People v. Bentley
| Decision Date | 22 May 1973 |
| Docket Number | Docket No. 12681,No. 1,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert J. BENTLEY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Gerald S. Surowiec, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.
Before J. H. GILLIS, P.J., and McGREGOR and ADAMS, * JJ.
Defendant appeals his conviction and sentence for attempted breaking and entering with intent to commit larceny. M.C.L.A. § 750.92; M.S.A. § 28.287; M.C.L.A. § 750.110; M.S.A. § 28.305.
Vol Pentero lived in an apartment located over his store at 12226 Woodrow Wilson in the city of Detroit. On February 13, 1971 he closed the store at 10:30 p.m. and locked the front door. The door had two boards nailed across it because the glass was broken. The next morning at about 5:30 he was awakened by the barking of his dog which he kept in the store. As he listened, he heard a plank fall. Looking out his front window, located above the front door of the store, he could see only someone's legs because the store entrance was recessed. He fired a shot. One man ran out with a bar in his hand, dropped the bar, jumped into a car, and drove off. The second person refused to come out, stating he would not come out and get killed. Pentero's wife handed him his clothes and he dressed while talking to the man through the open window. Then he quickly ran downstairs, snatched open the door and confronted defendant, whom he held at gunpoint until the police came.
Patrolmen James Benci and Robert McGhee arrived at the scene first and observed Pentero holding defendant at gunpoint. When asked for identification, Bentley produced a receipt for a car from the Econ-O-Car Rental Service with his name on it. The receipt was received in evidence at the trial without objection after defendant's attorney had earlier objected on the ground that no foundation had been laid and had been questioned McGhee regarding the document.
Patrolmen Kenneth Evans and Arnold Vann investigated the scene. Evans noticed a plywood board lying inside the doorway of the store. It apparently had originally been nailed to the bottom portion of the doorway.
Patrolmen Benci and McGhee left the scene to answer a radio run to the Highland Park General Hospital to investigate a man being treated there for a gunshot wound. They searched the patient's personal property, identified him as codefendant Lee Wells, and found a set of keys bearing the name Econ-O-Car Rental Service, the same name as that found on the receipt taken from Bentley.
On June 24, 1971 defendant, represented by court-appointed counsel, was tried individually in Detroit Recorder's Court on a charge of attempted breaking and entering of a business place with intent to commit larceny, M.C.L.A. § 750.92; M.S.A. § 28.287; M.C.L.A. § 750.110; M.S.A. § 28.305. This trial concluded in a mistrial because of a hung jury.
On July 16, 1971 defendant, In propria persona, moved for a change of attorney. The motion was denied on July 19, 1971, at which time defendant and co-defendant Wells were tried jointly before a jury. At this trial Dr. Joachim Bogani testified that he had removed a bullet from codefendant Wells. The bullet had struck Wells in the left shoulder and had caused extensive internal damage. A police ballistics expert testified that the bullet removed from Wells had been fired from Pentero's gun. Defendant was convicted on July 20, 1971 and was subsequently sentenced to a prison term of 4 to 5 years.
On September 7, 1971 new counsel was appointed to represent defendant in post-conviction proceedings.
Was there probable cause to arrest defendant where the arresting officers responded to a police radio report, spoke to the complainant who was holding defendant at gunpoint, and observed the scene?
While cruising near the scene of the crime, police officers Benci and McGhee heard a police radio report stating that a suspect was being held for breaking and entering at 12226 Woodrow Wilson. Benci and McGhee went to the scene, found complainant Pentero holding defendant at gunpoint, spoke with Pentero and arrested defendant for investigation of breaking and entering.
On direct examination Officer McGhee testified:
During cross-examination McGhee stated:
'
'The Court: In other words, you had information by way of teletype or police radio that he was held for breaking and entering; is that correct?
'The Court: The court will rule that there was a proper arrest in this case, Mr. Smith.'
A police officer may arrest a person without a warrant when he has reasonable cause to believe a felony has been committed and reasonable cause to believe that the arrestee committed it. M.C.L.A. § 764.15(d); M.S.A. § 28.874(d).
Given the circumstances in this case, the arrest was clearly proper. The arresting officers had probable cause to arrest, based upon the police radio report, their conversation with complainant and their observation of the scene. Defendant was informed that he was being arrested for investigation of breaking and entering. There was no error.
Did the trial court abuse its discretion by refusing to grant an adjournment requested by defendant for the purpose of obtaining new counsel?
On July 19, 1971, before commencing the second trial, the trial judge considered defendant's motion for a change of attorney. The following colloquy occurred:
'The Court: Do you have another attorney that you have retained?
'Defendant Bentley: I am seeking an attorney of my choice.
'The Court: Have you hired one?
'Defendant Bentley: Not as of this moment; I am in the Wayne County Jail and have been for 5 months--and communication from the Wayne County Jail is very difficult.
'The Court: Well, in view of the fact that this is the second trial of this case and Mr. Smith is familiar with the proceedings that have transpired and is a capable and reputable attorney, your motion will be denied.
'Defendant Bentley: Your Honor, may I say something--in other words you are forcing me to go into court with Mr. Smith?
'The Court: You will take your seat at the counsel table.'
From the above it will be seen that defendant did not propose to represent himself In propria persona, that he had not obtained other counsel, that his attorney had already tried the case once in a trial lasting from June 24 to June 28, 1971, and that in the opinion of the court the attorney was a capable and reputable lawyer. Defense counsel stated that he had in fact consulted with defendant at the county jail.
An indigent defendant is entitled to counsel. He is not entitled to counsel of his choice nor is he entitled to different counsel whenever and for whatever reason dissatisfaction arises with counsel provided for him. People v. Henley, 26 Mich.App. 15, 26, 182 N.W.2d 19 (1970); People v. Grenier, 34 Mich.App. 93, 190 N.W.2d 742 (1971); People v. Williams, 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008 (1970). In the trial of a case, the professional judgment of an attorney regarding trial tactics should prevail; otherwise he ceases to function in his professional capacity. In this case defendant could have elected to proceed In propria persona. Since he made no such election and advanced no...
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