People v. Henley, Docket No. 110

CourtCourt of Appeal of Michigan (US)
Writing for the CourtBefore LESINSKI; J. H. GILLIS; Scallen; There followed, Sua sponte
Citation26 Mich.App. 15,182 N.W.2d 19
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. G. T. HENLEY, Defendant-Appellant
Decision Date24 August 1970
Docket NumberNo. 1,Docket No. 110

Page 19

182 N.W.2d 19
26 Mich.App. 15
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
G. T. HENLEY, Defendant-Appellant.
Docket No. 110.
Court of Appeals of Michigan, Division No. 1.
Aug. 24, 1970.
Released for Publication Dec. 28, 1970.

Page 20

Jesse E. Williams, Heading, Williams, Fonville & Floyd, Detroit, for defendant-appellant.

[26 Mich.App. 17] 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,

Page 21

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.

J. H. GILLIS, Judge.

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 [26 Mich.App. 18] 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.

I

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:

'The Court: Mr. William J. Coughlin was assigned counsel in July. He has some difficulty with his client who insisted he was going to get his own lawyer. Judge Krause permitted Mr. Coughlin to resign.

'The defendant was before me at which time he indicated he was going to get his own lawyer last week. I have talked to him and have given him [26 Mich.App. 19] several days to get his own lawyer. He appears here today without a lawyer. I have offered to appoint John C. Myers, who is present at this time, to represent him. The defendant has been presented with an affidavit by Mr. Myers indicating he is without funds but refuses to sign it.

'The Court: Now, the trial is set for the 12th. If you don't want a lawyer, it is all right. We can't force a lawyer on you but you are going to trial on December 12th.

'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?

'The Court: That will be up to your lawyer and you. He has to go over the case with you. He will consult with you right away. I know you won't have ample time on the 12th, because I won't permit it. I won't permit another delay * * *.

'Defendant: As a judge, do you think four days is sufficient time for a new lawyer?

Page 22

'The Court: Yes, in some cases. It is your fault. Mr. Coughlin was your lawyer back in July. He is a very able lawyer. I am not talking to you any more. I have offered you an attorney, and you refused to accept Mr. Myers. The only way you can have Mr. Myers is for you to sign this affidavit. Do you wish to sign the affidavit?

'Defendant: Sir, you won't let me answer.

'The Court: What is your answer?

'Defendant: When I do answer, it irritates you.

'The Court: You don't irritate me, but I went through this before, and two other judges have been [26 Mich.App. 20] through it. I am not going to wait until the 12th and have the police department subpoena witnesses only to have to tell me you haven't got a lawyer.

'Defendant: I have no desire to procrastinate or delay may case, or cause the court or anyone else any undue trouble. The only thing I seek is ample time, a lawyer, and ample time for him and I to get together and fight my case. If they find me guilty, it is a life charge, and that wouldn't be so bad if I was guilty. I begged for a lie detector test and begged for the girl to get one.

'The Court: I am not going to argue the merits of your case. I will repeat again that it has been five months since you had a lawyer. You have no lawyer. I am offering you a lawyer. I assume in absence of you voluntarily signing this affidavit that you do not want a lawyer. I want to tell you that in view of all the facts there will be no adjournment granted on December 12th. You will go to trial on this case. You can have a jury and it won't be tried by me. Take him away.' (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[26 Mich.App. 21] 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.

'This Court has, therefore, appointed Walter A. Kurz as attorney for this defendant, although the defendant refuses to sign an affidavit that he has no funds and still does not object to Mr. Kurz as his attorney. He said he would hire Mr. Kurz if he had the money to pay him. In view of the circumstances, The only thing that the defendant now objects to is that he thinks that the lawyer hasn't time to prepare his own case. There are fifteen witnesses in the case.

'This Court has advised the defendant that we would draw the jury this afternoon and start taking testimony tomorrow morning at 9 o'clock and as soon as

Page 23

the complaining witness gets through testifying then Mr. Kruz would know what he had to meet by way of preparation and that if Mr. Henley would give him a list of the witnesses, the witnesses would be subpoenaed. Tomorrow being Friday, the weekend of Saturday and Sunday and also this Court cannot hold Court on Monday * * *.

'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.)

[26 Mich.App. 22] 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?

