People v. Bradley

• Decision Date: 25 June 1974
• Docket Number: Docket No. 16961,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William BRADLEY, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 305

220 N.W.2d 305

54 Mich.App. 89

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William BRADLEY, Jr., Defendant-Appellant.

Docket No. 16961.

Court of Appeals of Michigan, Division No. 3.

June 25, 1974.

Released for Publication July 31, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William C. Buhl, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and V. J. BRENNAN and BASHARA, JJ.

T. M. BURNS, Presiding Judge.

Defendant William Bradley, Jr., was tried before a jury for the offense of breaking and entering. M.C.L.A. § 750.110; M.S.A. § 28.305. He was convicted on January 17, 1973, and was sentenced on February 5, 1973, to a term of from 10 to 15 years in prison with 132 days credit for time spent in the county jail prior to the disposition of his case. Defendant now appeals his conviction as of right.

1. AFTER CONDUCTING A HEARING IN ACCORDANCE WITH PEOPLE V. WALKER, 374 MICH. 331, 132 N.W.2d 87 (1965) (ON REHEARING), AND DETERMINING THAT A CONFESSION WAS VOLUNTARILY MADE, WAS IT PREJUDICIAL ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY THAT HE HAD CONSIDERED THE CONFESSION AND HAD DETERMINED THAT IT WAS VOLUNTARY?

In People v. Williams, 46 Mich.App. 165, 207 N.W.2d 480 (1973), on which defendant relies, a similar challenge to similar instructions was made. The court in the Williams case held that although it would be better practice not to inform the jury that the court had found the confession voluntarily made, the defendant's failure to object precluded the assignment of error. Since defense counsel made no objection to the court's instructions in the present case, defendant is likewise precluded from assigning error. GCR 1963, 516.2; M.C.L.A. § 769.26; M.S.A. § 28.1096; People v. Keiswetter, 7 Mich.App. 334, 151 N.W.2d 829 (1967); People v. Williams, Supra.

2. WAS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY THAT THE PRESUMPTION OF INNOCENCE IS NOT TO BE A SHIELD FOR THE GUILTY?

Absent a showing of manifest injustice, this Court will not entertain allegations of erroneous jury instructions where no timely objection to those instructions was interposed before the jury retired to consider its verdict. GCR 1963, 516.2; People v. Peace, 48 Mich.App. 79, 210 N.W.2d 116 (1973); People v. Spaulding, 42 Mich.App. 492, 202 N.W.2d 450 (1972), lv. den. 388 Mich. 809 (1972). Defendant made no objection in this case. Therefore, we must consider whether the trial court's instruction resulted in manifest injustice.

When reviewing an instruction to ascertain whether a defendant has been prejudiced, we will review the instruction as a whole rather than in small excerpts. People v. Peace, Supra; People v. Spaulding, Supra. The instructions by the trial court on the presumption of innocence and burden of proof as a whole correctly informed the jury of their duty under the law. Accordingly, we find that the instruction complained of did not unduly prejudice the defendant or result in manifest injustice.

3. WAS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY THAT THERE IS A PRESUMPTION THAT A POSSESSOR OF STOLEN GOODS IS THE PERSON WHO COMMITTED THE THEFT?

Defendant contends that by charging the jury that possession of stolen property gives rise to a presumption that the possessor was the thief, the trial court improperly shifted the burden of proof onto defendant. We disagree.

The rule in Michigan to which defendant refers was stated in People v. McDonald, 13 Mich.App. 226, 236--237, 163 N.W.2d 796, 802 (1968):

'(U)nexplained possession of property recently stolen, unaccompanied by other facts or circumstances indicating guilt, will not sustain a conviction for Breaking and entering, even though it is some evidence that the possessor is guilty of Theft.' (Emphasis in original.)

And in People v. Helcher, 14 Mich.App. 386, 388, 165 N.W.2d 669, 671 (1968), we said:

'Possession of recently stolen property permits an inference that the possessor committed the theft.'

