PEOPLE OF MI V MICHAEL P GEOGHEGAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 26, 1997
Plaintiff-Appellee,
v
MICHAEL P. GEOGHEGAN, a/k/a MICHAEL P.
GEOGHAGAN,
Defendant-Appellant.
No. 170140
Oakland Circuit Court
LC Nos. 93-122365,
93-122382
ON REMAND
Before: White, P.J., and Holbrook, Jr., and Smolenski, JJ.
PER CURIAM.
This case is before us on remand from the Michigan Supreme Court. In our earlier opinion,
People v Geoghegan, unpublished opinion per curiam, issued November 26, 1996 (Docket No.
170140), we reversed and remanded for a new trial on the basis that the trial court failed to advise
defendant of the dangers and disadvantages of self-representation. We concluded that the trial court
had thus failed to substantially comply with the waiver of counsel procedures set forth in People v
Anderson, 398 Mich 361; 247 NW2d 857 (1976), and MCR 6.005(D), before granting defendant’s
request to proceed in propria persona.
In lieu of granting leave to appeal, the Supreme Court remanded to this Court to consider
“whether waiver of the right to counsel is subject to a harmless error analysis and, if so, whether any
error in advising defendant about the dangers of self-representation was harmless beyond a reasonable
doubt.”
We have considered the issue as directed, and conclude that a court’s failure to engage in the
prescribed colloquy regarding the waiver of counsel is subject to a harmless-error analysis, and that the
error is harmless if it can be shown that, notwithstanding the failure, the waiver of counsel was
nevertheless voluntary, knowing and intelligent. In the instant case, we conclude that the record as a
whole establishes such a waiver.
I
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The Sixth Amendment and the Michigan Constitution guarantee that a defendant in a state
criminal trial has an independent constitutional right of self-representation and that he may proceed to
defend himself without counsel when he voluntarily and intelligently elects to do so. Faretta v
California, 422 US 806; 45 L Ed 2d 562; 95 S Ct 2525 (1975).; People v Adkins, 452 Mich 702,
720; 551 NW2d 108 (1996); Const 1963, Art 1, § 13. Waivers of counsel must not only be
voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known
right or privilege, a matter which depends in each case on the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the accused. Edwards v
Arizona, 451 US 477, 483-484; 68 L Ed 2d 378; 101 S Ct 1880 (1981).
When an accused manages his own defense, he relinquishes, as a purely factual matter,
many of the traditional benefits associated with the right to counsel. For this reason, in
order to represent himself, the accused must knowingly and intelligently forgo those
relinquished benefits. Although a defendant need not himself have the skill and
experience of a lawyer in order competently and intelligently to choose self
representation, he should be made aware of the dangers and disadvantages of self
representation, so that the record will establish that he knows what he is doing and his
choice is made with eyes open. [Faretta, supra at 832-833. Citations omitted.]
Courts indulge every reasonable presumption against waiver of fundamental constitutional rights.
Johnson v Zerbst, 304 US 458, 464; 82 L Ed 2d 1461; 58 S Ct 1014 (1938).
The general rule that a constitutional error does not automatically require reversal of a conviction
was adopted in Chapman v California, 386 US 18; 17 L Ed 2d 705; 87 S Ct 824 (1967). Arizona
v Fulminante, 499 US 279, 306; 113 L Ed 2d 302; 111 S Ct 1246 (1991). In determining whether a
harmless error analysis is appropriate, “a court must ask if the error is a structural defect in the
constitution of the trial mechanism, which defies analysis by harmless-error standards.” People v
Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994), citing Fulminante, supra at
309.1 These errors include the total deprivation of the right to counsel at trial,2 the right to an impartial
judge,3 excluding grand jury members who are the same race as the defendant,4 denial of the right of
self-representation, 5 denial of the right to a public trial,6 and a constitutionally improper reasonable
doubt instruction. Without these basic protections, a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence and no criminal punishment may be regarded as
fundamentally fair. Rose v Clark, 478 US 570, 577-578; 92 L Ed 2d 460; 106 S Ct 3101 (1986).
