PEOPLE OF MI V DEANDRE MAURICE ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 26, 2010
Plaintiff-Appellee,
v
No. 293574
Alpena Circuit Court
LC Nos. 09-002558-FC and
09-002559-FC
DEANDRE MAURICE ANDERSON,
Defendant-Appellant.
Before: MURPHY, C.J., and BECKERING and M.J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of first-degree home invasion,
MCL 750.110a(2), and first-degree criminal sexual conduct (CSC 1), MCL 750.520b(1)(c)
(sexual penetration occurring under circumstances involving another felony), which two crimes
pertained to one female victim, and he appeals his bench trial conviction of third-degree criminal
sexual conduct (CSC 3), MCL 750.520d(1)(b) (force or coercion used to accomplish sexual
penetration),1 which crime pertained to another female victim that was committed a week later.
Initially, the prosecution pursued two separate cases, one for each victim, but the cases were later
consolidated for a single bench trial; defendant waived his right to a jury trial. The victims knew
each other and both had previously been involved in sexual-romantic relationships with
defendant. There was sufficient evidence at trial to support the verdicts; there is no argument to
the contrary. Defendant represented himself in proceedings following the circuit court
arraignment, including the trial, and he did so with the presence of standby counsel. Defendant
was sentenced to 50 months to 20 years’ imprisonment on the home invasion conviction, 85
months to 50 years’ imprisonment on the CSC 1 conviction, and to 50 months to 15 years’
imprisonment on the CSC 3 conviction, all to be served concurrently. We affirm.
1
Defendant had been charged with CSC 1, but the district court found that the evidence only
supported a CSC 3 charge, and defendant was bound over accordingly.
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I. SELF-REPRESENTATION
Defendant first argues that the trial court violated defendant’s right to counsel, where the
court failed to establish that defendant’s waiver of counsel was knowing, voluntary, and
intelligent, failed to warn defendant of the nature of the charges against him and the range of
allowable sentences for each charge as required by MCR 6.005(D), and failed to reconfirm his
waiver of counsel prior to all subsequent proceedings as required by MCR 6.005(E).
A criminal defendant's right to self-representation is guaranteed by the Sixth Amendment
of the United States Constitution, by Article 1, § 13, of the Michigan Constitution, and by MCL
763.1. People v Williams, 470 Mich 634, 641-642; 683 NW2d 597 (2004). Although a
defendant has a right to counsel and a right to self-representation, the defendant does not have a
right to both and, consequently, there is an unavoidable tension between these two rights when
the defendant chooses to proceed pro se. People v Adkins (After Remand), 452 Mich 702, 720;
551 NW2d 108 (1996). The Adkins Court recognized “the potential for savvy defendants to use
these competing rights as a means of securing an appellate parachute.” Id. at 724. The Court
further stated that a trial court should indulge every reasonable presumption against waiver of the
right to counsel. Id. at 721.
In People v Russell, 471 Mich 182, 190; 684 NW2d 745 (2004), our Supreme Court set
forth the applicable criteria to consider, outside of the court rule, when a request for selfrepresentation is made:
Upon a defendant's initial request to proceed pro se, a court must
determine that (1) the defendant's request is unequivocal, (2) the defendant is
asserting his right knowingly, intelligently, and voluntarily through a colloquy
advising the defendant of the dangers and disadvantages of self-representation,
and (3) the defendant's self-representation will not disrupt, unduly inconvenience,
and burden the court and the administration of the court's business. [Citing
People v Anderson, 398 Mich 361; 247 NW2d 857 (1976).]
