People v. Henley

• Citation: 169 N.W.2d 299,382 Mich. 143
• Decision Date: 04 August 1969
• Docket Number: No. 2,2
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. G. T. HENLEY, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 299

169 N.W.2d 299

382 Mich. 143

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. G. T. HENLEY, Defendant-Appellee.

No. 2 Supreme Court of Michigan.

Aug. 4, 1969.

Samuel H. Olsen and William L. Cahalan, Pros. Attys., Samuel J. Torina, Chief Appellate Lawyer, Rheo C. Marchand and Arthur Bishop, Asst. Pros. Attys., Detroit, for the People.

G. T. Henley, in pro. per.

Erwin B. Ellmann, Gen. Counsel, Rolland O'Hare, Chairman, Detroit, Edward Wise, Special Counsel Member of the New York Bar, for American Civil Liberties Union of Michigan, amicus curiae.

Before the Entire Bench.

BLACK, Judge.

We adopt the factual review which Judge Gillis prepared for Division I (People v. Henley, 2 Mich.App. 54, 55--58, 138 N.W.2d 505, 506). The review follows:

'The defendant G. T. Henley was arraigned on a warrant June 20, 1963 containing two counts: (1) assault with intent to commit rape (C.L.S.1961, § 750.85 (Stat.Ann.1962 Rev. § 28.280)), and (2) attempt to procure an act of gross indecency between male and female persons (C.L.S.1961, § 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. The examining magistrate, Judge Elvin L. Davenport, ordered the prosecuting attorney to file a petition for a sanity hearing pursuant to C.L.S.1961, § 767.27 (Stat.Ann.1963 Cum.Supp. § 28.967). Three physicians examined the defendant and reported to the court on August 7, 1963 that he was not psychotic, was free from mental defect, able to understand the charges pending against him, and able to assist counsel in his defense. On October 24, 1963, defendant advised the court that he desired to engage his own counsel, did not want assigned counsel and the court permitted assigned counsel to withdraw from the case. Several adjournments of the case were granted in order that defendant might retain counsel.

'On December 9, 1963 the defendant, not having hired counsel, was offered another assigned counsel by the then presiding judge of the recorder's court, but the defendant refused to sign the required affidavit and petition for appointment of counsel. Three days later Judge John P. Scallen assigned an attorney to represent the defendant. On the following day trial commenced. A mistrial was declared in the early stages of that trial, and the assigned counsel was permitted to withdraw from the case after defendant requested that he be discharged. Judge Scallen then appointed a new sanity commission consisting of three additional physicians who reported on January 8, 1964, the same findings reported by the prior sanity commission. On December 24, 1963 another attorney was retained by the defendant and this attorney remained with the defendant throughout the balance of the proceedings in this cause. This trial attorney, having received only a small retainer initially, was appointed and compensated as an assigned counsel.

'A new trial was commenced on May 27, 1964 and on June 4, 1964 the jury returned a verdict of guilty on both counts set forth in the information. The lengthy transcript covering this trial is replete with attempts by the defendant to dominate the court proceedings. The record clearly shows that the defendant continually interrupted the trial judge, insisted on instructing his counsel in so loud a tone that it could be heard by members of the jury in the court, interrupted the testimony of various witnesses, conducted oratorical speeches directed to the jury protesting his innocence and insisted that he was being deprived of his constitutional rights. At other times he would direct remarks to the spectators sitting in the rear of the courtroom contending that his rights were being violated and requested someone in the audience to send news reporters or representatives of various organizations to see him. After one court recess, the defendant while in a jail cell adjacent to the courtroom removed all of his clothing and refused to come out for further proceedings.

'It was thereafter necessary for the court to order the defendant forcefully clothed and brought into the courtroom where he was shackled to a chair. This action by the trial court seemed only to intensify the contemptuous attitude displayed by the defendant. The trial judge, who displayed the patience of Job, did everything possible throughout the trial to control the defendant's actions except to order the defendant gagged. See People v. LaMarr (1965), 1 Mich.App. 389, 136 N.W.2d 708, and citations contained therein for authority of the court to shackle a defendant.

'The conduct of the defendant may well have prejudiced the jury but this defendant cannot complain inasmuch as he cannot claim the benefit of error that he himself occasioned.

'After the trial was well under way, the defendant advised the court that he had 'fired' his attorney and was going to represent himself. The court advised the defendant to sit down and instructed the defense counsel to continue with the trial. On many occasions thereafter the defendant advised the court that he desired to represent himself and did not want his attorney speaking in his behalf.

'The defendant alleges many grounds of reversible error, but only one merits consideration. Was it reversible error for the trial court to refuse to permit the defendant to discharge his attorney and proceed with the trial representing himself?'

Despite Mr. Henley's capricious, contemptuous and self-prejudicing conduct, Division I held that the constitutional and statutory right of one to defend himself is a veritable absolute,* even in the factual situation described by Judge Gillis. The panel went on to this conclusion:

'The record in the instant case fails to disclose any basis which would warrant the defendant to discharge his counsel and, in fact, defense counsel did an admirable job under trying circumstances. However, under our constitution, statutes and case law, defendant had the right to discharge his attorney and proceed with the trial in his own proper person.'

The opinion of the panel does not discuss the authority of a trial judge, confronted after 'the trial was well under way' with an announcement by the defendant that he has fired his attorney and means to proceed in his own proper person. This we conclude was error; error which unless corrected would surely invite into regular practice the obstruction of criminal justice by the calculated manufacture of new hindrances and novel specifications of error, such as Mr. Henley has alleged in the not very thin file of correspondence he has carried on with the clerk since his appeal to the Court of Appeals was submitted in 1965.

The error thus ascertained finds support in what we believe is the weight of authority headed by United States v. Bentvena (1963), (CCA 2) 319 F.2d 916. To render fully precise the sense and the rule we approve and now apply, the following connected passage is quoted from Bentvena (pp. 937, 938):

'3. Mirra

'Mirra contends that he was denied the right to act as his own counsel by the trial court's denial of his request to discharge his defense counsel and conduct the cross-examination of the chief government witness, Smith, himself. Mirra had been represented with great skill throughout the trial by appointed co...