PEOPLE OF MI V TIMOTHY DEMETRIS HOLDEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 19, 2009
Plaintiff-Appellee,
v
No. 284830
Saginaw Circuit Court
LC No. 03-023823-FH
TIMOTHY DEMETRIS HOLDEN,
Defendant-Appellant.
Before: Jansen, P.J., and Fort Hood and Gleicher, JJ.
GLEICHER, J. (dissenting).
I respectfully dissent. In my view, the record does not support the majority’s conclusion
that defendant knowingly, intelligently, and voluntarily waived his Sixth Amendment right to
counsel.
I. Proceedings Related to Representation by Counsel
In April 2003, the Saginaw County prosecutor charged defendant in this case with
insurance fraud, MCL 500.4511(1), and conspiracy to commit insurance fraud, MCL
500.4511(2) (the insurance case).1 In a separate circuit court case involving unrelated facts (LC
No. 04-024329-FH), defendant was charged with multiple counts of arson, employing false
pretenses with the intent to defraud, filing a fraudulent tax return, and committing a fraudulent
insurance act (the arson case). Defendant retained counsel in both cases. Defendant’s first
retained attorney successfully moved to withdraw, as did his second retained counsel.
On February 14, 2006, defendant appeared before the trial court without counsel, and the
following colloquy ensued:
The Prosecutor: Judge on the file in which Mr. Holden is charged alone
facing the arson and insurance fraud, I’ve spoken to him briefly this morning. He
still is here without counsel. This matter has been set many times for trial. We’ve
1
The prosecutor charged a codefendant with malicious destruction of a building, MCL
750.380(2)(a).
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never gone over Michigan Court Rule 6.005 about self-representation, and I
would ask the Court to please do that this morning.
The Court: Sir, do you understand the dangers of that?
Defendant: No, I do not. But I told [the prosecutor] this morning I was
trying to retain Mr. Scorsone. I was gathering the money because I got two—
there’s two different court cases on that. So it was quite a lot of money I had to
come up with. And I told him I was retaining—working to retain Mr. Scorsone.
So I was asking for an adjournment . . . .
The Court: Well, let me ask you this: How far did you go in school, sir?
Defendant: Twelfth grade.
The Court: Have you had any experience in litigation, either from, you
know, landlord/tenant type situations or any kind of—
Defendant: Right. I had to come to landlord/tenant.
The Court: I’m not quite sure. Are you indicating you want to represent
yourself, or are you just at the point where you claim you can’t hire an attorney?
Defendant: No, I was telling [the prosecutor] that I wanted an
adjournment. I was getting the rest of my money to hire Mr. Scorsone.
The Court: Well in all fairness, sir, . . . I’ll give you two choices here.
You can either try the case yourself, or I’ll appoint someone and you pay them
back. Because, you know, we cannot continually—this will go on until ad
infinitum here. We’re going to come in here and on the day of trial you’re not
going to be ready to go. So if you want to represent yourself fine. But if you
don’t, I’m going to appoint somebody, a qualified attorney from the list here, and
you will be billed after the case is over, period.
What’s your pleasure here?
Defendant: Well, I need an attorney.
The Court: Okay. I understand that. So I’ll appoint someone. . . .
***
I don’t know how else to handle this because I don’t—I’m not entirely
confident that you could represent yourself. You’re not asking to either, so I
don’t know how else I can proceed. . . .
The trial court then appointed Scorsone as defendant’s counsel in both the insurance and arson
cases.
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In June 2006, defendant stood trial in the arson case and a jury convicted him of all
charges. On September 6, 2006, Scorsone advised the trial court that in the insurance case,
defendant “no longer wants my services based on issues stemming from the first trial.”2 The trial
court appointed Henry Greenwood to represent defendant in the insurance case. Greenwood
failed to appear at a November 13, 2006 motion hearing to address a proposed amendment to the
prosecutor’s witness list, on which the trial court withheld a ruling. The next day, the court
adjourned trial for a week at the prosecutor’s request. On November 20, 2006, Greenwood and
the prosecutor appeared for trial, but because Greenwood had neglected to prepare a writ of
habeas corpus, defendant was not present. Greenwood represented to the court that he intended
to respond to multiple motions filed by the prosecutor. The trial court granted Greenwood an
adjournment.