Harmless error analysis “thus presupposes a trial, at which the defendant, represented by counsel, may
present evidence and argument before an impartial judge and jury.” Id. Upon finding a structural
defect, a court must automatically reverse. Anderson (After Remand), 446 Mich at 405; Fulminante,
499 US at 309-310.
At the other end of the spectrum, however, is constitutional error that does not constitute a
structural defect, i.e., trial errors that occur during the presentation of the case to the jury, and which
may therefore be quantitatively assessed in the context of other evidence presented in order to
determine whether the error was harmless beyond a reasonable doubt. People v Belanger, 454 Mich
571; 563 NW2d 665 (1997); Anderson (After Remand), 446 Mich at 405-406, citing Fulminante,
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499 US at 307-308. This requires the beneficiary of the error to prove, and the court to determine,
beyond a reasonable doubt that there is no reasonable possibility that the evidence complained of might
have contributed to the conviction. Anderson (After Remand), supra at 406, citing Chapman, supra
at 23. Since Chapman, the United States Supreme Court has applied a harmless error-analysis to a
wide range of errors and has recognized that many constitutional errors can be harmless. Id. at 306307.7
II
A
Our initial opinion discussed the waiver of counsel procedures required of Michigan courts
before a defendant’s request to proceed in propria persona may be granted. See Geoghegan, supra,
slip op at 9-11. A trial court must substantially comply with the requirements of Anderson, supra, and
MCR 6.005(D), i.e., the court must discuss the substance of both Anderson and MCR 6.005(D) in a
short colloquy with the defendant, and make an express finding that the defendant fully understands,
recognizes, and agrees to abide by the waiver of counsel procedures. Adkins, supra at 726-727.
Proper compliance requires that the court engage, on the record, in a methodical assessment of the
wisdom of self-representation by the defendant. Id. at 721.
Application of the waiver of counsel procedures is the duty of the court. The trial
judge is in the best position to determine whether the defendant has made the waiver
knowingly and voluntarily. Further, the effectiveness of an attempted waiver does not
depend on what the court says, but rather, what the defendant understands.8 [Adkins,
452 Mich at 723.]
The operative inquiry is thus what the defendant understands. In order for the waiver to be
voluntary, knowing and intelligent, the defendant must understand the dangers and disadvantages of self
representation. Anderson, supra. Because a defendant may understand the dangers and
disadvantages of self-representation despite the court’s failure to address the subject on the record, a
harmless error analysis is appropriate.
We conclude that where a defendant seeks to proceed pro se, a court’s failure to engage in the
prescribed colloquy with the defendant is subject to a harmless-error analysis. Adkins, supra at 725
727 (adopting the “substantial compliance” test adopted by the United States Court of Appeals for the
Sixth Circuit in United States v McDowell, 814 F2d 245, 248-249 [CA 6, 1987], and requiring
substantial compliance and not literal adherence to the waiver of counsel procedures set forth in
Anderson, 398 Mich 361, and MCR 6.005[D], before granting a defendant’s request to proceed in
propria persona); People v Lane, 453 Mich 132, 139; 551 NW2d 382 (1996) (citing People v
Dennany, 445 Mich 412, 439; 519 NW2d 128 [1994], for the proposition that whether a particular
departure from the court rules regulating the initial waiver of counsel justifies reversal depends on the
nature of the noncompliance).
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To assess whether the error is harmless beyond a reasonable doubt, it must be determined from
the record as a whole 9 whether, despite the failure to engage in the prescribed colloquy, the waiver was,
nevertheless, constitutionally sound, i.e., voluntary, knowing and intelligent. Edwards v Arizona, supra
at 483-484; see also United States v Marks, 38 F3d 1009, 1015 (CA 8, 1994)(noting that while a
specific warning on the record of the dangers and disadvantages of self-representation is not an absolute
necessity, it is required that in its absence the record shows that the defendant had this required
knowledge from other sources); United States v Balough, 820 F2d 1485, 1487-1490 (CA 9, 1987)
(noting that although the preferred procedure to ensure that a waiver is knowingly and intelligently made
is for the district court to discuss the charges, the possible penalties and the dangers of self
representation with the defendant in open court, a limited exception may exist “whereby a district
court’s failure to discuss each of the elements in open court will not necessitate automatic reversal when
the record as a whole reveals a knowing and intelligent waiver.”); Fitzpatrick v Wainwright, 800 F2d
1057, 1065-1068 (CA 11, 1986); Hendricks v Zenon, 993 F2d 664 (CA 9, 1993), citing Balough,
supra.10
Absent a district court’s discussion of the three elements, we will look to ‘the particular
facts and circumstances surrounding the case, including the background, experience and
conduct of the accused’ to determine whether the waiver was knowing and intelligent
despite the absence of a specific inquiry on the record. [Balough, supra at 1488.]
