People v. Henley, Docket No. 110
Decision Date | 24 August 1970 |
Docket Number | No. 1,Docket No. 110,1 |
Citation | 26 Mich.App. 15,182 N.W.2d 19 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. G. T. HENLEY, Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Jesse E. Williams, Heading, Williams, Fonville & Floyd, Detroit, for defendant-appellant.
Donald L. Hobson, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, amicus curiae.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., Arthur N. Bishop, Highland Park, for plaintiff-appellee.
Before LESINSKI, C.J., and FITZGERALD and J. H. GILLIS, JJ.
This case is here by order of the Supreme Court remanding the record 'for ascertainment therefrom of facts which will fairly frame the alleged issue of double jeopardy and for a judicial determination thereof.' People v. Henley (1969), 382 Mich. 143, 150, 169 N.W.2d 299, 303, Reversing (1965), 2 Mich.App. 54, 138 N.W.2d 505. The question presented is whether the defense of double jeopardy was available as a bar to the retrial of defendant Henley, after his previous trial had ended abortively when the trial court, Sua sponte, declared a mistrial.
We state the facts solely as they relate to the issue of double jeopardy.
On June 20, 1963, defendant was arraigned on a warrant charging (1) assault with intent to commit rape (M.C.L.A. § 750.85 (Stat.Ann.1962 Rev. § 28.280)) and (2) attempt to procure an act of gross indency between male and female persons (M.C.L.A. § 750.338b (Stat.Ann.1954 Rev. § 28.570(2))). An attorney was assigned by the court to represent the defendant and an examination was conducted in Recorder's Court on July 11, 1963. On October 24, 1963, defendant advised the court that he desired to engage his own counsel and that he did not want assigned counsel. The court permitted assigned counsel to withdraw from the case. Several adjournments of the case were granted in order that defendant might retain counsel of his own choosing.
Trial was scheduled for December 12, 1963. As of December 9, defendant had not retained counsel and on that date he was offered another assigned counsel by the then presiding judge of the Recorder's Court. The defendant refused, however, to sign the required affidavit and petition for appointment of counsel. The following colloquy took place between defendant and the court:
'Defendant: I want a lawyer and ample time to prepare my defense.
'The Court: The lawyer can't determine what is ample time until he gets in there, I am not going to wait until the 12th.
'Defendant: May I ask you, now, Could I have ample time with this lawyer to prepare a defense?
'Defendant: As a judge, do you think four days is sufficient time for a new lawyer?
'Defendant: Sir, you won't let me answer.
'The Court: What is your answer?
'Defendant: When I do answer, it irritates you.
(Emphasis supplied.)
Three days later, December 12, 1969, defendant Henley appeared for trial before Recorder's Court Judge John P. Scallen. Judge Scallen made the following statement on the record before calling a jury:
'This Court, this morning, spent at least an hour in private conversation with the defendant in the presence of the Prosecuting Attorney, Jesse Eggleton, assigned to this Court, and also conferred with him for at least another half hour privately.
'The defendant advised the Court that he intended to get--try to hire George BeGole, but was advised that Mr. BeGole was too busy to handle the matter, and that he knew Walter A. Kurz, and would be satisfied with him; this Court advised the defendant that he knew Mr. Kurz as a practitioner of this Court and his relationship with this Court was very pleasant and he would be competent counsel and his rights would be fully protected by Mr. Kurz.
'The Court went into great detail about both the first and second counts in explaining them to the defendant, and then called Mr. Kurz, who was at his home, and this Court then waited forty-five minutes for Mr. Kurz' arrival, and since he has arrived Mr. Kurz has spent around or almost two hours talking to the defendant.
'In view of that, Mr. Kruz would have three days over the weekend and Monday to get all of his witnesses that he wanted together to answer for the defense, in the event the People should finish their case, if they could do so, before Friday closing of Court.
'We will, therefore, proceed to jury.' (Emphasis supplied.)
Thereafter, a jury was duly impaneled and sworn. On the following day, Friday, December 13, 1969, trial commenced. At the end of the day, the case was adjourned for the weekend.
During the weekend adjournment, defendant Henley again sought to retain counsel of his own choosing. Judge Scallen permitted assigned counsel (Kurz) to withdraw from the case after defendant requested his discharge. A new attorney (Early) then entered his appearance on behalf of defendant.
On December 18th, defendant, together with attorney Early, appeared before Judge Scallen for resumption of trial. Out of the presence of the jury, the following transpired:
'Defendant: Mr. Early is here if he can come in and continue the case--I gave another attorney $50.00 and told him that if Mr. Early didn't take the case--
'The Court: Who is the other lawyer?
'The Court: Mr. Early has already filed his appearance for you.
'Defendant: If I can get him to do that, then I will, but Mr. Kurz, I object to Mr. Kurz from the start--
'The Court: Mr. Early, you entered your appearance; are you leaving it in?
'The Court: Have you received any money at all?
'Defendant: Would you represent me for $200.00?
'Defendant: Would that cover my lawyer fee?
'Defendant: Under those circumstances I will give him the money if I get a...
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