A trial court must additionally satisfy the requirements of MCR 6.005(D) and (E).2
Russell, 471 Mich at 190-191. Substantial compliance with these requirements is adequate. Id.
at 191. In Russell, id., the Michigan Supreme Court elaborated:
2
MCR 6.005 provides in relevant part:
(D) If the court determines that the defendant is financially unable to
retain a lawyer, it must promptly appoint a lawyer and promptly notify the lawyer
of the appointment. The court may not permit the defendant to make an initial
waiver of the right to be represented by a lawyer without first
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In Adkins, this Court clarified the scope of judicial inquiry required by
Anderson and MCR 6.005(D) when confronted with an initial request for selfrepresentation. Adkins rejected a “litany approach” in favor of a “substantial
compliance” standard:
“We hold, therefore, that trial courts must substantially comply with the
aforementioned substantive requirements set forth in both Anderson [three criteria
cited above] and MCR 6.005(D). Substantial compliance requires that the court
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.
The nonformalistic nature of a substantial compliance rule affords the protection
of a strict compliance rule with far less of the problems associated with requiring
courts to engage in a word-for-word litany approach. Further, we believe this
standard protects the ‘vital constitutional rights involved while avoiding the
unjustified manipulation which can otherwise throw a real but unnecessary burden
on the criminal justice system.’”
The Adkins Court indicated that the “court rule requirements are merely vehicles to
ensure that the defendant knowingly and intelligently waived counsel with eyes open.” Adkins,
(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.
(E) If a defendant has waived the assistance of a lawyer, the record of
each subsequent proceeding (e.g., preliminary examination, arraignment,
proceedings leading to possible revocation of youthful trainee status, hearings,
trial, or sentencing) need show only that the court advised the defendant of the
continuing right to a lawyer's assistance (at public expense if the defendant is
indigent) and that the defendant waived that right. Before the court begins such
proceedings,
(1) the defendant must reaffirm that a lawyer's assistance is not wanted; or
(2) if the defendant requests a lawyer and is financially unable to retain
one, the court must appoint one; or
(3) if the defendant wants to retain a lawyer and has the financial ability to
do so, the court must allow the defendant a reasonable opportunity to retain one.
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452 Mich at 725. Finally, we note that, with respect to factual findings surrounding a
defendant’s waiver of counsel, our review is for clear error. Russell, 471 Mich at 187. To the
extent, however, that a ruling entails interpretation of the law or application of a constitutional
standard to uncontested facts, we review the matter de novo. Id.
As to whether defendant’s request to represent himself here was asserted knowingly,
intelligently, and voluntarily through a colloquy advising defendant of the dangers and
disadvantages of self-representation, the trial court, in numerous proceedings, repeatedly warned
defendant of the dangers and disadvantages of self-representation and strongly and repeatedly
urged defendant to obtain counsel, practically pleading with him to do so. Standby counsel was
ready and prepared to handle the trial and even asked defendant to allow him to take over as
defendant’s attorney. Defendant insisted on representing himself.
“[T]he existence of a knowing and intelligent waiver must depend in each case upon the
particular facts and circumstances surrounding that case, including the background, experience
and conduct of the accused.” Anderson, 398 Mich at 370. We note that defendant does have a
criminal history, so he was familiar with the criminal justice system. The Anderson Court found
that the defendant’s “history of personal involvement with the criminal justice system” provided
partial support for the conclusion that he invoked his right to self-representation knowingly,
intelligently, and voluntarily. Id. at 370-371. Some of the motions and arguments raised by
defendant below reflected knowledge and a grasp of the law.
In specific regard to whether the waiver of counsel was voluntary here, some of
defendant’s remarks at a couple of the earlier hearings are troubling, in that, he stated that he
wanted to proceed pro se because his attorney would not talk to him about the case. However,
thereafter and by the time of trial, defendant was determined to try the case himself, even though
a new standby attorney was in place and there was no claim that this attorney refused to
communicate with defendant. Indeed, during trial, defendant complained to the court about the
standby attorney’s repeated efforts to communicate with defendant, such that the court informed
the attorney not to communicate with defendant unless defendant initiated the discussion. We
find that defendant’s request to represent himself was asserted knowingly, intelligently, and
voluntarily.3
With respect to compliance with MCR 6.005(D) and (E), we acknowledge that the trial
court failed to pay heed to the rule in part, and we implore trial courts across the state to simply
and directly employ the court rule in order to avoid comparable claims of error. We do find that
ultimately there was substantial compliance with the court rule here. We reach this conclusion
taking into consideration information on the charges and possible sentences as could be gathered
from the record (arraignment, rejected plea deal, defendant’s petition for counsel, felony
3
We further find that defendant’s request was unequivocal, despite the accompanying request for
standby counsel, see People v Hicks, 259 Mich App 518, 530; 675 NW2d 599 (2003), and that
defendant’s self-representation did not disrupt, unduly inconvenience, or burden the court and
the administration of the court’s business.
