People v. Swan

• Citation: 229 N.W.2d 476,59 Mich.App. 409
• Decision Date: 11 March 1975
• Docket Number: No. 2,Docket No. 19157,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Oliver SWAN, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 476

229 N.W.2d 476

59 Mich.App. 409

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Oliver SWAN, Defendant-Appellant.

Docket No. 19157.

Court of Appeals of Michigan, Division No. 2.

March 11, 1975.

Released for Publication June 4, 1975.

R. George Economy, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and R. B. BURNS and KELLY, JJ.

KELLY, Judge.

Defendant was charged with armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. He was convicted of that offense by a jury. On appeal, he raises one issue that merits our careful attention. He claims that portions of his trial were improperly conducted in his absence.

On the day set for trial, January 3, 1973, defendant appeared with his retained counsel. Counsel fully and competently participated in the process of selecting jurors. He asked questions of jurors, exercised peremptory challenges and challenges for cause and conferred with defendant.

After the noon-hour recess, defendant asked the court to remove his attorney from the case. The attorney's retainer had not been paid and he had previously moved to withdraw, which motion had been denied. Defendant-appellant stated to the court that because of the financial disagreement, he did not feel that the attorney would adequately represent him. After advising defendant against discharging counsel, the court explained to the defendant that since the jury had been sworn, the trial would proceed. Defendant insisted that his attorney be discharged and the court granted his request. Defendant then requested an adjournment to obtain substitute counsel. He did not want court-appointed counsel and he did not want to represent himself. The trial was adjourned for half a day to enable defendant to retain substitute counsel.

The next morning, January 4, 1973, court reconvened at 9:30 a.m. The court addressed the defendant in open court as follows:

'The Court: Mr. Swan, yesterday we recessed for purposes of permitting you to contact another attorney and to have the attorney here. Have you made the arrangements to have an attorney here today?

'Defendant: I make arrangements but won't no attorney accept the case, sir, and I can't represent myself.'

The court then ordered the jury back into the courtroom and told the prosecutor to make his opening statement. After his opening statement the prosecutor called his first witness and after direct examination was completed the court addressed the defendant:

'The Court: Mr. Swan, you may ask this witness may questions you desire concerning this incident or concerning any aspect of the alleged charge.

'Defendant: I would like to have a lawyer.

'The Court: We'll excuse the jury to the jury room--just a moment, folks, you may remain there.

'Mr. Swan, as I indicated to you earlier, that has been resolved. Now, the court would caution you not to keep repeating that because the court will have to take steps to correct it if you do. My question to you now is do you desire to ask this witness any questions in cross-examination?

'Defendant: I'm not representing myself.

'The Court: Do you desire to ask this witness any questions?

'Defendant: (no response).'

After further colloquy the court ordered a recess:

'The Court: All right. We'll continue the recess for about 5 to 10 minutes and then we'll commence again. You are of course at liberty to come and go as you please.'

After the recess a second and third witness were called by the prosecutor and defendant was offered cross-examination to which he gave no response. The court recessed at noon and reconvened at 1:30 p.m. The defendant did not appear. The court waited for him until 3:30 p.m. and then recessed until the following Monday, January 8, 1973 at 9:30 a.m. Bond was declared forfeited and a bench warrant issued. Over the long weekend neither the police officers nor the defendant's bondsman were able to find the defendant.

The trial continued on January 8, 1973 in defendant's absence. Four witnesses were called and the prosecutor summed up.

When charging the jury the court included an instruction that the jury was not to consider defendant's absence in deciding whether or not he was guilty. After the verdict had been returned, the trial judge explained to the jury the cause for the delay and apologized for the inconvenience defendant had caused the jurors and witnesses. He also intimated why he had not declared a mistrial:

'Now, that swearing of the jury is an important thing in our judicial process because once a jury is sworn, that jury must proceed to determine innocence or guilt, and that jury is obligated to do that and the Judge must see that they do that unless a mistrial is declared. But unfortunately in the last six months the appellate courts above me have made some highly unusual decisions about mistrial, which are of such a nature that the trial judge is very reluctant to step in and say mistrial. Because if I do, then the case, whether it would ever get to trial again I don't know, because the Court has said in a couple of other cases, not on point but similar, well, its double jeopardy, you can't try the man any more.

'So, the question is what do we do in our case? If I step in and say, well, it's a mistrial, send these jurors home, send the witnesses home, and when we catch the defendant again we'll try him then, some of these decisions indicate that I can't do that. Other cases say, seem to say, and there are many cases right on point, they seem to say, well, the law says that the Defendant must be present during a felony trial. You can't conduct a trial with a Defendant not being here.

'So it was my feelings that on the one hand, A, if I step in and say this is a mistrial and send you home, there was a possibility that the Defendant would never be tried again because some Judge...