B
We conclude that in the instant case, the record as a whole indicates that defendant understood
the dangers and disadvantages of self-representation at the time he made his choice.
In McDowell,
supra, the Sixth Circuit Court of Appeals concluded that despite the court’s failure to give explicit
warnings and make the determinations concerning the waiver of counsel, the record nevertheless
established that the pro se defendant had validly waived his right to counsel:
We think it a fair reading of the record as a whole that McDowell understood the
dangers and disadvantages of self-representation at the time he made his choice. It is
clear that he was not a stranger to the courts, he knew he was entitled to counsel, and
he was not faced with a situation of enduring representation by counsel he considered
ineffective or being forced to proceed immediately on his own (as in many of the cases
cited). We conclude from the record that McDowell elected to defend himself at trial
with his “eyes open.” [Id. at 249.]
We find this case indistinguishable from McDowell. Like McDowell, defendant “was not a
stranger to the courts,” and “knew he was entitled to counsel.” Further, this case was not the
typical case where defendant was “faced with a situation of enduring representation by counsel he
considered ineffective or being forced to proceed immediately on his own” to trial. McDowell,
supra; Adkins, supra at 737 (Boyle, J., with Riley, J., concurring).
Additionally, we are satisfied that the court’s compliance with Anderson would not have
led to a different result; it is clear from the record that defendant would have insisted in representing
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himself under any circumstances. Lastly, although the specific dangers of self-representation were
never explained on the record, defendant stated that he understood that in representing himself he
had a fool for a client.
We conclude that a harmless error analysis is appropriate in determining the consequences
of a court’s failure to engage in the prescribed colloquy, and that in the instant case the failure is
harmless because defendant’s waiver was nevertheless voluntary, knowing, and intelligent.11
Notwithstanding this decision, we observe that questions regarding the adequacy of a
defendant’s waiver can be avoided by a trial court’s compliance with Anderson and
MCR6.005(D), and urge such compliance.
Affirmed.
/s/ Helene N. White
/s/ Donald E. Holbrook, Jr.
/s/ Michael R. Smolenski
1
The Fulminante Court noted:
The common thread connecting these cases [to which a harmless-error analysis applies]
is that each involved ‘trial error’ – error which occurred during the presentation of the
case to the jury, and which may therefore be quantitatively assessed in the context of
other evidence presented in order to determine whether its admission was harmless
beyond a reasonable doubt. In applying harmless-error analysis to these many different
constitutional violations, the Court has been faithful to the belief that the harmless-error
doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial
is to decide the factual question of the defendant’s guilt or innocence, and promotes
public respect for the criminal process by focusing on the underlying fairness of the trial
rather than on the virtually inevitable presence of immaterial error.’ [499 US at 306.
Citation omitted.]
2
Gideon v Wainwright, 372 US 335; 9 L Ed 2d 799; 83 S Ct 792 (1963).
3
Tumey v Ohio, 273 US 510; 71 L Ed 749;, 47 S Ct 437 (1927).
4
Vasquez v Hillery, 474 US 254; 88 L Ed 2d 598; 106 S Ct 617 (1986).
5
McKaskle v Wiggins, 465 US 168, 177-178, n 8; 79 L Ed 2d 122; 104 S Ct 944 (1984).
6
Waller v Georgia, 467 US 39, 49, n 9; 81 L Ed 2d 31; 104 S Ct 2210 (1984).
