PEOPLE OF MI V LORD SHAWN RUSSELL
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 27, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 122998
LORD SHAWN RUSSELL,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
In this case, we granted leave to appeal to consider
whether a defendant may, by conduct alone, “unequivocally”
waive his Sixth Amendment Right to counsel and elect to
proceed pro se.
We need not reach that question in this
case because a review of the record reveals that defendant
clearly and unequivocally declined self-representation.
We
reverse the decision of the Court of Appeals and remand for
a new trial.
I. FACTS
AND
PROCEDURAL HISTORY
Defendant was charged with possession with intent to
deliver less than fifty grams of both cocaine and heroin.1
At the beginning of trial, defendant informed the trial
court
that
he
wanted
his
trial
counsel,
Damian
Nunzio,
removed and new trial counsel appointed.2
The trial court did not grant defendant’s request, but
noted that he “would entertain” the request if defendant
presented “some valid reason” to appoint substitute counsel
other than “personality difficulties.”
Defendant offered
no such explanation. After refusing to grant defendant’s
request, the trial court offered defendant the following
four options:
[O]ur alternatives here are basically these.
You may, if you have made arrangements on your
own, bring in your own lawyer at your own expense
and hire anybody you want, and I will allow that
lawyer to substitute right now and we’ll go from
here.
Option number two, we can go forward with
Mr. Nunzio, the second lawyer that’s been
provided for you at government expense, and try
this case on the merits.
I would strongly
suggest that, if Mr. Nunzio thinks you have a
valid defense, that you consult with him and work
1
MCL 333.7401(2)(a)(iv).
2
Mr. Nunzio was defendant’s second appointed attorney.
Defendant’s
first
appointed
attorney
withdrew
after
defendant complained about counsel’s representation.
2
with him on it because he’s a man that knows how
to present such a defense.
Or number three, you may decide to serve as
your own counsel and represent yourself.
I
caution you strongly against the third course
because obviously a trial involves issues of
complicated legal procedure and, unless you are
legally trained, and I don’t know whether you are
or not but I suspect you are not, there are many
pitfalls there for the unwary.
And that leads us, I suppose, to option
four, which is sort of a variation on option
number three, in which you provide your own
defense but Mr. Nunzio would be available to
consult with you and provide you assistance as to
technical legal points when you need counsel.[3]
After defendant continued to indicate that he did not
“feel
comfortable”
with
his
appointed
attorney’s
representation, the trial court reminded defendant of his
other available options—defendant could retain counsel or
he could represent himself:
The Court:
And, while I would not advise
it, I will certainly guard your rights and see to
it that you have the opportunity to present your
own defense, if that’s your wish.
Defendant:
mouth. I—
Well, that’s putting words in my
The Court: Well, then maybe you should put
words in your mouth and tell me what you want.
3
Thus, two of the four options presented to defendant
involved forms of self-representation.
3
Defendant:
I told you. I don’t want Mr.
Nunzio as my attorney.
The Court:
. .
really kind of limited.
.
So,
your
options
are
Defendant:
The State has the obligation to
give me representation.
At a later point in the proceedings, the following exchange
occurred:
The Court: . . . And if you can’t cooperate
with the man, then you can try the case yourself,
and that’s fine. You have a constitutional right
to do it. I don’t think it’s a good idea, but I’m
here to guarantee your constitutional rights. And
if you want to try your case yourself, by
goodness, that’s what we’re going to do.
Defendant:
Well, that’s what you keep
insisting that I do, and I’m telling you that I
need competent counsel . . . . [Emphasis added.]
Although the trial court then gave defendant several
more
opportunities
to
select
among
the
four
proffered
options, defendant continued to reject all of them.
The
trial court then empanelled the jury and asked defendant if
he had any questions for the panel.
Defendant stated:
Yes.
Ladies
and
gentlemen,
this
is
something totally new for me.
I’m being forced
into this situation . . . .
I requested the Court appoint new counsel
for me, and they said, for some reason being that
we’re here and they don’t see the difference—any
differences between me and Mr. Nunzio.
So they
4
forced me
myself.
After
a
to
go
on
four-day
with
trial,
this
trial
defendant
alone
was
by
convicted
of
both charges and sentenced to consecutive prison terms of
2½ to 40 years for each conviction.
The Court of Appeals affirmed defendant’s convictions
in a published opinion.
implicitly
“made
his
The panel concluded that defendant
unequivocal
choice”
to
proceed
in
propria persona “by his own conduct” when he continued to
reject appointed counsel’s representation.4
II. STANDARD
OF
REVIEW
We review for clear error the trial court’s factual
findings surrounding a defendant’s waiver.
However, to the
extent that a ruling involves an interpretation of the law
or
the
application
of
a
constitutional
standard
to
uncontested facts, our review is de novo.5
III. ANALYSIS
A. THE FEDERAL REQUIREMENTS
FOR
SELF-REPRESENTATION
The Sixth Amendment provides that the accused in a
criminal prosecution "shall enjoy the right . . . to have
4
254 Mich App 11, 17; 656 NW2d 817 (2002).
5
See People v Attebury, 463 Mich 662, 668; 624 NW2d 912
(2001); People v Daoud, 462 Mich 621, 629-630; 614 NW2d 152
(2000).
5
the Assistance of counsel for his defence."
VI.6
US Const, Am
This requirement was made applicable to the states
through the Due Process Clause of the Fourteenth Amendment.7
The right to counsel is considered fundamental because it
is essential to a fair trial and attaches at the trial
stage,
which
proceedings.8
is
clearly
a
critical
stage
of
the
While a defendant may choose to forgo the
assistance of counsel at trial, any waiver of the right to
counsel must be knowing, voluntary, and intelligent.9
In
addition, it is a long-held principle that courts are to
make every reasonable presumption against the waiver of a
6
Likewise, Const 1963, art 1, § 20 provides that the
accused in a criminal prosecution "shall have the right
. . . to have the assistance of counsel for his . . .
defense."
Our Michigan Constitution is not at issue here
because the federal Supremacy Clause, US Const, art VI, cl
2, requires that we apply the federal constitutional
analogue to the degree that our Constitution provides less
protection to a criminal defendant.
California v Ramos,
463 US 992; 103 S Ct 3446; 77 L Ed 2d 1171 (1983).
This
case does not present an opportunity to discern whether our
Constitution provides a right of self-representation that
is greater than its federal counterpart.
7
Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed
2d 799 (1963).
8
9
Id.
Iowa v
209 (2004);
L Ed 2d 321
4; 108 S Ct
Tovar, 541 US ___; 124 S Ct 1379; 158 L Ed 2d
Godinez v Moran, 509 US 389; 113 S Ct 2680; 125
(1993); Patterson v Illinois, 487 US 285, 292 n
2389; 101 L Ed 2d 261 (1988).
