PEOPLE OF MI V RODNEY WILLIAMS
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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 20, 2004
THE PEOPLE OF THE STATE OF
MICHIGAN
Plaintiff -Appellant,
v
No. 123537
RODNEY WILLIAMS,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave to appeal to determine whether the
trial court’s denial of defendant’s request to read his
preliminary
examination
transcript
during
a
waiver-of-
counsel proceeding violated the requirements of People v
Anderson,
6.005(D).1
398
Mich
361;
247
NW2d
857
(1976),
and
MCR
The Court of Appeals held that the trial court’s
waiver proceeding did not comply with the requirements of
1
468 Mich 945 (2003).
Anderson and reversed defendant’s conviction on that basis.2
We hold that the trial court did not abuse its discretion
in denying defendant’s request and that defendant’s waiver
of
counsel
was
unequivocal,
knowing,
and
voluntary.
Accordingly, we reverse the Court of Appeals decision and
remand for consideration of defendant’s remaining claims.
I.
FACTS AND PROCEEDINGS
Defendant was charged with first-degree felony murder,3
possession of a firearm during the commission of a felony
(felony
firearm),4
and
armed
robbery.5
The
trial
court
appointed counsel for defendant, but following defendant’s
preliminary
examination,
counsel
withdrew
because
breakdown in the attorney-client relationship.
of
a
The trial
court provided defendant with a replacement court-appointed
attorney.
During
the
prosecutor’s
case-in-chief,
defendant
became unhappy with his attorney’s cross-examination of two
prosecution witnesses.
Defendant informed the court that
he wished to represent himself:
2
Unpublished opinion per curiam, issued February 28,
2003 (Docket No. 232827).
3
MCL 750.316(1)(b).
4
MCL 750.227b.
5
MCL 750.529.
2
I do not wish to adjourn the proceeding,
because I know this has been going on all along.
But I would like to represent myself, in proper
person. . . .
* * *
[O]nly if this Court would agree orally, and
a written consent, please, that [two prosecution
witnesses] may be brought back to court, and
allow me to recross-examine [them].
The trial court explained to defendant the risks he
faced in defending himself, including defendant’s lack of
familiarity with the Michigan rules of criminal procedure.
Defendant answered that he understood the risks involved.
He stated that he wished to “confront [his accusers] and
question
them”
as
was
his
“right
by
the
United
States
Constitution.”
The
wished
to
trial
court
represent
“Yes, ma’am.”
again
asked
himself;
defendant
again,
whether
defendant
he
answered,
The trial court advised defendant that he
would not later be permitted to appeal a conviction on the
basis
of
his
own
ineffective
assistance
of
counsel.
Defendant answered, “Yes I read that.”
The trial court then asked defendant, “Are you making
this
request
knowingly,
intelligently,
Defendant answered, “Yes, ma’am.”
and
voluntarily?”
The trial court informed
defendant that he would not be permitted to disrupt the
courtroom,
and
that
if
he
did,
his
brought back to represent defendant.
3
attorney
would
be
Defendant answered,
“Yes
ma’am.
I
would
not
disrespect
this
Court,
or
do
anything that’s unconduct of a gentleman [sic].”
The trial court then advised defendant of the sentence
he
would
face
understood.
if
convicted.
Defendant
again
Defendant
stated
that
said
he
that
he
wished
to
reexamine two excused prosecution witnesses:
The Defendant:
Ma’am, is it also on the
record, and it will probably be written down,
that I will have an opportunity to recrossexamine
the prosecution’s first two witnesses
. . . .
The Court:
No, we’re not bringing in those
other witnesses, we’re continuing with the trial.
It’s the Court’s opinion that you had proper
representation. . . . You can still have [your
court-appointed attorney] if you want, or you can
continue and represent yourself, but you are
taking serious risks. . . . Do you understand
that?
Defendant insisted that at his preliminary examination
one of the prosecution’s witnesses had testified that he
was
“only
fifty
perpetrator.
because
he
percent
sure”
that
defendant
was
the
Defendant was dissatisfied with his attorney
did
not
cross-examine
the
witness
on
this
alleged testimony. The prosecutor objected to defendant’s
characterization of the witness’s testimony:
And there is nothing in that exam transcript
[preliminary examination] that indicates that
[the witness is] only fifty percent sure.
What
[defendant]’s saying he’s taking out of context.
And if [defendant] reads the whole thing, I think
he’ll
understand
why
[defendant’s
attorney]
4
didn’t elaborate with further questioning of the
witness.
