PEOPLE OF MI V WILLIAM JAMES EVANS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 6, 1996
Plaintiff-Appellee,
v
No. 170363
LC No. 92-001985
WILLIAM JAMES EVANS,
Defendant-Appellant.
Before: M.J. Kelly, P.J., and Hood and H. D. Soet,* JJ.
PER CURIAM.
Defendant was convicted, following a second jury trial1, of receiving and concealing stolen
property in excess of one hundred dollars, MCL 750.535(1); MSA 28.803(1), and attempted breaking
and entering a vehicle with intent to steal property therein, MCL 750.92; MSA 28.287; MCL
750.356a; MSA 28.588(1). Defendant subsequently pleaded guilty to being an habitual offender, third
offense, MCL 769.11; MSA 28.1083. He was sentenced five to ten years’ imprisonment and appeals
as of right. We affirm.
Defendant first argues that the Supreme Court lacked authority to assign a judge to perform
judicial duties where there was no existing vacancy. Defendant specifically argues that retired and
former Macomb Circuit Judge Jeannette had no authority to conduct the proceedings thereby rendering
the trial result void under the Michigan Constitution. We disagree. As argued, defendant presents a
question of law. We review questions of law de novo. People v Connor, 209 Mich App 419, 422;
531 NW2d 734 (1995).
Section 23 of our constitution provides:
A vacancy shall occur in the office of judge of any court of record or in the district court
by death, removal, resignation or vacating of the office, and such vacancy shall be filled
by appointment by the governor. The person appointed by the governor shall hold
office until 12 noon of the first day of January next succeeding the first general election
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held after the vacancy occurs, at which election a successor shall be elected for the
remainder of the unexpired term. Whenever a new office of judge in a court of record,
or the district court, is created by law, it shall be filled by election as provided by law.
The supreme court may authorize persons who have been elected and served as judges
to perform judicial duties for limited periods or specific assignments. [Const 1963, art
VI, § 23.]
This Court recently addressed this issue and held that the 1968 amendment to § 23 did not “restrict the
Supreme Court’s authority” to “authoriz[e] the appointment of visiting judges ‘to perform judicial duties
for limited periods or specific assignments.’” People v Sardy, 216 Mich App 111, 117; 549 NW2d
23 (1996). Therefore, under Sardy, there is no vacancy prerequisite to making a judicial appointment.
Defendant also contends that the trial judge’s persistent assignments to the Macomb Circuit
Court constitutes an abuse of the assignment system. Because defendant has provided no authority for
his proposition, this issue is waived. People v Sowders, 164 Mich App 36, 49; 417 NW2d 78
(1987). Nevertheless, § 23 does not restrict the Supreme Court’s authority to appoint visiting judges.
The limitations contained in § 23 are inapplicable to this claim.
Defendant next argues that the double jeopardy clause of the Michigan Constitution barred a
retrial after the prosecutor’s misconduct. We disagree. Double jeopardy issues are questions of law.
People v White, 212 Mich App 298, 304-305; 536 NW2d 876 (1995). We review questions of law
de novo. Id.
Both the United States and Michigan Constitutions prohibit placing a defendant twice in
jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15. Where the trial court
declares a mistrial after jeopardy has attached,2 the state is precluded from bringing the defendant to
trial a second time, unless the defendant consented to a mistrial or the mistrial was of manifest necessity.
People v Booker (After Remand), 208 Mich App 163, 172; 527 NW2d 42 (1994).
Here, defense counsel clearly moved for a mistrial after Officer Jeffrey Dolsen volunteered,
without any prompting by the prosecutor, that defendant was on parole at the time of his arrest.
Defense counsel, at this first trial, even acknowledged that Dolsen’s response was unsolicited. The
mistrial was not the result of any intentional misconduct on the part of the prosecutor. See People v
Gaval, 202 Mich App 51, 53-54; 507 NW2d 786 (1993). We therefore conclude that defendant’s
second trial did not violate the double jeopardy clause because he consented to a mistrial.
Defendant also argues that the trial court abused its discretion in granting the prosecutor’s
motion to consolidate two separate informations where the offenses were separate and distinct acts, and
were not related. Again, we disagree. We review this issue for an abuse of discretion. People v
Solak, 146 Mich App 659, 666-667 (1985).
Testimony from the preliminary examination reveals that the counts were properly consolidated
under MCR 6.120(B)(2) as an “act[] constituting part of a single scheme or plan.” See People v
Tobey, 401 Mich 141, 150; 257 NW2d 537 (1977). Both charges occurred on the same date, August
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24, 1992. We find that the temporal proximity between the two incidents leading to the charges were
so closely connected in terms of defendant’s overall scheme that the trial court was well within its
authority to grant the prosecutor’s motion for joinder.
