People v. Hernandez

• Decision Date: 06 June 1978
• Docket Number: Docket No. 29683
• Citation: 269 N.W.2d 322,84 Mich.App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis HERNANDEZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 322

269 N.W.2d 322

84 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis HERNANDEZ, Defendant-Appellant.

Docket No. 29683.

Court of Appeals of Michigan.

June 6, 1978.

Released for Publication Sept. 7, 1978.

James R. Neuhard, State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert Kaczmarek, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BRONSON and LAMBROS, ^* JJ.

LAMBROS, Judge.

After a jury trial, defendant was found guilty of delivery of heroin in contravention of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). The alleged delivery took place on October 29, 1974, between defendant and an undercover agent while two other people were present. Defendant was arrested on January 27, 1975. On May 3, 1975, after his preliminary examination and arraignment, defendant made a motion for substitution of counsel but this was denied. He then moved for permission to proceed In propria persona and requested a continuance to prepare for trial. This motion for a continuance was denied. The trial took place as scheduled and the jury found the defendant guilty. He appeals as of right raising numerous issues.

Defendant's first assignment of error concerns the trial court's denial of his motion for substitution of counsel. While an indigent defendant is not entitled to have the attorney of his own choice appointed, he may become entitled to have his assigned attorney replaced on a showing of good cause if it would not unreasonably disrupt the judicial process, People v. Wilson, 43 Mich.App. 459, 462, 204 N.W.2d 269 (1972), People v. Eddington, 77 Mich.App. 177, 258 N.W.2d 183 (1977). The court's decision on this matter is reviewed on an abuse of discretion standard, People v. Eddington, supra. Eight days before trial, defendant made his motion for substitution claiming that (1) he did not see his attorney before the preliminary examination, (2) he did not know his attorney's name or phone number and consequently he could not reach his attorney, (3) his attorney made no effort to get his bond reduced, (4) his attorney failed to give defendant access to part of the preliminary examination transcript and (5) the attorney had failed to interview and secure the presence of some witnesses for trial. In summary, defendant alleges that his counsel failed to adequately prepare for trial.

There is no precise definition of "good cause" in the context of substitution of counsel, and the resolution of this issue must be found in the circumstances surrounding each case, particularly in the reasons presented to the trial judge at the time the request is made. Defendant's first two reasons for substitution concern whether counsel was inadequately prepared due to the limited contacts he had with his client. The amount of time an attorney spends with his client is a factor used in determining whether he is adequately prepared to defend his client, but it is not the determinative factor, People v. Bradley, 54 Mich.App. 89, 220 N.W.2d 305 (1974), People v. Russell, 47 Mich.App. 320, 209 N.W.2d 476 (1973). The defendant and his attorney had at least as much contact as was present in Bradley, supra; and Russell,supra. ¹ For the purposes of appellate review, the more important issue is whether the defendant can show or allege that prejudice resulted from the inadequate preparation, Bradley, supra; Russell, supra. Defendant has not shown any prejudice resulting from unpreparedness.

Defendant's claim that his counsel made no effort to seek a bond reduction is not supported by the record. Counsel made this motion and the bond was reduced by 50%. Also defendant claims that with only eight days left before trial, his attorney failed to contact a large number of essential witnesses. However, he does not allege that any were unavailable for trial because of his counsel's delay. Reversal is not warranted unless prejudice resulted, Bradley, supra; Russell, supra. In a closely related issue ², defendant claims that the trial judge abused his discretion in denying defendant's motion for a continuance. After defendant elected to dismiss his appointed counsel and proceed In propria persona, he moved for a continuance to allow himself time to adequately prepare. The standard governing the trial judge's decision on a motion for a continuance is set out in People v. Charles O. Williams, 386 Mich. 565, 578, 194 N.W.2d 337 (1972). In that case, the Court held that:

"In view of the facts that: 1) defendant was asserting a constitutional right the right to counsel; 2) he had a legitimate reason for asserting this right an irreconcilable Bona fide dispute with his attorney over whether to call his alibi witnesses; 3) he was not guilty of negligence; and 4) the trial court was incorrect in stating that defendant had caused the trial to be adjourned several times we hold that the trial court abused its discretion in denying defendant's counsel's motion to withdraw and in preventing defendant from changing attorneys and granting a continuance in this case."

