§ involved, public is the interest of the in an when a trial orderly, rational is entitled consideration determining pro appear se. See (2d Bentvena, v F2d 937 Cir United States 319 (8th States, 1963); 1963). F2d 258 Cir Butler United 317 impossible "A is is tried for a fair trial if a defendant Wainwright, crime while denied counsel. Gideon Mich op Opinion the Court that, is so for the reason except US 335 most unusual cused ascertain This circumstances, a trial which the ac- unrepresented by is is a farcical effort to *6 guilt. intervention judge No the trial of can eliminate the compe- behalf the accused need for Alabama, tent counsel. Cf. Powell v (1932). 69 appear pro who seek "Most defendants do se so in ignorance of of and the value counsel of their own paranoid inadequacies, or of out distrust of sophisticated may counsel. More motives include the hope of the absence counsel afford a basis for inevitable, regarded reversal desire to ventilate societal a conviction or a hostility through the dra- disorderly Laub, matic vehicle of a See generally, trial. Unrepresented, Misrepresented The Problem of the and Court, Rebellious Duquesne Defendant Criminal L Rev 245 None these sources of the desire to dispense outweigh rights with counsel the of codefen- dants, public or in just the interest of the orderly require trial. Nor long-term they disregard do thе court having guilt interest of accused in or lack guilt fairly Project determined.” ABA oh Standards Relating Judge’s for Criminal Justice: Standards Dealing Disruptions, Role in and Trial With Standard C.2 (Tentative 1971). Draft, commentary, pp May In the judge instant conducted a thorough and after inquiry, considering the com- of the plexity case the difficulties of conduct- ing defense, concluded the defendant would be fairly unable to himself.
The record confirms the accuracy of this conclu- sion. Trial counsel took advаntage oppor- of every motion, examination, tunity, by and cross-exami- protect nation to the defendant’s interest. Defend- ant, law, unskilled per- could have formed this for service himself. The judge was position in the best determination; to make that indeed, it was duty By to do advis- clearly so. ing the defendant that he questions could ask assigned counsel to con- desired, requiring yet so achieved the duct conflicting interests of the accommodation fairest llGlTG stclk.6 £lt Smith, Fred
People v to the instant case. similar remarkably a case was There, the same. on the was issue raised The sole to the selection of the prior set for trial date to the trial court that he indicated jury, assigned counsel. No dis- dissatisfied was assigned objection with or satisfaction despite the defendant made thereafter for several days. the trial continued fact that A careful exami- the instant case. is true in same necessity leads us to record here of the nation unеquiv- did not the defendant conclusion that permitted to conduct his that he be ocally *7 did not err the trial court defense and to assigned counsel to continue allowing previously Compare trial. during his the defendant Denno, 348 F2d rel Maldonado United States ex (CA 1007; cert den 2, 1965), 86 S 15-16 (1966); People Henley, 1950; L Ed 2d Ct supra.
Affirmed. J., concurred.
Quinn, (dissenting). Defendant Leroy Lesinski, J.C. breaking convicted Kirkland was commit a intent nighttime entering 28.305, possession 750.110; MSA MCLA felony, 28.311. 750.116; MSA tools, MCLA burglary for motion denial of the trial court’s From right. trial, appeals as оf defendant new committed the trial court alleges that Defendant trial on proceed refusing request error below persona. The record propria charges permission asked reveals that defendant for attorney serve as his own day second matter, in this but before the jury had been selected. The issue only discussed during the first day of request trial was defendant’s for a change in his appointed which court denied.
On morning day the second trial, set for for initially asked a сontinuance so that might gather attempt sufficient funds to hire his own attorney. After court denied entreaty, following colloquy tran- spired:
"The I Defendant: would like to ask the court if I could in and don’t trust I myself because don’t have confidence my present attorney, court-appointed my I why him and I don’t I see should trial with him. "The Court: You didn’t you tell me didn’t trust him you yesterday, you said couldn’t communicate with him. Try another one. "Well, no, going we are to trial. You let him sit there you got because have somebоdy you. have to advise I going am to let him sit there. questions You can ask you want.