Defendant
requested
time
to
preliminary examination testimony.
read
the
written
The trial court denied
defendant’s request:
No. I’m going to ask you one more time. Do
you want to represent yourself?
Because we’re
bringing in the jury.
The Defendant:
respect. . . .
The Court:
Your
Honor,
with
all
due
I asked you one question.
* * *
The Court:
Answer my question.
The Defendant:
The Court:
Yes, ma’am.
All right.
Let’s bring in the
jury.
The trial court once again informed defendant that if
he disrupted the proceedings, his court-appointed attorney
would be brought back to represent him.
Defendant stated
that he understood.
Defendant’s
standby
court-appointed
counsel.
He
advised
attorney
defendant
remained
as
throughout
the
trial, took part in sidebar discussions, helped defendant
prepare
his
closing
argument,
and
argued
to
the
court
regarding jury instructions and the form of the verdict.
5
Defendant
right.
was
convicted6
ultimately
and
appealed
by
In a split decision, the Court of Appeals reversed
defendant’s conviction and remanded for a new trial. The
majority held that defendant’s waiver of counsel was not
unequivocal because defendant might not have elected selfrepresentation had the trial court allowed him to read the
preliminary examination transcript.
The majority opined:
[The trial court’s] cursory handling of
defendant’s request violated defendant’s right to
have the proceeding conducted so as to ensure
“that he knows what he is doing and his choice is
made with eyes open.” [Slip op at 1 (citations
omitted).]
The Court of Appeals dissent would have held that the
trial court’s denial of defendant’s request to read the
preliminary examination transcript occurred after the court
had already concluded the waiver of counsel procedure, and
related solely to how the trial would proceed from that
point forward.
II.
The
rights
inquiry
STANDARD OF REVIEW
regarding
mirrors
the
inquiry
waived
his
Fifth
validly
instance,
the
question
is
waivers
of
of
whether
Amendment
whether
6
Sixth
a
defendant
rights:
the
defendant
The trial court vacated defendant’s
armed robbery on a double jeopardy ground.
6
Amendment
In
has
each
gave
conviction
a
for
knowing, intelligent, and voluntary waiver.
See Patterson
v Illinois, 487 US 285, 297-298; 108 S Ct 2389; 101 L Ed 2d
261 (1988) (waiver of Sixth Amendment rights is not more
difficult
to
effectuate
than
waiver
of
Fifth
Amendment
rights).
Accordingly, we adopt the standard of review that has
been used for trial court decisions regarding waivers of
Fifth Amendment rights, finding it equally applicable to
decisions regarding waivers of Sixth Amendment rights:
“Although engaging in a de novo review of
the entire record . . ., this Court does not
disturb
a
trial
court’s
factual
findings
regarding a knowing and intelligent waiver of
[Sixth Amendment] rights “unless that ruling is
found to be clearly erroneous.”
[People v
Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).]
Credibility
is
crucial
in
determining
a
defendant’s level of comprehension, and the trial
judge is in the best position to make this
assessment.”
Although we review for clear error the trial
court’s factual findings regarding a defendant’s
knowing
and
intelligent
waiver
of
[Sixth
Amendment] rights, . . . the meaning of “knowing
and intelligent” is a question of law. We review
questions of law de novo.
[People v Daoud, 462
Mich 621, 629-630; 614 NW2d 152 (2000), quoting
People v Cheatham, 453 Mich 1, 30; 551 NW2d 335
(1996).]
Thus, the reviewing court is not free to simply substitute
its view for that of the trial court, but must be careful
7
to respect the trial court’s role in determining factual
issues and issues of credibility.7
III.
DISCUSSION AND ANALYSIS
A. THE SIXTH AMENDMENT
AND THE
RIGHT
TO
SELF-REPRESENTATION
The Sixth Amendment safeguards the right to counsel at
all critical stages of the criminal process for an accused
who faces incarceration. Maine v Moulton, 474 US 159, 170;
106 S Ct 477 ; 88 L Ed 2d 481 (1985).
The Sixth Amendment
right to counsel is applicable to the states through the
Due Process Clause of the Fourteenth Amendment.
Gideon v
Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).
The
United
should
States
“‘indulge
Supreme
every
Court
has
reasonable
stated
that
presumption
waiver of fundamental constitutional rights.’”
courts
against
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 (1937).
