PEOPLE OF MI V AARON CHRISTOPHER WILLINGAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
June 28, 2005
Oakland Circuit Court
LC No. 2002-184701-FH
AARON CHRISTOPHER WILLING,
Official Reported Version
Before: Whitbeck, C.J., and Zahra and Owens, JJ.
Defendant Aaron Willing appeals by right his jury conviction of conspiracy to deliver
225 to 649 grams of a controlled substance1 after arranging to sell nine ounces of cocaine2 to an
undercover police officer.3 Willing, who represented himself with the assistance of an appointed
attorney, argues that he did not waive his right to counsel until after trial had begun, and that the
trial court improperly allowed portions of the trial to proceed without Willing's presence. We
reverse, because Willing experienced a total deprivation of counsel during a critical stage of the
MCL 333.7401(2)(a)(ii), before amendment by 2002 PA 665.
Nine ounces is equal to 255.15 grams.
Willing urges this Court to amend the original judgment of sentence, which erroneously stated
that he was convicted of conspiracy to deliver 449 to 999 grams of cocaine rather than 225 to
649 grams. However, since Willing filed his brief on appeal, the trial court has issued an
amended judgment of sentence that reflects the correct amount. Accordingly, we need not
address this issue.
II. Basic Facts And Procedural History
A. Factual Background
The facts of this case are essentially undisputed. Martin Lavin, an undercover officer
with the Royal Oak police, learned from a confidential informant that the informant and Willing
had discussed selling drugs while they were incarcerated together. The informant gave Willing's
telephone number to Lavin, and, after Willing was released from jail, Lavin began calling to ask
if Willing would sell him cocaine. Willing initially told Lavin that he could not procure the
amount Lavin was seeking and did not want to participate. However, in a three-way telephone
conversation with Lavin, Willing, and Willing's friend Danny Potter on December 30, 2001,
Willing agreed to sell Lavin cocaine.
In a tape-recorded call later that day, Lavin asked Willing whether he should bring
enough money for 4-1/2 or nine ounces, and Willing responded that he had "two different guys
checking on it" who "both got it," and he was expecting a call back with the price. When Lavin
called back a second time, Willing told Lavin that he had "never bought nine before," but
thought the price would be "seventy-four," meaning $7,400. Willing told Lavin that "he's on his
way out here right now, . . . I'm going to talk to him, check it out, get a price, get a ticket on it . . .
give me fifteen more minutes and I'll let you know." When Lavin asked how it would "go
down," Willing responded that it would be "me, you, him, and probably one of his boys. And
my girl." Willing suggested they meet at a bar near I-75 and M-24, and Lavin agreed.
The next day, Willing called Lavin and told him that he "got it for all nine of them,"
meaning all nine ounces. On January 3, 2002, Lavin called Willing, who asked him if he knew
what a "key," or a kilogram of cocaine, looked like. When Lavin responded that he did, Willing
said, "All right, this thing, it was about one or two inches thick and it was the length of the key,"
and it looked like a "flat chunk" that had been broken directly off the key. Willing told Lavin
that a friend would be driving him to the meeting place, which they had changed to a fast-food
restaurant near Eight Mile Road and Greenfield.
Lavin, who was wearing a hidden microphone, drove to the meeting place with
undercover officer Kenneth Bean to meet Willing, who had told Lavin that he and his friend
would arrive in a Dodge Stratus. The friend was Danny Potter, who had participated in the
December 30, 2001, conversation with Willing and Lavin. Lavin and Willing walked over to
Potter's parked car, and Willing got into the passenger seat. Willing told Lavin to expect the man
with the drugs to arrive in a Grand Marquis between 5:30 and 6:00 p.m. As they waited, Willing
offered Lavin the keys to Potter's car to assure him that Potter could not drive away until the deal
was completed. Sometime after 6:00 p.m., a man named London arrived with a bag of a white
powdery substance. London showed Lavin the bag and allowed him to weigh it, but would not
let him smell it. Lavin then gave the signal for his backup officers to move in, and they took
Willing, Potter, and London into custody. As they did so, Lavin heard London say, "it's flour."
A field test confirmed that the substance in the bag was not cocaine.
