People v. Blassingame

• Citation: 229 N.W.2d 438,59 Mich.App. 327
• Decision Date: 10 March 1975
• Docket Number: No. 1,Docket No. 18523,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles S. BLASSINGAME, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 438

229 N.W.2d 438

59 Mich.App. 327

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles S. BLASSINGAME, Defendant-Appellant.

Docket No. 18523.

Court of Appeals of Michigan, Division No. 1.

March 10, 1975.

Released for Publication June 4, 1975.

James R. Neuhard, State Appellate Defender, 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., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and KAUFMAN, JJ.

DANHOF, Judge.

Defendant was convicted by a jury of assault with intent to commit rape, M.C.L.A. § 750.85; M.S.A. § 28.280. He was sentenced to a term of from 6 years, 6 months to 10 years in prison, and he appeals raising five issues. We affirm.

A prior jury conviction of the crime of rape was reversed by this Court due to instructional error on March 23, 1973. Defendant was retried on the original charge, and convicted of the lesser offense.

On February 24, 1970, the complaining witness, a nine-year-old girl, was delivering newspapers with the help of a girl friend of approximately the same age. After delivering a paper to the house of one of her customers, a man later positively identified as the defendant came to the door and asked to speak to the girl about the paper. The man asked her into the house, then locked the door, and pulled her into a back bedroom. He put a knife to the girl's throat, threatened to cut her if she resisted or screamed, forced her to remove her pants and had sexual intercourse with her.

When the complainant was allowed to leave, she ran home screaming. She would not tell her mother what happened, so the police were called. A female police officer was able to persuade her to relate the details of what had transpired. Officers were dispatched to the house in question, but they found no one there. A physical examination by a physician disclosed evidence of sexual abuse, but no evidence of sperm. The jury returned a verdict of guilty of assault with intent to commit rape.

I

About one week before the start of the second trial, defendant requested a substitution of counsel. He claimed that his attorney, a member of the staff of the Public Defender's Office, had been adversely influenced by an incident which occurred during his first trial. At the conclusion of the sentencing proceedings following the original conviction, the defendant's reaction was recorded by the court reporter as the last entry in the sentencing transcript: '(Thereupon the defendant grabbed his counsel, Mrs. Borman about the neck; she screamed; a scuffle ensued and the defendant had to be subdued by the court officers throwing him to the floor.)'

Because Mrs. Borman, now Judge Borman of the Recorder's Court Bench, was associated with the Public Defender's Office, as was defendant's appointed counsel, the defendant felt that 'this may interfere with his work unknowingly on his own part'. The trial court carefully examined the defendant's allegations, but the defendant was unable to indicate any concrete facts to substantiate his complaint other than vague 'personal feelings'. The trial court discussed the problem with the defendant, explained that his attorney was 'one of the better ones', an 'excellent lawyer' who had been 'most diligent' and who was doing 'an excellent job'. Nevertheless, the trial court gave the defendant the option of proceeding in Propria persona. After a short recess granted to allow the defendant to consider the alternatives, the defendant indicated that he had consulted with his attorney and that he would 'keep him and let him represent me'.

On appeal, defendant contends that the trial court abused its discretion by disallowing a substitution of counsel, and that as a result, his conviction must be reversed. This contention must be evaluated in light of the Supreme Court's recent statement in People v. Ginther, 390 Mich. 436, 441, 212 N.W.2d 922, 924 (1973):

'An indigent defendant, entitled to the appointment of a lawyer at public expense, is not entitled to choose his lawyer. He may, however, become entitled to have his assigned lawyer replaced upon a showing of adequate cause for a change in lawyers.'

The reason for a change urged upon the trial court and relied upon on appeal is defendant's feeling that his attorney's 'performance was being affected by his feelings'. Despite the insubstantiality of this objection, the trial court diligently explored the defendant's trepidations and gave him the option of representing himself. Under these circumstances, the discussion and resolution of the identical question in People v. Bradley, 54 Mich.App. 89, 95, 220 N.W.2d 305, 308 (1974), is controlling:

'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); People v. Bentley, 47 Mich.App. 150, 209 N.W.2d 333 (1973). A defendant is only entitled to a substitution of appointed counsel when discharged of the first attorney is for 'good cause' and does not disrupt the judicial process. People v. Wilson, 43 Mich.App. 459, 204 N.W.2d 269 (1972); People v. Holcomb, 47 Mich.App. 573, 209 N.W.2d 701 (1973).

