People v. Kotek, 90.

• Decision Date: 07 September 1943
• Docket Number: No. 90.,90.
• Parties: PEOPLE v. KOTEK.
• Court: Michigan Supreme Court

306 Mich. 408

11 N.W.2d 7

PEOPLE

v.KOTEK.

No. 90.

Supreme Court of Michigan.

Sept. 7, 1943.

Joseph Kotek was convicted of felonious assault and robbery while armed with a toy pistol, and his application for leave to file a delayed motion for new trial was denied, and he appeals.

Affirmed.Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Before the Entire Bench.

Joseph Kotek, in pro. per.

Herbert J. Rushton, Atty. Gen., and Edmund E. Shepherd, Sol. Gen., and Charles R. MacLean, Asst. Pros. Atty., for Ingham County, both of Lansing, for the People.

STARR, Justice.

Defendant was tried by jury and convicted under an information charging felonious assault and robbery while armed with a toy pistol, in violation of Act No. 328, § 529, Pub.Acts 1931, Comp.Laws Supp. 1940, § 17115-529 (Stat.Ann. § 28.797). In October, 1939, he was sentenced to a prison term of 10 to 20 years. In September, 1942, acting in propria persona, he filed application for leave to file a ‘delayed motion for a new trial,’ alleging, among other things, that he had been deprived of a fair and impartial trial. Such application was denied, and, having obtained leave, he appeals.

The uncontradicted testimony of the complaining witness and of police officers established that defendant entered a care on north Washington avenue in the city of Lansing at about 3 o'clock in the morning of August 15, 1939, and, using a toy pistol in a manner to simulate a dangerous weapon, held up the cafe employee and took about $49 from the cash register. He was arrested within a few minutes after such robbery, and the toy pistol and also the money taken from the cash register were found in his possession.

At the jury trial defendant presented no testimony, did not take the stand in his own behalf, and refused the advice and services of an attorney appointed by the court to represent him. During the trial defendant stated in part:

‘Defendant: I want the case defended the way I want him (attorney) to defend it and he is not going to do that and I would like an opportunity * * * to be given an attorney of my own.

‘The Court: An attorney has been appointed for you at the expense of the county to defend you. * * * It does not necessarily follow that the attorney is required to do everything you asked him to do. The attorney is supposed to use his own judgment, his knowledge of the law and his knowledge of procedure. He is not expected to indulge in any kind of unethical practice or any matter of that kind. The case was set for trial today and the jury has been sworn to try the case and the trial must go on. * * *

‘Defendant: Well, your honor, I would rather defend myself than have any attorney do it.

‘The Court: Do you wish to conduct your own defense?

‘Defendant: Well, I will not cross-examine any witness but I will just talk to the jury. * * * I don't want any attorney.’

At the conclusion of the People's proofs the following occurred:

‘Defendant's Attorney: If the court please, the respondent has informed me he will not take the stand and there are no other witnesses here in court and I am unable to present a defense. * * * Mr. Kotek tells me that he has about 40 witnesses. I have no knowledge who they are or whether they may be reached and brought in here for the trial. I have advised the respondent to take the stand and testify in his own behalf but he is not willing to co-operate with me in that respect.

‘The Court: * * * I do not understand that any request (was made) by him (defendant) or the prosecuting attorney or any other officer to have any particular witnesses brought in on behalf of the defendant. If petition had been presented in due season the witnesses would have been produced. * * * Who are the witnesses you (defendant) wish to produce?

‘Defendant: I cannot recall their names. * * * I do not know the names of the witnesses. * * *

‘Defendant's Attorney: * * * I had no particular knowledge of the defense and talked with his (defendant's) sister this noon who informed me that there are people in Lansing who might be able to aid in the defense of insanity. The respondent informed me that that was his only possible defense. He has no recollection of the events described by the complaining witnesses and officers who testified on behalf of the prosecution this morning. The respondent is not satisfied with my acting as his attorney and requested that I not make this motion but I believe it is my duty * * * to request a continuance so he may be properly defended.’

Such motion for a continuance was denied, and the case was submitted to the jury, which returned a verdict of guilty. In denying defendant's application for leave to file a delayed motion for a new trial, the trial judge considered and determined, adversely to defendant, substantially the same questions that are presented for review on this appeal.

Defendant's contention, that the trial court erred in admitting exhibits A, B, and C, without proper identification, is without merit. The toy pistol, exhibit A, was identified by the cafe employee and also by police officers. The money found in defendant's possession at the time of his arrest was placed in a sack with identification tag attached. Such sack and tag, marked exhibits B and C, were identified by police officers.

Defendant alleges that the trial court erred in referring to his previous prison sentence. As the record indicates that such reference was not made in the presence of the jury, it would not constitute reversible error.

Defendant contends that he was deprived of a fair and impartial trial, because he was denied counsel of his own choice. It appears that the counsel whom defendant had employed to represent him at the preliminary examination did not...