'Defendant: Mr. Schwartz come up, Mr. Bibbs come up and said if Mr. Early didn't take the case that he would take the $200.00 and file his appearance and represent me for that. Now, if I can get Mr. Early to represent me for the $200.00--

'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?

'Mr. Early: I can't leave it in, your Honor; this man said at the time I signed the appearance that he's going to hand me the money right then and there. I made a receipt out to him to that effect, which I said--

'The Court: Have you received any money at all?

'Mr. Early: I received $100.00 yesterday. He is to give me $200.00 right now.

[26 Mich.App. 23] 'Defendant: Would you represent me for $200.00?

'Mr. Early: I already said I would take $200.00 you have now--

'Defendant: Would that cover my lawyer fee?

'Mr. Early: It would cover your lawyer's...

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  • Wofford v. Woods, No. 18-2367
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 13, 2020
    ...; Dry Land Marina, Inc. , 437 N.W.2d at 392 ; People v. Gardner , 37 Mich.App. 520, 195 N.W.2d 62, 65–66 (1972) ; People v. Henley , 26 Mich.App. 15, 182 N.W.2d 19, 25–26 (1970).6 United States v. Jorn , 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ; Wade v. Hunter , 336 U.S. 684,......
  • People v. Clark, Docket No. 103664
    • United States
    • Supreme Court of Michigan
    • December 27, 1996
    ...persuaded that such emergent circumstances exist that "justice ... cannot be achieved without aborting the trial...." People v. Henley, 26 Mich.App. 15, 29, 182 N.W.2d 19 (1970), citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). Declaring a mistrial could have ......
  • People v. Gardner, Docket No. 9716
    • United States
    • Court of Appeal of Michigan (US)
    • January 17, 1972
    ...at 479, [37 Mich.App. 526] 91 S.Ct. at 554, 27 L.Ed.2d at 553; People v. Tillard, 318 Mich. 619, 29 N.W.2d 111 (1947); People v. Henley, 26 Mich.App. 15, 182 N.W.2d 19 (1970). Once a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. If......
  • People v. O'Brien, Docket No. 77-3389
    • United States
    • Court of Appeal of Michigan (US)
    • May 1, 1979
    ...entitled to different counsel whenever and for whatever reason dissatisfaction arises with counsel provided for him. People v. Henley, 26 Mich.App. 15, 26, 182 N.W.2d 19 (1970); People v. Grenier, 34 Mich.App. 93, 190 N.W.2d 742 (1971); People v. Williams, 2 Cal.3d 894, 88 Cal.Rptr. 208, 47......
  • Request a trial to view additional results
15 cases
  • Wofford v. Woods, No. 18-2367
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 13, 2020
    ...; Dry Land Marina, Inc. , 437 N.W.2d at 392 ; People v. Gardner , 37 Mich.App. 520, 195 N.W.2d 62, 65–66 (1972) ; People v. Henley , 26 Mich.App. 15, 182 N.W.2d 19, 25–26 (1970).6 United States v. Jorn , 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ; Wade v. Hunter , 336 U.S. 684,......
  • People v. Clark, Docket No. 103664
    • United States
    • Supreme Court of Michigan
    • December 27, 1996
    ...persuaded that such emergent circumstances exist that "justice ... cannot be achieved without aborting the trial...." People v. Henley, 26 Mich.App. 15, 29, 182 N.W.2d 19 (1970), citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). Declaring a mistrial could have ......
  • People v. Gardner, Docket No. 9716
    • United States
    • Court of Appeal of Michigan (US)
    • January 17, 1972
    ...at 479, [37 Mich.App. 526] 91 S.Ct. at 554, 27 L.Ed.2d at 553; People v. Tillard, 318 Mich. 619, 29 N.W.2d 111 (1947); People v. Henley, 26 Mich.App. 15, 182 N.W.2d 19 (1970). Once a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. If......
  • People v. O'Brien, Docket No. 77-3389
    • United States
    • Court of Appeal of Michigan (US)
    • May 1, 1979
    ...entitled to different counsel whenever and for whatever reason dissatisfaction arises with counsel provided for him. People v. Henley, 26 Mich.App. 15, 26, 182 N.W.2d 19 (1970); People v. Grenier, 34 Mich.App. 93, 190 N.W.2d 742 (1971); People v. Williams, 2 Cal.3d 894, 88 Cal.Rptr. 208, 47......
  • Request a trial to view additional results

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