6
fundamental constitutional right,10 including the waiver of
the right to the assistance of counsel.11
In Faretta v California,12 the United States Supreme
Court held that a defendant "has a constitutional right to
proceed
without
intelligently
counsel
elects
to
when
so."13
do
he
voluntarily
While
the
and
Faretta
10
The principle that every reasonable presumption should
be
indulged
against
the
waiver
of
a
fundamental
constitutional right has a long-standing pedigree in
federal constitutional law.
See Hodges v Easton, 106 US
(16 Otto) 408, 413; 1 S Ct 307; 27 L Ed 169 (1882) (“It has
been often said by this court that the trial by jury is a
fundamental guaranty of the rights and liberties of the
people. Consequently, every reasonable presumption should
be indulged against its waiver.”).
11
Johnson v Zerbst, 304 US 458; 58 S Ct 1019; 82 L Ed
1461 (1938) (every reasonable presumption should be
indulged against the waiver of counsel); Michigan v
Jackson, 475 US 625, 633; 106 S Ct 1404; 89 L Ed 2d 631
(1986); Martinez v Court of Appeal of California, 528 US
152, 161; 120 S Ct 684; 145 L Ed 2d 597 (2000)(noting that
there is a “‘strong presumption against’” waiver of
counsel)(citation omitted); People v Adkins (After Remand),
452 Mich 702; 551 NW2d 108 (1996).
12
422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975). In
Faretta, the majority identified a “nearly universal
conviction”
that
forcing
representation
on
unwilling
defendant “is contrary to his basic right to defend himself
if he truly wants to do so.” Id. at 817 (emphasis added).
13
Id. at 807 (emphasis added). See also Martinez, supra
at 154. In Michigan, the right of self-representation is a
right explicitly conferred in our Constitution. See Const
1963, art 1, § 13. This right has been afforded to the
citizens of Michigan since 1850. See Const 1850, art 6, §
24.
7
majority noted that the framers of the Constitution never
imagined that the right of self-representation “might be
considered
inferior
to
the
right
of
assistance
of
counsel,”14 the United States Supreme Court has also noted
that the “right to self-representation is not absolute.”15
Indeed, because a defendant automatically enjoys the right
to
the
assistance
representation
exclusive,
defense
made
a
and
of
the
defendant
“‘voluntarily
aware
counsel,16
of
the
right
must
and
and
to
the
right
counsel
elect
to
are
and
representation “in order to”18 proceed pro se.19
14
must
of
own
be
self
Therefore,
Faretta, supra 832.
15
his
and
disadvantages
self
mutually
conduct
intelligently,’”17
dangers
of
Martinez, supra at 161 (emphasis added).
16
The right to the assistance of counsel is automatic;
assuming the right is not waived, assistance must be made
available at critical stages of a criminal prosecution,
regardless whether the defendant has requested it.
United
States v Wade, 388 US 218, 223-227; 87 S Ct 1926; 18 L Ed
2d 1149 (1967); Carnley v Cochran, 369 US 506, 513; 82 S Ct
884; 8 L Ed 2d 70 (1962).
17
Martinez, supra at 161 (citation omitted).
18
Faretta, supra at 835 (emphasis added).
19
Moreover,
even
once
properly
elected,
self
representation
may be terminated or standby
counsel
appointed, over a defendant's objection. Faretta, supra at
834 n 46.
Standby counsel may participate in the trial
proceedings, without the express consent of the defendant,
(continued…)
8
while
the
right
of
self-representation
is
a
fundamental
constitutional right, other interests, such as the failure
to effectively waive the right to counsel or a governmental
interest in “ensuring the integrity and efficiency of the
trial”
may
in
some
instances
outweigh
the
defendant’s
constitutional right to act as his own counsel.20
although
the
right
to
counsel
and
the
right
In sum,
of
self
representation are both fundamental constitutional rights,
representation by counsel, as guarantor of a fair trial,
“is the standard, not the exception,”21 in the absence of a
proper waiver.
B. MICHIGAN’S APPLICATION
OF THE
FEDERAL STANDARD
In People v Anderson,22 this Court applied the Faretta
standard
for
self-representation
and
established
(…continued)
as
long
as
that
participation
does
not
"seriously
undermin[e]" the "appearance before the jury" that the
defendant is representing himself. McKaskle v Wiggins, 465
US 168, 187; 104 S Ct 944; 79 L Ed 2d 122 (1984).
20
Martinez, supra at 162.
21
Id. at 161.
See also United States v Martin, 25 F3d
293, 295 (CA 6, 1994) (“While the right to self
representation is related to the right to counsel, the
right
to
self-representation
is
grounded
more
in
considerations
of
free
choice
than
in
fair
trial
concerns.”).
22
398 Mich 361; 247 NW2d 857 (1976).
See also People v
Dennany, 445 Mich 412; 519 NW2d 128 (1994).
9
requirements regarding the judicial inquest necessary to
effectuate
a
valid
represent himself.
proceed
pro
waiver
and
permit
a
defendant
to
Upon a defendant's initial request to
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
satisfy
the
administration of the court's business.
In
addition,
a
trial
court
must
requirements of MCR 6.005(D), which provides in pertinent
part as follows:
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 Adkins, this Court clarified the scope of judicial
inquiry
required
by
Anderson
10
and
MCR
6.005(D)
when
confronted with an initial request for self-representation.
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 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.”
Completion of these judicial procedures
allows the court to consider a request to proceed
in propria persona. If a judge is uncertain
regarding whether any of the waiver procedures
are met, he should deny the defendant's request
to proceed in propria persona, noting the reasons
for the denial on the record. The defendant
should then continue to be represented by
retained or appointed counsel, unless the judge
determines substitute counsel is appropriate.[23]
Under
Adkins,
if
the
trial
court
fails
to
substantially comply with the requirements in Anderson and
23
Adkins, supra
citation omitted).
at
726-727
11
(emphasis
added;
internal
the
court
waived
rule,
his
counsel.
then
Sixth
In
the
defendant
Amendment
addition,
right
the
rule
has
to
not
effectively
the
assistance
articulated
in
of
Adkins
provides a practical, salutary tool to be used to avoid
rewarding gamesmanship as well as to avoid the creation of
appellate parachutes: if any irregularities exist in the
waiver
proceeding,
the
defendant
should
continue
to
be
represented by counsel.
C. RESOLUTION
In this case, a review of the record indicates two key
facts:
first,
representation
voluntarily
that
defendant
and,
waived
expressly
second,
his
that
Sixth
rejected
defendant
Amendment
assistance of counsel at trial.24
right
self
never
to
the
Indeed, defendant clearly
sought appointment of another trial counsel, and defendant
and the trial court engaged in a lengthy dialogue over
defendant’s desire to have substitute counsel appointed.
While
defendant
consistently
representation.
denied
was
given
that
Throughout
clear
his
his
24
choices,
choice
colloquy
defendant
was
with
the
self
trial
Because defendant clearly and unambiguously rejected
self-representation,
we
need
not
address
whether
a
defendant’s desire to proceed pro se may ever be inferred
by conduct.