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information), as allowed in Adkins, 452 Mich at 731. In further support of our holding, we rely
on the repeated warnings and advice given to defendant by the trial court in numerous
proceedings, defendant’s continual access to counsel, defendant’s insistence over a considerable
period of time that he represent himself, and defendant’s repeated acknowledgement of his right
to counsel and rejection of that right.
II. SUFFICIENCY OF EVIDENCE AT PRELIMINARY EXAMINATION
Defendant next argues that the district court lacked probable cause to bind him over to
the trial court on the first-degree home invasion charge, where there was no evidence that he
actually made entry into the home and no evidence that he lacked permission to enter the
victim’s home if he indeed entered the home. This argument lacks merit. In People v Waltonen,
272 Mich App 678, 684; 728 NW2d 881 (2006), this Court stated:
The primary function of a preliminary examination is to determine
whether a felony has been committed and, if so, whether there exists probable
cause to believe that the defendant committed the felony. Probable cause requires
evidence sufficient to make a person of ordinary caution and prudence to
conscientiously entertain a reasonable belief of the defendant's guilt. The
magistrate, however, need not be without doubts regarding guilt. Following the
conclusion of the preliminary examination, if it appears to the district court that
there is probable cause to believe that a felony was committed and that the
defendant committed it, the court must bind the defendant over for trial.
[Citations omitted.]
Here, there was testimony by the victim at the preliminary examination that defendant
was told before the rape and home invasion occurred that he was not permitted in the home. And
the victim also testified that defendant came into the home on December 3, 2008, absent
permission, and proceeded to commit the CSC 1. Additionally, there was more than enough
evidence at trial showing that defendant was guilty of first-degree home invasion; therefore, any
error at the preliminary examination was harmless. People v Moorer, 246 Mich App 680, 682;
635 NW2d 47 (2001)(any error in the sufficiency of the proofs at the preliminary examination as
to an element of the crime was harmless where sufficient evidence at trial supported the jury’s
verdict); see also People v Hall, 435 Mich 599, 601-603; 460 NW2d 520 (1990).
III. LEGALITY OF ARREST AND SEARCH AND ADMISSIBILITY OF STATEMENTS
Defendant initially contends that his arrest was unlawful because there was a lack of
probable cause to arrest him and no warrant was issued. Probable cause to arrest exists where
the facts and circumstances within an officer's knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense occurred and that the defendant committed it. People v Champion, 452
Mich 92, 115; 549 NW2d 849 (1996). An arrest warrant is generally not required to accomplish
a felony arrest so long as there is probable cause to believe that a defendant committed a felony.
People v Johnson, 431 Mich 683, 690-691; 431 NW2d 825 (1988). However, absent exigent
circumstances or consent, the Fourth Amendment prohibits the police from entering a person's
home to make a felony arrest without an arrest warrant and reason to believe that he is at home.
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City of Troy v Ohlinger, 438 Mich 477, 484-486; 475 NW2d 54 (1991); People v Oliver, 417
Mich 366, 379; 338 NW2d 167 (1983).
Here, there is a felony arrest warrant for defendant in the record, but there does appear to
be a conflict in the date of the warrant and return and police testimony concerning the date that
defendant was taken into custody. Regardless, the police officer that first made contact with
defendant testified that defendant was found at a friend’s apartment, that the friend greeted the
officer at the door, that the officer asked for defendant, that the friend then went back into the
apartment to get defendant, that defendant came to the door, and that defendant agreed to
accompany the officer back to the police station. It was not defendant’s home, the police officer
apparently did not enter the apartment, regardless, defendant’s friend consented to the officer’s
actions, and defendant agreed to go with the officer. Accordingly, a warrant was not required.
