People v. Johnson

• Decision Date: 05 March 1996
• Docket Number: Docket No. 163267
• Citation: 547 N.W.2d 65,215 Mich.App. 658
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Alvin JOHNSON, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 65

547 N.W.2d 65

215 Mich.App. 658

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Alvin JOHNSON, Jr., Defendant-Appellant.

Docket No. 163267.

Court of Appeals of Michigan.

Submitted May 3, 1995, at Lansing.

Decided March 5, 1996, at 9:10 a.m.

Released for Publication April 29, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Joseph K. Sheeran, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.

State Appellate Defender by Debra Gutierrez-McGuire, for the defendant on appeal.

Before MURPHY, P.J., and JANSEN and KACZMAREK, ^* JJ.

JANSEN, Judge.

Following a jury trial, defendant was convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and two counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was subsequently sentenced to the mandatory two years' imprisonment for the convictions of felony-firearm to be served consecutively to two eight- to thirty-year terms for the convictions of armed robbery and assault with intent to commit murder. Defendant appeals as of right. We reverse and remand for a new trial.

I

The incident in question occurred on October 27, 1992, in Bay City. Defendant and his codefendant, Sherman McGee, entered a store at approximately 10:00 p.m. Defendant asked David Altergott, the store clerk, whether he could purchase beer on credit. When Altergott responded negatively, McGee produced a gun and demanded that Altergott open the cash register. Altergott did so and handed the money to McGee. At McGee's request, defendant then took Altergott to the cooler. McGee went to the cooler and shot Altergott in the head and in the arm. A struggle ensued between McGee and Altergott, at which time defendant shot Altergott in the legs and in the back.

Defendant admitted his involvement in the incident. He admitted having a gun that night because he and McGee planned to go to Saginaw to make a drug deal. Defendant and McGee stopped by the store to get beer. Defendant testified that he had no knowledge that McGee was going to rob the store or shoot the clerk. Defendant also admitted shooting the clerk, but claimed he did so in order to leave the store more quickly and that he panicked. Defendant testified that he was not trying to kill Altergott.

Defendant raises several issues on appeal. We find the first issue to be dispositive because the trial court improperly removed defendant's original court-appointed counsel from the case without defendant's request or consent, thus violating defendant's Sixth Amendment right to counsel. Defendant, therefore, is entitled to a new trial.

II

A

Robert K. Hess of the Bay County Public Defender's Office was appointed to represent defendant on November 4, 1992. Defendant was bound over for trial on November 9, 1992. On November 19, 1992, Bay Circuit Judge Eugene C. Penzien entered an "Interim Investigation Order," which directed defense counsel to discover defendant's prior convictions and details regarding the validity of those prior convictions. On December 4, 1992, Hess filed a motion to set aside the interim investigation order. On December 14, 1992, the court, without defendant's request or consent, removed Hess as his counsel.

Defendant and another person appealed by leave granted from the interim investigation orders entered by the court in their respective cases. This Court held: (1) to the extent that the orders required defendants to set forth by affidavit details of any prior convictions and their attorneys to divulge information to the prosecutor and the probation department under penalty of waiver of the right to challenge the constitutionality of the prior convictions, the orders violated the Fifth Amendment privilege against self-incrimination; (2) to the extent the orders required defendants' attorneys to disclose confidential communications concerning prior convictions, the orders violated the attorney-client privilege; (3) to the extent the orders provided for automatic waiver of the right to challenge any constitutionally invalid prior convictions and incorrect information in the presentence report, the orders violated MCR 6.425(D)(2) and M.C.L. § 771.14(5); M.S.A. § 28.1144(5); (4) to the extent the orders required the defendants' attorneys to inquire into and disclose the defendants' prior convictions, the orders duplicated the probation department's statutory mandates; and (5) to the extent the orders required counsel to obtain sufficient documentation to enable the court to determine if counsel was waived in any prior case, the orders improperly shifted the burden of proving the constitutional validity of prior convictions from the prosecutor to the defendants. People v. Johnson, 203 Mich.App. 579, 513 N.W.2d 824 (1994).

