People v. Overby, Docket No. 10708
| Citation | 42 Mich.App. 1,201 N.W.2d 303 |
| Decision Date | 24 July 1972 |
| Docket Number | No. 1,Docket No. 10708,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard OVERBY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Manuel Zechman, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.
Before V. J. BRENNAN, P.J., and BRONSON and McGREGOR, JJ.
At a jury trial, defendant was convicted of assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 27.278, and armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. Acting In propria persona, defendant filed a motion for a new trial based only on the alleged failure of the people to establish venue, which was denied by the trial court. It should be noted that in this motion there was no claim of error because defendant was not given the right to conduct his own trial, because of the alleged incompetency of his attorney, or because he was not afforded a forensic psychiatric evaluation. Defendant appeals his conviction as a matter of right.
Factually, the record shows that, late in the afternoon of January 20, 1969, defendant entered a market, approached the manager of the store, and asked to be waited on. The manager proceeded to ring up the sale of a bottle of liquor which defendant had picked up. After completing this sale, the manager turned away and began talking to a stockboy. At this point, defendant hit him over the head with the butt of a gun. Defendant then proceeded to the front of the store where he demanded money from the cashiers. As the injured store manager approached the front of the store, defendant suddenly turned and shot four or five times in the manager's direction, hitting him in the shoulder. Defendant was seen as he left the store with a gun in one hand and money in the other. He crossed the store parking lot and entered a car driven by codefendant Betty MacIntosh. Defendant was unequivocally identified as a participant in the above events by nine witnesses who saw defendant at the scene of the crime.
Among alleged errors, the defendant contends that he was not given a fair trial and afforded a defense within the meaning of the provisions of Const.1963, art. 1, § 20, which states:
'In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in all courts not of record; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to have assistance of counsel for his defense; to have an appeal as a matter of right; and in courts of record, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.'
Defendant's allegations of error must be considered in light of the issues which are specifically raised, namely (1) whether the trial court committed reversible error in refusing to permit defendant to conduct his own defense upon request when defendant had repeatedly expressed dissatisfaction with his court-appointed counsel, (2) whether reversible error was committed when the trial court denied defendant an examination (forensic psychiatric evaluation) to determine his sanity, and (3) whether reversible error was committed when defendant was denied the use of process for the purpose of producing certain witnesses to testify in his behalf.
The critical facts may be summarized: On April 9, 1969, the day prior to trial, defendant's court-appointed counsel informed the trial judge that the defendant would like his sanity examined. Defendant's counsel indicated that he believed defendant was able to distinguish between right and wrong, but nevertheless wished a ruling from the court on defendant's behalf. Defendant indicated that he was dissatisfied with the way his attorney was conducting his defense and did not feel his attorney was interested in his defense. The trial court adjourned at this point without making any ruling or comment in response to defendant's statements.
The case was reconvened on April 10, 1969. At that time, defendant stated that he felt his attorney was against him and was only interested in freeing his codefendants. Defendant indicated that he had talked to his attorney but once in preparation for trial, and that on this morning his attorney had told him that he (the defendant) did not understand the case and would be tried whether he liked it or not. Defendant informed the court that he had $200 due in income tax refund money, which he would use to pay his appointed attorney to do what he wanted him to do. Defendant's impression was that 'his' attorney was in court to get his two codefendants turned loose.
At this point the court asked defendant if he wanted to assist his court-appointed attorney in conducting the defense. Defendant replied that he would like another attorney to be appointed who would represent him and not someone else, indicating that he would rather have the assistance of his own attorney than to assist the court-appointed attorney in his defense. He also indicated that he would be able to assist another attorney in his defense. The court denied the defendant's request for appointment of another counsel, indicating that defendant as an indigent was not entitled to counsel of his own choosing.
Early in the trial, during the Voir dire conducted on defendant's behalf by his court-appointed counsel, defendant's counsel stated to the court that defendant wished to enter a plea of temporary insanity despite counsel's belief that defendant was rational and intelligent. Counsel also indicated that defendant wished certain witnesses to be subpoenaed but that no counsel had explained to the defendant that the court could not subpoena witnesses from the State of Georgia. At that point defendant stated:
In response to defendant's request to defend himself, the court stated that it would rely on appointed counsel, without responding to defendant's comment on the Michigan Constitution.
Defendant's attorney then informed the court that, in his opinion, the jury was satisfactory insofar as defendant's interests were concerned. At that point, the following courtroom colloquy occurred:
'Mr. Zechman: I will explain it to him, your Honor.
'Defendant Overby: I would like for the Court to do this.
'The Court: This is in connection with representation by counsel?
'Defendant Overby: It is, your Honor.
During the further course of the trial, the defendant's attorney stated that efforts had been made to contact the witnesses sought by defendant, but...
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