The
United
States
Constitution
does
not,
however,
force a lawyer upon a defendant; a criminal defendant may
7
To clarify, to the extent that People v Adkins (After
Remand), 452 Mich 702, 721 n 16; 551 NW2d 108 (1996), can
be read to say that trial court decisions regarding Sixth
Amendment
waivers
are
only
reviewed
for
abuse
of
discretion, it is erroneous.
We believe the correct
standard is that set forth above.
8
choose to waive representation and represent himself. Iowa
v Tovar, 541 US ___; 124 S Ct 1379, 1387; 158 L Ed 2d 209
(2004).
“Waiver of the right to counsel . . . must be a
‘knowing, intelligent ac[t] done with sufficient awareness
of the relevant circumstances.’" Id. at 1383, quoting Brady
v United States, 397 US 742, 748, 90 S Ct 1463; 25 L Ed 2d
747 (1970).
A waiver is sufficient if the defendant “knows
what he is doing and his choice is made with eyes open.”
Adams v United States ex rel McCann, 317 US 269, 279; 63 S
Ct 236; 87 L Ed 268 (1942); Godinez v Moran, 509 US 389,
401 n 12; 113 S Ct 2680; 125 L Ed 2d 321 (1993).
B. THE RIGHT
TO
COUNSEL UNDER MICHIGAN LAW
The right of self-representation under Michigan law
is secured by Const 1963, art 1, § 138 and by statute, MCL
763.1.9
In Anderson, supra at 367-368, this Court held that
a trial court must make three findings before granting a
defendant’s waiver request. First, the waiver request must
8
“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.”
9
“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.”
9
be unequivocal.
that
the
Second, the trial court must be satisfied
waiver
is
voluntarily made.
knowingly,
intelligently,
To this end, the trial court should
inform the defendant of potential risks.
court
must
be
and
satisfied
that
the
Third, the trial
defendant
will
not
disrupt, unduly inconvenience, and burden the court or the
administration of court business.
Consistent
with
Anderson,
MCR
6.005(D)(1)
governs
procedures concerning a defendant’s waiver of the right to
an
attorney.
It
prohibits
a
court
from
granting
a
defendant’s waiver request without first
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 . . . .
[MCR 6.005(D)(1).]
C. APPLICATION
1. DEFENDANT’S WAIVER
Initially,
right
to
request
counsel
to
witnesses.
persona
defendant
on
recall
the
for
WAS
UNEQUIVOCAL
conditioned
trial
his
court’s
waiver
of
the
granting
of
his
cross-examination
two
excused
A defendant who elects to proceed in propria
after
proceedings
entitled to retry the case.
are
underway,
however,
is
not
The decision whether to recall
a witness is left to the sound discretion of the trial
court.
MRE 611(a); People v Fedderson, 327 Mich 213, 220;
10
41 NW2d 527 (1950); Potts v Shepard Maine Constr Co, 151
Mich App 19, 26; 391 NW2d 357 (1986).
In this case, during the waiver of counsel proceeding,
the trial court explicitly informed defendant that he would
not be permitted to recall any excused witnesses.
The
court told him, “No, we’re not bringing in those other
witnesses, we’re continuing with the trial.”
The court had
previously
if
and
repeatedly
asked
defendant
he
still
wished to represent himself given this ruling. Defendant
unequivocally answered, “Yes, ma’am.”
We believe the record reflects that the trial court
exercised admirable patience in dealing with a defendant
who wished to represent himself according to his own rules.
The court advised defendant very clearly that he would not
be permitted to recall the excused witnesses, regardless of
what
they
had
said
during
their
preliminary
examination
testimony.
The dissent may well be correct that defendant was
“listening” without “hearing” what the court was saying.
Post at 14.
Defendant’s subjective understanding, however,
can only be gleaned by reference to what he said on the
record.
The record shows that after the court ruled that
his insistence on being allowed to recall excused witnesses
would
not
be
indulged,
defendant
11
answered
affirmatively
that he, nevertheless, wished to invoke his right of selfrepresentation.
introducing
explicit
Defendant’s
evidence”
ruling
in
do
unrealistic
contravention
not
render
“hopes
of
the
invalid
of
court’s
defendant’s
unequivocal invocation of his right to self-representation.
Post at 15.
The Court of Appeals misread the colloquy between the
trial
court
and
defendant.
The
record
reveals
that
defendant was dissatisfied with the trial court’s ruling
that he could not recall an excused witness.
