People v. Stinson
| Decision Date | 09 May 1967 |
| Docket Number | No. 1,Docket No. 1475,1 |
| Citation | 6 Mich.App. 648,150 N.W.2d 171 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clyde STINSON, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Stanley Weingarden and Abba I. Friedman, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for appellee.
Before LESINSKI, C.J., and BURNS and QUINN, JJ.
The defendant appeals from a judgment entered on a jury verdict of guilty of the offense charged: uttering and publishing. 1
The record reveals that the defendant was arraigned on a complaint and warrant on July 6, 1965. Without benefit of counsel, he demanded preliminary examination. On July 21, 1965, he was arraigned on the information and a plea of not guilty was entered by the court. On August 12, 1965, trial was adjourned to September 9, 1965. The August 12th date is the first notation on the record of the defendant's representation by counsel (court-appointed). Pursuant to defense counsel's motion to set aside waiver of examination, examination was, on August 30, 1965, set for September 9, 1965, and held on said date. On September 24, 1965, defendant was arraigned on the information. Trial began on October 12, 1965.
The defendant raises three issues on appeal. The first asserts that the trial court committed reversible error in its refusal to permit an adjournment sought by defendant just prior to the commencement of trial, for the purpose of retaining counsel of his own--or more accurately, his mother's--choosing.
The second issue questions the sufficiency of evidence at the preliminary examination to show that the offense charged had been committed, and that there was probable cause to believe that the defendant committed it. Within the context of this issue, the defendant also contends that the court committed reversible error in its conduct of the preliminary examination.
In his brief defendant poses as a third issue that certain remarks of the trial judge in front of the jury were prejudicial and ground for reversal here.
The last-mentioned issue is without merit. The remarks complained of, taken out of context and given inferences by appellate argument, cannot be said to have been prejudicial in the framework in which they were made.
At the beginning of trial, defendant sought to get the court's attention in order to request the postponement of trial mentioned above. The court admonished the defendant that prospective jurors were present before allowing the defendant to proceed. There was nothing improper in so doing. The court was not clairvoyant and could not anticipate the tenor of defendant's remarks. The warning was properly made to safeguard, not to prejudice, defendant.
It is further apparent from a reading of the transcript as a whole that the court did not commit reversible error when it refused to allow the defense counsel to continue to ask the same question of the People's witness on cross-examination which he had answered several times for defense counsel.
Defendant also contends that the trial judge prejudiced him by certain remarks during the course of the charge to the jury. The court used the name of the complaining witness in an example given to the jury to explain that knowledge that an instrument is false is one of four elements which must be shown in the offense of uttering and publishing. Although it might have been preferable for the court to employ a totally fictional appellation in his analogy, we cannot say under the facts of this case that the use of 'Mr. Seidman' rather than 'Mr. X.' was prejudicial error.
And finally, we note that no objection was made by defense counsel at trial to any of the above-discussed remarks. In fact, defense counsel, on the record, expressed satisfaction with the charge at its conclusion, which makes the raising of objection thereto tardy as well.
The second issue concerning the validity of the preliminary examination was not raised at trial and cannot be raised here. People v. Willis (1965), 1 Mich.App. 428, 136 N.W.2d 723.
The first issue raised by the defendant cannot be so summarily dismissed on appeal. Here defendant argues that the court committed prejudicial error in refusing to allow the defendant to retain counsel of his own choosing in derogation of said defendant's constitutional rights.
As was noted above, the defendant was arraigned on a complaint and warrant on July 6, 1965, and the date of the trial was October 12, 1965. On the latter day, defendant stated that he had asked court-appointed counsel 'to come out and ask for a postponement for a week until next week until I can see my people Friday to get me a lawyer.' The court's grounds for denial of this request were that the defendant had been arraigned three months before; that he had had three months to get an attorney, and that this was the third trial date set. The preliminary examination was held September 9, 1965, and the arraignment on the information September 24, 1965. Eighteen days elapsed between this last date and the trial. Defendant stated that he had been unable to see his 'people in two weeks, over in the county jail.'
The right to assistance of counsel is guaranteed each defendant in both the Constitution of the State of Michigan 3 and the Constitution of the United States. 4 This guarantee affords a defendant a reasonable opportunity to obtain counsel of his own choosing. See Powell v. State of Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. A defendant may, however effectively waive this right by taking advantage of appointed counsel's services.
While reaffirming every defendant's right to counsel, we cannot find that this right has been denied the defendant before us. Defendant had three months in which to retain counsel. There is no showing that he had attempted to avail himself of this opportunity. The defendant, at the time of trial, sought adjournment to allow his mother time to hire an attorney. There was no showing at any time that his mother was prepared to do so, or that she had, in fact, hired an attorney. No attorney (other than his court-appointed attorney) communicated with the court in any manner to...
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