People v. Holcomb, Docket No. 12719

• Decision Date: 25 May 1973
• Docket Number: Docket No. 12719,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas HOLCOMB, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 701

209 N.W.2d 701

47 Mich.App. 573

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas HOLCOMB, Defendant-Appellant.

Docket No. 12719.

Court of Appeals of Michigan, Division No. 2.

May 25, 1973.

Released for Publication Aug. 14, 1973.

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

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

Before BRONSON, P.J., and McGREGOR and DANHOF, JJ.

BRONSON, Presiding Judge.

Defendant was convicted by jury verdict of armed robbery and sentenced to serve a prison term of 35 years to life. M.C.L.A. § 750.529; M.S.A. § 28.797. From this conviction defendant appeals, raising six allegations of error. After due consideration, we find that only four merit discussion. Since the issues raised are purely legal in nature, we have dispensed with a restatement of the facts.

I. Did the Trial Judge's Denial of Defendant's Timely Request to Proceed In Propria Persona Constitute Reversible Error?

A defendant's right to proceed In propria persona is constitutionally preserved ¹ and statutorily implemented. ² The invocation of this right requires an immediate appraisal of the attendant reciprocal right to counsel and the correlative considerations of due process, fair trial and due administration of justice. It is the delicate weighing and balancing of these factors designed to preserve the integrity of our judicial system which we must perform in the instant case.

On June 15, 1971, defendant pursuant to his trial counsel's motion was committed to the Center for Forensic Psychiatry for a determination of his competency to stand trial. Defendant was subsequently found competent to stand trial and his requested jury trial scheduled. On the day of trial, prior to the selection of the jury panel, defendant requested the replacement of his court-appointed attorney with new counsel, right to defend the case himself and expressed a desire to postpone the trial. The trial judge denied each request and relied primarily upon the psychiatric report and ABA Standards relating to trial disruption to justify his denial of defendant's request to appear In pro per. Defendant claims that this denial of his constitutional right of self-representation invoked by an unequivocal request constituted reversible error.

Our courts have established general rules controlling the invocation of this right which lend superficial support to defendant's position. In People v. Henley, 382 Mich. 143, 169 N.W.2d 299 (1969), the Court adopted the following guideline from United States v. Bentvena, 319 F.2d 916, 937--938 (CA 2, 1963):

"One charged with crime has an Absolute right to do without an attorney and conduct his own defense (28 USC § 1654), but that is quite different from the right to discharge counsel after trial has begun. This latter right is a Qualified one." 382 Mich. p. 148, 169 N.W.2d p. 302. (Emphasis added.)

This distinction between an absolute right to request self-representation prior to trial and a qualified right to discharge counsel and proceed In pro per subsequent to the commencement of trial was further explained in People v. Payne, 27 Mich.App. 133, 183 N.W.2d 371 (1970). ³ After reaffirming the language quoted from Bentvena, the Court cited the following language from United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (CA 2, 1965), with approval:

"The right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial. * * * Once the trial has begun with the defendant represented by counsel, however, his right to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance.'

"If an unequivocal request were not required, convicted criminals would be given a ready took with which to upset adverse verdicts after trials at which they had been represented by counsel." 27 Mich.App. p. 136, 183 N.W.2d p. 372.

The administration of these standards requires two primary determinations: (1) was the request unequivocal and (2) was the request offered prior to the commencement of trial. Although the request may be inferred from defendant's inartful communications with the trial court, ⁴ the court must be convinced defendant is in fact requesting the opportunity to appear Pro per and not merely requesting a substitution of attorneys. ⁵ Our courts have characterized requests made at the outset of trial, ⁶ inception of trial, ⁷ or just before trial ⁸ as timely requests. The timeliness of the request may be more precisely measured or determined by the time at which the jury is selected. People v. Kirkland, 40 Mich.App. 22, 198 N.W.2d 811 (1972). Once this selection process has begun, defendant's right to self-representation becomes qualified and subject to a comparison of the disruptive effect to the trial and resulting prejudice to defendant. The record establishes defendant's timely and unequivocal request. If the inquiry ended here defendant would be entitled to self-representation.

Our inquiry proceeds to determine whether defendant's right to proceed In propria persona, once the procedural prerequisites are satisfied, is unlimited. The dilemma created for trial judges by a defendant's request to represent himself was appropriately characterized in the following statement:

'Once again the failure of a trial court to navigate adroitly between the Scylla of denying a defendant the right to determine his own fate and the Charybdis of violating his right to counsel by acceptance of an ineffectual waiver has brought a prosecution to grief.' People v. Carter, 66 Cal.2d 666, 667, 58 Cal.Rptr. 614, 616, 427 P.2d 214, 216 (1967).

Trial judges would never be able to successfully and judiciously resolve the serious confrontation between the right to self-representation and its constitutional counterpart of right to counsel if either right was unlimited. Since these rights are the mirror image of each other, they cannot be invoked simultaneously. The reliance upon one requires the forbearance of the other. To prevent defendant from placing trial judges into a 'heads I win, tails you lose' situation, we find the right to self-representation limited in the following manner.

A defendant choosing to invoke his right to appear Pro per must abandon his right to counsel. This waiver of counsel will not be deemed effective unless made voluntarily and intelligently. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). Defendant's competency is the necessary prerequisite to a valid waiver. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). Thus, defendant's competency to waive counsel provides the tool for determining which right controls. If defendant is competent to execute a valid waiver, he may upon a timely and unequivocal request represent himself. Contrariwise, if defendant is incompetent to waive counsel his right to proceed In pro per is justifiably curtailed.

Our Court recently employed this approach in People v. Kirkland, Supra. The Kirkland panel denied defendant's timely request to represent himself, finding that this right may be limited 'when it conflicts with the defendant's own interest in receiving a fair trial'. The competency considerations of defendant's ancillary right to counsel were responsible for the limitations imposed by the Kirkland panel. This case is neither an aberration nor inconsistent with the case law cited above and relied upon by defendant, since it merely recognizes that a defendant must be competent to waive counsel before the door to his reciprocal right to self-representation is opened. The rules established by the cited authorities presupposes the existence of this competency. The determination of such competency is reserved to the sound discretion of the trial judge. Thus, defendant's allegation of error must rise or fall upon a finding of abuse.

Defendant argues that a determination that he was competent to stand trial following the requisite hearing and examination at the Forensic Center is dispositive of his competency to waive counsel. In spite of the seemingly logical appeal of this argument, we conclude that the level of competency for each inquiry is not identical as a matter of law. Finding the determinations directed at different goals and deserving individualized evaluation, we find that the trial judge is free to reach a different conclusion upon competency for different purposes. The California Courts have pursued this approach in analogous cases. In People v. Tracy, 12 CalApp.3d 94, 90 Cal.Rptr. 375 (1970), defendant's sanity was subject to question at the time defendant requested self-representation. Although the Tracy Court invalidated defendant's waiver of counsel taken prior to a determination of his competency, it recognized the difference between competency to stand trial and competency to waive counsel, stating:

'Even when a properly conducted sanity hearing justifiably results in a finding the defendant is presently sane * * * he should not be permitted to discharge his attorney and represent himself when, as here, the evidence shows He is suffering from a mental illness which adversely affects his powers of reason, judgment and communication.' p. 103, 90 Cal.Rptr. p. 380. (Emphasis added.)

A similar approach was utilized by the California Supreme Court in People v. Robles, 2 Cal.3d 205, 85 Cal.Rptr. 166, 466 P.2d 710 (1970). There defendant's sanity was a primary issue. After submission of the issue to the jury, it found that Robles was able...