People v. Richards, Docket No. 325192.

• Decision Date: 26 April 2016
• Docket Number: Docket No. 325192.
• Citation: 891 N.W.2d 911,315 Mich.App. 564
• Parties: PEOPLE v. RICHARDS.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 564

891 N.W.2d 911

PEOPLE

v.RICHARDS.

Docket No. 325192.

Court of Appeals of Michigan.

Submitted April 12, 2016, at Grand Rapids.

Decided April 26, 2016.

Approved for publication June 7, 2016, at 9:00 a.m. Leave to appeal sought.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and David H. Goodkin, Assistant Attorney General, for the people.

State Appellate Defender (by Kristin E. Lavoy), and Kyle B. Richards, in propria persona, for defendant.

Before: SAAD, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

Following a jury trial, defendant Kyle Brandon Richards was convicted of assault of a prison employee, MCL 750.197c. He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 50 months to 40 years' imprisonment. The sentence is to be served consecutively "to any other sentence currently being served." Defendant appeals as of right, and for the reasons set forth in this opinion, we affirm defendant's conviction, but we remand for further proceedings.

I. BACKGROUND

This appeal arises from an incident that occurred while corrections officers transported defendant to the segregation unit at Bellamy Creek Correctional Facility. On January 3, 2013, corrections officers Christopher Balmes and Christopher Hudson escorted defendant to the segregation unit. Balmes, the victim in this case, testified that he had not previously dealt with, saw, or heard of defendant before January 3, 2013. According to the victim, defendant was handcuffed behind his back, and Hudson and the victim were each on one side of defendant holding one of his arms while escorting him. The victim testified that defendant was not yelling but that he seemed upset. Hudson testified that defendant made some statements directly to him during the escort. Hudson further testified that defendant made a comment that the officers would not be able to do anything if he assaulted them. The victim testified that they first took defendant to the shower because, before inmates go to the segregation unit, they are strip-searched in the shower to make sure they do not have any contraband. Once they arrived at the shower cell, defendant was placed into the shower cell. The victim testified that the door closed behind defendant and automatically locked.

According to the victim, he turned to walk away after defendant was placed in the shower cell, and defendant "crouched down next to an opening in the wall [known as a ‘restraint slot’] and spit through it, hitting [the victim] in the arm." Hudson testified that through his peripheral vision he also saw defendant bend down, spit through the restraint slot, and hit the victim's arm with saliva. The victim, who was wearing a short-sleeved uniform, testified that the saliva landed on his right forearm and pant-leg area and that the saliva "was basically a spit spray." The victim further testified that the saliva was "[n]ot a big wad," did not contain phlegm or blood, and hit a section of him rather than just one spot. According to the victim, it was not possible for the substance on his arm to be water or something else from the shower because he saw defendant spit on him and because there were no other inmates in the shower cell besides defendant.

The victim's supervisor, John Nicewicz, was standing in the vicinity when the incident happened. The victim testified that, as a reaction to being spat on, he walked over and told his supervisor because the supervisor needed to know about misconduct. Nicewicz testified that he was turned away and did not see defendant spit on the victim but that the victim told him that "he just got spat on." According to Nicewicz, the saliva "was basically clear" and "kind of looked like a spray or a mist." Nicewicz further testified that he believed that the substance was spit because the shower was not on and because it did not look like water. The victim testified that he made a written report of the misconduct and that Nicewicz took pictures of the areas containing saliva. Using a digital camera, Nicewicz took pictures of the victim's arm and pant leg, which were admitted at trial. The victim testified that, after the pictures were taken, he washed his arm off with soap and water. The victim further testified that, after work, he washed his pants. With respect to spitting incidents, Nicewicz testified, "[W]e ... train the officers and have them leave the saliva on their body and we try to photograph it and then obviously have them wash it off as soon as what we get what we think are good photographs." Nicewicz further testified that he had never collected clothing that had very small amounts of saliva on it—such as the victim's pants in this case—as evidence. Defendant was eventually charged with one count of assault of a prison employee.