After being taken to the police station, Willing waived his Miranda4 rights, and Lavin
interviewed him. According to Lavin, Willing told him that he knew he could get cocaine
through Potter, who had a source from whom he, in turn, could get it. Willing told Lavin that he
had expected that source to be at the arranged meeting place at the same time Lavin, Willing, and
Potter arrived. Instead, Willing and Potter drove to the arranged place and "waited for the stuff
to arrive," which took about forty-five minutes. Willing's written statement also indicated that
"[t]he purchase agreement was nine ounces of cocaine." Lavin asked whether Willing knew that
the substance to be delivered was flour, and, according to Lavin, Willing responded, "I had no
idea. I thought it was going to be cocaine." After a preliminary examination, Willing was
charged with conspiracy to deliver cocaine.
B. Pretrial Motions And Substitution Of Counsel
Before trial, Willing moved for a Walker5 hearing to exclude the statement he gave Lavin
at the police station, and also moved for a finding that Lavin had entrapped him into agreeing to
sell cocaine. However, before the hearings on these motions could take place, the prosecution
filed a motion to disqualify Willing's retained attorney on the ground that he had previously
represented the confidential informant on drug-related charges. The trial court granted the
motion to disqualify Willing's attorney, and appointed attorney Scott Neumann to represent
When the entrapment and Walker hearings began on March 10, 2003, Willing was not
present, although Neumann stated that he had told Willing to be there on that date. Neumann
waived Willing's appearance, and the trial court proceeded with the hearings. Lavin and the
confidential informant both testified, and the trial court was given the tapes of Willing's phone
calls and Willing's signed waiver of rights. The trial court declined to rule on either motion until
Willing could appear and testify.
At the beginning of the resumed hearings, Neumann told the trial court that Willing
wished to dismiss him and proceed pro se. The following exchange occurred:
[Defense Counsel]: There is one issue as well. My client advised me that
he would like to represent himself in this matter. I have explained to him the
consequences of that and the options. That is his sound decision, unintelligently
[sic]. Before I do—
The Court: This is Mr. Willing; is that correct?
[Defense Counsel]: Before I do anything, your Honor, he did request from
me—he would like a request from this Court another court appointed attorney.
I'll let him address that issue himself.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
The Court: Mr. Willing?
Mr. Willing: Your Honor, I have had, as far as me and Mr. Neumann go,
our relationship has been miniscule [sic], if at all. Probably since he's taken the
case we've probably had contact a total four or five hours. I haven't been pleased
with our relationship. He, he hasn't, he hasn't given me the representation that I
feel that I deserve.
As far as representing myself, I would respectfully ask the Court if he—if
you could grant an adjournment so that I can try and retain my own attorney so I
can have the defense that I want. And if that's not possible, if you could grant me
another court appointed attorney that I will be able to get along with and actually
have a solid defense that I feel I'm worth.
The Court: What is the charge here?
[Prosecutor]: Your Honor, this is a conspiracy to deliver between 225 to
649 grams of cocaine. The maximum sentence is I believe 30 years, and it's a
mandatory minimum of 20 years, your Honor.
Mr. Willing: Which is why I'm so adamant about my defense.
The Court: Mr. Neumann is one of the finest young attorneys around, and
he is very thorough in regards to his conduct with his clients. I'm going to
continue him. You are—you may represent yourself, but he will be there to
counsel you as you proceed to try to represent yourself in this trial.
At this point, the prosecutor told the trial court that Willing had retained an attorney who was
dismissed for having a conflict of interest, and expressed the opinion that Willing had the right to
hire an attorney if he had the means to do so. The trial court asked Willing whether he had the
means, and Willing responded that he had spent more than $17,000 on his previous attorney, but
hoped to retain an attorney for "a couple thousand dollars." The trial court responded:
The Court: You're going to retain an attorney on $2,000 on a case–
Mr. Willing: No.
The Court:—that has a minimum of 20 years?
Mr. Willing: No. I don't think I will be able to retain him for 2,000, but I
believe to be able to retain someone between 5 and 10.
The Court: You have an attorney here who knows as much about the
system as any other attorney does, who knows enough about the rules of evidence
than anyone does.