On January 25, 2007, Greenwood informed the court that he still intended to “file those
motions,” but had not yet done so. The court again adjourned trial. Six months later, on June 28,
2007, the parties appeared for trial. Greenwood apprised the court that he had not yet filed the
defense motions, explaining,
I indicated to the Court that I have failed to do so because of several
things, one of which during the course of my investigation on the appeal that I’ve
run across some other issues which would reframe the issues that I wanted to file.
I apologize to the Court and to Mr. Holden. However, Your Honor, it
appears from my discussions with Mr. Holden that he is—he may be unsatisfied
with my performance and the delay in these particular proceedings attributable to
me.
Defendant expressed his dissatisfaction with Greenwood’s prolonged failure to file the motions,
in part because he had remained in “high level security” during the delays. The trial court
granted defendant’s request for substitute counsel, and on July 2, 2007 appointed William
Cowdry.
A month after Cowdry’s appointment, he filed a motion seeking additional expenses for
visiting defendant at the Mound Road Correctional Facility in Detroit. On August 27, 2007, the
trial court denied Cowdry’s motion and ordered defendant brought to Saginaw for a meeting with
Cowdry. Cowdry further advised the court that although the case was scheduled for trial on
October 30, 2007, “I don’t think I’m going to be ready.” The court replied, “[I]f you’re not
ready, we can adjourn it.” The trial court file reflects that defendant met with Cowdry on
September 28, 2007. On October 15, 2007, Cowdry moved to withdraw. The transcript of an
October 22, 2007 hearing includes the following relevant exchange:
2
Defendant’s appeal in the arson case, LC No. 04-024329-FH, included a claim of ineffective
assistance of counsel, which this Court rejected. People v Holden, unpublished opinion per
curiam of the Court of Appeals, issued June 4, 2008 (Docket No. 272633), slip op at 6-7. The
Supreme Court denied leave to appeal. People v Holden, 482 Mich 1034 (2008).
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Cowdry: This is my motion—to withdraw as counsel. After meeting with
Mr. Holden, he asked me to file this motion.
Correct?
Defendant: Correct.
The Court: How many attorneys have we been through?
Cowdry: I . . . think I’m number five if I’m counting correctly.
The Court: What’s the—has there been a breakdown in the attorney/client
relationship?
Cowdry: Quite frankly, I don’t think there ever was an attorney/client
relationship.
Defendant: I say, Your Honor, I sent a letter out to you with documents
stating my reasons why I’m … relinquishing this attorney and the past five
attorneys, and I’m asking to represent myself with appointed counsel to assist me.
The Court: Okay. Well, I’ll go for that. I’ll grant your motion. We’ll get
someone to sit there and make sure you—you know how to ask the proper
questions. We’ll try it that way, I guess. It may be the simplest way.
On October 25, 2007, William White entered an appearance as counsel for defendant.
On November 1, 2007, defendant filed a witness list, and the prosecutor moved to strike
many of the defense witnesses. On November 19, 2007, the trial court held a hearing to address
the prosecutor’s motion to strike, at which defendant did not appear. White urged the court to
hold its motion ruling in abeyance, explaining, “I haven’t met with him yet. . . . Hope to see him
this week.” The trial court responded, “All your job is [sic] explain things to him. When we
pick the jury, explain to him how . . . it goes, how you—if he asks questions, how you phrase
questions, something like that. You don’t have anything beyond that.” The trial court then
granted the prosecutor’s motion to strike most of the defense witnesses.
Trial commenced on February 5, 2008, with the following colloquy:
The Court: Sir, I understand you wish to represent yourself.
Defendant: That’s correct.
The Court: Couple questions. How far did you go in school, sir?
Defendant: Twelfth grade.
The Court: Do you understand there are some problems with representing
yourself? There are some dangers involved in the process here.
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Defendant: Yes.
The Court: And you feel competent that you can abide by the court rules
and carry on here?
Defendant: Yes, I can, but Your Honor, I feel we cannot proceed today.
Defendant elaborated that he had not received the transcripts of all prior hearings or “certain
documents and letters that I sent.” Without explanation, the trial court denied further
adjournment. That afternoon, the parties selected a jury.
The next day, defendant attempted to make an opening statement. Soon after he started
speaking to the jury, defendant announced, “And I’m feeling, Your Honor, that I’m going to be
requesting for attorney to handle this because this is being—.” The trial court interrupted as
follows:
The Court: The record should reflect you’ve had six attorneys, sir, and
you requested to represent yourself. The Court allowed you to represent yourself
on your request.
