People v. Bruinsma, Docket No. 9592
| Decision Date | 10 June 1971 |
| Docket Number | No. 3,Docket No. 9592,3 |
| Citation | 191 N.W.2d 108,34 Mich.App. 167 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dirk BRUINSMA, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Roger W. Boer, Rhoades, McKee & Boer, 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 Appellate Atty., for plaintiff-appellee.
Before HOLBROOK, P.J., and BRONSON and O'HARA, JJ. *
On September 3, 1969, a criminal warrant was issued charging defendant, Dirk Bruinsma, with violation of M.C.L.A. § 335.152 (Stat.Ann.1957 Rev. § 18.1122) in that defendant on March 26, 1969, did unlawfully and feloniously sell, dispense, or otherwise dispose of, to John S. Rosochaki, a narcotic drug, to wit: a quantity of marijuana. The defendant was 21 years old at the time of the alleged crime.
From the record, it appears that defendant retained the services of Mr. Alan Kahn, an attorney from Chicago, Illinois. Although Mr. Kahn did not appear at the arraignment held on September 19, 1969, the prosecutor informed the court that Mr. Kahn had advised the defendant to stand mute. The court, after ascertaining defendant's desire to stand mute, entered a plea of not guilty.
On September 15, 1969, a preliminary examination was held. With Mr. Kahn present, the assistant prosecutor, Mr. Kloote, made the following motion to the court:
'Judge White: It is my understanding, Mr. Kloote, that it is agreeable that Mr. Kahn be permitted to represent Mr. Bruinsma for these purposes here today.
'Mr. Kloote: It is, your Honor.
'Judge White: And are you moving the court for his admission here to practice before this court for these purposes today?
'Mr. Kloote: I so move, your Honor. Mr. Kahn has indicated to me that he is licensed to practice law in the State of Illinois and I have his address as 7 S. Dearborn in Chicago 60603, and I would move that he be admitted to practice in this court for purposes of this case.
'Judge White: Alright, the motion is granted and the record may show for purposes of preliminary examination on motion of the prosecuting attorney that Mr. Alan Kahn, attorney from Chicago, Illinois be permitted to practice before this court and represent Mr. Bruinsma at this time * * *.' 1
Following the preliminary examination the magistrate made appropriate findings and orders binding defendant over for trial. On October 13, 1969, a notice regarding pretrial and trial was sent. The notice advised that the pretrial conference would be held on November 20, 1969, and that the jury trial would be set for December 9, 1969. 2 On December 9, 1969, the trial was held and the defendant, Dirk Bruinsma, was present in open court. The record of the trial states that 'Mr. Bruinsma appeared In pro per, his counsel, Mr. Alan C. Kahn (not present) and Mr. Leon Buer of counsel (present)'. The verdict of the jury was 'guilty as charged'. A motion for new trial was timely filed based on the grounds that the trial court abused its discretion by denying defendant's request for a continuance and that defendant was denied effective assistance of counsel. The motion was denied by the trial court. On May 11, 1970, Dirk Bruinsma was sentenced to a term of 20 to 21 years imprisonment, the 20-year minimum sentence being mandated by the statute. M.C.L.A. § 335.152 (Stat.Ann.1957 Rev. § 18.1122).
The facts and circumstances relative to the issues on appeal are developed in a pretrial colloquy between defendant, Mr. Buer, 3 and the court. The colloquy took place before the court, outside the presence of the jury, on the morning of the commencement of the trial. The record discloses the following:
'Mr. Probert: If the court please, this is case No. 13,308, People of the State of Michigan v. Dirk Bruinsma. Today is the day set for trial of this particular matter. The record should indicate that Mr. Bruinsma was originally represented on September 15, 1969, in the 63rd District Court before Judge White by Mr. Alan Kahn, an attorney from Chicago, Illinois. At that time Mr. Kahn indicated that he represented Mr. Bruinsma. When Mr. Bruinsma was arraigned before the circuit court on September 19, 1969, he appeared by himself without benefit of counsel. However, the record indicates at that point that he was still represented by Mr. Kahn of Chicago and that Mr. Kahn was going to contact Mr. Leon Buer who would be of counsel in this particular matter.
'Mr. Buer is herewith present before the court today, as is Mr. Bruinsma. In a conversation outside the hearing of the court, Mr. Bruinsma has indicated that Mr. Kahn will not be here today to represent him.
'The Court: Let Mr. Bruinsma speak for himself.
