People v. McMillan
| Decision Date | 13 August 1975 |
| Docket Number | Docket No. 21107 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edwin Dwight McMILLAN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
William M. Havey, Mt. Clemens, for defendant-appellant.
George N. Parris, Pros. Atty., Don L. Milbourn, Chief Appellate Lawyer, by Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.
Before D. E. HOLBROOK, P.J., and ALLEN and D. E. HOLBROOK, jr., JJ.
Defendant was found guilty by a jury in Macomb County Circuit Court on October 24, 1973 of breaking and entering a building with intent to commit larceny, M.C.L.A. § 750.110; M.S.A. § 28.305, and sentenced to a 3 to 10 year prison term on November 7, 1973. From a July 19, 1974 order denying a motion for new trial, defendant brings this delayed appeal.
At approximately 3 a.m. on May 17, 1973, state police responded to a possible burglary in progress at Capozzo Furniture store on Gratiot in Macomb County, and found defendant lodged between bars situated in a rear window of the store. The window pane was broken and the defendant's person was stuck 'half in and half out' of the premises. The store owner testified that on the evening prior to the episode, all doors and windows were locked, and the window pane where defendant was found was not broken, although it had possessed a small crack for sometime. No one had permission to enter the store after the closing the evening before.
The arresting officer testified that defendant admitted breaking into the building for the object of taking goods therein. Defendant took the stand in his own behalf, and testified that he was trying to enter the building in order to escape from two males who he believed wanted to harm him. Defendant denied or could not recall admitting criminal culpability to the police, other than a statement in jest that he had been dreaming of breaking into the store.
Defendant raises several issues on appeal, one of which deserves discussion and determination. Was defendant denied his right of self-representation?
Defendant asserts that he had the right to conduct his own defense. Const.1963, art. 1, § 13, M.C.L.A. § 763.1; M.S.A. § 28.854, People v. Henley, 382 Mich. 143, 169 N.W.2d 299 (1969). He claims that the district court judge deprived defendant of this right when he responded negatively to defendant's question, 'I can represent myself if I wanted to, couldn't I?'
The people respond saying that the right to represent one's self is not absolute (People v. Overby, 42 Mich.App. 1, 201 N.W.2d 303 (1972)) and may be limited if it conflicts with the right to receive a fair trial (People v. Kirkland, 40 Mich.App. 22, 198 N.W.2d 811 (1972)). Defendant neither objected nor expressed any dissatisfaction with assigned counsel--a prerequisite in this type of case. People v. Smith, 22 Mich.App. 22, 176 N.W.2d 729 (1970).
Moreover, an accused must unequivocally state that he wants to represent himself. People v. Anderson, 55 Mich.App. 317, 222 N.W.2d 226 (1974); People v. Payne, 27 Mich.App. 133, 183 N.W.2d 371 (1970).
This defendant did not unequivocally state he wished to proceed In pro per. In effect, defendant is claiming for the first time on appeal that he was deprived of his right to represent himself on the basis of an inquiry to the district court judge at arraignment on the warrant.
We note that at his May 17, 1973 arraignment on the warrant in district court, defendant informed the court that he desired to retain his own counsel, and a preliminary examination was scheduled for May 22, 1973. On that date, defendant appeared and informed the court that he had been unable to secure counsel and defendant chose to be represented by assigned counsel. Shortly after defendant stated that he desired assigned counsel, the following relevant colloquy took place between the defendant and the district court judge:
The district court judge incorrectly posited the law in this state:
'A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney.' Const.1963, art. 1, § 13.
'On the trial of every indictment or other criminal accusation, the party accused shall be allowed to be heard by counsel and may defend himself, . . .' M.C.L.A. § 763.1; M.S.A. § 28.854.
People v. Anderson, 55 Mich.App. 317, 320, 222 N.W.2d 226, 228 (1974).
The question before us is whether the erroneous statement of the district judge concerning defendant's right to self-representation effectively denied defendant of his right to proceed In propria persona, requiring reversal.
The people's authority for the propositions that (1) the right to represent one's self is not absolute, and (2) a defendant must 'unequivocally' manifest his desire to proceed In propria persona arose out of factual situations wherein counsel had already been assigned, the request was preceded by a demand for substitution of counsel or the self-representation request was made after trial commencement.
A different standard applies with respect to competency to represent one's self as opposed to competency to stand trial. The Court in People v. Holcomb, 47 Mich.App. 573, 580, 209 N.W.2d 701, 705, Lv. granted, 390 Mich. 808 (1973), discussed the dilemma created for a trial court judge between one's right to counsel and his right to self-representation.
'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 ...
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People v. Stephens, Docket No. 21667
...(1975). However, to invoke this right a defendant must intelligently and voluntarily abandon his right to counsel. People v. McMillan, 63 Mich.App. 309, 234 N.W.2d 499 (1975). It is apparent, therefore, that defendant is correct in claiming that he has a constitutional right to represent hi......