People v. Willing
| Decision Date | 28 June 2005 |
| Docket Number | Docket No. 251786. |
| Citation | 704 N.W.2d 472,267 Mich. App. 208 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aaron Christopher WILLING, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Gary L. Rogers and Jonathan R. Sacks), for the defendant on appeal.
Before: WHITBECK, C.J., and ZAHRA and OWENS, JJ.
Defendant Aaron Willing appeals by right his jury conviction of conspiracy to deliver 225 to 649 grams of a controlled substance1 after arranging to sell nine ounces of cocaine2 to an undercover police officer.3 Willing, who represented himself with the assistance of an appointed attorney, argues that he did not waive his right to counsel until after trial had begun, and that the trial court improperly allowed portions of the trial to proceed without Willing's presence. We reverse, because Willing experienced a total deprivation of counsel during a critical stage of the proceedings.
The facts of this case are essentially undisputed. Martin Lavin, an undercover officer with the Royal Oak police, learned from a confidential informant that the informant and Willing had discussed selling drugs while they were incarcerated together. The informant gave Willing's telephone number to Lavin, and, after Willing was released from jail, Lavin began calling to ask if Willing would sell him cocaine. Willing initially told Lavin that he could not procure the amount Lavin was seeking and did not want to participate. However, in a three-way telephone conversation with Lavin, Willing, and Willing's friend Danny Potter on December 30, 2001, Willing agreed to sell Lavin cocaine.
In a tape-recorded call later that day, Lavin asked Willing whether he should bring enough money for 4-1/2 or nine ounces, and Willing responded that he had "two different guys checking on it" who "both got it," and he was expecting a call back with the price. When Lavin called back a second time, Willing told Lavin that he had "never bought nine before," but thought the price would be "seventy-four," meaning $7,400. Willing told Lavin that "he's on his way out here right now, . . . I'm going to talk to him, check it out, get a price, get a ticket on it . . . give me fifteen more minutes and I'll let you know." When Lavin asked how it would "go down," Willing responded that it would be Willing suggested they meet at a bar near I-75 and M-24, and Lavin agreed.
The next day, Willing called Lavin and told him that he "got it for all nine of them," meaning all nine ounces. On January 3, 2002, Lavin called Willing, who asked him if he knew what a "key," or a kilogram of cocaine, looked like. When Lavin responded that he did, Willing said, "All right, this thing, it was about one or two inches thick and it was the length of the key," and it looked like a "flat chunk" that had been broken directly off the key. Willing told Lavin that a friend would be driving him to the meeting place, which they had changed to a fast-food restaurant near Eight Mile Road and Greenfield.
Lavin, who was wearing a hidden microphone, drove to the meeting place with undercover officer Kenneth Bean to meet Willing, who had told Lavin that he and his friend would arrive in a Dodge Stratus. The friend was Danny Potter, who had participated in the December 30, 2001, conversation with Willing and Lavin. Lavin and Willing walked over to Potter's parked car, and Willing got into the passenger seat. Willing told Lavin to expect the man with the drugs to arrive in a Grand Marquis between 5:30 and 6:00 p.m. As they waited, Willing offered Lavin the keys to Potter's car to assure him that Potter could not drive away until the deal was completed. Sometime after 6:00 p.m., a man named London arrived with a bag of a white powdery substance. London showed Lavin the bag and allowed him to weigh it, but would not let him smell it. Lavin then gave the signal for his backup officers to move in, and they took Willing, Potter, and London into custody. As they did so, Lavin heard London say, "it's flour." A field test confirmed that the substance in the bag was not cocaine.
After being taken to the police station, Willing waived his Miranda4 rights, and Lavin interviewed him. According to Lavin, Willing told him that he knew he could get cocaine through Potter, who had a source from whom he, in turn, could get it. Willing told Lavin that he had expected that source to be at the arranged meeting place at the same time Lavin, Willing, and Potter arrived. Instead, Willing and Potter drove to the arranged place and "waited for the stuff to arrive," which took about forty-five minutes. Willing's written statement also indicated that "[t]he purchase agreement was nine ounces of cocaine." Lavin asked whether Willing knew that the substance to be delivered was flour, and, according to Lavin, Willing responded, After a preliminary examination, Willing was charged with conspiracy to deliver cocaine.
Before trial, Willing moved for a Walker5 hearing to exclude the statement he gave Lavin at the police station, and also moved for a finding that Lavin had entrapped him into agreeing to sell cocaine. However, before the hearings on these motions could take place, the prosecution filed a motion to disqualify Willing's retained attorney on the ground that he had previously represented the confidential informant on drug-related charges. The trial court granted the motion to disqualify Willing's attorney, and appointed attorney Scott Neumann to represent Willing.
When the entrapment and Walker hearings began on March 10, 2003, Willing was not present, although Neumann stated that he had told Willing to be there on that date. Neumann waived Willing's appearance, and the trial court proceeded with the hearings. Lavin and the confidential informant both testified, and the trial court was given the tapes of Willing's phone calls and Willing's signed waiver of rights. The trial court declined to rule on either motion until Willing could appear and testify.
At the beginning of the resumed hearings, Neumann told the trial court that Willing wished to dismiss him and proceed pro se. The following exchange occurred:
At this point, the prosecutor told the trial court that Willing had retained an attorney who was dismissed for having a conflict of interest, and expressed the opinion that Willing had the right to hire an attorney if he had the means to do so. The trial court asked Willing whether he had the means, and Willing responded that he had spent more than $17,000 on his previous attorney, but hoped to retain an attorney for "a couple thousand dollars." The trial court responded:
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