Defendant next argues that a witnesses’ identification testimony was improper and violated his
right to an attorney under the Sixth Amendment. A trial court’s decision to admit identification evidence
will not be reversed on appeal unless it was clearly erroneous. People v McElhaney, 215 Mich App
269, 286; 545 NW2d 18 (1996). A decision is clearly erroneous when the reviewing court is left with
a firm conviction that a mistake has been made. Id.
Contrary to defendant’s assertion, Georgette Warren’s on-the-scene identification of defendant
did not violate his right to counsel. Our Supreme Court has recognized in dicta that the absence of
counsel at an eyewitness identification procedure is justified where there is a prompt on-the-scene
corporeal identification within minutes of the crime. People v Anderson, 389 Mich 155, 187, n 23;
205 NW2d 461 (1973). This Court has adopted three tests in order to determine whether a defendant
is entitled to counsel during a prompt on-the-scene corporeal identification.
The first approach, enunciated in People v Dixon, 85 Mich App 271, 280-281; 271 NW2d
196 (1978), held that “when a police officer has more than a mere suspicion that the person in custody
is wanted for a crime, the officer cannot return the suspect to the scene of the crime but must take him
to the police station and have a line-up at which counsel is present.” The second approach, articulated
in People v Coward, 111 Mich App 55, 63-64; 315 NW2d 144 (1981), permitted counselless on
the-scene identifications where the police officer, acting in good faith must decide whether “there was a
reasonable likelihood that the suspect was connected with the crime or merely an unfortunate victim of
circumstances.” The circumstances of the suspect’s apprehension seem unimportant under the Coward
rationale. See People v Wilki, 132 Mich App 140; 347 NW2d 735 (1984). The final approach,
contained in People v Turner, 120 Mich App 23, 36; 328 NW2d 5 (1982), required counsel to be
present where the police have detained a person and have strong evidence that this person the culprit.
“Strong evidence” is found “where the suspect himself has decreased any exculpatory motive” such as
through a confession or presents a very distinct appearance. Id. The police may also subject the
suspect to an on-the-scene identification unless they harbor “more than a suspicion” that the suspect
was responsible for a second crime. Id. at 37.
Although the conflict was resolved for a brief time after this Court issued People v Miller, 208
Mich App 495; 528 NW2d 819 (1995), that opinion was nullified by our Supreme Court in People v
Miller, 450 Mich 952-953; 545 NW2d 646 (1995). Regardless of which test is applied, the prompt
on-the-scene identification in this case did not violate any of the above articulated tests. Georgette
Warren testified that when she awoke on the morning of August 24, 1992, at 4:00 a.m., she looked out
her window and saw a car in front of her house with a person inside. Warren had a good view of
defendant and was able to see his full face. She stated that she was able to see him for “quite a while.”
She described the person as a black male, medium height with a muscular built, and without any hair.
Within fifteen minutes of this sighting, Warren made an on-the-scene identification of defendant. The
arresting officer, Steven Binkowski, testified that Warren was brought to the scene “to rule out Mr.
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Evans as a possible suspect.” Officer Jeffrey Dolsen, the other officer involved with defendant’s arrest,
stated that he thought the man they detained was “probably” the culprit.
Under Dixon, Officer Dolsen’s admission that he believed that defendant was “probably” the
suspect suggests that defendant should have been taken to the police station for a line-up. Dixon,
supra at 280. Defendant fit the description as broadcast by the police bulletin: “a lone black male” and
was pulled over in a “small car,” a Plymouth Horizon, near the site of the alleged break-in. Yet, Dolsen
also maintained that he “didn’t want to take an innocent man to jail” and that he as not “sure” that they
had the correct man. Officer Binkowski indicated that Warren was brought to the scene in order to
eliminate defendant as a possible suspect. This case can be distinguished from Dixon. This Court in
Dixon concluded that the defendants were entitled to a line-up and counsel after noting that the
defendant and his associates were “more than potential suspects whose innocence was in doubt.” Id. at
281. The police were vested with “a significant amount of information” that indicated the defendant’s
involvement in the crime. Id. The police knew exactly who to take into custody. Id. Here, in
contrast, even though the police harbored suspicions that defendant was the culprit, there is no evidence
that they were entirely confident that they had the right man. Dolsen’s admission that they “probably”
had the suspect was not confirmed by Officer Binkowski, who was less confident. Most important, this
rule has not gained wide support by subsequent panels. See People v Fields, 125 Mich App 377,
382; 336 NW2d 478 (1983) (Holbrook, Jr., J., concurring); Wilki, supra at 146 (Maher, J.,
concurring).
