People v. Dennany

• Court: Supreme Court of Michigan
• Citation: 519 N.W.2d 128,445 Mich. 412
• Docket Number: Docket Nos. 94225,95271,Nos. 2-3,s. 2-3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Nicholas DENNANY, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Emmett JONES, Defendant-Appellee. Calendar
• Decision Date: 21 June 1994

Page 128

519 N.W.2d 128 445 Mich. 412 PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Nicholas DENNANY, Defendant-Appellee.
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Emmett JONES, Defendant-Appellee. Docket Nos. 94225, 95271.
Calendar Nos. 2-3. Supreme Court of Michigan. Argued Nov. 2, 1993.
Decided June 21, 1994.

[445 Mich. 416]

Page 129

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James A. Gregart, Pros. Atty., and Michael H. Dzialowski, Asst. Pros. Atty., for the people.

Nicholas Dennany in pro. per.

State Appellate Defender (by Richard B. Ginsberg, Detroit), for defendant Jones.

OPINION

ROBERT P. GRIFFIN, Justice.

We consolidated and granted leave to appeal in these two cases to consider the requisite judicial inquiry to be made before a criminal defendant who affirmatively seeks to proceed in propria persona ¹ may be permitted to waive his correlative right to counsel and represent himself.

In People v. Jones, we conclude that the trial court committed error requiring reversal by failing [445 Mich. 417] to advise defendant of the dangers and disadvantages of self-representation, and, therefore, we affirm the decision of the Court of Appeals, which ordered a new trial.

In People v. Dennany, a new trial is also required. Because the trial court essentially denied defendant his right to self-representation upon the erroneous ground that his decision to proceed pro se was not made knowingly and voluntarily, we affirm in part the Court of Appeals decision.

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I

A. Statement of Facts--People v. Jones

Emmett Jones was charged with unarmed robbery, ² and breaking and entering an occupied dwelling with intent to commit larceny. ³ He was also charged in a supplemental information with being an habitual offender. Defendant requested the assistance of counsel, and an attorney was appointed to represent him. Trial was scheduled for December 1, 1987. On November 8, 1987, defendant filed a motion to discharge his attorney and to proceed pro se. He alleged that appointed counsel had not visited him to discuss the case, had not responded to phone calls, had refused to release legal documents relating to the case, had waived circuit court arraignment without his knowledge or consent, and had denied him the right to participate actively in his own defense. Defendant represented that he was seeking to proceed pro se because he wanted the trial to start on its scheduled date, and substitute counsel would not have sufficient time to prepare.

At a hearing on November 23, 1987, the trial [445 Mich. 418] court considered a motion by the prosecutor to use the defendant's prior convictions for impeachment purposes and the defendant's motion to proceed pro se. With regard to the prosecutor's motion, defendant indicated: "Okay, [appointed counsel] can handle this today and I will--would like the Court to grant me permission to take over the proceedings from there."

The trial court allowed appointed counsel to be heard concerning the request to proceed pro se. Counsel indicated that defendant wished to proceed as his own attorney and that he would stay on in an advisory capacity if requested to do so by the court. Defendant then stated:

"Yes, sir, if you would allow an attorney to assist me, I would, I mean ask to appear in pro per, but I do recognize my need for having certain motions Xeroxed as I am currently in the county jail, I don't have current facilities to Xerox and type motions. I will do the research, and I would need them served on the Court and it is hard for me to get in and get a docket number and get dates on cases and if an attorney would assist me, I would have no objection to that."

The assistant prosecutor stated that she took no position regarding the defendant's desire to represent himself, but pointed out that trial was scheduled for the next week. The trial court extended a motion deadline and told the defendant:

"[Appointed counsel] will cooperate in getting you those [court records]. He's got all the records. And as a part of your representing yourself, I will have [appointed counsel] also be present to assist you if you need him or want his assistance during the course of the trial. And also, [counsel], if you would assist him between now and then in the preparation of trial, including the motions."

[445 Mich. 419] The December trial date was adjourned at the prosecution's request so that another scheduled case could be tried. At a January hearing on defendant's motion for release on personal recognizance bond, defendant complained about the lack of assistance provided by appointed counsel, and stated that he still had not received materials the court had directed counsel to give him. Counsel failed to appear at this hearing until specifically summoned by the trial judge.