Mr. Willing: I understand.
The Court: And this was the date and time set for trial.
Mr. Willing: I do, I do understand that, your Honor.
The Court: And I thought we had a long discussion, what was it, two or
three weeks ago about this date being the date certain, did we not?
[Prosecutor]: We did, your Honor. It was last week, earlier in the week.
[Defense Counsel]: That's correct, your Honor.
The Court: And I think you were so advised, were you not?
Mr. Willing: I, I was, your Honor. I'm not asking you to do anything you
wouldn't want to do. I'm just asking you to—
The Court: Well, I'm trying to do what is right.
Mr. Willing: That's, that's—
The Court: For the system and for you.
Mr. Willing:—the problem right there.
The Court: As well, because I know that I have the greatest confidence in
Mr. Scott Neumann. He, he understands the system and I think he'll represent you
as well as possible. We have this date set for trial. We'll go to trial.
Mr. Neumann will sit to the right of you and you may ask him for any
counsel in regards to anything pertaining to the procedure of this case and you
may counsel with him as you deem appropriate.
Let's go through with the hearing.
The combined hearings proceeded, with Lavin repeating the testimony he had previously
given, Willing questioning himself, and Willing calling his girlfriend to testify about the
frequency of Lavin's calls during December and Willing's responses to those calls. After hearing
Although this exchange took place in March 2003, the trial court did not enter an order
reflecting Neumann's appointment as standby counsel or Willing's decision to proceed pro se
until well after trial. The written date on the initial order was October 26, 2003, but the order
was date-stamped on October 6, 2003. The trial court later set aside this misdated order, and
entered a new order stating that Neumann began his appointed representation on February 20,
2003, and continued in an advisory capacity until November 12, 2003.
the testimony, the trial court ruled that Willing was not entrapped and that his statements to the
police were voluntary and admissible.
C. The Trial
The trial began on August 5, 2003. The trial court decided to try Willing and Potter
simultaneously, but before two different juries. After Willing's jury was empanelled, the trial
court elicited a valid waiver of counsel from Willing and confirmed that he intended to proceed
pro se with Neumann acting as standby counsel.
Lavin, Bean, and two other officers who participated in the undercover operation testified
for the prosecution. Transcripts of six telephone conversations between Willing and Lavin were
admitted, and the tapes Lavin had made of those conversations were played to the jury. Willing
testified in his own defense, with Neumann, acting as standby counsel, conducting the direct
examination. Willing testified that when the confidential informant and Lavin first called him,
he told them he wanted nothing to do with the deal. According to Willing, Lavin continued to
call and ask him about obtaining drugs every three or four days. On December 30, 2001, when
Lavin called while Willing happened to be on the phone with his friend Danny Potter, Willing
realized that he and Potter "might be able to make some money real quick," and Willing agreed
to deliver drugs to Lavin.
Willing testified that while the original plan was to deliver actual drugs to Lavin, at some
point he and Potter decided to take Lavin's money without giving him any drugs in return, then
run away. Willing acknowledged that, judging by the tape-recorded conversations, it sounded as
though he was setting up an actual drug deal with Lavin; however, Willing explained that he had
to make the deal sound as real as possible to get Lavin to give him the money. Willing testified
that, contrary to what he told Lavin on the phone, he never actually saw the cocaine that was to
be delivered. Willing testified that his intention to "rip Lavin off" rather than deliver drugs was
evident from the fact that he repeatedly tried to get Lavin to agree to give him the money without
seeing the drugs and, when Lavin refused, Willing tried to back out of the deal. When asked
why Willing and Potter would bother getting London involved if their intent was to rip Lavin off,
Willing testified that Potter did not contact London until it became clear that Lavin would not
part with the money without seeing any drugs.
With respect to his postarrest statement to the police, Willing testified that Lavin told him
to add the statement that the purchase agreement was for nine ounces of cocaine. Willing
explained that he did not tell the police that his intent was to cheat or steal from Lavin at this
juncture because he "figured it was pretty obvious because there was no cocaine delivered."
Willing further explained that he feared that Lavin would have beaten him if he knew that
Willing had planned to cheat or steal from him because the police had treated Willing roughly
while arresting him and driving him to the station.