Defendant
argued with that ruling by claiming his attorney did not
adequately cross-examine the excused witness on the basis
of
the
Whatever
witness’s
was
preliminary
contained
in
examination
preliminary
the
testimony.
examination
transcript, however, was irrelevant at that point because
the trial court had already ruled that the witnesses could
not be recalled by defendant.
The trial court was not
required to permit defendant to read transcript testimony
when the content was immaterial and the jury was assembled
and waiting.
held
that
defendant’s
transcript.
Therefore, the Court of Appeals incorrectly
the
trial
request
The
court
to
erred
read
the
requirement
12
in
refusing
preliminary
under
to
honor
examination
Anderson
that
a
defendant unequivocally assert his right to waive counsel
was therefore satisfied in this case.
2. DEFENDANT’S WAIVER WAS KNOWING, INTELLIGENT,
VOLUNTARY
AND
As indicated from the portions of the record quoted
above,
the
trial
court
methodically
complied
remainder of the requirements of Anderson.
fully
apprised
of
the
risks
he
faced
with
the
Defendant was
by
choosing
to
represent himself and he knowingly and voluntarily chose to
accept them.
choice.
He may not now be heard to complain about his
In Adkins, supra at 725, we quoted with approval
language ultimately from People v Morton, 175 Mich App 1,
8-9; 437 NW2d 284 (1989), that applies equally here:
“‘To permit a defendant in a criminal case
to indulge in the charade of insisting on a right
to act as his own attorney and then on appeal to
use the very permission to defend himself in pro
per as a basis for reversal of conviction and a
grant of another trial is to make a mockery of
the
criminal
justice
system
and
the
constitutional rights sought to be protected.’”
The
trial
court
determined
on
the
record
that
defendant’s motion to proceed in propria persona was made
knowingly, intelligently, and voluntarily.
The trial court
complied with the Anderson requirements.
3.
MCR 6.005 REQUIREMENTS WERE SATISFIED
Contrary to the dissent, we believe the trial court
followed
the
letter,
and
not
13
just
the
spirit,
of
MCR
6.005(D).
charge,
The
the
trial
maximum
court
advised
possible
prison
defendant
of
“the
sentence
for
the
offense, [and] any mandatory minimum sentence required by
law”:
The Court:
And let me first inform you,
then, and I have to do this on the record, what
the max—the minimum and maximum sentences are, so
that if you are found guilty, you know what’s
ahead of you.
For the homicide felony murder,
the maximum is life. For the armed robbery, the
sentence is life or any term of years, unless
aggravated assault or serious injury is involved,
and then it’s not less than two years.
And for
the felony firearm, that’s two years, which would
be. . . in addition to, and preceding, before,
any term of imprisonment imposed for the felony
or attempted felony conviction. Do you understand
all that?
The Defendant:
Yes, ma’am.
* * *
The Court:
Mr. Williams, I want you to
fully understand that if you are found guilty of
homicide felony murder which alleges that you
did,
while
in
the
perpetration
attempted
perpetration of a robbery, murder one Jerry
Jones, that is a mandatory life sentence.
Life
is the minimum and life is the maximum.
Do you
understand that?
The Defendant:
The
court
further
Yes, ma’am.
explicitly
complied
with
MCR
6.005(D)(1) by advising defendant of “the risk involved in
self-representation:”
The Court: Now, sir, as I mentioned before,
there are great risks that you are taking on in
representing yourself. Do you understand that?
14
The Defendant: Well, your Honor. I know
ya’ all could possibly get me another attorney,
but it would be another court-appointed attorney.
The Court: No, that’s not an option.
in the middle of trial.
The Defendant:
We’re
Well, good.
The trial court complied with the requirement of MCR
6.005(D)(2)
by
providing
defendant
his
court-appointed
attorney as an advisor:
The Court: He’s going to be here during the
trial so that you can ask him any questions and
he can give you any counsel that you might need.
The Defendant:
The
record
conscientiously
Thank you, your Honor.
reflects
complied
that
the
every
requirement
with
trial
court
of
MCR
6.005(D), exceeding the “substantial compliance” required
under Adkins, supra at 706.
dissent
that
6.005(D)
We do not agree with the
requires
that
a
court
“indicate
whether it believe[s] defendant’s request [is] contingent
on other factors.”
Post at 13.
The trial court
satisfied
all of the waiver-of-counsel procedure required under MCR
6.005(D) and did not err in granting defendant’s request to
waive counsel and allowing defendant to proceed in propria
persona.
15
III.