12
court,
defendant
steadfastly
rejected
the
option
of
proceeding to trial without the assistance of counsel.25
Therefore, it cannot be said, as the Court of Appeals and
dissenting opinions maintain, that defendant unequivocally
chose self-representation and voluntarily waived his Sixth
Amendment right to counsel.26
25
Defendant did not have the right to a third appointed
counselor, because no defendant is entitled to the
appointed counselor of his choice.
See Wheat v United
States, 486 US 153; 108 S Ct 1692; 100 L Ed 2d 140 (1988);
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973); People
v Portillo, 241 Mich App 540; 616 NW2d 707 (2000). Rather,
the decision to permit substitution of appointed counsel is
within the discretion of the trial court. People v Hooper,
406 Mich 978; 280 NW2d 444 (1979). In this case, defendant
does not argue that the trial court abused its discretion
in failing to appoint substitute counsel; rather, defendant
argues before this Court that the trial court reversibly
erred because defendant did not unequivocally waive his
right to counsel and did not elect to represent himself.
26
As the dissent notes, there are some federal circuit
court cases holding that an unreasonable insistence on the
appointment of a new attorney operates as a waiver of the
right to counsel. This view is in contravention of the
principle articulated in Johnson. Until the United States
Supreme Court sees fit to distinguish or overrule Johnson,
this Court is required to follow it. Moreover, it does not
logically follow that a defendant affirmatively waives a
fundamental constitutional right simply because he insists
on a favorable ruling on something to which he is not
entitled. Under the theory advocated by the dissent, if a
defendant were to insist on empanelling only left-handed
jurors, his insistence would constitute an affirmative
waiver of his right to a jury trial even if he explicitly
indicates that he desires a jury trial.
13
We
believe
that
defendant’s
repudiation
representation was unmistakable in this case.
of
self
However, to
the degree that defendant’s refusal to explicitly choose
between continued representation by appointed counsel and
self-representation
plaintiff’s
desire
created
to
any
ambiguity
unequivocally
waive
regarding
his
right
to
trial counsel, any ambiguity should have been resolved in
favor of representation because, consistently with Adkins
and
United
States
Supreme
Court
precedent,
courts
must
indulge every reasonable presumption against the waiver of
the right to counsel.27
IV. Conclusion
Because
defendant
unequivocally
rejected
self
representation and did not voluntarily waive his right to
the assistance of counsel at trial, the trial court erred
in requiring defendant to proceed in propria persona.
27
The
Because defendant’s waiver of his right to the
assistance of counsel at trial was not voluntary, we need
not address whether defendant’s waiver was knowing and
intelligent.
It is worth noting, however, that an
effective waiver of trial counsel requires a more exacting
waiver than that required to waive counsel at pretrial
stages of the proceedings. See Iowa v Tovar, supra, 124 S
Ct 1387-1388; 158 L Ed 2d 220-221 (requiring that a
defendant “must be warned specifically of the hazards
ahead” and that those warnings surrounding waiver of
counsel at trial be “‘rigorous[ly] conveyed”)(emphasis
added; citation omitted).
14
clear cut rule articulated by this Court in Adkins requires
that
counsel
should
have
been
retained
explicitly rejected self-representation.28
where
defendant
Accordingly, the
decision of the Court of Appeals is reversed and the case
is remanded to the trial court for a new trial.29
Robert P. Young, Jr.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
28
In this instance, the trial court should have simply
denied defendant’s request to appoint another counsel and
continued with the proceedings.
Defendant’s acceptance of
the trial court’s discretionary ruling was not required.
29
The complete denial of counsel at a critical stage of
a criminal proceeding is a structural error that renders
the result unreliable, thus requiring automatic reversal.
Gideon v Wainwright, supra; People v Duncan, 462 Mich 47,
51-52; 610 NW2d 551 (2000).
15
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 122998
LORD SHAWN RUSSELL,
Defendant-Appellant.
_______________________________
MARKMAN, J. (dissenting).
I
respectfully
because
I
agree
dissent
with
the
from
trial
the
court
majority
and
the
opinion
Court
of
Appeals and believe that defendant, by his conduct alone,
“unequivocally”
waived
right to trial counsel.
1, § 13; MCL 763.1.
his
constitutional
and
statutory
US Const, Am VI; Const 1963, art
Because I believe that defendant’s
waiver also satisfied the requirements set forth by this
Court in People v Anderson, 398 Mich 361, 367-368; 247 NW2d
857 (1976), and MCR 6.005(D), I would affirm defendant’s
conviction.
Further, I respectfully urge the United States Supreme
Court
to
consider
granting
certiorari
in
this
case
to
clarify the operation of the presumption against the waiver
of trial counsel in Johnson v Zerbst, 304 US 458; 58 S Ct
1019;
82
L
Ed
1461
(1938).
In
this
case,
defendant
unreasonably refused to cooperate with his second court
appointed
wished
counsel,
but
also
declined
proceed
pro
se.
Some
such
conduct
to
interpreted
waiver
clarity
of
the
right
regarding
to
the
as
assert
federal
constituting
trial
scope
to
counsel,
of
the
that
courts
an
but
lack
services,
inviolate.
unreasonably
the
Johnson
of
presumption
continues to create constitutional uncertainty.
defendant
have
effective
the
Johnson
he
declines
appointed
presumption
should
Where a
counsel’s
not
remain
The right to trial counsel, the right to self
representation, and the prohibition against forcing trial
counsel on an unwilling defendant intersect.
Thus, courts
must protect a defendant’s rights while also safeguarding
the integrity of the judicial process from delay tactics
and gamesmanship, both of which are on display in this
case.
If defendant here had been required to retain his
counsel, as the majority would require, he would now almost
certainly be arguing that his right to trial counsel had
been violated and that such counsel had been forced upon
him against his will.
2
I. BACKGROUND
Defendant was charged with possession of cocaine and
heroin.
trial
At the beginning of trial, defendant informed the
court
that
he
wanted
his
trial
counsel,
Damian
Nunzio, removed and new trial counsel appointed.1
Among
other allegations, defendant claimed that there had been
miscommunications between him and Nunzio, that Nunzio had
been convinced of defendant’s guilt, that Nunzio had failed
to
give
defendant
certain
helpful
documents,
and
that
Nunzio had failed to call certain witnesses.
The court found that defendant had failed to present
“some
valid
reason
why
a
different
lawyer
should
be
appointed, other than the fact that [defendant was] seeming
to have personal difficulties with the leading members of
the
bar.”
appoint
The
new
trial
court
counsel,
and
denied
defendant’s
informed
defendant
motion
to
that
his
options were as follows:
You may, if you have made arrangements on
your own, bring in your own lawyer at your own
expense and hire anybody you want, and I will
allow that lawyer to substitute right now and
we’ll go from here.
1
The trial court permitted defendant’s first appointed
trial counsel, Paul Mitchell, to withdraw after defendant
complained about the manner in which he represented
defendant.
3
Option number two, we can go forward with
Mr. Nunzio, the second lawyer that’s been
provided for you at government expense, and try
this case on the merits.