"The I accept Defendant: can’t his advice when I trust him. don’t down, "The please, please, please, Court: Sit we are
going ahead with this trial. You didn’t tell me that yesterday. Every day you up come with a new tactic. You never told me that yesterday. you Defendant: told I couldn’t communicate *8 him, only explain that’s the Iway can it. I you Court: know said that yesterday you but you him, never told me didn’t trust you told never me that until nоw ready go when we are to to trial so we will ahead with this you you trial. If want to can represent yourself; you put can your have the file and appearance in but I would the lawyer let sit there and I People v services, at least we him for will going pay
am I pay him for his services but am county order sitting there and it make known him going to leave your own case but will leave conduct you want to * * * sitting there. lawyer my understanding it Is [prosecutor]: "Mr. Gibbs propria? in this [is] No, enough know about it to he doesn’t "The Court: case, certainly can confer with his but
try his own questions he wants asked.” lawyer about in a crime this state has a charged with One 1963, pursuant to Const art himself to defend 763.1; MSA 28.854. After trial MCLA and however, of defendant begun, has quali- is not absolute but his own defense conduct recognized in Supreme Court Michigan fied. 143, (1969), 382 Mich People Henley, dismiss his and attorney allow a defendant once trial was well persona, proceed propria regular prac- into surely invite way, under "would justiсe by criminal tice the obstruction of new hindrances calculated manufacture authority, error”. As specifications novel Bentvena, 319 F2d on United States v Court relied (CA 1963), distinguished between the which proceed without an absolute qualiñed right and the conduct one’s own begun. trial had discharge counsel once this Payne, In factual situation Court was confronted with a Defendant, Payne, similar to the instant case. requested beginning of the trial that his had dismissed, that he court-appointed аttorney be jury, to conduct his own defense. The be allowed had not yet this been selected. ex holding relied on United States Payne (CA 1965), Denno, rel 348 F2d 12 Maldonado v 1950; 1007; cert 86 Ct 16 L Ed 2d den S *9 App 32 Mich 22 40 by Lesinski, C. J. Dissent (1966), affirming 1020 defendant’s conviction, not because defendant did state unequivocally that himself. exception, he wanted to defend With this the Maldonado however, opinion stated, as the Payne defendant’s right that emphasized, Court unqualiñed prior to the remained selection of the jury. pointеd in Maldo- Judge As Waterman out nado, supra, p danger there is "no of disrupt- ing proceedings already progress” if defendant unequivocal request makes an to defend himself before the has been chosen.
It opinion is the of this writer that Payne dic- tates in this case. The jury reversal had not yet been selected. request Defendant’s Further, unequivocal.1 himself was our examina- 1 majority opinion unequivocally states that defendant "did not request permitted defense”, he be that conduct his own and cites as Smith, authority People the case of v Fred 22 22 Mich Smith, defendant, point. Smith is In as in the instant requested change appointed prior a to the selection of the However, jury. request the Smith defendant did not then that he be allowed to conduct his own as did this In defendant. this case, following long exchange a between defendant and the trial court request represent himself, concerning in which the trial court attempted serving counsel, to dissuade defendant from as his own prosecutor trial court informed the that defendant would not be proceed charges propria persona, allowed to he "doesn’t know trial on because enough it.” about (CA Denno, In United States ex rel Maldonado v F2d 1965), by majority, cert den US 1007 also cited unequivocal Court request that ruled defendant Maldonado had made an represent himself, erroneously the trial court had request, denied the as a and that defendant’s conviction must be reversed therеof. result After Maldonado had first asked that he be assigned rejected different and the trial court had petition, following exchange occurred: Honor, "Defendant Maldonado: Your if I feel that the must give case on, my attorney. I you want to be able to as act me Would permission, sir? No, down, got lawyer, "The Court: no. You sit mister. You have good lawyer, going try your and he is case. down.” Now sit Maldonado, supra, p 15. hand, unequivocal In the case was as Maldonado’s, as indicated the trial record: Defendant: like to would ask the court if I could that his defense was reveals record of the tion court-appointed entirely counsel, con- conducted statement trial court’s sistent of the voir prosecutor commencement before *10 dire. ignores majority in this case the
However, the quoted by language that was our Bentvena from majority Henley. Supreme Under the in Court right represent holding, himself, defendant’s begun, longer has is no before when exercised with the interest of the it conflicts "when absolute public ensuring interest, That in a fair trial”. in precedence apparently majority’s view, takes the right to defend himself at of the accused over the trial, trial court concludes that "de whenever fairly him unable to would be fendant complexity light self’, of the case.2Moreo- of the legal ver, on the acumen exhib the decision relies at trial as counsel ited defendant’s support proposition that defendant would for the pointing fairly represent himself, out unable to being law, defendant, unskilled could advantage every opportunity of not have taken protect objection, by way motion, his interests and examination.