While we feel that 'presumption' was not the correct word for the trial court to use to describe the relationship between possession of stolen property and the conclusion that the possessor was the thief, we do not feel that such incorrect usage mandates reversal in the instant case.

Defendant's confession in this case was complete and included an admission of the theft. Also, as previously stated, the trial court's instructions on the presumption of innocence and burden of proof as a whole correctly informed the jury of their duty under the law.

These two factors, coupled with the fact that the defendant did not object to the instruction now challenged on appeal, leads this Court to the conclusion that the instruction complained of did not result in manifest injustice to the defendant. See People v. Peace, Supra; People v. Spaulding, Supra.

4. WAS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO FAIL TO INSTRUCT THE JURY CONCERNING THE POSSIBILITY OF CONVICTION OF LESSER INCLUDED OFFENSES?

No request was made by defendant for instructions on lesser included offenses, nor did defendant object to the instructions given by the trial court. Furthermore, there is no indication that the defense relied upon any theory of attempt nor did the evidence support that theory. Moreover, the trial court did not affirmatively move to limit the jury's consideration of lesser included offenses. Under these circumstances, we find no error. See People v. Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970); People v. Membres, 34 Mich.App. 224, 191 N.W.2d 66 (1971); and People v. Midgyett, 49 Mich.App. 663, 212 N.W.2d 754 (1973).

5. DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A SUBSTITUTION OF APPOINTED COUNSEL?

Defendant requested a substitution of appointed counsel and now argues that it was reversible error for the trial court to deny such substitution, citing People v. Williams, 386 Mich. 565, 194 N.W.2d 337 (1972).

In Williams, our Supreme Court found an abuse of discretion since (1) the defendant was asserting a constitutional right--the right to counsel, (2) a bona fide dispute existed with his attorney as to whether to call alibi witnesses, (3) the defendant was not guilty of negligence, (4) the trial court was incorrect in stating that defendant had caused the trial to be adjourned several times.

In the present case, defendant was asserting the same constitutional right as that asserted in Williams, supra. A careful review of the record discloses no negligence on defendant's part nor any prior adjournments.

Therefore, the only question remaining is whether a bona fide dispute existed between defendant and his counsel. As evidence of such dispute, defendant claims that his counsel made a deal with the prosecution to his prejudice. Defendant did not submit any evidence to prove the existence of such a deal, nor did he offer to show how this alleged deal prejudiced his defense.

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.

Defendant also claims that his court-appointed counsel did not spend sufficient time conferring with him to adequately prepare his defense. Defendant asserts that his counsel only visited with him on the day of the Walker ¹ hearing and once thereafter. To rebut this contention, defense counsel offered to submit to the trial court records of his visits to defendant in jail.

It is impossible to enunciate a strict standard as to what constitutes adequate preparation and for that reason it is left to the sound discretion of the trial court. Defendant has failed to show that this alleged lack of preparation prejudiced his defense. Additionally, a review of the record fails to show any inadequacy by defense counsel due to a lack of preparation. For these reasons, we believe that the trial court's denial of defendant's motion for substituted counsel on this ground was proper and was not an abuse of discretion. See People v. Russell, 47 Mich.App. 320, 209 N.W.2d 476 (1973).

6. WAS DEFENDANT DENIED A SPEEDY TRIAL?

Four factors must be balanced in determining whether a criminal defendant was denied a speedy trial: length of delay, reason for delay, the defendant's demand for a speedy trial, and the amount of prejudice suffered by the defendant due to the delay. People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973).

Defendant was arrested in Indiana on November 26, 1971, and tried in Michigan on January 17, 1973, some 13 months after his arrest. Since a six-month delay is presumptively prejudicial, we must examine the remaining factors. M.C.L.A. § 767.38; M.S.A. § 28.978; M.C.L.A. § 780.131; M.S.A. § 28.969(1); People v. Collins, 388 Mich. 680, 202 N.W.2d 769 (1972); People v. Chism, Supra.

After defendant was arrested in Indiana, he was held in that state on another charge of breaking and entering, convicted, and given a suspended sentence. Immediately thereafter, in March of 1972, he was...