People v. Anderson, Docket No. 17272

• Decision Date: 28 August 1974
• Docket Number: No. 3,Docket No. 17272,3
• Citation: 55 Mich.App. 317,222 N.W.2d 226
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donny Ray ANDERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 226

222 N.W.2d 226

55 Mich.App. 317

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donny Ray ANDERSON, Defendant-Appellant.

Docket No. 17272.

Court of Appeals of Michigan, Division No. 3.

Aug. 28, 1974.

Released for publication Oct. 18, 1974.

Joseph R. Gillard, III, Gillard & Gillard, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief App. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH,* JJ.

PER CURIAM.

On November 9, 1972, defendant Donny Ray Anderson was charged with armed robbery contrary to M.C.L.A. § 750.529; M.S.A. § 28.797. A preliminary examination was held in the 61st District Court on November 21, 1972, and defendant was bound over to circuit court for arraignment on the charge. On November 24, 1972, defendant was arraigned in Kent County Circuit Court and stood mute to the charges entered against him, whereupon a plea of not guilty was entered in his behalf. A pretrial conference was conducted on January 11, 1973, and the case was set for trial on January 30, 1973. Trial was held on January 30 and 31, following which the jury returned a verdict against defendant of guilty as charged. On March 19, 1973, defendant was sentenced to from 7 years and 6 months to 20 years in prison, with appropriate credit for time already spent in jail. Defendant now appeals his conviction as of right.

On the first day of defendant's trial, but prior to the selection of the jury, the following colloquy took place:

'Defendant: Your Honor, I would like to have Mr. Holst removed from this case for lack of evidence.

'The Court: Why?

'Defendant: I mean, I have my own personal feelings about Mr. Holst.

'The Court: What are those, sir?

'Defendant: I don't think he has put forth every effort that he has to see that justice is being done in this case.

'The Court: Are you prepared to hire your own attorney, sir?

'Defendant: No, I am not at this time.

'The Court: Are you prepared to represent yourself at this trial?

'Defendant: Yes, this is what I--

'The Court: I beg your pardon?

'Defendant: Yes.

'The Court: You wish to represent yourself?

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

'The Court: Why didn't you bring this motion to the attention of the Court before the morning of trial, Mr. Anderson?

'Defendant: I just got aware of some evidence concerning this case and I can't--I really don't feel that justice can be held in this case.

'The Court: Have you talked to Mr. Holst about this case?

'Defendant: Yes.

'The Court: All right, sir. Thank you.

'It appearing that we are now at the morning of trial, that Mr. Holst is one of the most competent and experienced defense lawyers available in this part of the State, he is thoroughly prepared to try this case, that Mr. Anderson is not prepared to proceed to try the case alone this morning, and that no good reason has been shown for relieving him from his responsibility to the Court in this respect, the motion to remove Mr. Holst as defense counsel is denied.'

The sole issue raised on appeal is whether it was reversible error for the trial court to refuse to permit the defendant to discharge his attorney and proceed with the trial representing himself.

One accused of a crime has a right to either represent himself or be represented by an attorney pursuant to Const.1963, art. 1, § 13 and M.C.L.A. § 763.1; M.S.A. § 28.854. The right to personally conduct one's defense in a criminal prosecution is absolute but the right to discharge counsel after commencement of the trial is qualified. People v. Henley, 382 Mich. 143, 148, 169 N.W.2d 299 (1969); People v. Armstrong, 28 Mich.App. 387, 390, 184 N.W.2d 531 (1970).

In People v. Payne, 27 Mich.App. 133, 183 N.W.2d 371 (1970), a case in which two members of this panel participated, we dealt with a factual situation similar to the present case. In Payne, the defendant had requested at the beginning of the trial that his court-appointed counsel be dismissed, and that he be allowed to conduct his own defense. As in this case, the jury in Payne had not yet been selected.

Relying on United States ex rel. Maldomado v. Denno, 348 F.2d 12 (C.A.2, 1965), cert. den., DiBlasi v. McMann, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966), we held in Payne that a defendant's constitutional right to defend himself is not violated where the accused's request that his attorney be discharged was not accompanied by an unequivocal request to defend himself. We, therefore, affirmed Payne's conviction since he did not unequivocally state that he wanted to represent himself. We emphasized, however, that absent this exception, defendant's right remained unqualified prior to the selection of the jury.

We are of the opinion that Payne mandates reversal in this case. The jury had as yet not been selected. And, although the previously quoted transcript does show that defendant was not ready to try the case that day and was requesting an adjournment, this does not defeat the fact that defendant's statement, 'I wish to represent myself', was unequivocal. We...