Yet, when it is difficult to conceive of situation my present attorney, my myself I don’t have confidence in because why court-appointed him I don’t see and I don’t trust go him.” should to trial with Maldonado, unequivocal authority Defendant’s was point. notwithstanding majority’s on this contention appears majority this case to arrive at the conclusion that against overwhelming complex, "of the evidence because However, Appeal was stated the California Court of defendant”. in 18, 626, 629, Addison, 24; Rptr 63 Cal note 256 Cal 2d (1967): utterly many "The truth of the matter is that there are cases so hopeless point on the from the defendant’s of view that—at least nothing competent question attorney 'hope guilt the most or innocence—there is only chance is the can do for him. If he decides that his pits symрathetic layman who will be toward a * * * ,’ against comes the himself the Goliath of the state whence right deprive of the court to him of his choice?” App 22 defendant would be more skilled than ap- pointed in the intricacies courtroom test, procedure. Under this abso- right lute himself becomes almost no obtains, This result despite at all. the clear guaranty that "suitor in any constitutional court prosecute of this state has the or defend suit, proper person either his own or by an 1, 1963, art 13. attorney”. Const Court, Supreme The United States addressing problem this in Adams United States ex rel McCann, S Ct 241-242; 87 L Ed 274-275 stated: of counsel assistance and the correla- dispense lawyer’s tive help with a are legal They formalisms. substance of rest on considerations an position accused’s before law. The public conscience must be satisfied that fairness domi- *11 * * * justice. nates the administration of fairness effectively Essential lacking put is an accused cannot his cаse court. But the Constitution does not force lawyer upon He defendant waive his constitu- right tional to assistance of counsel if he knows what he doing is eyes and his made open.”3 choice is (Emphasis supplied.) Frankfurter, Mr. writing Court, Justice for the conclusion, despite reached this the lack of any specific provision in the United States Constitution guaranteeing defendant the right himself.4 3 Illinois, 216, 218; Cf. Carter v 329 US 67 S Ct 91 L Ed 172, 174 where the Court stated that the historic "[n]either conception vitality progressive оf Due Process nor the it derives from justice person standards of denies a himself or to defend guilt”. confess 4 say person This is not to of an accused defend analysis
himself is Judge of a devoid Federal constitutional base. See (CA Plattner, United Medina in States 330 v F2d 273-275 2, 1964), holding pro arising to defend se is one out of the United States Constitution. v by implicit is in the majority’s which argument
One case is that defendant instant opinion trial court’s refusal to allow prejudiced colleagues My point himself. him against еvidence the defend- overwhelming "the performed work ant”, excellent and the Yet, I trial. remind them that counsel at required prejudice, to show is not a defendant rights have been constitutional violated. when his Plattner, (CA United States F2d 271 See 1964). policy unmindful of the considerations
I am not the American Bar Association’s underlie which brethren, draft, on the stan by my cited tentative determining whether employed dards to be proceed allowed to without should be disputed It is not court’s counsel. deciding if a difficult one when defendant’s task is intelligent knowing is an waiver of counsel Gillies, Moltke v 708; 68 one.5 Von 332 US S Ct (1948) Black, 316; (opinion J.); 92 L Ed Zerbst, 458; 1019; Johnson 58 S Ct 82 L (1938). See, also, American Bar Associa Ed Providing Relating tion Standards Defense Ser 1968). vices, Draft, (Approved 7.2 To state that the task is difficult in nature is not sufficient however, justification, by judicial to vitiate fiat a proceed absolute without an guaran and conduct his own Michigan teed Constitution.
Additionally, policy support there are reasons of our constitutional as it now reads. As provision, *12 5 "When a trial court is a defendant who asserts confronted with carefully Scylla his desire to waive it must steer between the denying of and person the defendant’s substantial to determine his own fate Charybdis violating counsel of a the constitutional Note, validly right.” Right who does not of an waive this Counsel, 1133, Accused to Proceed Without 49 Minn L Rev (1965). App in United States ex rel the Court was stated Maldonado, supra, 15, p defendant: " presenting the means of have '[M]ust best de- fense,’ complete end he 'must to this have confi- in his Without dence ant counsel.’ such confidence a defend- representing off Moreover, be better himself. harming cases the accused is even insisting where himself by conducting on his own respect for requires autonomy individual that he be allowed to jail under banner if his own he so desires and if he ” eyes open.’ makes the choice 'with in v Addi Appeal, The California Court son, 256 Cal 2d Rptr 626, 63 Cal (1967), pointed it possible out for a de fendant an intelligent make waiver of his right to counsel a knowledge legal without procedures part, stating that: "If the defendant wants to unknown, venture into the so, he must be allowed do is he aware of the dangers that lurk therein. He need demonstrate can meet them.” 1969 Annual Survey of Michi- See, also, Wise, E. gan Evidence, Law: Criminal Law and 16 Wayne L Right (1970); Note, of an Rev 596-597 Counsel, Accused to Proceed Without 49 Minn L Rev 1152-1153
Accordingly, the trial court’s denial of defend- ant’s motion for a new trial should be reversed.