CONCLUSION
Although defendant appeared to condition his initial
waiver of counsel on the trial court’s agreement to allow
him to recall and cross-examine two excused witnesses, he
subsequently made an intelligent, knowing, and voluntary
waiver
of
his
right
to
counsel
after
the
trial
court
rejected defendant’s request to recall and cross-examine
the witnesses.
Defendant is not entitled to a new trial.
We reverse the Court of Appeals decision and remand to the
Court of Appeals to consider defendant’s remaining claims.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
16
S T A T E
O F
M I C H I G A N
SUPREME COURT
THE PEOPLE OF THE STATE OF
MICHIGAN,
Plaintiff-Appellant,
v
No. 123537
RODNEY WILLIAMS,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (dissenting).
In People v Anderson, 398 Mich 361, 367-368; 247 NW2d
857 (1976), this Court held that basic requirements must be
satisfied before a defendant’s request to waive counsel and
proceed in propria persona may be granted.
Michigan law
additionally requires a trial court to follow the mandates
of MCR 6.005(D) before granting such a request.
Here, the
Court of Appeals found that the trial court provided the
disclosures required by MCR 6.005(D).
However, the panel
ultimately concluded that defendant’s waiver of his right
to counsel was not unequivocal, fully knowing, intelligent,
and voluntary as required by Anderson.
Because I agree
with the Court of Appeals assessment of the proceedings, I
must respectfully dissent from today’s decision.
I. Discussion
The Sixth Amendment, made applicable to the states by
the Fourteenth Amendment, guarantees that “a person brought
to trial in any state or federal court must be afforded the
right to the assistance of counsel before he can be validly
convicted
and
punished
by
imprisonment.”
Faretta
v
California, 422 US 806, 807; 95 S Ct 2525; 45 L Ed 2d 562
(1975); Gideon v Wainwright, 372 US 335, 340-344; 83 S Ct
792;
9
L
Amendment
Ed
2d
right
799
to
(1963).
counsel
Concomitantly,
also
implies
a
right to dispense with a lawyer’s help.”
the
Sixth
“correlative
Adams v United
States, 317 US 269, 279; 63 S Ct 236; 87 L Ed 268 (1942).
Under
Michigan
expressly
statute,
law,
protected
MCL
763.1.
the
by
right
Const
At
to
self-representation
1963,
times,
art
1,
however,
§
the
13
is
and
by
right
to
counsel and the right to self-representation may appear to
be at odds.1
1
“There can be no blinking 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.”
Faretta, supra at 832.
“This
Court, however, has found that a defendant has either a
right to counsel or a right to proceed in propria persona,
but not both. . . .
Consequently, there is unavoidable
tension created between two constitutional rights when a
(continued…)
2
In
order
to
preserve
the
delicate
balance
between
these two rights, the United States Supreme Court has held
that any waiver of the right to counsel must be knowing,
intelligent, and voluntary.
Johnson v Zerbst, 304 US 458,
464; 58 S Ct 1019; 82 L Ed 1461 (1938). Moreover, the
waiver
must
be
made
with
“sufficient
awareness
of
the
relevant circumstances” and the defendant “must be warned
specifically of the hazards ahead.”
Iowa v Tovar, 541 US
__; 124 S Ct 1379; 158 L Ed 2d 209 (2004).
Finally, a
court must “indulge every reasonable presumption against
waiver . . . .”
This
Court
Johnson, supra at 464.
has
likewise
determined
that
specific
requirements must be satisfied and express disclosures must
be
made
before
a
trial
request to waive counsel.
to
waive
the
right
to
Anderson, supra at 367.
court
may
grant
a
defendant’s
First, the defendant’s request
counsel
must
be
unequivocal.
“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. . . .
The trial court must make the pro se defendant aware of the
(…continued)
defendant chooses self-representation.”
People v Adkins
(After Remand), 452 Mich 702, 720; 551 NW2d 108 (1996).
3
dangers and disadvantages of self-representation, so that
the record will establish that he knows what he is doing
and
his
choice
is
made
with
eyes
open.”
Id.
at
368.
Third, the trial court must determine that the defendant
will not disrupt or unduly inconvenience the proceedings.
Id.
Fourth,
the
trial
court
must
give
disclosures set forth under MCR 6.005(D).2
the
necessary
Adkins, supra at
722-723.
Thus,
in
order
to
determine
whether
the
instant
defendant “kn[e]w what he [was] doing and his choice [was]
made
with
examination
eyes
of
open,”
the
Adams,
trial
supra
court
at
279,
proceedings
a
is
thorough
required.
