People v. Riley

• Decision Date: 24 March 1987
• Docket Number: Docket No. 81512
• Citation: 401 N.W.2d 875,156 Mich.App. 396
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie Lee RILEY, Defendant-Appellant. 156 Mich.App. 396, 401 N.W.2d 875
• Court: Court of Appeal of Michigan — District of US

Page 875

401 N.W.2d 875

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie Lee RILEY, Defendant-Appellant.

Docket No. 81512.

156 Mich.App. 396, 401 N.W.2d 875

Court of Appeals of Michigan.

Submitted Oct. 16, 1986.

Decided Dec. 1, 1986.

Released for Publication March 24, 1987.

[156 MICHAPP 397] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Jan J. Raven, Asst. Pros. Attys., for the People.

Bernstein & Rabinovitz, P.C. by Steven Rabinovitz, Birmingham, Troy, for defendant-appellant on appeal.

Jimmie Lee Riley, in pro per.

Before WAHLS, P.J., and R.B. BURNS and WARSHAWSKY, ^* JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of two counts of first-degree criminal sexual conduct. M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). He was sentenced to life in prison on both counts. He now appeals and we affirm.

The crimes occurred in the City of Detroit at the victim's home. The victim was acquainted with defendant, having employed defendant's sister as a babysitter. She had met defendant two or three [156 MICHAPP 398] weeks prior to the incident and went out on a date with him two weeks prior to the incident. On the day in question, defendant arrived at the victim's house uninvited. She told him she was about to leave and did not let him in.

Defendant entered the house without permission and a struggle ensued, during which defendant struck the victim in the jaw. Defendant then grabbed the victim and dragged her to her bedroom. Defendant subsequently forcibly penetrated her vagina with his tongue and penis.

I

Defendant represented himself at trial and now argues that the trial court erroneously allowed him to do so.

A defendant has the right to represent himself under both the Michigan and United States Constitutions. U.S.Const., Am. VI; Const.1963, art. 1, Sec. 13; M.C.L. Sec. 763.1; M.S.A. Sec. 28.854. However, none of these provisions "guarantees an absolute right to proceed to trial without counsel." People v. Anderson, 398 Mich. 361, 366, 247 N.W.2d 857 (1976). Before a defendant may proceed in pro per, the trial court must determine if the following test is satisfied:

"First, the request must be unequivocal. This requirement will abort frivolous appeals by defendants who wish to upset adverse verdicts after trials at which they had been represented by counsel.

* * *

"Second, once the defendant has unequivocally declared his desire to proceed pro se the trial court must determine whether defendant is asserting his right knowingly, intelligently and voluntarily. Faretta [v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, [156 MICHAPP 399] 45 L.Ed.2d 562 (1975) ]; [People v. Holcomb, 395 Mich. 326, 337, 235 N.W.2d 343 (1975).] The trial court must make the pro se defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. Id. Defendant's competence is a pertinent consideration in making this determination. Westbrook v Arizona, 384 US 150; 86 S Ct 1320; 16 L Ed 2d 429 (1966). But his competence does not refer to legal skills, '[f]or his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself'. Faretta, supra.

"The third and final requirement is that the trial judge determine that the defendant's acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court's business." 398 Mich. at 367-368, 247 N.W.2d 857.

The existence of a knowing and intelligent waiver depends "upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused." 398 Mich. at 370, 247 N.W.2d 857; see also People v. Burden, 141 Mich.App. 160, 366 N.W.2d 23 (1985).

From the start of criminal proceedings, defendant insisted on defending himself. Now, defendant argues, in both the brief filed by appellate counsel and the subsequent brief filed by defendant himself, that the trial court erred in allowing defendant to exercise his constitutional right to proceed in pro per. At the first arraignment on June 1, 1984, for criminal sexual conduct in the third degree, defendant informed the court of his intention to represent himself. The court asked defendant if he would like the court to appoint an attorney to assist him; defendant replied "no." At the second arraignment on July 3, 1984, for two counts of criminal sexual conduct in the first [156 MICHAPP 400] degree, defendant again expressed his wish to proceed in pro per. However, counsel had been appointed as the attorney of record for defendant. A plea of not guilty was again entered. At the preliminary examination, defendant again was appointed counsel. Counsel informed the court that defendant wished to represent himself but that defendant was told counsel could not be released except upon order by the court. Defendant informed the court himself of his desire to represent himself. The court then stated to defendant that even if defendant was a genius it would be:

"hard for you to take a crash program in a couple of seconds to make yourself with the same ability as Mr. Quarterman who has gone through law school and taken the State Examination and been in the criminal law practice for a number of years."

The court also stressed the seriousness of the charges against defendant, but defendant still insisted on representing himself. The court questioned defendant on his legal skills and was informed that defendant had tried a case in the Court of Claims. Also, defendant informed the court that he had been through the criminal system before. The court agreed to let defendant represent himself, but appointed an attorney to act as defendant's legal advisor.

Throughout the four days of preliminary examination, defendant had access to legal counsel. The court also informed defendant of his right to have an attorney and that the court would appoint one if defendant was unable to afford one. Repeatedly, throughout the examination, the court warned defendant of the dangers of representing himself and asked defendant if he had changed his mind in this regard. The court also counseled defendant [156 MICHAPP 401] about the disadvantages of taking the stand and suggested defendant talk with legal counsel. The court made certain that advisory counsel was always present and, at one point, adjourned the examination until counsel could appear. Prior to trial on August 13, 1984, the trial court again went over defendant's decision to represent himself. The court informed defendant of some of the problems he would have in representing himself.

The court satisfied the Anderson requirement at both the preliminary examination and at trial. The court repeatedly questioned the defendant about his request and defendant responded unequivocally that he wanted to represent himself. The court also discussed the dangers of self-representation with defendant and even appointed advisory counsel to help him. Again, defendant insisted on proceeding in pro per. We find it inconceivable that defendant did not know what he was doing. If anything, we believe that defendant knew exactly what he was doing--having the best of both worlds, self-representation and an appellate parachute.

Defendant also argues that the trial court erred by not informing him at the arraignments, conference calls, or sentencing of his right to an attorney at public expense pursuant to GCR 1963, 785.4(3), now MCR 6.101(C).

Although the trial court did not specifically inform defendant of his right at the arraignment, conference calls, or sentencing, defendant was appointed an attorney to act as his attorney or in an advisory capacity. Prior to the first arraignment, defendant signed an appointment of counsel form. However, at the arraignment he elected to represent himself. Rather than specifically telling defendant that he had the right to counsel, the court appointed one for him. Further, the court appointed[156 MICHAPP 402] advisory counsel throughout the proceedings. Therefore, defendant was informed of this right.

II

Next, we address the issue of whether the trial court...