People v. Henderson
Decision Date | 18 February 1971 |
Docket Number | Docket No. 8763,No. 1,1 |
Citation | 30 Mich.App. 675,186 N.W.2d 844 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alex Stamp HENDERSON, Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Assn., 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., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.
Before LEVIN, P.J., and BRONSON and O'HARA, * JJ.
Defendant appeals as of right from his conviction by a jury of entry without breaking with intent to commit larceny therein M.C.L.A. § 750.111 (Stat.Ann.1970 Cum.Supp. § 28.306).
The sole issue on appeal arises from the following exchange which occurred just before the trial was to begin:
'The Court: Bring in the jury.
'The Defendant: Your Honor, can I say something?
'The Court: Any other request?
'The Defendant: No.
'The Court: Why is it you don't want him to represent you?
'The Defendant: Because we can't get an understanding.
'The Court: Understanding about what?
'The Defendant: About the case and certain procedures and different things.
'The Court: What procedures?
'The Defendant: Procedures through trial.
'The Court: I can't hear you.
'The Defendant: The procedures through--during the trial.
'The Defendant: That's what I know, and he can't tell me nothing.
'The Court: I am still trying to find out--
'The Court: Mr. Resh, didn't you represent him at the preliminary examination?
'Mr. Resh: Yes, Your Honor.
'The Defendant: I am not saying who.
'Are we ready for trial?
'Mr. Resh: I am, Your Honor.
'The Defendant: No, I am not ready for trial, Your Honor.
Defendant contends on appeal that he has been denied his constitutional right to discharge his attorney and proceed In propria persona. He argues that, although he did not specifically demand to proceed without an attorney, the above exchange is sufficient to bring this case within the holding of People v. Alexander (1969), 17 Mich.App. 497, 169 N.W.2d 652.
In the Alexander case this court ruled that a defendant untrained in legal matters need not specifically state that he wants to act as his own attorney and where it can reasonably be inferred that the defendant has manifested such a desire the court should ask him whether he wants to discharge his attorney and who will now conduct the defense.
In Alexander the defendant had asked if he could pick the jury himself, and being told that he would have to work through his attorney stated that he did not have an attorney, in his opinion, and was not going to work with him. This court ruled that the defendant in Alexander had clearly indicated that he wished to discharge his attorney and proceed alone.
In the instant case, defendant indicated his displeasure with his attorney and being told that he could not pick and choose appointed counsel indicated that he was not asking to choose any particular lawyer. The court then specifically informed the defendant of his right to discharge his attorney and defend himself. Defendant merely stated that he was not ready for trial.
We do not require that the defendant utilize any particular 'magic words' to call his right into play, but neither can we say that whenever a criminal defendant expresses displeasure with appointed counsel he is thereby demanding to proceed in proper person. The judge suggested such a procedure and indicated that he would honor defendant's right to defend himself without a lawyer. Defendant said nothing to indicate that he wanted to do this.
We must extend reasonable deference to the trial judge who was present during the exchange to observe the expressions, gestures, and other non-verbal indications of defendant's intent and who was thoroughly familiar with defendant's right to represent himself. The trial judge concluded that defendant was merely demanding a different appointed counsel and did not demand the right to defend...
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...v. LaMarr, 1 Mich.App. 389, 136 N.W.2d 708 (1965); People v. Kerridge, 20 Mich.App. 184, 173 N.W.2d 789 (1969); People v. Henderson, 30 Mich.App. 675, 186 N.W.2d 844 (1971); People v. Garcia, 39 Mich.App. 45, 197 N.W.2d 287 (1972). Yet, this principle cannot be used to disregard the denial ......
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