Indeed, the existence of a valid waiver “must depend in
each
case
2
upon
the
particular
facts
and
circumstances
MCR 6.005(D) provides in pertinent 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 defendant of the charge,
the maximum possible prison sentence for the
offense, any mandatory minimum sentence required
by
law,
and
the
risk
involved
in
selfrepresentation, 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.
4
surrounding that case . . . .”
Anderson, supra at 370; see
also People v McKinley, 383 Mich 529, 536; 176 NW2d 406
(1970).
Because the majority’s recitation of the facts and
proceedings omits large portions of the exchange between
defendant and the trial court, I find it necessary to fill
in the blanks left by the majority’s opinion.
II. Trial Court Proceedings
During
Florian
its
Mager
as
case-in-chief,
a
witness.
the
At
prosecution
the
end
of
called
defense
counsel’s recross-examination, the following exchange took
place:
Mr. Cook (defense counsel):
further questions of this witness.
The Court: Thank you, sir.
I
have
no
You can step
down.
Mr. King (prosecutor): The People call as
their next witness, your Honor, Tracey Jo
Williams.
The Court: All
people in the . . .
right.
If
there
are
any
Mr. Cook: (Interposing) Your Honor, there is
one more question that I would ask.
The Court: All right.
Sir, can you come
back to the stand? . . . You’re still under oath
to tell the truth, sir.
The Deputy:
Mr. Williams?
Mr. Williams?
Mr. Cook: No, your Honor, no more questions.
The Court: Thank you, sir.
You can step
down.
(Witness excused)
Mr. King: Once again, your Honor, the People
call, as their next witness, Tracey Jo Williams.
5
Your Honor, may this witness be excused?
is working at this time.
The Court:
Any objection?
objection to . . .
Mr.
Honor?
Cook:
The Court:
being excused?
(Interposing)
Any
Mr. Cook, any
I’m
objection
He
to
sorry,
this
your
witness
Mr. Cook: No, your Honor.
The Defendant: Yes.
Wait.
The Court: He’s excused.
Mr. Williams.
The Deputy: Mr. Williams.
Mr. Williams.
The Defendant: Could we get
five minutes, please, your Honor?
a
recess
The Deputy:
No, you don’t
Honor, you talk to your attorney.
talk
to
for
your
Mr. Cook: Your Honor, may I have just a few
minutes with my client?
The Court:
All right.
jury for a few minutes.
For
nearly
one
half-hour,
Once
the
parties
recess.
the
We’ll excuse the
trial
reconvened,
court
the
was
following
exchange ensued:
The
Court:
Are
we
ready
to
bring
in
the
jury?
Mr. King: Yes, your Honor.
Mr. Cook: Yes, your Honor.
The Court: Back on the record on case number
4026—hold off—the People versus Rodney Williams,
out of the presence of the jury.
Mr. Williams, I’m going to inform you, right
now, that if you act up, again, you are going to
be taken out of the courtroom. And I didn’t want
to say that in front of the jury, but that’s
what’s going to happen.
The Defendant: Yes, ma’am.
6
in
The
prosecutor
Williams.
After
examination,
step
down
reconvened
called
the
and
after
defense
trial
the
the
the
witness,
Tracey
counsel’s
second
instructed
court
court
next
Ms.
broke
break
for
and
lunch.
the
recross-
Williams
The
following
occurred
Mr. Cook: For the record, your Honor, my
name is Donald Cook, appearing on behalf of Mr.
Williams.
Your Honor, I believe he wants to address
the Court.
And I think we probably need to get
it out of the way before we have the jury here.
The Court: All right.
Out of the presence
of the jury.
What would you like to say, Mr.
Williams?
Defendant:
Good
morning
[sic],
your
Your Honor, due to circumstances, I would
like to terminate my representation of my
attorney, Mr. Donald A. Cook, due to the fact
that Mr. Cook has failed to represent me,
appropriately.
He has allowed the prosecution
witnesses to testify.
And he has failed to ask
them pertinent questions that’s pertaining to my
life. Also, he has allowed the first witness to
be excused from this courtroom.
And I am
entitled,
I
hope,
to
a
proper,
fair
representation, and also a fair trial.
And, also, if the Court deems proper, with
all honor and due respect, I would like to have—
I do not wish to adjourn this proceeding, because
I know this has been going on all along.
But I
would like to represent myself, in proper person.
And, also, if . . .
The Deputy:
courtroom.
