People v. Dziuba

• Decision Date: 27 January 2022
• Docket Number: 353828
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSEPH BERNARD DZIUBA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
JOSEPH BERNARD DZIUBA, Defendant-Appellant.

No. 353828

Court of Appeals of Michigan

January 27, 2022

UNPUBLISHED

Alpena Circuit Court LC No. 19-009095-FH

Before: Cameron, P.J., and M. J. Kelly and Shapiro, JJ.

Per Curiam.

Defendant appeals as of right his bench-trial conviction of resisting or obstructing a police officer, MCL 750.81d(1).^[1] We affirm.

I. BACKGROUND

In June 2019, Michigan State Police Troopers Kevin Pagels and Luke Simmons went to defendant's home to apprehend defendant's son, JD, on eight outstanding misdemeanor warrants. JD did not live at his father's home, but Pagels had been advised by another officer that JD was in defendant's backyard. When the officers arrived and saw JD in the backyard, he fled into defendant's home through the back door. Pagels made loud demands for JD to surrender himself, and after learning that defendant was in the home, told him to come out as well. After that was unsuccessful, Pagles called extra troopers to secure the perimeter of the home while he obtained a search warrant to enter defendant's home to arrest JD. After obtaining the warrant, the officers knocked and announced their presence at the front door but did not receive a response and were unable to breach the front door despite repeated efforts. The officers then knocked and announced their presence at the back door but did not receive a response, so they breached the back door.

Trooper Jordan Romel and his canine entered the residence first. Romel testified that he ordered that anyone in the house show their presence. JD's girlfriend, KW, immediately

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surrendered herself. At some point, defendant emerged from his bedroom. Pagels testified that defendant was hostile and refused to cooperate. Romel told defendant to show his hands and to come forward and get on his knees. Defendant showed his hands but did not come forward and get on his knees. Romel told defendant approximately five times that he would release the canine to bite defendant if defendant did not comply. When defendant began to walk toward a closed door to his right, Trooper Romel released the canine and it bit defendant, who was then arrested. JD was found in defendant's attic and also arrested.

Defendant testified at trial that the walls of his bedroom were soundproof and that at the time the police were attempting to gain access to his home, he was asleep in his bedroom with his three-year-old daughter. The trial court found defendant guilty of resisting and obstructing, but acquitted him of harboring a misdemeanant, MCL 750.199(2).

II. WAIVER OF JURY TRIAL

Defendant first argues that he is entitled to a new trial on the basis that his waiver of a jury trial was invalid. Alternatively, defendant argues that the trial court abused its discretion by denying his motion to withdraw his waiver. We disagree.^[2]

"A criminal defendant has a constitutionally guaranteed right to a jury determination that he is guilty beyond a reasonable doubt." People v Cook, 285 Mich.App. 420, 422; 776 N.W.2d 164 (2009). A defendant may waive the right to a jury trial with the consent of the prosecutor and approval of the trial court. Id. For a jury trial waiver to be valid, it must be both knowingly and voluntarily made. Id. MCR 6.402(B) provides the procedural requirements to waive a jury trial:

Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personally, that the defendant understands the right and that the defendant voluntarily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding

Compliance with this court rule creates a presumption that the waiver was knowing, voluntary, and intelligent. People v Mosly, 259 Mich.App. 90, 96; 672 N.W.2d 897 (2003).

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In this case, the following exchange occurred at a status conference in September 2019:

Defense Counsel. Judge, we would ask that this matter be set for trial and I've discussed the matter with my client. It would be our intention to waive the jury [trial] and have it set for a bench trial.

The Prosecutor. No objection, your Honor.^[3]

* * *

Defense Counsel. [Defendant], do you understand that you have a right to a trial by a jury of 12 people . . . to find facts in support of a conviction of [sic] acquittal; do you understand that?

Defendant. Yes, your Honor.

The Court. Your attorney advises that you're waiving that right. Do you waive that right?

Defendant. Yes, your Honor.