I would strongly
suggest that, if Mr. Nunzio thinks you have a
valid defense, that you consult with him and work
with him on it because he’s a man that knows how
to present such a defense.
Or number three, you may decide to serve as
your own counsel and represent yourself.
I
caution you strongly against the third course
because obviously a trial involves issues of
complicated legal procedure and, unless you are
legally trained, and I don’t know whether you are
or not but I suspect you are not, there are many
pitfalls there for the unwary.
And that leads us, I suppose, to option
four, which is sort of a variation on option
number three, in which you provide your own
defense but Mr. Nunzio would be available to
consult with you and provide you assistance as to
technical legal points when you need counsel.
That pretty much exhausts the field, as far as I
can determine at this moment, for what we might
do about proceeding here today.
Defendant
represent
him
insisted
that
he
did
not
want
because,
“Mr.
Nunzio
has
stated
doesn’t believe that I’m innocent.”
Nunzio
to
that
he
Nunzio denied this
allegation.
The trial court explained to defendant that:
[E]ven if we were to assume arguendo that
[Nunzio] did say that, and I don’t believe it for
a minute, it would not be germane.
A lawyer
represents a client by presenting his defense
under the law.
* * *
4
It is not necessary that Mr. Nunzio believe
you are innocent in order to represent you and
present the very best defense available to you
under the law. So, essentially we’re sparring at
shadows here, and this discussion is not getting
us anywhere.
Defendant continued to insist that he did not want
Nunzio to represent him.
The trial court responded:
I think I’ve given you the options as I
understand them, and I’m prepared to go with
whichever one you feel is the appropriate one to
follow at this particular time.
Defendant
replied,
“Well,
I’ve
expressed
mine.
“I
don’t
want Mr. Nunzio to represent me.” (Emphasis added.)
The
court
then
explained
that
only
three
options
remained for defendant:
Your options are that you may bring in
counsel of your own choosing, which you’ve had
many months to do and I don’t see anybody sitting
here, so I don’t assume that [is] going to
happen; or you may represent yourself in which
case I will allow Mr. Nunzio to be available to
provide you with legal counsel on technical and
procedural points when you wish to consult with
him.
The trial court then warned defendant about the dangers of
self-representation, stating:
If you wish to do that, I will certainly
proceed in that fashion. I would not personally
advise that you do that, but that’s your right.
* * *
I should advise you that there is an ancient
adage in the law, for good reason, that a man who
acts as his own counsel has a fool for a client.
5
The corollary to the rule is that he also has a
fool for a lawyer, but, as a practical matter, it
all winds up in the same place.
My guess is that you will not fare well in
that approach, but you have the right to take
that approach if you wish to do it.
Defendant replied, “Well, that’s putting words in my
mouth.”
The trial court responded, “Well then maybe you
should put words in your mouth and tell me what you want.”
Defendant responded, “Well, I told you.
I don’t want Mr.
Nunzio as my attorney.”
The
trial
transcript
contains
four
more
pages
of
dialogue between defendant and the trial court in which,
although defendant continues to request that a new attorney
be appointed for him, the trial court continued to deny
such request.
The court eventually states:
What I really want to know is how you want
to proceed so we can get started here.
And I’m
willing to take a recess and let you speak to Mr.
Nunzio, or if you want don’t want to speak to Mr.
Nunzio, I’m willing to take a recess and let you
contemplate the matter. But the fact is that we
need to know what it is that you wish to do and
within the range of the options, which I think
I’ve pretty clearly delineated for you.
I’m
prepared to accommodate you.
Now, do you wish to consult with Mr. Nunzio
or mull this over for a few minutes, or are you
ready to make an alternative choice at this time?
Defendant
myself
clear
answered,
here.”
“Your
The
Honor,
trial
6
I
court
thought
replied,
I
made
“Well
apparently not because I haven’t heard you make any choice
. . . I just need to know which of those you wish to do.”
The transcript contains another six pages of dialogue
between the trial court and defendant in which defendant
complained
about
Nunzio’s
performance.
After
the
trial
court found all of defendant’s allegations to be completely
unfounded, the following exchange between the trial court
and defendant occurred:
Defendant: I don’t—I don’t want any contact
with Mr. Nunzio, and I expressed that to you. I
don’t want Mr. Nunzio to have anything to do with
anything in my case. . . . There’s no way that I
will let him try to defend me.
* * *
All right. Well, I just want it noted that
I have stated the conflict between me and
attorney Nunzio, and the statements that Mr.
Nunzio has made in regards to me and my case, and
there’s no way that I would feel comfortable with
him having anything to do with the defense on my
behalf. And I’m requesting that you remove him
from my case.
Court:
All right.
Well, then, I will
inform the jury that you have chosen to represent
yourself and that Mr. Nunzio is available as your
legal advisor. Now, are you ready to proceed or
do you wish to take a few moments to get yourself
organized.
Defendant: (No verbal response)
Court: Mr. Russell that’s a question to you.
Defendant:
Honor, I said
I’ve requested to you, Your
that I don’t want Mr. Nunzio
7
involved in nothing of my defense, and I
requesting of this court to appoint counsel.
am
Court: Well, we have appointed counsel, Mr.
Russell, and he sits next to you at this
particular moment. Now, you can either work with
Mr. Nunzio or demonstrate some reasonable basis
why he should be removed, which you have not
done, or else we’re going to start this case and
you can represent yourself.
* * *
Inasmuch as you apparently have not made
arrangements for alternate counsel, I suggest
that you strongly consider going forward with the
very capable lawyer that you have been provided.
Failing that, I will protect your right to
represent yourself. But this is the day and time
of proceeding and we’ve run out of time.
We’ve
run out of options.
So I suggest that you
confine
yourself
to
what
we’ve
discussed.
[Emphasis added.]
Although
additional
the
trial
court
opportunities
to
then
gave
select
an
defendant
option,2
several
defendant
continued to refuse to do so, at which time the trial court
empanelled
the
jury
and
questions for the panel.
asked
defendant
if
he
had
any
Defendant stated:
Yes.
Ladies
and
gentlemen,
this
is
something totally new for me.
I’m being forced
into this situation . . . .
I requested the Court appoint new counsel
for me, and they said, for some reason being that
we’re here and they don’t see the difference—any
2
In order to accord defendant adequate opportunity to
consult with Nunzio regarding the four options, the trial
court took two recesses, the first for twenty minutes and
the second for one-and-a-half hours.
8
differences between me and Mr. Nunizo.
So they
forced me to go on with this trial alone by
myself.
After a four-day trial, defendant was convicted on both
charges and sentenced to consecutive prison terms of two
and-a-half to forty years on each count.
Although the
Court of Appeals remanded this case for correction of the
presentence
investigation
affirmed
defendant’s
defendant,
by
his
report
and
resentencing,
convictions,
conduct
alone,
concluding
had
it
that
demonstrated
his
choice to represent himself at trial.3
II. Analysis
The
right
to
Amendment
United
States
Supreme
self-representation
of
the
United
is
States
Court
has
held
guaranteed
by
that
the
Constitution,
the
Sixth
Faretta
v
California, 422 US 806, 819-820; 95 S Ct 2525; 45 L Ed 2d
562 (1975), and that a defendant may waive his right to
counsel, provided he do so “competently and intelligently.”