Willing's closing argument to the jury stated that it was not enough for the prosecution to
show that Willing had an agreement with Lavin, because Lavin was a police officer. Rather, the
prosecution had to show that Willing had an agreement with Potter to sell Lavin cocaine.
Willing asserted that he did not have the intent to sell Lavin cocaine, as shown by the fact that no
cocaine was found at the scene, and the prosecution failed to prove otherwise.
The jury convicted Willing of conspiring to deliver cocaine.
III. Waiver Of Right To Counsel
A. Standard Of Review
When assessing the validity of a defendant's waiver of the right to counsel, we review de
novo the entire record to determine whether the trial court's factual findings regarding the waiver
were clearly erroneous.7 "[T]o 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."8
B. Legal Standards
Defendants who face incarceration are guaranteed the right to counsel at all critical stages
of the criminal process by the Sixth Amendment,9 which applies to the states through the Due
Process Clause of the Fourteenth Amendment.10 Both federal and state law also guarantee a
defendant the right of self-representation,11 although this right is subject to the trial court's
Before granting a defendant's request to represent himself or herself, the trial court must
determine that the three factors set forth in People v Anderson have been met: (1) the
defendant's request is unequivocal, (2) the defendant is asserting the right knowingly,
intelligently, and voluntarily after being informed of the dangers and disadvantages of selfrepresentation, and (3) the defendant's self-representation will not disrupt, unduly inconvenience,
and burden the court and the administration of the court's business.13 In addition, a trial court
must satisfy the requirements of MCR 6.005(D), which prohibits the trial court from allowing the
defendant to make an initial waiver of the right to counsel without first
People v Williams, 470 Mich 634, 640; 683 NW2d 597 (2004).
People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004).
See Williams, supra at 641, citing Maine v Moulton, 474 US 159, 170; 106 S Ct 477; 88 L Ed
2d 481 (1985).
See Williams, supra at 641, citing Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d
See People v Adkins (After Remand), 452 Mich 702, 720; 551 NW2d 108 (1996), overruled in
part on other grounds by Williams, supra at 641 n 7; Faretta v California, 422 US 806; 95 S Ct
2525; 45 L Ed 2d 562 (1975). See also Const 1963, art 1, § 13; MCL 763.1.
See People v Dennany, 445 Mich 412, 427; 519 NW2d 128 (1994); People v Anderson, 398
Mich 361, 366; 247 NW2d 857 (1976).
Anderson, supra at 367-368. See also Russell, supra at 190 (applying the Anderson factors).
(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
A trial court must substantially comply with the Anderson factors and the court rule for a
defendant to effect a valid waiver of the right to counsel.15
When determining whether the requirements were met, we ""'indulge every reasonable
presumption against waiver of fundamental constitutional rights."'"16 "'"Presuming 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 understandingly
rejected the offer. Anything less is not waiver."'"17
C. Applying The Standards
Willing argues that he did not waive his right to counsel for the pretrial proceedings;
rather, he requested to retain counsel or have new counsel appointed for him, and the trial court
denied these requests. Willing maintains that he did not waive his right to counsel until after the
jury was selected and given preliminary instructions on the first day of trial. Thus, Willing
asserts that he was denied his right to counsel at the Walker and entrapment hearings, as well as
at jury voir dire.
The trial court allowed Willing to proceed pro se with standby counsel at the beginning
of the second day of the Walker and entrapment hearings after engaging in the colloquy recited
above. The question is whether Willing unequivocally waived his right to counsel during this
exchange, as Anderson requires.18 We begin by noting that Willing never expressed the desire to
represent himself or to waive his right to counsel before the trial court. Although Willing's
attorney stated that Willing wanted to represent himself, the only thing Willing said on the
subject was that he would either like an adjournment in order to retain another attorney or,
alternatively, another court-appointed attorney.
MCR 6.005(D); see also Russell, supra at 190-191.
Russell, supra at 191-192, citing Adkins (After Remand), supra at 726.
Williams, supra at 641, quoting Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed
1461 (1938), quoting Aetna Ins Co v Kennedy, 301 US 389, 393; 57 S Ct 809; 81 L Ed 1177
Adkins (After Remand), supra at 721, quoting People v Dunn, 380 Mich 693, 698; 158 NW2d
404 (1968), quoting Carnley v Cochran, 369 US 506, 516; 82 S Ct 884; 8 L Ed 2d 70 (1962).
Anderson, supra at 367; Russell, supra at 190, 193.
The Michigan Supreme Court recently addressed the waiver issue under somewhat
similar circumstances. In People v Russell, the Court determined that the defendant's purported
waiver of counsel was not unequivocal where he "clearly sought appointment of another trial
counsel . . . ."19 It is clear from the record here that Willing also clearly sought either the
appointment of another trial counsel or an adjournment to enable him to retain another attorney.
However, the defendant in Russell explicitly and consistently rejected the suggestion that he
wanted to represent himself,20 which Willing did not do. Because the defendant's unequivocal
rejection of self-representation furnished a partial basis for the Russell Court's ruling, we are
reluctant to conclude that Russell alone compels the conclusion that Willing's purported waiver
An examination of People v Suggs the companion case to People v Adkins (After
Remand), aids our analysis. In Suggs, three months before trial began, defense counsel informed
the trial court that the defendant had sent him a letter requesting to terminate the representation
and to represent himself instead.21 The trial court granted defense counsel's request to withdraw
and, without any inquiry, told the defendant that he could represent himself.22 Before trial
began, the trial court questioned the defendant about his decision to represent himself, and
warned him about the hazards of doing so.23 When the trial court asked whether the defendant
still wished to represent himself, the defendant responded, "Yes," but then went on to state, "It's
not that I don't want an attorney to represent me, it's just that [defense counsel] never spoke to
me. I had a trial date and never had a chance to talk to my attorney. I couldn't understand it, it's
unprofessional."24 The trial court responded that it had no problem with the defendant
representing himself, but that it also had an obligation to warn him of the pitfalls and to "have
you unequivocally indicate on the record you understand those and you do wish to represent
yourself."25 The defendant responded, "I understand—I understand what you said, yes."26 While
acknowledging that the trial court "could have responded better than it did to the defendant's
hesitation,"27 the Court concluded that the trial court had substantially complied with the waiver
of counsel procedures, reasoning that the defendant unequivocally waived his right to counsel by
first stating, "Yes," then reaffirming his desire to represent himself after making the comment,
"It's not that I don't want an attorney . . . ."28
Russell, supra at 192 (emphasis in original).
See Adkins (After Remand), supra at 714-715.
Id. at 715.
Id. at 716-717.
Id. at 718.
Id. at 732.
Id. at 733 n 29.
Id. at 732-733.
In this case, by contrast, Willing was not directly asked, nor did he directly state, that he
wished to represent himself. Instead, he only stated his desire to retain a different attorney or
have a different attorney appointed. Under these circumstances, we conclude that Willing did
not unequivocally waive his right to counsel.
D. Application Of Harmless Error Analysis
The next question is whether Willing's ineffective waiver may be subject to harmless
error analysis. When, as here, the error implicates a constitutional right, we must determine
whether that error is structural or nonstructural.29 If the error is structural, we must reverse.30 If
the constitutional error is nonstructural, we need not reverse if it was harmless beyond a
Willing had the full assistance of appointed counsel until the second day of his combined
Walker and entrapment hearings, at which point the trial court ordered appointed counsel to
continue in a standby capacity while Willing represented himself. It is well established that a
total or complete deprivation of the right to counsel at a critical stage of a criminal proceeding is
a structural error requiring automatic reversal.32 While the harmless error doctrine is not entirely
inapplicable to ineffective waivers of the right to counsel, it has been limited to cases in which
the effect of the deprivation of counsel does not "pervade the entire proceeding"33—for example,
cases in which "the evil caused by a Sixth Amendment violation is limited to the erroneous
admission of particular evidence at trial."34 Thus, we must determine whether Willing's
ineffective waiver resulted in a total or complete deprivation of his right to counsel, whether this
total deprivation occurred during a critical stage of the proceeding, and whether the effect of the
deprivation pervaded the entire proceeding.
