People v. Russell, Docket No. 230382.

• Decision Date: 20 February 2003
• Docket Number: Docket No. 230382.
• Citation: 656 N.W.2d 817,254 Mich. App. 11
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lord Shawn RUSSELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

656 N.W.2d 817

254 Mich. App. 11

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lord Shawn RUSSELL, Defendant-Appellant.

Docket No. 230382.

Court of Appeals of Michigan.

Submitted January 10, 2002, at Grand Rapids.

Decided November 8, 2002, at 9:10 a.m.

Released for Publication February 20, 2003.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Gary A. Moore, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by P.E. Bennett), for the defendant on appeal.

Before: FITZGERALD, P.J., and HOLBROOK, Jr., and MARK J. CAVANAGH, JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial convictions of one count of possession with intent to deliver less than fifty grams of cocaine and one count of possession with intent to deliver less than fifty grams of heroin. MCL 333.7401(2)(a)(iv). Defendant was sentenced to consecutive prison terms of 2 1/2 to 40 years on each count. We affirm defendant's convictions, but remand for resentencing and correction of the presentence investigation report.

Defendant first argues that the trial court did not comply with the requirements to establish that he knowingly, intelligently, and voluntarily waived counsel before allowing him to act as his own attorney at trial. MCR 6.005(D); People v. Anderson, 398 Mich. 361, 366-367, 247 N.W.2d 857 (1976). Defendant contends that he neither stated that he waived counsel nor unequivocally requested to proceed pro se, a necessary prerequisite to invoke his right of self-representation. Id. at 367, 247 N.W.2d 857. Further, defendant's expression of dissatisfaction with counsel is not an unequivocal request to represent himself, People v. Pruitt, 28 Mich.App. 270, 272, 184 N.W.2d 292 (1970), nor does the presence of standby counsel legitimize an invalid waiver of counsel, People v. Lane, 453 Mich. 132, 138, 551 N.W.2d 382 (1996). The prosecutor argues that defendant's conduct and refusal to accept representation by appointed counsel constituted a knowing and intelligent waiver of his constitutional right to counsel. We agree with the prosecutor.

In this case, defendant continually complained about his court-appointed counsel. Defendant's first appointed counsel, Paul Mitchell, was permitted to withdraw after defendant complained of his representation. Defendant's complaints concerning Mitchell mirrored those he would later raise about Damian Nunzio, who was appointed to replace Mitchell. On the first day of trial, defendant asked that Nunzio be removed and substitute counsel be appointed. Defendant's complaints concerning Nunzio included lack of communication and failure to furnish discovery, that Nunzio lacked belief in his innocence, that Nunzio failed to file a "14-day rule" motion, and that defendant had filed a grievance, which neither Nunzio nor the trial court could confirm. Nunzio indicated that he had repeatedly attempted to communicate with defendant, that he had explored all relevant issues, that he had completed discovery, and that he was prepared to try the case. Nunzio acknowledged that he and defendant had "a different point of view" concerning the trial. Defendant acknowledged that his problem communicating with Nunzio resulted from a personality conflict. The trial court found that defendant had developed personality difficulties with two "of the very best lawyers available" from the local bar. The trial court also found that Nunzio was a good, experienced lawyer who had succeeded in getting some evidence suppressed and, accordingly, the trial court found that no valid reason existed to replace him with substitute counsel.

The trial court is in the best position to determine whether facts exist that establish "good cause" to replace appointed counsel. MCR 2.613(C); People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002); People v. Ahumada, 222 Mich.App. 612, 614, 564 N.W.2d 188 (1997). In this case, good cause was not demonstrated by the allegations of defendant that counsel did not see things defendant's way, People v. Meyers (On Remand), 124 Mich.App. 148, 165-166, 335 N.W.2d 189 (1983). Further, that counsel did not pursue futile motions or meaningless discovery did not demonstrate good cause because matters of general legal expertise and strategy fall within the sphere of the professional judgment of counsel. See, People v. Traylor, 245 Mich.App. 460, 462, 628 N.W.2d 120 (2001) (filing frivolous motions), People v. Jones, 168 Mich.App. 191, 195, 423 N.W.2d 614 (1988) (questioning witnesses), and People v. O'Brien, 89 Mich.App. 704, 708, 282 N.W.2d 190 (1979) (questioning witnesses and juror voir dire). Moreover, it is apparent that the trial court was concerned that appointing substitute counsel, when the jury was waiting to hear a case that had already experienced substantial delay, would unreasonably disrupt the judicial process. People v. Mack, 190 Mich.App. 7, 14, 475 N.W.2d 830 (1991); Jones, supra at 194, 423 N.W.2d 614. Thus, the record supports the trial court's conclusion that good cause had not been shown to warrant appointment of substitute counsel. Additionally, granting the request would have disrupted the judicial process without necessarily resolving defendant's complaints. Accordingly, the trial court did not abuse its discretion in denying defendant's request to appoint substitute counsel. Traylor, supra at 462, 628 N.W.2d 120; Mack, supra.