On March 22, 1988, a hearing was held on several pretrial motions. Defendant sought to delay the trial date, arguing that because he had been busy preparing to defend another case, he had not been able to devote adequate time to this matter. The presiding judge denied defendant's motion, noting during the course of argument that defendant should have relied more on his counsel, who was present in the courtroom and available to assist him. Defendant asked the court to order the official in charge of the jail to allow him to use the law facilities at the jail every day during trial because the jail staff had stated that he would only be allowed to use the law library on weekends. The judge advised defendant that he would have to rely

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on appointed counsel for any legal research or contact with witnesses.

A jury trial commenced on March 23, 1988. Defendant gave an opening statement, cross-examined two prosecution witnesses, and presented three defense witnesses. He also testified in his own behalf. Defendant presented a lengthy closing argument and objected during the prosecution's closing argument. Before the beginning of jury deliberations, appointed counsel moved on defendant's behalf, alternatively, for a mistrial, dismissal of the breaking and entering count, or to have the court decide the breaking and entering [445 Mich. 420] charge on the basis of a statement made during trial. Following lengthy discussion, defendant waived a jury trial with regard to the breaking and entering count and the jury then deliberated only with regard to the unarmed robbery charge. The jury convicted defendant of unarmed robbery, but he was acquitted by the trial judge of breaking and entering. The bench trial on the supplemental information followed. Appointed counsel represented defendant during this proceeding. Defendant was convicted of being a third-felony offender. He was sentenced on May 16, 1988, to serve an enhanced prison term of from fifteen to thirty years.

Defendant filed a claim of appeal through appointed counsel. The Court of Appeals ultimately reversed defendant's conviction on the grounds that the trial judge did not adequately explain to the defendant the pitfalls of self-representation or fully determine that his waiver of counsel was knowingly, intelligently, and voluntarily made. However, the Court stated:

"In so concluding, we do not ignore, nor are we unsympathetic to, the arguments by the prosecutor. Those arguments point out that defendant was represented at the time of making his motion to be allowed to proceed in propria persona, that he conducted himself well when he was representing himself, and that his court-appointed attorney continued on as advisory counsel to assist defendant in preparing and presenting his defense. However, neither the court rule nor the case law recognizes this as an exception to the strict requirements imposed upon the trial court before allowing a defendant to proceed in propria persona. While we would urge the prosecutor to seek leave to appeal to the Supreme Court to have the Court reconsider whether such strict requirements are necessary where a defendant is represented at [445 Mich. 421] the motion to be allowed to proceed in propria persona, or where there is standby counsel available throughout the proceedings, it is for the Supreme Court, and not this Court, to adopt such an exception." ⁴

The prosecutor filed an application for leave to appeal with this Court. We granted the application and further ordered that this case be argued and submitted with People v. Dennany. 442 Mich. 936, 503 N.W.2d 910 (1993).

B. Statement of Facts--People v. Dennany

Defendant Nicholas Dennany was convicted by a jury of first-degree criminal sexual conduct, ⁵ on the basis of an alleged sexual assault of his daughter when she was twelve years old. Defendant was sentenced to serve twenty-five to fifty years in prison.

The sole issue with which we are concerned in this appeal is defendant's request, denied by the trial court, to represent himself at the trial. The facts pertinent to defendant's efforts to proceed pro se are set forth in the Court of Appeals opinion:

"Defendant first asked to represent himself through a June 19, 1986 motion for withdrawal of counsel. At the hearing on the motion, defendant's attorney told the court that defendant wanted to represent himself, but that he would like the assistance of an attorney for procedural matters. The attorney also told the court that his client's position was that he has been completely immersed in this matter through DSS proceedings and proceedings in juvenile court, and that defendant is representing himself against charges of abuse [445 Mich. 422] and neglect in juvenile court.

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Defendant told the court that he believed that there were issues of fact and law that would not be raised if not raised by him. He also told the court that he had successfully represented himself in a criminal prosecution involving the education of his children at home. When the court asked defendant if he was aware that he would have to follow the rules of evidence if he represented himself,...