People v. Payne, Docket No. 7001

• Decision Date: 02 October 1970
• Docket Number: No. 1,Docket No. 7001,1
• Citation: 27 Mich.App. 133,183 N.W.2d 371
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hosea M. PAYNE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 371

183 N.W.2d 371

27 Mich.App. 133

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hosea M. PAYNE, Defendant-Appellant.

Docket No. 7001.

Court of Appeals of Michigan, Division No. 1.

Oct. 2, 1970.

Released for Publication Feb. 12, 1971.

Armand D. Bove, Harper Woods, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.

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

PER CURIAM.

Defendant Hosea M. Payne was tried by a jury in Recorder's Court in the city of Detroit and found guilty of armed robbery. ¹ Defendant was sentenced to serve five to twenty years in prison and he appeals.

At his trial, defendant took the stand in his own behalf. On cross-examination, defendant was questioned about his prior convictions for the purpose of testing his credibility. The trial judge, in his charge, instructed the jury that the evidence of the prior convictions was to be used for credibility purposes only.

Defendant contends that the only crimes that can be used to test credibility are crimes which relate to credibility, I.e., fraud, embezzlement, etc. He therefore contends that allowing the prosecution to question him about prior convictions for theft is reversible error since the crime of theft has no relationship to a person's credibility.

Defendant's position has never been the law in the State of Michigan. In this State, whenever a defendant takes the stand in his own behalf, he may be cross-examined about prior convictions of any crime for purposes of testing his credibility. People v. DiPaolo (1962), 366 Mich. 394, 115 N.W.2d 78; People v. Roney (1967), 7 Mich.App. 678, 153 N.W.2d 175; People v. Cybulski (1968), 11 Mich.App. 244, 160 N.W.2d 764; People v. Koontz (1970), 24 Mich.App. 336, 180 N.W.2d 202.

Defendant next contends that the trial court, in failing to act on the request of the defendant to discharge his court appointed attorney, denied him his constitutional right to represent himself at trial.

The Michigan Constitution of 1963, art. 1, § 13, provides:

'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.

There is also a statute which specifically covers the prosecution of a criminal case:

'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.' ² (Emphasis supplied).

The defendant, relying upon the above statutory and constitutional provisions, contends that the trial court had the duty to act upon his request to discharge his court-appointed attorney. The record shows that defendant first made the request to dismiss his attorney at the inception of his trial. Selection of the jury had not yet begun. Defendant did not state that he wanted to defend himself, he stated only that he wanted to discharge his court-appointed attorney.

The rule applied by the Michigan Supreme Court in the recent case of People v. Henley (1969), 382 Mich. 143, 148, 169 N.W.2d 299, was taken from United States v. Bentvena (C.A. 2, 1963), 319 F.2d 916, 938, where the court held that '(o)ne charged with crime has an absolute right to do without an attorney and conduct his own defense * * * but that is quite different from the right to discharge counsel after trial has begun. This latter right is a qualified one.'

This court looks with approval to the latter case of United States ex rel. Maldonado, v. Denno (C.A. 2, 1965), 348 F.2d 12, 15, where the court stated:

'The right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial. * * *

Once the trial has begun with the defendant represented by counsel, however, his right to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant...