People v. Wilson, Docket No. 12735

• Decision Date: 25 October 1972
• Docket Number: No. 2,Docket No. 12735,2
• Citation: 43 Mich.App. 459,204 N.W.2d 269
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene WILSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 269

204 N.W.2d 269

43 Mich.App. 459

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene WILSON, Defendant-Appellant.

Docket No. 12735.

Court of Appeals of Michigan, Division No. 2.

Oct. 25, 1972.

Released for Publication Feb. 22, 1973.

Terrance P. Sheehan, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Appellate Atty., for plaintiff-appellee.

Before BRONSON, P.J., and DANHOF and VanVALKENBURG, ^* JJ.

BRONSON, Presiding Judge.

Defendant was convicted by jury verdict of robbery armed. M.C.L.A. § 750.529; M.S.A. § 28.797. From this conviction he appeals, raising three allegations of error. Finding only two issues meritorious, we limit our discussion to them.

Defendant alleges that the trial judge committed reversible error in failing to discharge his court-appointed attorney and replace him with new appointed counsel. The facts giving rise to this claim have led us through the entire record and lower court file.

Evidence of defendant's dissatisfaction with appointed counsel appeared during his preliminary examination and continued until the trial judge permitted counsel to be discharged. Defendant complained that counsel had not made himself available to discuss the case at length or prepare an adequate defense, and failed to work for his best interests. Defendant further informed the trial judge that the attorneyclient relationship was strained to the extent that communications between the parties had ceased. Although defendant's sole defense rested upon alibi, he was afraid to disclose the names of such potential witnesses, believing that his attorney was conspiring with the prosecutor.

The truth of these allegations cannot be determined upon the inadequate record presented, yet we find that they are serious. The trial judge refused to consider the merits of defendant's complaints, replying that defendant had been appointed competent counsel and he had no right to an attorney of his choice. He then directed defendant to accept this appointed attorney or proceed In propria persona, and defendant reluctantly accepted the latter choice. ¹

The trial judge's conclusion that an indigent defendant had no right to appointed counsel of his choice is a correct statement of law. People v. Kotek, 306 Mich. 408, 11 N.W.2d 7 (1943); People v. William L. Thomas, 1 Mich.App. 118, 134 N.W.2d 352 (1965); People v. LaMarr, 1 Mich.App. 389, 136 N.W.2d 586 (1965); People v. Edwards, 18 Mich.App. 526, 171 N.W.2d 592 (1969). This rule cannot be deemed controlling since the dominant purpose of defendant's request was merely to obtain a substitution, not a substitution of a particular attorney acceptable to him. A defendant in a federal court is entitled to a substitution of appointed counsel when discharge of the first attorney is for 'good caue' and does not disrupt the judicial process. United States v. Burkeen, 355 F.2d 241 (CA 6, 1966), cert. den. sub nom. Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553; Ingle v. Fitzharris, 283 F.Supp. 205 (N.D.Cal., 1968). ² We approve of this standard and apply it to Michigan defendants. Similar to cases in which defendants voluntarily choose to proceed In propria persona, we leave the administration of this standard to the sound discretion of the trial judge, subject to review for abuse. People v. Garcia, 39 Mich.App. 45, 197 N.W.2d 287 (1972); People v. Bruno, 30 Mich.App. 375, 186 N.W.2d 339 (1971).

In the present case the trial judge failed to investigate defendant's claims or exercise his discretion. His conclusion that appointed counsel was competent was unresponsive to defendant's allegation regarding the inadequacy of counsel's performance and the destruction of communication and confidence between the parties. Appellate counsel has procured an affidavit from appointed counsel attesting to the deterioration of the attorney-client relationship. The trial judge received timely notice of defendant's dissatisfaction with counsel and the judicial process would not have been subverted by appointment of new counsel. A meticulous review of the record leads us to the conclusion that the trial judge's denial of defendant's request constituted an abuse of discretion. Defendant's conviction must be reversed and the case remanded for new trial.

Defendant raises a second allegation of error which further discloses his need to be represented below. He contends that the prosecutor committed reversible error by cross-examining him with regard to a vacated conviction. This type of impeachment was clearly rejected in People v. Crable, 33 Mich.App. 254, 189 N.W.2d 740 (1971). The error was compounded by the trial judge's instruction that the conviction could be considered as bearing upon defendant's credibility. Had defendant been represented by counsel, knowledge of the vacated conviction would have been denied the jury by a timely objection or proper jury instruction. We are confident that repetition of this error at new trial will be eliminated with the assistance of counsel.

Our reading of the record discloses an additional problem that may arise upon remand. The trial judge considered defendant's juvenile record for sentencing purposes and this procedure should no longer be permitted. People v. Bukoski, 41 Mich.App. 498, 200 N.W.2d 373 (1972); People v. McFarlin, 41 Mich.App. 116, 199 N.W.2d 684 (1972), leave granted 388 Mich. 761 (1972). Contra, People v. Pence, 42 Mich.App. 215, 201 N.W.2d 275 (1972). Since the trial judge has been exposed to this prejudicial information, we direct that retrial be heard before a new trial judge.

Reversed and remanded.

DANHOF, Judge (concurring in part, dissenting in part).

I am in agreement with the majority on all of...