Defendant: I’m feeling incompetent.
The Court: You had six attorneys.
Defendant: Yes, sir.
The Court: Proceed.
Defendant subsequently represented himself through the remainder of trial.
II. Analysis
A. Governing Legal Principles
The Sixth Amendment affords defendants facing possible incarceration the right to
assistance of counsel, a constitutional guarantee “indispensable to the fair administration of our
adversarial system of criminal justice.” Maine v Moulton, 474 US 159, 168; 106 S Ct 477; 88 L
Ed 2d 481 (1985). The right to represent oneself in a criminal trial is also implicitly embodied in
the Sixth Amendment. Faretta v California, 422 US 806, 814; 95 S Ct 2525; 45 L Ed 2d 562
(1975). The right of self-representation “seems to cut against the grain” of the Supreme Court’s
repeated emphasis on the right to counsel. Id. at 832. But while these two aspects of the Sixth
Amendment may sometimes collide, the right to be represented by counsel is indisputably
preeminent. See, e.g., Brewer v Williams, 430 US 387, 404; 97 S Ct 1232; 51 L Ed 2d 424
(1977). Stated alternatively, “it is representation by counsel that is the standard, not the
exception.” Martinez v Court of Appeal, 528 US 152, 161; 120 S Ct 684; 145 L Ed 2d 597
(2000); see also Lakeside v Oregon, 435 US 333, 341; 98 S Ct 1091; 55 L Ed 2d 319 (1978) (“In
an adversary system of criminal justice, there is no right more essential than the right to the
assistance of counsel.”).
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Because the right to counsel qualifies as a fundamental right, the United States Supreme
Court has instructed courts to “indulge in every reasonable presumption against [its] waiver.”
Brewer, 430 US at 404. The Michigan Supreme Court has repeatedly emphasized that a court
must follow specific procedures before permitting a defendant to waive his right to counsel. In
People v Anderson, 398 Mich 361, 367; 247 NW2d 857 (1976), our Supreme Court held that
initially, a trial court must establish that a defendant has unequivocally selected selfrepresentation instead of representation by counsel. “Second, once the defendant has
unequivocally declared his desire to proceed pro se the trial court must determine whether
defendant is asserting his right knowingly, intelligently and voluntarily.” Id. at 368. To
demonstrate that a defendant has made his election for self-representation “with eyes open,” the
court must make the defendant “aware of the dangers and disadvantages” attending this decision.
Id. Third, the trial court must satisfy itself that a defendant’s self-representation “will not
disrupt, unduly inconvenience and burden the court and the administration of the court’s
business.” Id.
In People v Adkins (After Remand), 452 Mich 702, 706; 551 NW2d 108 (1996), criticized
on other grounds in People v Williams, 470 Mich 634, 641 n 7; 683 NW2d 597 (2004), our
Supreme Court held that trial courts “must substantially comply with the waiver of counsel
procedures” set forth in Anderson, as well as the provisions of MCR 6.005(D). “The purpose of
MCR 6.005, like Anderson, is to inform the defendant of the risks of self-representation.”
Adkins, 452 Mich at 722. In Williams, 470 Mich at 642, the Supreme Court reaffirmed the
necessity of substantial compliance with the requirements of MCR 6.005(D)(1), observing that
the rule “governs procedures concerning a defendant’s waiver of the right to an attorney.” The
Supreme Court further explained that the court rule “prohibits a court from granting a
defendant’s waiver request” without supplying the requisite cautions. Id.
According to the relevant portions of MCR 6.005(D),
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.
This court rule embodies the notion that explicit elucidation of a defendant’s understanding of
the risks he faces by representing himself and his willingness to undertake those risks reduces the
likelihood that a court will inaccurately presume an effective waiver of the right to counsel.