Defendant argues that the trial court failed to comply with MCR 6.402(B) because defense counsel, not the court, advised defendant of his right to a jury trial and addressed defendant personally to ascertain whether he understood this right. Defendant also argues that MCR 6.402(B) was violated because neither the trial court nor his counsel made an inquiry into the voluntariness of the waiver. We agree that the trial court failed to comply with MCR 6.402(B), but conclude that reversal is not required.

A trial court's failure to comply with MCR 6.402(B) is a nonstructural error and can be considered harmless if" 'the record establishes that [the] defendant nonetheless understood that he had a right to a trial by jury and voluntarily chose to waive that right.'" Cook, 285 Mich.App. at 425, quoting Mosley, 259 Mich.App. at 96 (alteration by Cook). In contrast, a constitutionally invalid waiver of a jury trial, i.e., one that is not voluntary, knowing, and intelligent, is a structural error that requires reversal. See id. at 427.

In this case, the record demonstrates that defendant understood he had a right to a jury trial and voluntarily chose to waive that right so that he could be tried by the court. In addition to his trial counsel explaining that right at the September 2019 status conference, on October 21, 2019, defendant signed a written waiver statement in which he acknowledged that he had a constitutional

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right to a jury trial and was voluntarily waiving it.^[4] See MCL 763.3. Viewing the status conference and the written waiver together, we conclude that defendant knowingly and voluntarily waived his right to a jury trial. Therefore, although the trial court failed to comply with MCR 6.402(B), defendant is not entitled to a new trial on the basis that his waiver was invalid.

Defendant also argues that the trial court abused its discretion by denying his motion to withdraw his waiver.

"A defendant has no right to withdraw a waiver of jury trial once it is validly made . . . ." Cook, 285 Mich.App. at 423. But a trial court may permit a defendant to withdraw a waiver for good cause shown. See People v Wagner, 114 Mich.App. 541, 558-559; 320 N.W.2d 251 (1982). In a different context, the Supreme Court has determined that "good cause" means a satisfactory, sound, or valid reason. People v Buie, 491 Mich. 294, 319; 817 N.W.2d 33 (2012).

Defendant's motion to withdraw the waiver was based on a judicial reassignment. The judge who was initially assigned to the case and had granted the waiver retired and a successor judged was assigned to the case. Defendant relies on the American Bar Association's Criminal Justice Standards that a change in trial judge allows a defendant to withdraw a jury waiver as a matter of right. ABA's Criminal Justice Standards, Trial by Jury 15-1.2(d). We decline to hold that a change in judge is a basis to require a judge to allow a defendant to withdraw a jury waiver. Although a trial court has discretion to grant a motion to withdraw on that basis, it is not required to do so. And in the absence of additional considerations, we conclude that the trial court's decision to deny defendant's motion to withdraw based on judicial reassignment was not outside the range of principled outcomes. See Wagner, 114 Mich.App. at 559 (holding that the trial court did not abuse its discretion by denying a motion to withdraw a jury waiver when the record demonstrated the motion "was made as part of a general attempt to delay trial so that the case could be heard before [a different judge].").

III. MOTIONS FOR SUBSTITUTE COUNSEL AND ADJOURNMENT

Defendant also argues that the trial court abuse its discretion by not appointing substitute counsel or by denying his motion to adjourn. We again disagree.^[5]

"An indigent defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally

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appointed be replaced." People v McFall, 309 Mich.App. 377, 382; 873 N.W.2d 112 (2015) (quotation marks and citations omitted). "Substitution of counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process." Id. at 382-383 (quotation marks and citations omitted). "Good cause may exist when a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic, when there is a destruction of communication and a breakdown in the attorney-client relationship, or when counsel shows a lack of diligence or interest." Id. at 383 (quotation marks and citations omitted). "[A] defendant's general unhappiness with counsel's representation is insufficient." People v Strickland, 293 Mich.App. 393, 398; 810 N.W.2d 660 (2011). "A defendant may not purposely break down the attorney-client relationship by refusing to cooperate with his assigned attorney and then argue that there is good cause for a substitution of counsel." People v Traylor, 245 Mich.App. 460, 462; 628 N.W.2d 120 (2001) (quotation marks and citation omitted).

Defendant does not argue that he and his trial counsel had a legitimate difference of opinion regarding trial tactics or that his...