'Dirk Bruinsma: It was like I would like to ask for a motion for continuance.
'The Court: Do you want to tell me why your attorney isn't here?
'Dirk Bruinsma: Why he isn't here? I wasn't communicating with him enough, I don't think, which is probably my fault, and I was under the impression that today was a pretrial when it was actually the trial, and that is why he isn't here today, because I was supposed to have him the balance of the fee prior to my trial date, and when I assumed this was a pretrial I didn't have that in to him, and consequently he didn't make it today.
'The Court: You knew the pretrial had already been held?
'Dirk Bruinsma: Well, no, I didn't. I didn't know that was the pretrial that was held. I just didn't.
'The Court: What does the record indicate the date his attorney got notice of the trial?
'Mr. Probert: The record indicates notice was sent by Mr. Dykema October 13, 1969, indicating that the pretrial conference for that particular case was to be heard November 20, 1969 at 3:15 p.m., and the matter was set for trial before a jury on December 9, at 9:30 a.m.
'The Court: Did you talk to your attorney by telephone last night, Dirk?
'Dirk Bruinsma: Right.
'The Court: What was the substance of that conversation?
'Dirk Bruinsma: Well, then last night is when I came to realize I was going for trial today, and Mr. Kahn was unable to make it today then.
'The Court: You called him, didn't you?
'Dirk Bruinsma: Right. Well, first--
'The Court: Why did you call him?
'Dirk Bruinsma: First I called Mr. Buer to find out if my pretrial was at 9:30, and then I found out it was a jury trial, so I immediately called Mr. Kahn and asked him if this was correct or if it was just a misunderstanding, and he said, 'No, it was my trial today', and then he said, 'No, he wouldn't be able to make it'.
'The Court: How long have you retained Mr. Kahn?
'Dirk Bruinsma: Since about, I think it is about a week prior to my preliminary hearing. I don't recall the date of the hearing.
'The Court: What is the date of the preliminary hearing?
'Mr. Probert: September 15.
'Dirk Bruinsma: So it would have been somewhere between the 10th and 15th I would have retained him.
'The Court: Have you been in touch with him since that time?
'Dirk Bruinsma: Yes, I have spoken to him since the preliminary, also.
'The Court: There is absolutely no reason why you should not know that your trial was set for today.
'Dirk Bruinsma: I agree that it is probably--
'The Court: You also knew that Mr. Buer was appearing of counsel, did you not?
'Dirk Bruinsma: Well, he was--I asked Mr. Buer to appear because I think Mr. Kahn said--I don't recall exactly what was said at the preliminary hearing then because he was from out of the State of Michigan, a Michigan attorney was needed to sit in, or I don't really know what exactly the words were.
'The Court: Do you recall what you said at the preliminary examination?
'Dirk Bruinsma: To Mr. Kahn? Or in relation to what?
'Mr. Probert: At the arraignment?
'The Court: Was it at the arraignment or at the preliminary examination?
'Mr. Probert: There was one statement at the arraignment before the court.
'Dirk Bruinsma: At the arraignment they asked me if I had counsel, and I said, 'Yes, I had Mr. Kahn'.
'Question: You are instructed to stand mute, and you want a trial, is that it?' 'Answer: Yes.'
'The Court: So you, in your conversation with Mr. Kahn at that time you knew he was going to contact Mr. Leon Buer?
'Dirk Bruinsma: Well, he didn't know, really, who to work with here, to get for the Michigan attorney, so I told him there was Mr. Buer, and I think I told him there was Mr. Geil from Muskegon, and then I just, I spoke to Mr. Buer after that, and then I think--
'The Court: You knew subsequent to that that Mr. Buer had been retained as of counsel in your case?
'Dirk Bruinsma: Well, I haven't given him any money yet, so I don't know if that means he is retained.
'The Court: That doesn't answer my question. You knew he had been retained as of counsel?
'Dirk Bruinsma: Well, I had spoken to him, and he said--
'The Court: Can you answer that question?
'Dirk Bruinsma: I don't think I really understand the context of it.
'The Court: You knew (Mr. Buer) was going to appear of counsel in this case?
'Dirk Bruinsma: Not as my representative, but only as a person sitting in meeting the requirements of having to have a Michigan attorney sit in.
(Emphasis added.)
Following this colloquy and the court's decision to proceed to trial, defendant Bruinsma requested permission to represent himself with 'Mr. Buer to give me a little help now and then, if he would like to'. The trial court granted defendant's request, 4 whereupon Mr. Buer made the...
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