Moreover, police had information provided by the victim herself that defendant forcibly engaged
in sexual intercourse with her absent her consent, a felony, whether CSC 1 or CSC 3. See MCL
750.520b(2) and 750.520d(2). Hence, there was probable cause to arrest defendant. Defendant’s
argument that the police should have waited to arrest him until the victim’s medical examination
was completed does not have any basis in law and lacks merit. The fact that the rape
examination later revealed no trauma to the genital area did not negate the existence of probable
cause to arrest defendant on the basis of the victim’s complaint. We would also note that the
examination did reveal that the victim was bitten on the arm, which is consistent with her
description of the rape.
Defendant also makes reference to an illegal search and the need to suppress evidence
discovered through the search; however, the record does not show that any search was
conducted, nor does it show that evidence was collected as a result of a search; there was no such
evidence presented at trial.
Defendant next argues that statements he made to the police should have been suppressed
because they were made when he was intoxicated and sleep deprived. After a Walker4 hearing,
the trial court issued a written opinion in which the court found that defendant’s statements to
police were voluntary and not the result of coercion. A trial court’s factual findings at a
suppression hearing are reviewed for clear error, but its ultimate ruling, a constitutional issue, is
reviewed de novo. People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). The test for
voluntariness of a confession or statement made to the police is whether, considering the totality
of the circumstances, the confession or statement was the product of an essentially free and
unconstrained choice by the defendant, or whether the defendant’s will had been overborne and
his capacity for self-determination critically impaired. People v Cipriano, 431 Mich 315, 333334; 429 NW2d 781 (1988). Among the many factors that a court can consider in determining
whether a statement was made voluntarily are whether the defendant was intoxicated and
whether the defendant was deprived of sleep. Id. at 334.
4
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
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Here, an interviewing officer testified at the Walker hearing that defendant appeared
tired, resting his head on a table, and that a faint odor of alcohol on defendant’s breath was
noticeable. However, the officer also testified that defendant was coherent, that he understood
the questions posed to him, that defendant was alert to everything the officer stated, that
defendant responded to questions accordingly, that defendant understood his Miranda5 rights,
and that defendant voluntarily waived those rights. Defendant testified at the hearing that he was
tired when he was interviewed and that he felt intoxicated. He also stated, “I probably was
hearing him, I probably just wasn’t comprehending it to the best of my ability because I was tired
and I had been drinking that night before . . . and that morning.” (Emphasis added.) That he
“probably” did not comprehend “to the best” of his ability falls woefully short of making his
statements involuntary. Given the officer’s testimony and defendant’s questionable testimony,
we cannot conclude that defendant’s statements to police were involuntary. Furthermore,
assuming error, it was harmless. MCL 769.26; People v Lukity, 460 Mich 484, 495; 596 NW2d
607 (1999). Defendant never admitted to having raped the victim, who was the subject of this
particular police interview; rather, he claimed that he engaged in consensual sex with her and
stopped when she indicated that she no longer wanted to continue the act. This is consistent with
defendant’s position at trial. Reversal is unwarranted.
IV. RAPE SHIELD LAW
Defendant next argues that the trial court improperly applied the rape shield law, MCL
750.520j, effectively denying defendant his Sixth Amendment right to confrontation. Defendant
claims that he “should have been allowed to present evidence of the complainant’s sexual
conduct that may be probative of ulterior motive for making a false charge and/or any false
accusations of rape in the past.” This argument pertained to only one of the victims.