The prosecution first argues that, to warrant reversal on the basis of a defective waiver of
the right to counsel, Willing must show prejudice. However, the case the prosecution cites for
this proposition applies only to waivers of the right to counsel at subsequent proceedings when a
People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000).
See Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999); People v
Anderson (After Remand); 446 Mich 392, 405; 521 NW2d 538 (1994).
Id. at 405-406.
The See United States v Cronic, 466 US 648, 659 n 25; 104 S Ct 2039, 80 L Ed 2d 657 (1984)
(the United States Supreme Court has "uniformly found constitutional error without any showing
of prejudice when counsel was . . . totally absent . . . during a critical stage of the proceeding");
Anderson (After Remand), supra at 405, citing Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9
L Ed 2d 799 (1963). See also Russell, supra at 194 n 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.").
Satterwhite v Texas, 486 US 249, 256; 108 S Ct 1792; 100 L Ed 2d 284 (1988).
Id. at 257.
valid waiver had already been procured at a previous proceeding.35 As this Court explained, the
holding in that case does not apply to cases in which the initial waiver of the right to counsel is at
issue.36 Accordingly, this argument is without merit.
The prosecution next argues that the presence of standby counsel prevented Willing from
experiencing a total deprivation of counsel, and that therefore any error resulting from an
ineffective waiver was nonstructural. To support this position, the prosecution relies solely on a
footnote from Justice Boyle's opinion concurring in part and dissenting in part in People v
Dennany, in which she observed that
where, as here, the issue is whether a trial court obtained a valid waiver of counsel
before allowing a defendant to proceed pro se, federal circuit courts have found a
defective waiver to be harmless error when an examination of the whole record
indicates no reasonable possibility that the defendant would have been found not
guilty had he been represented by counsel. United States v Gipson, 693 F2d 109,
112 (CA 10, 1982), cert den 459 US 1216 (1983); Richardson v Lucas, 741 F2d
753, 757 (CA 5, 1984). The harmless error approach seems especially appropriate
in cases such as the present, in which a defendant receives advice throughout the
trial from standby counsel, the same counsel who would have represented the
defendant had he not asserted his desire to proceed pro se.
Justice Boyle's opinion was joined by only one other justice, and is therefore not precedentially
binding.38 Having examined the authorities on which it relied, we do not find it persuasive,
either for the proposition that a defective waiver may be treated as harmless error or that the
presence of standby counsel renders harmless error analysis applicable.
Justice Boyle's opinion relied on the federal appellate decisions in Gipson and
Richardson, but these cases have since been either directly or implicitly overruled. The Tenth
Circuit Court of Appeals overruled Gipson after concluding that the United States Supreme
Court's decisions in Rose v Clark39 and Penson v Ohio40 rendered harmless error analysis
inapplicable to invalid waivers of counsel.41 Rose involved the application of harmless error
analysis to an erroneous jury instruction, not the denial of counsel,42 but it contained the
statement that "[h]armless-error analysis thus presupposes a trial at which the defendant,
See People v Lane, 453 Mich 132, 139-140; 551 NW2d 382 (1996).
See People v Belanger, 227 Mich App 637, 643 n 1; 576 NW2d 703 (1998).
Dennany, supra at 468-469 n 13.
See, e.g., People v Justice, 216 Mich App 633, 643 n 7; 550 NW2d 562 (1996).
Rose v Clark, 478 US 570; 106 S Ct 3101; 92 L Ed 2d 460 (1986).
Penson v Ohio, 488 US 75; 109 S Ct 346; 102 L Ed 2d 300 (1988).
See United States v Allen, 895 F2d 1577, 1579-80 (CA 10, 1990).