It is apparent from the trial court's written opinion dated December 17, 1992, that it relieved Hess from representing defendant because Hess was challenging the court's interim investigation orders and refused to comply with the orders. The trial court had no authority to remove sua sponte defense counsel from his representation of defendant in this case. A court may remove a defendant's attorney on the basis of gross incompetence, physical incapacity, or contumacious conduct. People v. Arquette, 202 Mich.App. 227, 231, 507 N.W.2d 824 (1993). Here, the court did not remove Hess for gross incompetence, physical incapacity, or contumacious conduct. Rather, it is quite apparent from the December 17, 1992, opinion that Hess was removed because he challenged the interim investigation orders of the trial court. A trial court may not remove a defendant's counsel merely over a disagreement regarding the conduct of defense counsel. Harling v. United States, 387 A.2d 1101, 1105 (D.C.App.1978). Defense counsel's conduct in this case was certainly "within the bounds of reasonable advocacy." Id. Defense counsel challenged the interim investigation orders and appealed to this Court. Those orders were vacated in part because they were found to violate both the constitution and various statutes. Therefore, defense counsel's conduct cannot be said to be grossly incompetent, lacking because of physical incapacity, or contumacious.

Accordingly, the trial court improperly removed court-appointed counsel with no authority to do so.

B

Having found that error was committed, we must determine whether a harmless-error analysis applies to this case. Finding that the Sixth Amendment right to counsel is implicated in this case, we conclude that a harmless-error analysis is not applicable and that defendant need not show prejudice in order to prevail.

The right to the assistance of counsel is guaranteed by both the federal and Michigan Constitutions. U.S. Const., Am. VI; Const.1963, Art. 1, § 20. The trial court's unjustified removal of counsel during a critical stage in the proceedings implicates the Sixth Amendment right to counsel because that right attaches at or after the initiation of adversary judicial proceedings against the defendant. People v. Bladel (After Remand), 421 Mich. 39, 52, 365 N.W.2d 56 (1984). Here, the Sixth Amendment right to counsel had attached because the trial court improperly removed counsel more than one month after the preliminary examination and about two months before the trial began. Because adversary judicial proceedings had been initiated against defendant when the trial court arbitrarily removed counsel, the Sixth Amendment right to counsel was implicated.

Courts in other jurisdictions have not hesitated to protect an indigent defendant's right to counsel on Sixth Amendment grounds in situations similar to this case where a trial court improperly removed court-appointed counsel. The lead case in this regard is Smith v. Superior Court of Los Angeles Co., 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65 (1968). In Smith, the California Supreme Court stated that "the constitutional guarantee of the defendant's right to counsel requires that his advocate, whether retained or appointed, be free in all cases of the threat that he may be summarily relieved as 'incompetent' by the very trial judge he is duty-bound to attempt to convince of the rightness of his client's cause." Id., p. 562, 68 Cal.Rptr. 1, 440 P.2d 65. The court in Smith held that court-appointed counsel could not be dismissed, over the defendant's objection, in circumstances in which retained counsel could not be removed. Thus, it is irrelevant for purposes of the Sixth Amendment whether a trial court improperly removes retained or appointed counsel. Particularly, the court in Smith stated:

It follows that once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused. [Id.]

Other courts have also held that a trial court's arbitrary removal of a defendant's appointed trial counsel, over objection of the defendant, violated the defendant's Sixth Amendment right to counsel. Harling, supra, pp. 1105-1106. Thus, once an attorney is serving under a valid appointment by the court and an attorney-client relationship has been established, the trial court may not arbitrarily remove the attorney over the objection of both the defendant and counsel. In re the Welfare of M.R.S., 400 N.W.2d 147, 152 (Minn.App.1987), citing Harling, supra; People v. Davis, 114 Ill.App.3d 537, 542, 70 Ill.Dec. 363, 449 N.E.2d 237 (1983); McKinnon v. State, 526 P.2d 18, 22 (Alas.1974); English v. State, 8 Md.App. 330, 335, 259 A.2d 822 (1969); see also Stearnes v. Clinton, 780 S.W.2d 216, 221 (Tex.Crim.App.1989).

Accordingly, ...