Johnson,
supra
at
468.
[W]hether
there
has
been
an
intelligent waiver of the right to counsel must depend, in
each
case,
surrounding
3
upon
that
the
particular
case,
facts
including
and
circumstances
the
background,
254 Mich App 11, 22; 656 NW2d 817 (2002).
9
experience, and conduct of the accused.”
Id. (emphasis
added).
In
Michigan,
secured
by
both
the
the
right
state
to
self-representation
constitution
and
is
statute.4
However, this Court has stated that a trial court may only
permit a defendant to represent himself if the following
requirements
have
been
satisfied:
(1)
the
defendant’s
request to represent himself has been unequivocal; (2) the
defendant
has
asserted
his
right
of
self-representation
“knowingly, intelligently, and voluntarily”; (3) the trial
court
has
representing
been
satisfied
himself,
“will
that
the
not
defendant,
disrupt,
in
unduly
inconvenience and burden the court and the administration
of the court’s business.”
People v Anderson, 398 Mich 361,
367-368; 247 NW2d 857 (1976).
Moreover, the trial court
4 Const 1963, art 1, § 13 provides:
A suitor in any court of this state has the
right to prosecute or defend his suit, either in
his own proper person or by an attorney.
MCL 763.1 provides:
On the trial of every indictment or other
criminal accusation, the party accused shall be
allowed to be heard by counsel and may defend
himself, and he shall have a right to produce
witnesses and proofs in his favor, and meet the
witnesses who are produced against him face to
face.
10
must also satisfy MCR 6.005(D).5
People v Adkins (After
Remand), 452 Mich 702, 722; 551 NW2d 108 (1996).
Taken
together, the requirements of Michigan law are in accord
with the waiver requirements of the federal constitution.
See Iowa v Tovar, 541 US ___, 124 S Ct 1379, 158 L Ed 2d
209
(2004)(“the
[federal]
constitutional
requirement
is
satisfied when the trial court informs the accused of the
nature
of
the
charges
against
him,
of
his
right
to
be
counseled regarding his plea, and of the range of allowable
punishments attendant upon the entry of the guilty plea”);
Faretta, supra at 835 (holding that, before a defendant may
waive his Sixth Amendment right to counsel, a defendant
“should be made aware of the dangers and disadvantages of
self-representation”).
5
MCR 6.005(D) provides, in relevant 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
the maximum possible
offense, any mandatory
by
law,
and
the
representation, and
defendant of the charge,
prison sentence for the
minimum sentence required
risk
involved
in
self
(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.
11
Compliance with these requirements mandates that the
trial
court
assessment
“engage,
of
defendant.”
the
on
the
wisdom
of
Adkins, supra
record,
in
a
methodical
self-representation
at 721.
by
the
The defendant must
exhibit “‘an intentional relinquishment or abandonment’” of
the right to trial counsel, and the trial court should
“‘indulge every reasonable presumption against waiver’” of
such right.
Id., quoting Johnson, supra at 464.
Further,
“‘[p]resuming waiver from a silent record is impermissible.
The record must show, or there must be an allegation and
evidence which show, that an accused was offered counsel
but intelligently and understandably rejected the offer.’”
Adkins, supra at 721 (citations omitted).
Defendant
asserts
that
the
trial
court
abused
its
discretion when it declined defendant’s request to appoint
him
a
third
represent
because
he
attorney,
himself.
did
not
That
thereby
is,
expressly
forcing
defendant
waive
his
defendant
contends
right
to
to
that
trial
counsel, such waiver was, at the very least, equivocal and,
therefore, invalid.6
6
It was entirely proper for the trial court to require
defendant to choose between proceeding to trial with his
present attorney and representing himself. See United
States v Grosshans, 821 F2d 1247, 1251 (CA 6, 1987);
Maynard v Meachum, 545 F2d 273, 278 (CA 1, 1976).
12
I disagree.
A waiver of a defendant’s right to trial
counsel
must
be
“unequivocal,”
meaning
only
that
such
waiver
Anderson,
must
be
supra
at
“[c]lear;
367,
plain;
capable of being understood in only one way, or as clearly
demonstrated.”
Black’s Law Dictionary (6th ed).
I do not
accept the standard proposed by defendant and implied by
the
majority—that
only
a
verbal
waiver
can
sufficiently
constitute an "unequivocal" waiver of the right to trial
counsel.
Neither defendant nor the majority has cited a
single state or federal court decision that has adopted
such a standard, and I do not believe this standard to be
implicit in the requirement of an "unequivocal" waiver.
Here, defendant was offered four options by the trial
court in response to his request for a third appointed
counsel.
Having clearly rejected three of these options, I
believe,
as
a
matter
of
logic,
that
it
can
be
fairly
concluded that defendant "unequivocally" assented to the
fourth option.
That defendant made clear his displeasure
at being limited to these four options does not alter my
conclusion.
option
of
transform
The
being
the
fact
defendant
trial
into
an
Walsh,
Mich
302,
court's
abuse
304;
desired
the
a
appointed
appointment
254
that
counsel
does
third
decision
of
236
13
to
discretion.
NW
791
reject
See
(1931);
fifth
not
such
an
Mowat
v
People
v
Akins, 259 Mich App 545, 556-557; 675 NW2d 863 (2003).
As
the majority has correctly noted, “no defendant is entitled
to the appointed counselor of his choice.”
25.
Ante at 12-13 n
Because there was no abuse of discretion, there was no
fifth option.
Defendant was properly limited by the trial
court to four options, and he clearly rejected three of
these.
Concerning
repeated
the
invitations
first
and
option,
defendant,
opportunities
to
hire
despite
his
own
counsel, failed to do so and expressed no interest in doing
so.
noted
Concerning the third and fourth options, defendant, as
earlier,
unambiguously,
repeatedly,
refused to have Nunzio represent him.
and
vehemently
Supra at 4-5, 7.
The majority would disregard defendant’s clear wishes on
this point and force defendant to retain Nunzio.
14.
In
Faretta,
Supreme Court
counsel,”
supra
at
820-821,
the
United
Ante at
States
asserted that the Sixth Amendment “right to
does
not
permit
the
trial
court
to
appoint
counsel that defendant has refused to accept:
The language and spirit of the Sixth
Amendment contemplate that counsel, like the
other defense tools guaranteed by the Amendment,
shall be an aid to a willing defendant—not an
organ
of
the
State
interposed
between
an
unwilling defendant and his right to defend
himself personally.
To thrust counsel upon the
accused,
against
his
considered
wish,
thus
violates the logic of the Amendment.
In such a
14
case, counsel is not an assistant, but a master;
and the right to make a defense is stripped of
the personal character upon which the Amendment
insists.