'In this case defendant could have elected to proceed In propria persona. Since he made no such election and advanced no persuasive arguments to support his motion for change of counsel, the trial court did not err in requiring him to proceed with his appointed counsel.'

II

The next issue raised by the defendant involves his untimely objection to the admission of evidence discovered during a warrantless search of the house in which the crime occurred. In response to a call from the victim's mother, two police officers went to the home and observed that the front door was opened and a television set was on. They checked with a neighbor to be sure they had the right house, called the police station on the patrol car radio to report their activities, and then entered the house. The officers discovered a single brown sock in a hallway which was identified at trial as having been worn that day by the victim. They also discovered a newspaper and a bloodstained diaper. These items were admitted into evidence without objection from the defense; the record discloses that no motion to suppress was made at any time at either trial, although there is no question but that the relevant facts were well-known to the defendant and both of his attorneys.

Few rules are better established in this state than that formulated in the leading case of People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965), an objection in the form of a motion to suppress must be made in order to advance as error the contention that illegally obtained evidence was admitted at trial. People v. Davis, 52 Mich.App. 59, 216 N.W.2d 440 (1974), lv.den. 391 Mich. 826 (1974); People v. Pacely, 51 Mich.App. 67, 214 N.W.2d 561 (1974), lv.den. 391 Mich. 786 (1974); People v. Wilder, 51 Mich.App. 280, 214 N.W.2d 749 (1974); People v. Plozai, 20 Mich.App. 131, 212 N.W.2d 721 (1973).

Nevertheless, a limited exception has been recognized. If the failure to raise the issue of the legality of the search and seizure is due to a mistake on the part of the defendant's lawyer, the issue may be considered on appeal. People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). But the issue will be considered only if the impugned evidence contributed to the conviction. People v. Dogans, 26 Mich.App. 411, 182 N.W.2d 585 (1970). Thus, in order to invoke the exception, the complained of evidence must be examined 'to see whether or not (1) it was erroneously admitted, and (2) its exclusion would probably have meant acquittal for the defendants'. People v. Gunn, 34 Mich.App. 106, 109, 190 N.W.2d 793, 794 (1971); People v. LaGrange, 40 Mich.App. 342, 347, 198 N.W.2d 736 (1972). Also see People v. Bukoski, 41 Mich.App. 498, 501, 200 N.W.2d 373 (1972).

Consideration of the first element in relation to the facts of this case illustrates one of the primary reasons for the rule developed in Ferguson. Because no timely objection was made, the facts surrounding the search of the house were never authoritatively determined. The record does indicate that the house did not belong to the defendant, but rather was owned by a relative who permitted him to stay there temporarily. The nature of his occupancy is unclear; consequently it may be, as strenuously argued by the prosecution, that the defendant lacked standing to raise the warrantless search issue. See for example, People v. Scott, 44 Mich.App. 462, 205 N.W.2d 291 (1973); People v. Goeppner, 20 Mich.App. 425, 174 N.W.2d 143 (1969). There is also some indication that the defendant may have abandoned the residence, and lacked standing for that reason. See People v. Mason, 22 Mich.App. 595, 178 N.W.2d 181 (1970), lv.den. 383 Mich. 826 (1970). In the absence of a motion to suppress, these issues were never directly considered in the trial court, and the record is insufficient to permit this Court to resolve them.

Application of the second element to the facts of this case is possible, however. If the complained of evidence was excluded, the defendant would nevertheless have been convicted. The defendant concedes in his brief on appeal that the diaper 'was totally irrelevant to the facts at issue' and that 'it proved nothing'. At trial, the prosecutor admitted that the diaper was 'not a very important piece of proof'.

Neither the newspaper nor the victim's stocking was determinative of the outcome of this trial. Both were merely cumulative evidence of facts already...