People v. Hooper

• Decision Date: 18 April 1978
• Docket Number: Docket No. 77-2524
• Citation: 267 N.W.2d 162,82 Mich.App. 713
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon HOOPER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 162

267 N.W.2d 162

82 Mich.App. 713

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon HOOPER, Defendant-Appellant.

Docket No. 77-2524 Court of Appeals of Michigan.

April 18, 1978.

Released for Publication July 10, 1978.

DeVries & Lamb, P. C., by Richard R. Lamb, Kalamazoo, for defendant-appellant.

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

Before WALSH, P. J., and MAHER and BEASLEY, JJ.

WALSH, Presiding Judge.

Defendant was charged with armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He was tried by a jury, convicted and sentenced to a term of eight to twenty years imprisonment. He appealed and was granted a new trial. People v. Hooper, 395 Mich. 807, 235 N.W.2d 745 (1975), reversing 62 Mich.App. 181, 233 N.W.2d 225 (1975). On retrial, he was again convicted and again sentenced to eight to twenty years in prison. He now appeals his second conviction.

On the second day of his second trial, defendant expressed dissatisfaction with the attorney assigned to represent him and requested the trial court to appoint a different attorney. The court made careful inquiry as to the basis for defendant's dissatisfaction, hearing from both the defendant and assigned counsel. Thereafter he ruled that there was no adequate reason for replacing the attorney originally assigned and denied the request.

An indigent defendant is not entitled to choose his own attorney simply by requesting that the attorney originally appointed be replaced. Where there has been a breakdown in the relationship between defendant and assigned counsel, however, and that breakdown is based upon substantial grounds successor counsel should be appointed. People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). ¹

Defendant in this case stated that he wished to assert an alibi defense requiring the testimony of a witness defense counsel was unwilling to call. Defense counsel confirmed that defendant had requested that the alibi defense be used but that he (defense counsel) rejected the request because, in his judgment, it would not have been in the defendant's best interests. The witness was not subpoenaed.

Normally, as the trial court properly ruled, disagreements involving professional judgment as to trial strategy do not constitute substantial grounds for appointment of successor counsel. The jealous protection with which the law guards an accused's right to counsel, however, requires appointment of a new attorney when there is genuine disagreement over the use of a substantial defense, such as alibi, in a criminal prosecution. People v. Williams, 386 Mich. 565, 194 N.W.2d 337 (1972).

Since such a dispute existed in this case, defendant's request for substitution of counsel should have been granted. Accordingly, we must reverse and grant new trial.

Reversed.

BEASLEY, Judge (dissenting).

I respectfully dissent.

My reading of the record indicates a deliberate, studied effort by defendant to delay and disrupt his trial. The trial judge acted with commendable patience in considering defendant's effort to delay the on-going trial by an effort to fire his court-appointed counsel. There is no indication that defense counsel was derelict in his duty; no good cause was shown for his discharge.

On this record, I would find defendant's belated claim at the time of jury selection that he wanted to assert an alibi defense, where no notice of alibi had been given, was an obviously spurious effort to delay the trial.

In addition, it should be noted that the witness whom defense counsel was unwilling to call, Sandra Callington, was a witness at defendant's first trial on this charge. At that trial, she testified that defendant had been at her home on the evening of the robbery and had remained there until sometime between 1:00 and 1:30 in the morning. She admitted, however, that she recalled this only on the prompting of her husband. Evidence also indicated that de...