It is true that when a defendant
chooses to have a lawyer manage and present his
case, law and tradition may allocate to the
counsel the power to make binding decisions of
trial strategy in many areas. . . . This
allocation can only be justified, however, by the
defendant’s consent, at the outset, and to accept
counsel as his representative.
An unwanted
counsel “represents” the defendant only through a
tenuous and unacceptable legal fiction.
Unless
the
accused
has
acquiesced
in
such
representation, the defense presented is not the
defense guaranteed him by the Constitution, for,
in a very real sense, it is not his defense.
[Emphasis in original.]
Faretta continued by stating, “no State or Colony had ever
forced
counsel
upon
an
accused;
no
spokesman
had
ever
suggested that such a practice would be tolerable, much
less advisable.”
Id. at 832.
The Court then observed:
There can be no blinking at the fact that
the right of an accused to conduct his own
defense seems to cut against the grain of this
Court’s decisions holding that the Constitution
requires that no accused can be convicted and
imprisoned unless he has been accorded the right
to the assistance of counsel.
See Powell v
Alabama, 287 US 45 [53 S Ct 55; 77 L Ed 158
(1932)]; Johnson v Zerbst, 304 US 458 [58 S Ct
1019; 82 L Ed 1461 (1938)]; Gideon v Wainwright,
372 US 335 [83 S Ct 792; 9 L Ed 2d 799 (1963);
Argersinger v Hamlin, 407 US 25 [92 S Ct 2006; 32
L Ed 2d 530 (1972)]. For it is surely true that
the basic thesis of those decisions is that the
help of a lawyer is essential to assure the
defendant a fair trial.
And a strong argument
can surely be made that the whole thrust of those
decisions must inevitably lead to the conclusion
that a State may constitutionally impose a lawyer
upon even an unwilling defendant.
15
But it is one thing to hold that every
defendant, rich or poor, has the right to the
assistance of counsel, and quite another to say
that a State may compel a defendant to accept a
lawyer he does not want.
The value of state
appointed counsel was not unappreciated by the
Founders, yet the notion of compulsory counsel
was utterly foreign to them.
* * *
To force a lawyer on a defendant can only
lead him to believe that the law contrives
against him. [Id. at 832-834.]
Moreover, in his concurrence in Martinez v Court of Appeals
of California, 528 US 152, 165; 120 S Ct 684; 145 L Ed 2d
597 (2000), Justice Scalia noted:
I have no doubt that the Framers of our
Constitution, who were suspicious enough of
governmental power—including judicial power—that
they insisted upon a citizen’s right to be judged
by an independent jury of private citizens, would
not
have
found
acceptable
the
compulsory
assignment of counsel by the Government to plead
a criminal defendant’s case.
That
asserting
the
right
of
self
representation may often, or even usually, work
to the defendant’s disadvantage is no more
remarkable—and no more a basis for withdrawing
the right—than is the fact that proceeding
without counsel in a custodial interrogation, or
confessing to the crime, usually works to the
defendant’s disadvantage.
Our system of laws
generally presumes that the criminal defendant,
after being fully informed, knows his own best
interests and does not need them dictated by the
State. Any other approach is unworthy of a free
people. As Justice Frankfurter eloquently put it
for the Court in Adams v United States ex rel.
McCann, 317 US 269, 280 [63 S Ct 236; 87 L Ed
268] (1942), to require the acceptance of counsel
16
“is to imprison a man in his privileges and call
it the Constitution.”
Thus,
after
defendant
told
the
trial
court
that
he
no
longer wanted Nunzio to represent him, the trial court did
not have the authority to force defendant to be represented
by Nunzio.7
Accordingly, I question the basis on which the
majority asserts that “the trial court should have simply
denied defendant’s request to appoint another counsel and
continued with the proceedings.”
Faretta,
this
type
of
action
Ante at 14, n 27.8
by
the
trial
court
Under
would
seemingly have violated defendant’s Sixth Amendment right
7
In response to the majority’s assertion that,
“[u]nder the theory advocated by the dissent, if a
defendant were to insist on empanelling only left-handed
jurors, his insistence would constitute an affirmative
waiver of his right to a jury trial even if he explicitly
indicates that he desires a jury trial,” ante at 13, I
simply
note
that,
while
a
defendant
does
have
a
constitutional right not to be represented by counsel he
does not want, Faretta, supra at 833, a defendant does not
have a constitutional right to empanel “only left-handed
jurors.”
Accordingly, I find the majority’s example
unhelpful in resolving the constitutional issue raised in
this case.
8
It appears to me that the majority’s “practical,
salutary tool” of thrusting unwanted counsel onto a
defendant is at least arguably in contravention of Faretta.
Ante at 11. The majority focuses on only a single sentence
in that case, ante at 7, n 12, while ignoring the general
rule repeatedly set forth in Faretta that it is a violation
of a defendant’s Sixth Amendment right to trial counsel to
“compel a defendant to accept a lawyer he does not want.”
Supra at 833.
17
to trial counsel and presumably provided a basis for a new
trial.
Thus, in light of Faretta, the only remaining option,
and this was made abundantly clear to defendant, was the
second option.
That defendant did not expressly assent to
this option is not dispositive of his choice—for such an
option
is
majority’s
all
that
decision
remained
to
available
require
a
to
him.9
defendant
The
under
circumstances such as these to expressly assent to self
representation is either to ensure that a “no decision”
impasse develops in the event that a defendant refuses to
give an express assent, or to unwarrantedly pressure the
trial court into disregarding its own judgment—appointing
new trial counsel where it is not viewed as necessary—and
enduring the necessary trial delays as new counsel orients
himself.
9
To further support my assertion that defendant
unequivocally waived his right to trial counsel, I note
that defendant did not contradict Nunzio, who, after
meeting with defendant during an hour-and-a-half recess,
told the trial court, “I believe Mr. Russell still contends
he wishes to represent himself.”
If, as the majority
asserts, defendant “consistently denied that his choice was
self-representation,” ante at 12, I question why defendant,
who was decidedly vocal in expressing any disagreements
that he had during trial proceedings, did not challenge the
truth of this statement by Nunzio.
From this, I can only
surmise that Nunzio correctly characterized defendant’s
wishes.
18
That is, the majority’s decision requires the trial
court to exercise its discretion in accord with defendant's
own preferences and to compel the trial court to grant him
a third appointed counsel.
But the question of such an
exercise of discretion is a distinct question from whether
the
trial
court
permitting
a
of
complied
defendant
representation.
abuse
has
its
proceed
obligations
to
trial
by
in
self
Because I believe that there has been no
discretion
defendant's
to
with
by
application
the
for
trial
a
court
third
in
rejecting
appointed
defendant has no right to such counsel.
counsel,
He has a right
only to the four options identified by the trial court.
The upshot of the majority’s decision, in my judgment,
is
that
it
undermines
the
administration
encouraging
gamesmanship
in
defendants,
making
readily
parachute
progress
for
of
more
appellants,
trial
the
and
proceedings.
of
courtroom
available
by
an
frustrating
As
justice
this
criminal
appellate
the
orderly
Court
previously observed:
The Court recognizes and sympathizes with
the “Catch 22” judges face in the waiver of
counsel setting.