-5
7
The Fulminante Court then cited the following cases:
See, e.g., Clemons v Mississippi, 494 US 738, 752-754, 108 L Ed 2d 725, 110 S Ct
1441 (1990)(unconstitutionally overbroad jury instructions at the sentencing stage of a
capital case); Satterwhite v Texas, 486 US 249, 100 L Ed 2d 284, 108 S Ct 17992
(1988)(admission of evidence at the sentencing stage of a capital case in violation of the
Sixth Amendment Counsel Clause); Carella v California, 491 US 263, 266, 105 L
Ed 2d 218, 109 S Ct 2419 (1989)(jury instruction containing an erroneous conclusive
presumption); Pope v Illinois, 481 US 497, 501-504, 95 L Ed 2d 439, 107 S Ct
1918 (1987)(jury instruction misstating an element of the offense); Rose v Clark, 478
US 570, 92 L Ed 2d 460, 106 S Ct 3101 (1986)(jury instruction containing an
erroneous rebuttable presumption); Crane v Kentucky, 476 US 683, 691, 90 L Ed 2d
636, 106 S Ct 2142 (1986)(erroneous exclusion of defendant’s testimony regarding the
circumstances of his confession); Delaware v Van Arsdall, 475 US 673, 89 L Ed 2d
674, 106 S Ct 1431 (1986) (restriction on a defendant’s right to cross-examine a
witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v
Spain, 464 US 114, 117-118, and n 2, 78 L Ed 2d 267, 104 S Ct 453 (1983)(denial
of a defendant’s right to be present at trial); United States v Hasting, 461 US 499, 76
L Ed 2d 96, 103 S Ct 1974 (1983) (improper comment on defendant’s silence at trial);
United States v Hasting, 461 US 499, 76 L Ed 2d 96, 103 S Ct 1974 (1983)
(improper comment on defendant’s silence at trial, in violation of the Fifth Amendment
Self-Incrimination Clause); Hopper v Evans, 456 US 605, 72 L Ed 2d 367, 102 S Ct
2049 (1982)(statute improperly forbidding t ial court’s giving a jury instruction on a
r
lesser included offense in a capital case in violation of the Due Process Clause);
Kentucky v Whorton, 441 US 786, 60 L Ed 2d 640, 99 S Ct 2088 (1979)(failure to
instruct the jury on the presumption of innocence); Moore v Illinois, 434 US 220, 232,
54 L Ed 2d 424, 98 S Ct 458 (1977)(admission of identification evidence in violation of
the Sixth Amendment Confrontation Clause); Brown v United States, 411 US 223,
232-232, 36 L Ed 2d 208, 93 S Ct 1565 (1973)(admission of out-of-court statement
of a non-testifying codefendant in violation of the Sixth Amendment Counsel Clause);
Milton v Wainwright, 407 US 371, 33 L Ed 2d 1, 92 S Ct 2174 (1972)(confession
obtained in violation of Massiah v United States, 377 US 210, 12 L Ed 2d 246, 84 S
Ct 1199 (1964); Chambers v Maroney, 399 US 42, 52-53, 26 L Ed 2d 419, 90 S Ct
1975 (1970)(admission of evidence obtained in violation of the Fourth Amendment);
Coleman v Alabama, 399 US 1, 10-11, 26 L Ed 2d 387, 90 S Ct 1999
(1970)(denial of counsel at a preliminary hearing in violation of the Sixth Amendment
Counsel Clause). [Fulminante, 499 US at 306-308.]
8
In a footnote to this paragraph, the Adkins Court noted that “[m]erely going through the requirements
without sensitivity to the defendant’s reaction to these issues is insufficient.” Id. at 723 n 22.
-6
9
In some cases it might be appropriate to remand to the trial court for further factual development on
the record of the circumstances surrounding the waiver.
10
See also, Savage v Estelle, 924 F2d 1459, 1465 n 13 (CA 9, 1990); United States v MoyaGomez, 860 F2d 706, 733 (CA 7, 1988); United States v Hafen, 726 F2d 21, 25 (CA 1, 1984);
United States v Harris, 683 F2d 322, 324 (CA 9, 1982); United States v Kimmel, 672 F2d 720,
722 (CA 9, 1982); United States v Bird, 621 F2d 989, 991 (CA 9, 1980); and United States v
Gillings, 568 F2d 1307, 1309 (CA 9, 1978).
11
Our decision makes it unnecessary to address whether a failure to obtain a voluntary, knowing and
intelligent waiver of counsel, as distinguished from a failure to comply with Anderson and MCR
6.005(D) where the wavier is nevertheless found to be voluntary, knowing and intelligent, is properly
subject to a harmless-error analysis. Thus, we do not address whether such a failure would constitute a
structural defect requiring automatic reversal without regard to the quality of the self-representation or
the quantum of evidence of guilt. See United States v Salemo, 61 F3d 214, 218 (CA 3, 1995); and
United States v Allen, 895 F2d 1577, 1579-1580 (CA 10, 1990); but see Richardson v Lucas,741,
F2d, 753, 757 (CA 5, 1984); and People v Wilder, 35 Cal App 4th 489, 494-496; 41 Cal Rptr 2d
463 (1995).
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