The test becomes less stringent under Coward, supra, where the facts here comport with the
requirement that the police, in good faith, need “to decide whether there was a reasonable likelihood
that defendant was connected with the crime or merely an unfortunate victim of circumstances.” Id. at
64. Neither officer was certain that he held the proper culprit. Dolsen’s remark, that he did not want
“to take an innocent man to jail,” and Binkowski’s expressed doubt support the trial court’s conclusion
that counsel was not required for Warren’s identification.
Applying the instant facts to the Turner theory, there was no “strong evidence” through a
confession or any distinct features that would eliminate doubt that defendant was in fact the culprit.
Turner, supra at 36. The identification occurred promptly after the crime and appears to be entirely
valid under all three tests.
Defendant also maintains that the identification procedure in this case was “highly suggestive.”
Because defendant has failed to include any argument regarding this issue, we consider this issue
abandoned. Sowders, supra. In any event, although Warren’s testimony was not made a part of the
trial court record, on the basis of her testimony from the evidentiary hearing, it appears that an
independent-basis for defendant’s identification existed as an alternative vehicle to admit Warren’s
identification testimony. However, the prosecuting attorney stated at trial that “we already heard from
Miss Warren, and she told this jury and she was under cross-examination, how she described the
person she had seen.” Nevertheless, based on Warren’s testimony from the preliminary examination,
she had no prior relationship with defendant or knowledge of defendant She was able to observe
defendant from her home window and testified that a street light illuminated defendant She testified that
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she saw his “full face” that evening and could see him “quite well.” Warren identified defendant at the
scene as well as in court both at the preliminary examination and at trial. It seems reasonable to
conclude that Warren was able to make an in-court identification of defendant without depending on the
pretrial confrontation conducted at the arrest scene. People v Kachar, 400 Mich 78, 95; 252 NW2d
807 (1977). We therefore conclude that the trial court did not clearly err in admitting the identification
evidence.
Finally, defendant argues that the trial court abused its discretion by denying his request for
replacement counsel before trial commenced without any investigation. Defendant failed to include this
portion of the transcript which normally forfeits this issue on appeal. People v Coons, 158 Mich App
735, 740; 405 NW2d 153 (1987). However, because of the constitutional dimensions of this issue and
the fact that the relevant section of the transcript is contained in the prosecution’s brief, we will review
this issue. People v Grant, 445 Mich 535, 547; 520 NW2d 123 (1995). A trial court’s decision to
deny a defendant’s request for replacement counsel is reviewed for abuse of discretion. In re Conley,
216 Mich App 41, 45; 549 NW2d 353
(1996).
Although an indigent defendant is guaranteed the right to counsel, he is not entitled to have the
attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced.
People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991). In order to warrant appointment of
substitute counsel, a defendant must show good cause and that the substitution will not unreasonably
disrupt the judicial process. Id. at 14. Good cause exists where a legitimate difference of opinion
develops between a defendant and his appointed counsel with regard to fundamental trial tactics. Id. A
mere allegation that a defendant lacks confidence in his lawyer does not constitute adequate cause.
People v Tucker, 181 Mich App 246, 255; 448 NW2d 811 (1989). Only where the defendant
asserts adequate cause and a factual dispute exists regarding this assertion is the trial court required to
take testimony and render findings on the matter. People v Ginther, 390 Mich 436, 441-442; 212
NW2d 922 (1973).
Here, defendant failed to argue any of the recognized reasons such as inadequacy, lack of
diligence or disinterest in order to establish good cause so as to merit replacement counsel. Id. The
record indicates that Mr. Barr was not defendant’s original attorney. The court had already granted
defendant’s request for new counsel at the preliminary examination. The excerpt contained in the
prosecution’s brief reveals that defendant was simply not satisfied with his attorney. Defendant failed to
specify any reason for his request beyond the fact that his attorney did not “even remember his name.”
When the trial court stated that it was going to deny defendant’s wish, defendant indicated that he would
hire his own attorney. We therefore conclude that the trial court did not abuse its discretion in denying
defendant’s request for replacement counsel.
Affirmed.
/s/ Michael J. Kelly
/s/ Harold Hood
/s/ H. David Soet
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1
Defendant’s first trial ended in a mistrial.
2
Jeopardy attaches once the jury is selected and sworn. Booker, supra at 172.
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