During the pretrial phase, defendant filed numerous motions in propria persona and changed attorneys several times. Defendant also raised numerous other motions, including filing a "[n]otice of change of plea and request for D.N.A[.] and polygraph examination" that requested to change his plea, DNA testing of the victim's clothing, and a polygraph examination of all witnesses; a motion to remove and disqualify his current attorney, coupled with a request for reappointment of counsel; and a "[m]otion to quash and bar 4th habitual sentence enhancement upon constitutional challenge of habitual application." After a hearing on April 22, 2014, the trial court granted defendant's request for a new attorney.

The trial court heard yet another motion for new counsel on June 3, 2014. At this hearing, defendant's second appointed attorney stated that there was a breakdown in the attorney-client relationship. According to counsel, defendant told counsel not to visit him, and defendant refused to see counsel or listen to any of his advice. Appointed counsel further stated that he could not prepare for trial because of those reasons and that it was "a hostile work environment" for him because of "threats here of Judicial Tenure Commission [and] the Attorney [Grievance] Commission." In response, the prosecution noted that trial was scheduled for that week. After some dialogue between defendant and the trial court, the trial court asked defendant, "Do you wish to represent yourself in these proceedings?" Defendant responded, "No, I do not. I want [c]ounsel that is effective.... I want an attorney who will do their job." Defendant subsequently threatened to seek legal reprimand by going to the Judicial Tenure Commission, the Attorney Grievance Commission, the Civil Rights Commission, and to the Governor, "if [he] ha[d] to." Thereafter, the trial court granted the motion for new counsel. A third attorney was appointed as defendant's counsel. Not long thereafter, there was another motion for new counsel, and, on August 12, 2014, there was a hearing to address this motion, during which defense counsel withdrew his motion. At the hearing, defense counsel stated, "Your Honor, [defendant] and I had an opportunity to discuss the case and discuss our differing opinions. I respect him. I believe he respects me and now we will withdraw the motion." On October 20, 2014, voir dire began with defendant's third appointed counsel as defendant's attorney.

On the morning of the sole day of trial, and right after the prospective jurors swore to truthfully answer the voir dire questions, defense counsel asked the trial court if he could approach. After the potential jurors exited the courtroom, defense counsel stated that defendant indicated that he now wanted to represent himself. Following argument from the prosecution, the trial court then allowed defendant an opportunity to speak, and he stated that he had questions for the jury and that he should be allowed to ask them because he was going to represent himself. In response, the trial court stated:

[Defendant], I'm going to interrupt you because you are not representing yourself. We have had numerous pretrial motions in this matter and this is now the 3rd attorney who has been appointed to represent you. [Defense counsel] has worked very hard to accommodate your requests and to present those to the Court. The Court finds that your request to represent yourself is untimely. Again, you've had multiple opportunities to present this issue to the Court and so your request to represent yourself is denied here today.

[Defendant], I'm not going to entertain this further at this point in time in light of the fact that [defense counsel] has presented to me a list of questions that you provided to him, that we reviewed this morning and have found to be fair questions that the Court will be asking the jurors. But as argued by the Prosecution, the Court Rules do provide the Court with the discretion and authority to conduct voir dire and this Court will be doing that. Very quickly. I'm not going to be leaving the jurors out in the hallway long. Was there something else you wanted to say? [Emphasis added.]

Defendant then stated that he wanted to call other prisoners as witnesses to discredit the testimony from the corrections officers. The trial court concluded the matter by stating that they were in the middle of voir dire, that the issue of witnesses could be addressed at a later time, and that defendant's request to represent himself was denied. After the prosecution's case-in-chief, defendant stated, "As stipulated to at the beginning before the jury came here, I did want to represent myself and there were things I would like to address with the Court. There were witnesses I wanted to bring. None of those things were allowed. So the least the Court could do is grant me the right to take the stand." Defendant then proceeded to testify against the advice of counsel. Subsequently, before closing arguments occurred, defendant placed an objection regarding his witnesses on the record. Specifically, he stated, "I want to let the Court know my dissatisfaction [of] not being...