On the one hand, defendants
have a right to counsel.
On the other hand,
defendants have a right to self-representation.
We realize the potential for savvy defendants to
use these competing rights as a means of securing
an appellate parachute. [Adkins, supra at 724.]
19
by
has
Although a defendant’s rights to trial counsel and to self
representation are intertwined, defendant here would ensure
that
these
rights
increasingly
take
on
a
“zero
sum”
relationship in which either the former or the latter right
is necessarily violated, and in which one or the other
becomes a potential basis for appellate reversal.
This
becomes more likely when formalisms (such as the majority's
unfounded requirement that a waiver only be effected by
verbal statement) come to prevail over an inquiry into the
totality
of
circumstances,
including
both
the
verbal
statements and the conduct of the defendant.
Under the circumstances of this case, I would find
that defendant, by his conduct alone, unequivocally waived
his right to trial counsel.
Given defendant’s knowledge
that the trial court was unprepared to appoint new counsel
and
defendant's
clear
rejection
of
three
of
options offered to him by the trial court, I
these
circumstances,
statement
of
assent
which
to
do
not
four
believe that
include
self-representation,
the
a
verbal
sufficiently
give rise to an “unequivocal” waiver of his right to trial
counsel.
Because
of
representation,
the
a
disadvantages
defendant
must
that
inure
also
“knowingly
intelligently” waive his right to trial counsel.
20
from
self
[and]
Anderson,
supra at 368.
To satisfy this requirement, the trial court
must ensure that a defendant has been “made sufficiently
aware of his right to have counsel” and “of the possible
consequences of a decision to forgo the aid of counsel” so
that his choice “‘is made with eyes open.’”
Patterson v
Illinois, 487 US 285, 292-293; 108 S Ct 2389; 101 L Ed 2d
261 (1988)(citations omitted); see also Anderson, supra at
368, 370-371.
“The trial judge is in the best position to
determine
whether
knowingly
.
omitted).
lengthy
.
In
and
the
.
.”
this
defendant
Adkins,
case,
methodical
the
has
made
supra
trial
colloquy,
at
723
court
over
the
waiver
(citation
engaged
thirty-five
in
a
pages
long, explicitly warning defendant of the dangers of self
representation.
Among
other
warnings,
the
trial
court
counseled that, “unless you are legally trained,. . . there
are
many
pitfalls
there
for
the
unwary,”
suggesting that you don’t know legal procedure.”
and
The trial
court also advised defendant as follows:
I should advise you that there is an ancient
adage in the law, for good reason, that a man who
acts as his own counsel has a fool for a client.
The corollary to the rule is that he also has a
fool for a lawyer, but, as a practical matter, it
all winds up in the same place.
My guess is that you will not fare well in
that approach, but you have a right to take that
approach if you wish to do it.
And, while I
would not advise it, I will certainly guard your
21
“I’m
rights and see to it that you have the
opportunity to present your own defense, if
that’s your wish.
Further, the trial court repeatedly warned defendant that
if Nunzio were removed, new trial counsel would not be
appointed.
Finally,
the
trial
court
gave
defendant
numerous opportunities, including two separate recesses, to
consult with Nunzio concerning defendant’s four options.
Accordingly, I am convinced, as was the trial court, that
under the
circumstances of this case, there is no question
that defendant was provided with sufficient information to
make a decision with “eyes wide open.” Thus, I would hold
that the trial court did not err in finding that defendant
“knowingly
and
intelligently”
waived
his
right
to
trial
counsel when he repeatedly informed the trial court that he
no longer wanted Nunzio to represent him.
A defendant’s waiver of his right to trial counsel
must also be voluntary.
Anderson, supra at 371.
“The
trial judge is in the best position to determine whether
the
defendant
has
made
the
waiver
.
Adkins, supra at 723 (citation omitted).
.
.
voluntary.”
Substitution of
counsel is a matter committed to the sound discretion of
the trial court.
People v Williams, 386 Mich 565, 578; 194
NW2d 337 (1972).
“While a defendant may not be forced to
proceed to trial with incompetent or unprepared counsel,
22
. . . a refusal without good cause to proceed with able
counsel is a ‘voluntary’ waiver.”
F2d
273,
278
(CA
1,
1976).
Maynard v Meachum, 545
See
also
United
States
v
Harris, 2 F3d 1452, 1455 (CA 7, 1993)(finding a voluntary
and
informed
waiver
where
the
defendant
refused
to
cooperate with his lawyers and was told that no substitute
counsel
would
be
appointed
for
him);
United
States
v
Kneeland, 148 F3d 6, 12 (CA 1, 1998)(a waiver of the right
to
trial
counsel
must
be
considered
involuntary
if
defendant had a valid reason for requesting the appointment
of new trial counsel).
In United States v Moore, 706 F2d 538 (CA 5, 1983),
the trial court required the defendant to proceed pro se
after he rejected several court-appointed attorneys.
Like
the
made
instant
defendant,
the
defendant
in
Moore
statements on the record that he was not waiving his right
to trial counsel, but that he simply wanted different trial
counsel.
Defendant
was
convicted
and
appealed
his
affirmed
the
conviction on this basis.
The
Fifth
Circuit
Court
of
Appeals
defendant’s conviction, stating:
[Defendant] refers to a statement by the
trial court which indicates that the court knew
[defendant] was not waiving his right to counsel.
This misperceives the record. Viewed in the
context of the entire dialogue, the trial court
23
was noting its awareness that [defendant] was not
waiving his demand for dismissal of his current
attorney and appointment of another. That demand
is precisely the issue herein presented: may a
defendant repeatedly demand that his appointed
counsel be relieved and that new counsel be
appointed and, if the request is denied, contend
that his sixth amendment right to counsel . . .
has been violated? We answer that inquiry in the
negative.
We conclude that a persistent, unreasonable
demand for dismissal of counsel and appointment
of new counsel, as herein discussed, is the
functional equivalent of a knowing and voluntary
waiver of counsel. In such an instance the trial
court may proceed to trial with the defendant
representing himself. [Id. at 540.]
Similarly, in United States v Fazzini, 871 F2d 635
(CA 7, 1989), the defendant sought to remove his fourth
court-appointed attorney.
In allowing defendant to dismiss
his latest attorney, the trial court “expressly found that
defendant,
through
his
actions,
had
voluntarily waived the right to counsel.”
During
trial,
the
defendant
claimed
that
knowingly
and
Id. at 642.
he
was
being
“forced” to proceed pro se, and continually expressed a
desire for new counsel to be appointed.
Defendant
was
ultimately
convicted.
The
Fourth
Circuit Court of Appeals affirmed his conviction, stating:
In this case, the defendant claims that he
did not knowingly and intentionally waive his
right to appointed counsel since he continued to
ask for counsel even after Kling was excused from
the case. Yet it is not necessary that a
defendant verbally waive his right to counsel; so
24
long as the district court has given the
defendant sufficient opportunity to retain the
assistance of appointed counsel, defendant's
actions which have the effect of depriving
himself of appointed counsel will establish a
knowing and intentional choice. [Id.]