With respect to waiver of counsel at trial, the United States Supreme Court has held that the Sixth Amendment right to counsel also implies the right of self-representation. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Michigan, the right of self-representation is explicitly recognized by our constitution and by statute. Const 1963, art 1, § 13; MCL 763.1; People v. Adkins (After Remand), 452 Mich. 702, 720, 551 N.W.2d 108 (1996). But a defendant cannot exercise both his right to self-representation and his right to counsel; he must choose one or the other. Id.; People v. Dennany, 445 Mich. 412, 442, 519 N.W.2d 128 (1994) (Griffin, J.). Thus, because self-representation involves forgoing the right to counsel, a defendant must knowingly and intelligently waive his right to counsel before being permitted to represent himself. Faretta, supra at 835. "The defendant must exhibit `an intentional relinquishment or abandonment' of the right to counsel, and the court should `indulge every reasonable presumption against waiver' of that right." Adkins, supra at 721, 551 N.W.2d 108, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A defendant may only enter into self-representation "with his eyes open," aware of the dangers of acting as his own counsel. Faretta, supra; Adkins, supra

at 725, 551 N.W.2d 108.

In the present case, when defendant expressed dissatisfaction with appointed counsel, the trial court indicated its willingness to appoint substitute counsel, provided defendant had a valid reason other than a personality clash to do so. The trial court made it clear, however, that if defendant failed to establish good cause, his options were (1) retain his own counsel, (2) continue with court-appointed counsel, (3) represent himself, or (4) represent himself with court-appointed counsel as a legal advisor. The trial court repeatedly advised defendant of the options that were available to him. The trial court also warned defendant of the dangers of self-representation, including, "unless you are legally trained ... there are many pitfalls there for the unwary," and "I'm suggesting that you don't know legal procedure." The trial court also advised defendant as follows:

I should advise you that there is an ancient adage in the law, for good reason, that a man who acts as his own counsel has a fool for a client. The corollary to the rule is that he also has a fool for a lawyer, but, as a practical matter, it all winds up in the same place.

My guess is that you will not fare well in that approach, but you have a right to take that approach if you wish to do it. And, while I would not advise it, I will certainly guard your rights and see to it that you have the opportunity to present your own defense, if that's your wish.

After ruling that defendant had not shown good cause to replace his appointed counsel, the trial court twice strongly urged defendant to accept representation by Nunzio, who the court opined had done a good job preparing the case, and who the trial court described as one of the best lawyers of the local bar. Throughout the waiver colloquy, the trial court on several occasions suggested a recess to give defendant an opportunity to consult with court-appointed counsel. Further, the trial court took two recesses before allowing defendant to proceed pro se, the first for twenty minutes and the second for 1 1/2 hours, to give defendant the opportunity to consult with counsel and weigh his options. Although the trial court did not explicitly comply with that portion of MCR 6.005(D)(1) that requires "advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law," during the first trial court recess defendant was provided with a copy of the information, which would contain those facts, along with items such as the police reports, register of actions, and other discovery items.

The record demonstrates that defendant was thoroughly advised of the risks of self-representation and was repeatedly advised that if he chose to reject court-appointed counsel, his options were self-representation or to retain counsel. Defendant made his unequivocal choice, not by explicitly demanding to represent himself, but implicitly by repeatedly rejecting representation by court-appointed counsel in the face of numerous warnings and advice to the contrary.

Thus, by his own...