People v. LaMarr, 60

• Decision Date: 20 September 1965
• Docket Number: No. 60,No. 1,60,1
• Parties: PEOPLE of the State of Michigan, Plaintiff, v. Walter LaMARR, Defendant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 708

136 N.W.2d 708

1 Mich.App. 389

PEOPLE of the State of Michigan, Plaintiff, v. Walter LaMARR, Defendant.

Cal. No. 60.

Court of Appeals of Michigan, Division No. 1.

Sept. 20, 1965.

Lawrence W. Massey, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C. J., and BURNS and HOLBROOK, JJ.

LESINSKI, Chief Judge.

Defendant, Walter LaMarr, appeals a jury conviction in the recorder's court for the city of Detroit for violation of C.L.1948, § 750.360, (Stat.Ann. § 28.592) the crime of larceny in a store.

Defendant was arraigned on December 23, 1963. Counsel was then appointed by the court and appearance filed on December 27, 1963. On January 2, 1964, defendant was examined in open court and bound over for trial. On February 4, 1964, the day of trial, after the jury had been impaneled and before any testimony was taken, the defendant informed the trial judge that he did not want to be represented by the attorney appointed by the court but wanted to obtain counsel of his own. A conference was immediately held between the court and defendant, defendant's counsel and defendant's mother out of the presence of the jury and court reporter. No record of this conference was made.

The case proceeded to trial with defendant being represented by the court-appointed attorney. During the trial, there were several outbursts from defendant who continued to display his dissatisfaction in proceeding with the assigned counsel. Each time the judge overruled defendant's objections. Defendant subsequently was found guilty and sentenced to a term of three (3) to four (4) years at the State Prison of Southern Michigan at Jackson.

Defendant's appeal is based on allegations that the due process clause of the fourteenth amendment to the United States Constitution guarantees to an accused representation in court by an attorney of his own choosing, and that an indigent person is in fact denied equal protection of the law when he cannot have as defense counsel an attorney who might be available to him if he could afford to hire said counsel. Defendant further contends that certain remarks by the trial judge in his closing statement to the jury referring to defendant's outbursts occasioned by his dissatisfaction with court-appointed counsel were prejudicial.

This Court does not find merit in defendant's contention that he has the right to name counsel that is to be assigned to his defense. The Michigan constitutional guarantee of the right to representation by counsel, Const.1908, art. 2, § 19, and C.L.1948, § 775.16, as amended by P.A.1963, No. 132 (Stat.Ann.1963 Cum.Supp. § 28.1253), does not limit appointment of counsel for an indigent person to a practitioner selected by the accused. People v. Thomas (1965), 1 Mich.App. 118, 134 N.W.2d 352; People v. Kotek (1943), 306 Mich. 408, 11 N.W.2d 7.

Michigan is a forerunner in the advancement of the principle that an indigent defendant is entitled to have counsel appointed to conduct his defense at the expense of the people. See P.A.1857, No. 109.

On June 4, 1947, the Supreme Court of this state first adopted a rule wherein counsel would be appointed if an accused was without funds. Court Rule No. 35-A (1947), GCR 1963, 785.3(1). This provision was continued as a part of the basic law of the state with the adoption of the Michigan Constitution, Const.1963, art. 1, § 20.

In 1963 the United States Supreme Court speaking on the question held that the due process clause of the fourteenth amendment of the United States Constitution, U.S.Const. Amend. 14, makes applicable to all the states the guarantee of the sixth amendment of the United States Constitution, U.S.Const. Amend. 6, which provides for defendant's assistance of counsel in criminal prosecution. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

This matter was summarized well in the case of Rogers v. United States (10 Cir. 1963) 325 F.2d 485.

'The right to counsel by an indigent accused of crime embraces the right to representation at all times and during all proceedings where the fundamentals of due process are involved. He has a right to be cautioned, advised, and served by counsel so that he will not be a victim of his poverty. But he has no right to continuous service, nor to counsel of his choice, nor to dictate the procedural course of his representation.' Emphasis supplied.

The Court concurs.

This Court further recognizes the right of the defendant to be represented by his own person after having been advised of his right to counsel. However, this right does not permit the defendant to conduct his own trial if he accepts counsel. If defendant clearly waives his right to counsel, he may conduct his own trial. This was not the case in the matter before us.

We go on to defendant's claim that certain remarks by the trial judge in his closing statement to the jury referring to defendant's outbursts occasioned by his dissatisfaction with court-appointed counsel...