See Rose, supra at 579-580.
represented by counsel, may present evidence and argument before an impartial judge and
jury."43 Penson involved an indigent defendant whose appellate counsel withdrew after
certifying that the defendant's appellate arguments were meritless.44 In refusing to apply
harmless error analysis, the Court rejected the notion that the defendant's interests were
adequately represented by his codefendant's appellate attorney, stating that a criminal defendant
"is entitled to a single-minded advocacy for which the mere possibility of a coincidence of
interest with a represented codefendant is an inadequate proxy."45
The Tenth Circuit's decision to overrule Gipson cast doubt on the validity of the Fifth
Circuit's position in Richardson, not only because that decision similarly predated Rose and
Penson, but also because Gipson was the only authority the Richardson court had cited in
support of its application of harmless error analysis.46 Of particular import to the present case is
the fact that, when the Fifth Circuit subsequently was called on in United States v Taylor47 to
determine whether a defendant who had the benefit of standby counsel was required to show
prejudice from his lack of representation, it held that he did not. As the Taylor court explained:
Given the limited role that a standby attorney plays, we think it clear that
the assistance of standby counsel, no matter how useful to the court or the
defendant, cannot qualify as the assistance of counsel required by the Sixth
Amendment. There can be no question that the roles of standby counsel and fullfledged defense counsel are fundamentally different. The very definition of fullfledged counsel includes the proposition that the counselor, and not the accused,
bears the responsibility for the defense; by contrast, the key limitation on standby
counsel is that such counsel not be responsible—and not be perceived to be
responsible—for the accused's defense. Indeed, in many respects, standby
counsel is not counsel at all, at least not as that term is used in the Sixth
. . . The defendant preserves actual control over the case he presents to the
jury: standby counsel cannot substantially interfere with any significant tactical
decisions, cannot control the questioning of witnesses, and cannot speak in place
of the defendant on any matter of importance. Standby "counsel" is thus quite
different from regular counsel. Standby counsel does not represent the defendant.
The defendant represents himself, and may or may not seek or heed the advice of
the attorney standing by. As such, the role of standby counsel is more akin to that
of an observer, an attorney who attends the trial or other proceeding and who may
offer advice, but who does not speak for the defendant or bear responsibility for
Id. at 578 (emphasis added).
See Penson, supra at 77-79.
Id. at 87.
See Richardson, supra at 757.
United States v Taylor, 933 F2d 307 (CA 5, 1991).
his defense. Thus, as useful as standby counsel may be when a defendant wishes
to represent himself, this Court holds that standby counsel is not "counsel" within
the meaning of the Sixth Amendment.
We find this reasoning persuasive and consonant with Michigan case law, and therefore
we adopt it here. Although the Michigan Supreme Court has not squarely addressed whether
harmless error analysis may be applied in cases in which a defendant had the assistance of
standby counsel, it has stated that "the presence of standby counsel does not legitimize a waiverof-counsel inquiry that does not comport with legal standards."49 Therefore, we conclude that
Willing experienced a "total deprivation of counsel" despite the fact that he was assisted by
We further conclude that this total deprivation of counsel occurred during a critical stage
of the proceedings. The phrase "critical stage" refers to "a step of a criminal proceeding, such as
arraignment, that [holds] significant consequences for the accused."50 In this case, Willing was
left unrepresented at the combined Walker and entrapment hearings, which were his only
opportunities to present his entrapment defense and to argue that his statement to the police
should not be admitted. Further, the hearings took place after Willing had been formally
charged.51 There is no doubt that the results of the rulings after the hearings affected the entire
proceeding because, had Willing established that he was entrapped, he would have had a
complete defense to the charge.52 In sum, because Willing experienced a total deprivation of
counsel during a critical stage, and because the effects of that deprivation pervaded the entire
proceeding, his conviction must be reversed.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Donald S. Owens
Id. at 312-313 (citation omitted; emphasis in original). See also United States v Mateo, 950
F2d 44, 48-50 (CA 1, 1991) (harmless error analysis inapplicable to ineffective waiver of right to
counsel despite presence of standby counsel).
Dennany, supra at 446 (opinion of Griffin, J.)
Bell v Cone, 535 US 685, 695-696; 122 S Ct 1843; 152 L Ed 2d 914 (2002).
See Anderson (After Remand), supra at 402 (critical stages occur after the initiation of
adversarial judicial proceedings against the accused).
See People v New, 427 Mich 482, 490; 398 NW2d 358 (1986); People v White, 411 Mich 366,
393; 308 NW2d 128 (1981) (Moody, J., concurring in part and dissenting in part).