Generally, a court’s ruling to admit or exclude evidence is reviewed for an abuse of
discretion, but underlying questions of law, such as the applicability of a statute that impacts the
evidentiary ruling, are reviewed de novo. People v Katt, 468 Mich 272, 278; 662 NW2d 12
(2003). MCL 750.520j, commonly referred to as the rape shield law in Michigan, see People v
Hackett, 421 Mich 338, 344; 365 NW2d 120 (1984), provides as follows:
(1) Evidence of specific instances of the victim's sexual conduct, opinion
evidence of the victim's sexual conduct, and reputation evidence of the victim's
sexual conduct shall not be admitted under sections 520b to 520g unless and only
to the extent that the judge finds that the following proposed evidence is material
to a fact at issue in the case and that its inflammatory or prejudicial nature does
not outweigh its probative value:
(a) Evidence of the victim's past sexual conduct with the actor.
5
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
(2) If the defendant proposes to offer evidence described in subsection
(1)(a) or (b), the defendant within 10 days after the arraignment on the
information shall file a written motion and offer of proof. The court may order an
in camera hearing to determine whether the proposed evidence is admissible
under subsection (1). If new information is discovered during the course of the
trial that may make the evidence described in subsection (1)(a) or (b) admissible,
the judge may order an in camera hearing to determine whether the proposed
evidence is admissible under subsection (1).
To protect a defendant’s confrontation rights, the rape shield law must on occasion yield
to those rights, such as where a complainant’s prior sexual conduct is used for the purpose of
showing bias, testing the truth of a witness, showing the complainant’s motive for making a false
charge, or where a complainant made prior false allegations of rape. Hackett, 421 Mich at 348349. “The defendant is obligated initially to make an offer of proof as to the proposed evidence
and to demonstrate its relevance to the purpose for which it is sought to be admitted.” Id. at 350.
Defendant asked the victim at issue whether she had ever been raped in the past, but the
trial court prevented the victim from answering, finding that the question violated the rape shield
law. We find that defendant never made the requisite offer of proof to demonstrate the relevancy
of the proposed evidence. MCL 750.520j(2); Hackett, 421 Mich at 350. We cannot discern from
the record whether the victim had previously been raped, nor do we know the relevancy of the
evidence if she had indeed been raped in the past; there is nothing in the record or in defendant’s
appellate brief giving answers to these questions. There is also nothing in the record suggesting
that the victim had previously made a false accusation of rape and, anyway, that is not how
defendant framed the question to her. Defendant is engaging in pure speculation. There was no
error in the court’s ruling on this particular claim.
With respect to questions addressing sexual activity between the victim and one of the
witnesses who testified against defendant, we find it unnecessary to determine whether the court
erred in excluding the evidence. Assuming error in the court’s ruling, it clearly would not have
had any effect on the court’s verdict had the court considered the evidence admissible. In the
court’s fairly extensive written opinion, it placed no reliance whatsoever on the testimony of the
witness, who allegedly had sex with the victim, in finding defendant guilty of CSC 3. Thus, the
error was harmless. MCL 769.26; Lukity, 460 Mich at 495. In sum, reversal is unwarranted on
defendant’s rape shield law arguments.
V. PROSECUTORIAL MISCONDUCT
Defendant finally argues that the prosecutor committed misconduct by referencing the
term “rape” when framing many of his questions posed to the witnesses. Defendant argues that
use of the term “rape” gave the appearance that defendant had already been found guilty of the
charges.
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We first note that defendant objected below on the ground now being raised on appeal,
and the trial court sustained the objection, agreeing with defendant that the prosecutor should not
use the term “rape” when framing his questions. Assuming misconduct, it certainly was
harmless, MCL 769.26; Lukity, 460 Mich at 495, and defendant was not denied a fair and
impartial trial, People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007), especially
given that this was a bench trial and the court itself recognized an impropriety. “‘A judge, unlike
a juror, possesses an understanding of the law which allows him to ignore . . . errors and to
decide a case based solely on the evidence properly admitted at trial.’” People v Taylor, 245
Mich App 293, 305; 628 NW2d 55 (2001) (citation omitted). The prosecutor’s use of the term
“rape” did not sway the trial court to render a verdict against defendant; rather, the court’s
verdict was based on the evidence, as reflected in the court’s written opinion.
Affirmed.
/s/ William B. Murphy
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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