(Interposing)
Quiet
in
the
The Defendant: (Continuing) -- if, only if
this Court would agree orally, and a written
7
to
parties
outside the presence of the jury:
The
Honor.
Jo
consent, please, that Mr. Florian Mager be
brought back to court, and allow me to recrossexamine him, as well as Ms. Tracey Jo Williams.
This is for my life.
And I accept and I
appreciate all that Mr. Donald Cook has done, but
these records have facts here, statements that
cannot be denied, reports from the Detroit police
officers, a Mr. Jerry Jones, making statements,
himself, and Mr. Florian Mager, that have not
been brought out.
And I can do that. [Emphasis
added.]
The
trial
opportunity
to
court
place
then
gave
comments
on
defense
the
counsel
record.
an
Defense
counsel indicated that he appropriately cross-examined the
witnesses in question and that he believed those witnesses
had been excused.
The trial court then informed defendant
that the court must abide by the rules of evidence and that
certain things that defendant believed may be introduced
may not actually be admissible.
At this point, the trial
court asked defendant if he realized the risk he was taking
by representing himself.
The prosecutor then weighed in,
stating:
Mr. King: I was just going to indicate, your
Honor, that the People would strenuously object
to this, especially in this stage of the
proceedings.
I agree with Mr. Cook that he’s
done all that he can do in this case.
And you
can only play with the hand that you’re dealt.
And Mr. Cook has represented Mr. Williams, I
think, in the best possible light that someone
can represent someone.
He hasn’t done anything—
or left anything out, that I can see, at least at
this point. . . .
8
The trial court attempted to further inform defendant
of the great risks involved with self-representation.
For
example, the trial court noted that another attorney would
not be appointed, defendant could not later claim he was
ineffective as his own counsel, defendant had not attended
law school, and defendant was not trained in the rules of
evidence.
Further,
the
trial
court
warned
that
if
defendant disrupted the proceedings, Mr. Cook would take
over
defendant’s
representation.
The
trial
court
also
posed the following question:
The Court: Are you making this request
knowinging [sic], intelligently, and voluntarily?
The Defendant:
Yes ma’am.
The trial court also informed defendant of the charges
against him and the possible penalties he faced.
Despite
this exchange, the following colloquy then took place:
The Court: . . . Do you understand all that?
The Defendant: Yes, ma’am.
The Court: Okay.
The Defendant: Your Honor?
The Court: Yes?
The Defendant: Ma’am, is it also on the
record, and it will probably [be] written down,
that I will have an opportunity to recrossexamine the prosecutor’s first two witnesses,
Florian Mager and -The Court: (Interposing) No, we’re not
bringing
in
those
other
witnesses,
we’re
continuing with the trial.
It’s the Court’s
opinion that you had proper representation.
Mr.
Cook is an excellent attorney.
And we are not
9
starting the trial over, we are continuing with
the trial.
You can still have Mr. Cook, if you
want, or you can continue and represent yourself
. . . .
Notwithstanding
the
trial
court’s
best
efforts,
defendant continued to articulate his reasons for wanting
to
recall
remained
the
under
first
the
witness.
impression
Apparently,
that
the
first
defendant
witness’s
preliminary examination testimony conflicted with his trial
testimony.
The Defendant: But the jury have heard Mr.
Mager only state that at the lineup he was not
sure.
That’s one not sure.
And if, at the
preliminary exam, if Mr. Mager is not sure,
again, then this man has no—he’s not sure if it
was me, or not. . . .
The prosecutor then indicated that if defendant was
permitted
to
look
at
the
concerns would disappear.
preliminary
examination,
his
While the majority includes some
portions of this exchange, I believe that the proceedings
at this particular stage should be viewed in more detail.
Mr. King: And I only stand, your Honor, not
to entertain the defendant, but that is a gross
misrepresentation of the preliminary examination
transcript. . . .
What he’s saying he’s taking
out of context. And if he reads the whole thing,
I think he’ll understand why Mr. Cook didn’t
elaborate
with
further
questioning
of
the
witness.
The Court: All right.
I’m going to . . .
The Defendant: (Interposing) May I read it?
The Court: No. I’m going to ask you one more
time.
Do you want to represent yourself?
Because we’re bringing in the jury.
10
The Defendant:
respect . . .
The Court:
question.
Your
Honor,
(Interposing)
with
due
asked
I
all
you
one
The Defendant: Your Honor, this is my life.
The
yourself?
Court:
Do
you
want
to
The Defendant: Your Honor?
pleadin’ with you, your Honor.
represent
Please.