A fifth factor was added by People v. Wilson, 397 Mich. 76, 243 N.W.2d 257 (1976), that defendant on appeal must show that prejudice resulted. Under this standard, we hold that the trial judge did not err reversibly in denying defendant's motion for a continuance.

Although the facts in this case meet the first and fourth requirement of Charles O. Williams, supra, there is an absence of a bona fide irreconcilable dispute. In fact, no dispute as to trial tactics appears in the record. Rather it appears that defendant is simply unsatisfied with his attorney's efforts. Not every matter of conflict between an attorney and his client requires substitution. The "irreconcilable dispute" requirement recognizes that there are some circumstances in which it would be an inefficient use of resources to require two people to work together towards a common goal when they have irreconcilable strategies. However, where the dispute is not irreconcilable, public policy favors an attempt to work these problems out rather than always switching attorneys at the first sign of trouble. Many times, it is only through resolving these problems that an attorney and his client can clear up misperceptions and expectations so that the client becomes fully aware of the implications of a situation confronting him and the options open to him.

Defendant does not allege any "irreconcilable dispute" with his attorney over strategy. Also since defendant was discharging his attorney without sufficient cause to warrant substitution, the need for a continuance could be attributed partly to defendant's own negligence under the third prong of the Charles O. Williams test. More importantly, defendant has not shown any examples of prejudice resulting from the denial of his motion for a continuance. ³ Nor do we accept defendant's contention that prejudice resulted from the inability of some witnesses to recall the events. If this fading of memories of the night in question was due to the time span between the date of the offense and trial, as defendant contends, then certainly the granting of a longer delay would not help restore the ability to recall.

Another issue raised by defendant concerns the judge's instructions to the jury. Defendant contends that the trial judge erred by omitting from the instructions the requirement that the defendant know the substance he is delivering is heroin, which defendant claims is an essential element of the offense. Even though there was no request for this instruction or any objections to the ones given, reversible error is committed if the judge fails to instruct the jury on an essential element of the offense, People v. Hearn, 354 Mich. 468, 93 N.W.2d 302 (1958).

The analysis of this question of whether knowledge that one is delivering heroin is an essential element of the offense of delivery starts with the statute itself. Neither the definition of delivery, M.C.L.A. § 335.304(1); M.S.A. § 18.1070(4)(1), nor the provision proscribing it explicitly require knowledge that heroin is being delivered. In contrast, the provision proscribing possession, M.C.L.A. § 335.341(4); M.S.A. § 18.1070(41)(4), was amended in 1972 to require knowledge of the substance's character. The courts, in dicta, have made references to this general issue when dealing with another issue; namely, the usable remnant test enunciated in People v. Harrington, 33 Mich.App. 548, 190 N.W.2d 343 (1971), Rev'd 396 Mich. 33, 238 N.W.2d 20 (1976), see also People v. Jones, 38 Mich.App. 512, at 517, 196 N.W.2d 817 (1972). Also, the Court in People v. Gaffney, 51 Mich.App. 526, 215 N.W.2d 587 (1974), and People v. Dyson, 56 Mich.App. 59, 223 N.W.2d 364 (1974), approved instructions requiring that the defendant know the character of the substance delivered.

The new Standard Criminal Jury Instructions, proposed CJI 12:2:03, mandates the giving of this instruction. However, these standard instructions were not available when the trial took place in 1975 so that they might have given some guidance to the trial judge. In light of this fact and the Legislature's decision not to amend the delivery statute while amending the possession statute to include this element, we hold that the trial court did not err by failing to give this instruction, Sua sponte. Since this is not an essential element of the offense, allegations of error in the instructions, in the absence of any objection, will only warrant reversal if a miscarriage of justice resulted, People v. Frederick Lester, 78 Mich.App. 21, 259 N.W.2d 370 (1977), People v. Sherman Hall, 77 Mich.App. 456, 258 N.W.2d 517 (1977), see also GCR 1963, 516.2. No miscarriage of justice resulted from the instruction given.

Another instructional error urged by defendant is that the trial court, in its instruction on an alibi defense, placed the burden of proof on defendant to prove his...