PEOPLE OF MI V TRACY CARMICHAEL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 10, 2011
Plaintiff-Appellee,
v
No. 296095
Wayne Circuit Court
LC No. 09-022639-FH
TRACY CARMICHAEL,
Defendant-Appellant.
Before: SAWYER, P.J., and MARKEY and FORT HOOD, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of embezzlement, MCL 750.147(7), four
counts of forgery, MCL 750.248, four counts of uttering and publishing, MCL 750.249, false
pretenses, MCL 750.218(5), and second-degree money laundering, MCL 750.411n. He was
sentenced as a habitual offender second offense, MCL 769.10, to 11 to 30 years’ imprisonment
for the embezzlement conviction, 11 to 21 years’ imprisonment for the forgery and uttering and
publishing convictions, and 10 to 15 years’ imprisonment for the false pretenses and seconddegree money laundering convictions. Defendant appeals as of right, and we affirm.
The prosecutor’s theory of the case was that defendant represented to third parties that he
engaged in business investments of financially distressed properties, but in actuality he made
misrepresentations and fraudulently executed documents to obtain money from mortgages on
properties that he did not legally own. Defendant denied any wrongdoing and alleged that he
merely acted as a consultant to individuals with financial problems. Despite defendant’s
testimony on his own behalf, the jury convicted defendant as charged, and he appeals as of right.
Defendant first alleges that his convictions must be reversed because the trial court did
not comply with the constitutional and court rule requirements for waiver of his Sixth
Amendment right to counsel. We disagree. The defense did not object to the procedure utilized
in the trial court to determine that the waiver of the right to counsel was knowingly, intelligently,
and voluntarily given. Therefore, this issue is reviewed for plain error affecting substantial
rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). Reversal is only
warranted when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or where the error seriously affected the fairness, integrity, or public reputation of the
judicial proceedings. Id. at 766-767.
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When addressing the waiver of the Sixth Amendment right to counsel, the inquiry is
whether the defendant gave a knowing, intelligent, and voluntary waiver. People v Williams,
470 Mich 634, 642-643; 683 NW2d 597 (2004). The trial court’s factual findings addressing a
defendant’s waiver are reviewed for clear error. People v Russell, 471 Mich 182, 187; 684
NW2d 745 (2004). When the ruling involves interpretation of the law or application of the law
to uncontested facts, appellate review is de novo. Id. The reviewing court may not substitute its
judgment for that of the trial court, but must respect the trial court’s factual findings and issues
involving credibility. Williams, 470 Mich at 641.
Before granting a defendant’s request for waiver of the right to counsel, the trial court
must find that: (1) the request is unequivocal; (2) the waiver is given knowingly, intelligently,
and voluntarily; and (3) the defendant will not disrupt, unduly inconvenience, or burden the court
and its administration of court business. Williams, 470 Mich at 642 citing People v Anderson,
398 Mich 361, 367-368; 247 NW2d 857 (1976). Additionally, the trial court must advise the
defendant of the charge, the maximum possible prison sentence for the offense, any mandatory
minimum sentence, the risk involved in self-representation, and offer the opportunity to consult
with a lawyer. MCR 6.005(D); Williams, 470 Mich at 642-643. A word for word or “litany
approach” for waiver of the right to counsel is unnecessary. Russell, 471 Mich at 191. Rather,
trial courts are only required to substantially comply with the waiver of counsel procedures set
forth in Anderson and MCR 6.005(D) before granting a defendant’s request for selfrepresentation. Russell, 471 Mich at 191. Substantial compliance requires that the trial court
discuss the constitutional and court rule requirements with the defendant and make a finding that
the defendant understands, recognizes, and agrees to abide by the waiver procedures. People v
Adkins (After Remand), 452 Mich 702, 726-727; 551 NW2d 108 (1996). The presence of
standby counsel does not satisfy the waiver and notice requirements. People v Lane, 453 Mich
132, 138; 551 NW2d 382 (1996).
On appeal, defendant contends that he did not unequivocally waive his right to counsel,
but rather, acquiesced to the suggestion made by trial counsel. We disagree. Our review of the
record reveals that the trial court substantially complied with the requirements of Anderson and
MCR 6.005. Although defendant initially stated that he felt that he had no choice but to
represent himself because of his concerns regarding defense counsel, the trial court made an
express finding that defendant was raising the issue as a matter of strategy to raise this issue on
appeal. More importantly, later during a break in the proceedings, defendant affirmatively
responded that he wanted to represent himself, that he fully understood the risks involved with
self-representation, and that he understood the maximum penalty in this case and the impact of
being a second habitual offender. Therefore, this challenge is without merit.
Next, defendant asserts that he was deprived of the right to a public trial where there was
no accommodation for public access during jury selection. We disagree. Defendant did not
object to the trial court’s action. The right to a public trial may be waived by the defendant’s
failure to assert the right. Singer v United States, 380 US 24, 35; 85 S Ct 783; 13 L Ed 2d 630
(1965); Levine v United States, 362 US 610, 619; 80 S Ct 1038; 4 L Ed 2d 989 (1960).
The
Sixth Amendment right to a public trial is not violated when a defendant fails to timely object
such that other alternatives can be considered, the reason for the temporary closure is innocent,
and the length of the closure is minimal. People v Bails, 163 Mich App 209, 211; 413 NW2d
709 (1987). In the present case, it is unclear if the trial court ordered the courtroom “closed.”
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Rather, before the jury venire was brought into the courtroom, the trial court stated that the
courtroom should be “cleared.” Assuming without deciding that the courtroom was closed,
defendant failed to object such that other accommodations could be made, the reason for the
temporary closure was to allow the jury panel into the courtroom, and the length of the closure
was short in duration. Therefore, defendant waived review of this issue and, in any event, the
Sixth Amendment right to a public trial was not violated. Singer, 380 US at 35; Levine, 362 US
at 619; Bails, 163 Mich App at 211.
Lastly, defendant contends that venue was improper for counts eight through eleven of
the information because the meetings, restaurants, and banks addressing those counts were all
located in Oakland County. We disagree. “Whenever a felony consists or is the culmination of
2 or more acts done in the perpetration of, said felony may be prosecuted in any county in which
any 1 of said acts was committed.” MCL 762.8. When applying MCL 762.8, the location of the
commission of an act is not limited to the place of the defendant’s physical presence. People v
Fisher, 220 Mich App 133, 151-152; 559 NW2d 318 (1996). When an act has effects elsewhere
that are essential to the commission of the offense, the offense is effectively committed in the
location where it has its effects. Id. In the present case, the properties at issue were located in
Wayne County and recorded in that jurisdiction. Therefore, the prosecution was proper in
Wayne County.
Affirmed.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
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