The instant defendant was essentially given only two
viable
options—continue
with
court-appointed
continue without court-appointed counsel.
counsel
or
Defendant made
it abundantly clear that he would not be cooperating with
his
current
counsel,
and
therefore,
effectively chose to proceed pro se.
I
believe,
that
he
Like the defendant in
Fazzini, the instant defendant denied that he was making
this choice.
Nevertheless, the vehement negation of one
choice—to proceed with his current counsel—constituted the
acceptance
of
the
only
remaining
option
available—to
proceed pro se.
I
agree
with
the
lower
courts
and
believe
that
defendant consistently failed to assert a valid reason to
have
new
waived
court-appointed
asserted
his
right
that
to
“Mr.
counsel,
trial
Nunzio
and
counsel.
is
a
man
thus
The
of
voluntarily
trial
court
considerable
professional ability,” with an extensive history of trial
work, and is an “extremely capable” and “well-respected”
defense
attorney.
Further,
Nunzio
trial court:
25
himself
apprised
the
Your honor, I am prepared to try the case.
I am not only familiar with all the issues
surrounding this case, but I have dealt with
these cases numerous times in the last number of
years.
And I have communicated all of those
relevant issues that I have explored.
The
discovery is complete.
I’ve had the opportunity
to look at discovery. I talked to the prosecutor
in this case regarding this case. I am more than
capable at this point in time trying the case
* * *
But counsel is ready to proceed to trial at
this point in time.
Later, after defendant asserted “that Mr. Nunzio is not
representing me in a proper[] fashion,” the trial court
responded, “I don’t see that.
I see no indication that Mr.
Nunzio has done anything wrong at all.”
I agree with the
trial court and the Court of Appeals and find no evidence
in the record to suggest that Nunzio’s representation of
defendant
“fell
below
reasonableness . . . .”
an
unreasonable
follow
Because I believe that this
federal
insistence
of
Nor does defendant present any
evidence to the contrary.
should
standard
People v Gonzalez, 468 Mich 636,
644; 664 NW2d 159 (2003).
Court
objective
on
precedent,
the
holding
appointment
of
that
an
a
new
attorney operates as a waiver of the right to counsel, and
26
that defendant’s protests to the contrary do not render
that waiver ambiguous, I dissent.10
To constitute a valid waiver of the right to trial
counsel, the trial court must also be satisfied that in
representing himself, defendant “will not disrupt, unduly
inconvenience and burden the court and the administration
of the court’s business.”
Anderson, supra at 368.
Because
the trial court, in fact, allowed defendant to represent
himself, I would hold that the trial court was persuaded
that defendant, in representing himself, would not disrupt
or otherwise inconvenience or burden the court and, thus,
fulfilled the third requirement of Anderson.
Further, although the requirements in
Anderson
have
been satisfied, the trial court must “substantially comply”
with MCR 6.005(D) for a valid waiver to occur.
supra at 726.
Adkins,
“A particular court’s method of inquiring
into and satisfying these concepts is decidedly up to it,
as long as the concepts in these requirements are covered.”
10
As the majority correctly notes, the Supreme Court
stated in Martinez that “the right to self-representation
is not absolute” in that the defendant must choose self
representation voluntarily and intelligently.
Ante at 8.
Cf. Caplin & Drysdale v United States, 491 US 617, 651; 109
S Ct 2646; 105 L Ed 2d 528 (1989); Arizona v Roberson, 486
US 675, 686; 108 S Ct 2093; 100 L Ed 2d 704 (1988)(holding
that even the constitutional right to counsel is not
absolute.)
27
Id. at 725.
I would hold that MCR 6.005(D) was satisfied
here because defendant was fully advised of the nature of
the charges against him and the possible punishments in the
information,11
and
of
the
risks
involved
in
self
representation.12
Finally, the court should “indulge every
reasonable
presumption [de-italicize presumption] against waiver” of a
defendant’s right to trial counsel.
(citation
omitted)
(emphasis
added).
Adkins, supra at 721
“‘The
record
must
show, or there must be an allegation and evidence which
11
At the outset of the trial, the court stated:
Mr. Russell is here for trial today on
charges of possession with intent to deliver less
than 50 grams of cocaine, possession with intent
to deliver less than 50 grams of heroin, and he
is also charged as a fourth felony habitual
offender.
See Adkins, supra at 730-731 (holding that the trial court
had satisfied the requirement of MCR 6.005(D) that
defendant be advised of the maximum and minimum sentences
because “the judge had already expressed the nature of the
charge and possible punishments to the defendant at his
arraignment”).
12
“A particular court’s method of inquiring into and
satisfying [MCR 6.005(D)] is decidedly up to it, as long as
[the proper] concepts . . . [are] covered.” Adkins, supra
at 725. Because the trial court counseled defendant that,
“unless you are legally trained, . . . there are many
pitfalls there for the unwary,” we believe that its warning
satisfied the requirement of MCR 6.005(D) that the trial
court advise defendant of “the risks involved in self
representation . . . .”
28
show, that an accused was offered counsel but intelligently
and understandably rejected the offer.
Anything less is
not waiver.’”
Adkins, supra at 721 (citations omitted).
As
discussed,
previously
defendant
here
intelligently
waived his right to trial counsel by repeatedly stating
that he did not want Nunzio to represent him.
"The
determination
of
whether
there
13
has
been
an
intelligent waiver of the right to counsel must depend, in
each
case,
upon
the
particular
surrounding
that
case,
facts
including
and
[the]
circumstances
conduct
accused.” Johnson, supra at 464 (emphasis added).
of
the
I would
conclude that defendant’s conduct, under the circumstances
of this case—his informed and unequivocal refusal to accept
any of the other three options offered to him by the trial
court—constituted
option,
and
an
that
acceptance
defendant
of
the
thereby
only
remaining
“intentional[ly]
relinquish[ed] or abandon[ed]” his right to trial counsel.
Id.
13
Defendant made the following statements concerning
his desire that Nunzio not represent him: (1) “I don’t-- I
don’t want any contact with Mr. Nunzio, and I expressed
that to you. I don’t want Mr. Nunzio to have anything to
do with anything in my case”; (2) “There is no way that I
will let him try to defend me . . . [T]here’s no way that I
would feel comfortable with him having anything to do with
the defense on my behalf”; and (3) “I don’t want Mr. Nunzio
involving in nothing of my defense.”
29
III. Conclusion
I
believe
that
defendant,
by
his
conduct
alone,
unequivocally waived his constitutional and statutory right
to
trial
waiver
counsel.
satisfied
6.005(D).
Further,
the
I
believe
requirements
of
that
defendant’s
Anderson
and
MCR
Accordingly, I would hold that defendant waived
his right to trial counsel and thus affirm the judgment of
the Court of Appeals.
Stephen J. Markman
Maura D. Corrigan
30
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