B. Defendant’s Initial Waiver of His Right to Counsel
On October 22, 2007, defendant’s fifth attorney requested permission to withdraw, and
defendant asked to represent himself “with appointed counsel to assist me.” The transcript of
this hearing reveals that the trial court thereafter made no attempt to comply with MCR
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6.005(D). The trial court at no point advised defendant of the charges and possible penalties he
faced, and neglected to engage defendant in a discussion about his competence, the reasons he
desired to represent himself, or the risks of self-representation.3 Instead, the trial court readily
acceded to defendant’s request, stating only, “Okay. Well, I’ll go for that. I’ll grant your
motion. We’ll get someone to sit there and make sure you . . . know how to ask the proper
questions. We’ll try it that way, I guess. It may be the simplest way.” The trial court correctly
characterized its method as “the simplest way.” However, the court’s manner of proceeding
plainly did not come close to constituting the correct method. A defendant cannot knowingly
and intelligently forego his right to counsel without expressing some recognition of counsel’s
“core functions and the lawyer’s superior ability to perform them.” United States v Kimmel, 672
F2d 720, 721 (CA 9, 1982). In light of this clearly inadequate colloquy, I would hold that
defendant did not effectively waive his right to counsel, and would reverse defendant’s
convictions.
The majority holds that because defendant attached copies of the felony complaint to his
pro se pleadings and had previously discussed a plea bargain in open court, the trial court’s
failure to advise defendant of the charges he faced and their possible penalties suffices to
demonstrate “substantial compliance” with the court rule. But this holding flies in the face of the
United States Supreme Court’s admonition that courts must indulge every reasonable
presumption against waiver of the right to counsel, and refrain from assuming acquiescence in
the loss of this fundamental right. See Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L
Ed 2d 1461 (1938). Moreover, the Michigan Supreme Court’s mandate that trial courts
substantially comply with the requirements of MCR 6.005(D) serves an important and
indispensable institutional purpose. A formal colloquy addressing the risks of self-representation
forces the defendant to confront the reality of his situation, and to consider carefully the benefits
of counsel. An actual give-and-take conversation may reveal that a defendant’s expressed desire
for self-representation is fraught with ambiguity rather than being unequivocal, borne of
momentary frustration or anger, or not truly made “with eyes open.” Absent a record
specifically documenting a defendant’s comprehension of the dangers inherent in undertaking his
own defense, an appellate court should not presume an intelligent, knowledgeable and
understanding waiver of a fundamental constitutional right. And “even well-founded suspicions
of intentional delay and manipulative tactics can provide no substitute for the inquiries necessary
to protect a defendant’s constitutional rights.” United States v Welty, 674 F2d 185, 189 (CA 3,
1982).
3
Although defendant expressed that he wished to “relinquish” Cowdry, the transcript contains no
further elaboration about the reason for defendant’s request. At the October 22, 2007 hearing,
the trial court did not question defendant regarding the basis for his dissatisfaction with Cowdry
or the particular facts and circumstances surrounding defendant’s request to discharge Cowdry.
Certainly, defendant may have intended to “game the system” by interposing complaints
concerning yet another attorney solely for the purpose of delay. But there can be little doubt that
defendant’s previous dissatisfaction with respect to attorney Greenwood qualified as both
understandable and reasonable, given Greenwood’s inexplicable failure between November 20,
2006 and June 28, 2007 to file pretrial motions that Greenwood viewed as legally meritorious.
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This record contains no finding by the trial court that defendant competently, knowingly,
intelligently, and voluntarily waived his right to counsel. At the hearing held on February 14,
2006, the trial court had expressed, “I’m not entirely confident that you could represent
yourself.” At that point, defendant was not incarcerated, and presumably had far greater access
to the tools necessary for adequate self-representation. I cannot discern in the record a rational
basis that defendant gained competence during the approximately 15 months that he remained
incarcerated while awaiting trial in this case.
C. Trial
Because the trial court neglected to obtain an effective waiver of counsel at the October
2007 hearing, it was incumbent on the court to ascertain on the first day of trial that defendant
knowingly, intelligently and voluntarily elected self-representation and waived his right to
counsel. When trial commenced, the court engaged defendant in a brief discussion about selfrepresentation. The trial court inquired how far defendant had gone in school, and whether
defendant understood that “there are some problems with representing yourself? There are some
dangers involved in the process here.” Defendant advised the court that he felt competent he
could “abide by the court rules and carry on here,” but stated that he could not proceed because
he lacked some material relevant to his defense. In my view, this colloquy failed to substantially
comply with MCR 6.005(D) and MCR 6.005(E), which provides in pertinent part,
If a defendant has waived the assistance of a lawyer, the record of each
subsequent proceeding (e.g., preliminary examination, arraignment, proceedings
leading to possible revocation of youthful trainee status, hearings, trial, or
sentencing) need only show that the court advised the defendant of the continuing
right to a lawyer’s assistance (at public expense if the defendant is indigent) and
that the defendant waived that right. Before the court begins such proceedings,
(1)
wanted; or
the defendant must reaffirm that a lawyer’s assistance is not
(2)
if the defendant requests a lawyer and is financially unable to
retain one, the court must appoint one; or
(3)
if the defendant wants to retain a lawyer and has the financial
ability to do so, the court must allow the defendant a reasonable opportunity to
retain one. [Emphasis added.]
