PEOPLE OF MI V JONATHAN K BANKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 11, 1999
Plaintiff-Appellee,
v
No. 205939
Oakland Circuit Court
LC No. 97-151431 FH
JONATHAN K. BANKS,
Defendant-Appellant.
Before: Saad, P.J., and Murphy and O’Connell, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of third-degree criminal sexual conduct, MCL
750.520d(1)(b); MSA 28.788(4)(1)(b), and felonious assault, MCL 750.82; MSA 28.277. He was
sentenced to four to fifteen years’ imprisonment for the third-degree criminal sexual conduct conviction
and a concurrent term of two to four years’ imprisonment for the felonious assault conviction.
Defendant now appeals as of right. We affirm.
Defendant was arrested and charged after his long-time girlfriend complained to investigating
officers and medical personnel that defendant had assaulted her with a hammer and forced her to have
sexual intercourse. Before trial, the trial court determined that defendant had waived his right to counsel
and allowed defendant to proceed in propria persona.
Defendant argues that he was erroneously denied his right to counsel when the trial court
accepted his equivocal request to represent himself at trial. We disagree. We review a trial court’s
decision that a defendant unequivocally waived his right to counsel for whether the trial court
substantially complied with the waiver of counsel procedures set forth in People v Anderson, 398 Mich
361; 247 NW2d 857 (1976), and MCR 6.005(D).
A criminal defendant has both the right to counsel, US Const, Am V and VI; Const 1963, art 1,
§§ 17 and 20, and the right to represent himself, US Const, Am VI; Const 1963, art 1, § 13; MCL
763.1; MSA 28.854. The right to represent oneself is not absolute and every presumption should be
made against waiver of one’s right to counsel. People v Adkins, 452 Mich 702, 721; 551 NW2d 108
(1996). The presumption against waiver is based on the belief that a defendant who is represented by
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counsel stands a better chance of receiving a fair trial. Id. The trial court is in the best position to
determine whether a defendant has waived his right to counsel. Id. at 723.
Before granting a defendant’s request to proceed in propria persona, the trial court must
substantially comply with the waiver of counsel procedures set forth Anderson, supra, and MCR
6.005(D). Adkins, supra at 706. Substantial compliance requires that the court discuss with the
defendant the substance of Anderson and MCR 6.005(D) in a short colloquy, and make an express
finding that defendant fully understands, recognizes, and agrees to abide by the waiver of counsel
procedures. Adkins, supra at 726-727.
Anderson first requires that a defendant’s request to represent himself be unequivocal.
Anderson, supra at 367. Second, the trial court must determine that the defendant’s assertion of his
right is knowing, intelligent, and voluntary. Id. at 368. Third, the trial court must determine that the
defendant’s self-representation will not disrupt, inconvenience, or burden the court. Id. Fourth, the trial
court must comply with the requirements of MCR 6.005(D). Adkins, supra at 722.
MCR 6.005(D) provides, in pertinent part:
The court may not permit the defendant to make an initial waiver of the right to
be represented by a lawyer without first
(1) advising the defendant of the charge, the maximum possible prison sentence
for the offense, any mandatory minimum sentence required by law, and the risk involved
in self-representation, and
(2) offering the defendant the opportunity to consult with a retained lawyer or, if
the defendant is indigent, the opportunity to consult with an appointed lawyer.
In the present case, defendant stated several times before trial that he desired to waive his right
to counsel and to represent himself. The first of those instances occurred one day before the
commencement of trial:
The Court:
All right. This matter will start as soon as the trial that I’m under -- that
I’m in now will finish, okay. What is it you wanted to say, sir?
Defendant:
Your Honor, I would like to represent myself in this matter.
The Court:
How many times have you represented yourself in the past?
Defendant:
Your Honor, I would like to represent myself. I haven’t represented
myself, and that is not a matter of the record. What is more important -- and you
know as well as I know that I have a right to represent myself, that’s how I would
like to proceed.
The Court:
Okay. I’ll tell you what, why don’t you think that over -
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Defendant:
Your Honor, there’s no -- I am prepared. I am ready. I am ready to
represent myself. There’s no need to delay. I’m not going to cause the Court any
undue hardship.
***
Defendant:
I understand everything that you’re saying - -
The Court:
Uh-huh.
Defendant:
-- and there’s no need to think about it any further. I am ready to
represent myself.
On the day trial was to commence, defendant was asked how he intended to proceed:
The Court:
Now, it’s my understanding that you want to waive your right to have a
lawyer represent you and represent yourself; is that correct?
Defendant:
Yes.
* * *
The Court:
Mr. Banks, do you want to represent yourself?
Defendant:
Yes, sir.
The trial record also provides evidence that defendant’s waiver was voluntary:
The Court:
counsel?
No one’s threatened you in any way to get you to waive your right to
Defendant:
No, sir.
The Court:
It’s your own free choice?
Defendant:
Yes, sir.
The Court:
This is what you want to do?
Defendant:
Yes, sir.
Nevertheless, defendant claims that he did not unequivocally and voluntarily waive his right to
counsel. He asserts that his pre-trial statement to his appointed counsel and his statements during
opening arguments are evidence of the equivocal nature of his request. The following exchange between
defendant and his appointed counsel occurred before trial:
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Appointed Counsel: The question was on Friday you informed me that you wish to
represent yourself, correct?
Defendant: Because that -- that was the final day -- see, I had -- I was evaluating
you and since Friday was the final day, I thought since -- if I would have been
satisfied, then I wouldn’t have said it. But I let you know because when the final
day came before this trial was to begin and I wasn’t satisfied with your pursuit of my
-- are you listening to me?
Appointed Counsel:
I’m -- oh, yes, I’m listening.
Defendant:
When I wasn’t satisfied with your pursuit of my interests, I was going to
let you know that since I have a right to represent myself, I’m going to invoke that
right.
During his opening statement, defendant stated:
I’m going to show -- I’m going to show -- see, malice. I’m going to show
fabrication. I’m going to try to prove this. Hopefully, at some point I’m going to get
this thing right. I, you know, I’m just doing this because I was dissatisfied with my
attorney that was assigned to me for various reasons.
***
I have written so many people. I have written the FBI, I’ve written all the
media in this area because I want somebody to watch me to make sure these people
are not doing me wrong. I would love to be defended by somebody, but I can’t put my
-- I couldn’t put my trust in this attorney. She didn’t take the time to come to me, you
know. You’ve got to come to know me so you can defend -- you’re supposed to be
an advocate for me. That means you’re speaking for me because you -- all right.
At several points during the proceedings, defendant indicated that he intended, as part of his trial
strategy, to portray the judicial system as oppressive and unfair. Given that motivation, we conclude
that the trial court did not err when it determined, based on defendant’s several prior unequivocal
statements, that defendant intended to waive his right to counsel and to proceed in propria persona.
To the extent that defendant argues that the trial court erred when it allowed him to proceed in
propria persona even though he was unable to effectively represent himself, defendant’s argument fails.
A defendant who succeeds in asserting his right to self-representation will be held to the same standards
of presentation as a member of the bar, and his errors and omissions cannot be the basis of a successful
appeal on the ground of ineffective assistance of counsel. People v Burden, 141 Mich App 160, 164;
366 NW2d 23 (1985).
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Accordingly, the trial court did not err when it accepted defendant’s waiver of his right to
counsel and allowed him to proceed in propria persona.
Affirmed.
/s/ Henry William Saad
/s/ William B. Murphy
/s/ Peter D. O’Connell
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