“Warnings of the pitfalls of proceeding to trial without counsel . . . must be rigorous(ly)
conveyed.’” Iowa v Tovar, 541 US 77, 89; 124 S Ct 1379; 158 L Ed2d 209 (2004) (internal
quotation omitted); see also People v Russell, 471 Mich 182, 193 n 27; 684 NW2d 745 (2004)
(“It is worth noting … that an effective waiver of trial counsel requires a more exacting waiver
than that required to waive counsel at pretrial stages of the proceedings.”) (emphasis in original).
Rather than demonstrating the “methodical” waiver exchange contemplated in Adkins, the instant
record reflects that the trial court engaged in an entirely perfunctory, three-question exchange
that revealed precious little about whether defendant knowledgeably and intelligently
relinquished his right to counsel. In Adkins, 452 Mich at 723, our Supreme Court emphasized
that “the effectiveness of an attempted waiver does not depend on what the court says, but rather,
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what the defendant understands.” Here, the record shows virtually no indication of what
defendant understood with respect to the risks of waiving his right to counsel. Indisputably, the
first day of a delayed trial presents a less than ideal moment for a waiver exchange mandated by
MCR 6.005(D). But in my view, this was a problem of the trial court’s own making. Had the
trial court obtained an effective waiver on October 22, 2006, it would have needed only to
reaffirm defendant’s willingness to forego counsel and advise defendant of his ongoing right to a
lawyer’s assistance.
Moreover, the court rule’s requirement that a court must advise the defendant at trial of
“the continuing right to a lawyer’s assistance” serves as a potent reminder of the preeminence of
the right to counsel at a critical stage of the proceedings. By including in the court rule that on
the day of trial a court must offer appointed counsel to a defendant who has previously elected
self-representation, our Supreme Court undoubtedly recognized the potential for disruptions and
delays, including that a defendant might change his mind on the courthouse steps. Had this trial
court accomplished a perfectly effective waiver, it nevertheless would have had to tell defendant
that he still enjoyed a right to appointed counsel.4 Possibly, had an inquiry been made that
morning that included a discussion of the dangers of self-representation and the advantages of
counsel, defendant may have elected to representation by standby counsel through trial. But
because the trial court failed to comply with this obligation, it is impossible to know which
course defendant would have chosen. And as a result, defendant entirely lacked counsel during a
critical stage of the proceedings, requiring reversal of his conviction. People v Willing, 267
Mich App 208, 228; 704 NW2d 472 (2005).
In summary, this record fails to demonstrate that the trial court substantially complied
with the requirements precedent to an effective waiver of the right to counsel. The record also
does not substantiate that defendant understood the risks and complexities associated with selfrepresentation. As a result, defendant stood trial without counsel. On the basis of these errors of
constitutional dimension, I would reverse defendant’s convictions and remand for a new trial.
/s/ Elizabeth L. Gleicher
4
Given that, even if properly obtained, defendant’s previous waiver of the right to counsel did
not extinguish the right to counsel, I question why the trial court apparently failed to consider
asking standby counsel to assume the defense when defendant claimed incompetence at the
outset of trial. In response to defendant’s expression that he was “feeling incompetent,” the trial
court neglected to explore the ability or readiness of standby counsel to proceed in defendant’s
place. Instead, the trial court remarked, “You had six attorneys. … Proceed.” In my view, this
abbreviated, punitive response does not constitute an appropriate exercise of discretion. Rather,
it reflects an abdication of the court’s responsibility to carefully and thoughtfully safeguard the
integrity of the trial process. Forcing defendant to stumble inadequately prepared through a trial
“serves neither the individual nor our system of adversarial justice well.” Menefield v Borg, 881
F2d 696, 700 (CA 9, 1989).
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