I’m
The Court: Answer my question.
life?
The Defendant: What’s a little minute in my
Please.
The Court: Answer my question.
The Defendant: Yes, ma’am.
The Court: All right.
Let’s bring in the
jury.
After this colloquy, defendant nevertheless attempted
to
recall
the
second
witness
because
he
was
under
the
impression that the witness had not been excused.
III. Analysis
In Adkins, this Court concluded that proper compliance
with waiver of counsel procedures requires that the trial
court “engage, on the record, in a methodical assessment of
the
wisdom
Adkins,
of
supra
at
self-representation
721
(emphasis
by
added).
the
defendant.”
Moreover,
this
Court abides by the general principle that a trial court
“should indulge every reasonable presumption against waiver
. . . .”
Id., quoting Johnson, supra at 464. “The right to
counsel, as guarantor of a fair trial, is a fundamental
right that should not be deemed waived unless the record
11
clearly and unequivocally evidences such waiver, a record
that must be made by the trial judge’s diligent inquiry
into
the
relevant
factors.”
Adkins,
supra
at
740-741
(CAVANAGH, J., concurring in part and dissenting in part).
Because
the
record
unequivocally,
indicates
knowingly,
that
defendant
intelligently,
and
did
not
voluntarily
waive his right to counsel, defendant’s attempted waiver
was invalid.
A. Defendant’s Waiver Was Not Unequivocal
While
6.005(D)
the
and
“knowingly,
trial
asked
court
followed
defendant
intelligently,
if
and
the
his
spirit
waiver
voluntarily,”
of
was
the
MCR
made
trial
court did not make an express finding on the record that
defendant unequivocally waived his constitutional right to
counsel.
In Adkins, this Court held that trial courts must
substantially comply with the requirements of Anderson and
MCR
6.005(D).3
indicate
on
the
Thus,
record
Adkins
directs
whether
3
the
a
trial
attempted
court
to
waiver
is
In Adkins, I agreed that “substantial compliance”
with the requirements of Anderson and MCR 6.005(D)
adequately protects a defendant’s rights. Adkins, supra at
737-738 (CAVANAGH, J., concurring in part and dissenting in
part). However, I remain committed to the view that strict
compliance with these requirements better protects a
defendant’s rights, as well as ensures that an appellate
parachute is not created. People v Dennany, 445 Mich 412,
456-458; 519 NW2d 128 (1994) (CAVANAGH, J., concurring in
part and dissenting in part).
12
unequivocal.
Id. at 721-722.
Even under a substantial
compliance analysis, however, the trial court in this case
wholly failed to indicate whether it believed defendant’s
request was contingent on other factors—namely, recalling
the prosecution’s witnesses and examining the preliminary
examination
transcripts—or
whether
the
request
was
unequivocal.
In
any
event,
the
record
more
than
adequately
demonstrates that defendant’s choice was not unequivocal.
The
majority
states
that
“[i]nitially,
defendant
conditioned his waiver of the right to counsel on the trial
court’s
granting
of
excused witnesses.”
his
request
Ante at 8.
to
recross-examine
two
An evenhanded reading of
the trial transcripts, however, reveals that despite the
trial
court’s
conditional
best
efforts,
throughout
the
defendant’s
proceeding.
The
waiver
trial
was
court
informed defendant that he would not be able to recall the
excused witnesses and then repeatedly asked defendant if he
wished to represent himself.
In spite of this line of
questioning, defendant still expressed his desire to recall
the
witnesses
transcript.
indicates
and
review
the
preliminary
examination
As such, a balanced evaluation of the record
that
although
defendant
13
was
listening
to
the
trial court, defendant was not hearing what the trial court
had to say.
This
Court
has
previously
noted
that
“the
effectiveness of an attempted waiver does not depend on
what
the
court
says,
understands.”
but
Adkins,
rather,
supra
what
at
the
723.
defendant
Under
the
circumstances of this case, it is clear that defendant did
not
fully
comprehend
the
trial
court’s
warnings
and
defendant wavered in his request throughout the proceeding.
When the record is objectively viewed, one is left with the
distinct impression that defendant
to
the
trial
introducing
court’s
evidence
eventually surrendered
questioning
that
he
in
believed
the
hopes
favorable
to
of
his
case. Thus, defendant’s attempted waiver was invalid.
Further,
that
I
am
defendant’s
puzzled
by
the
“unrealistic”
majority’s
hopes
did
defendant’s attempted waiver invalid.
conclusion
not
render
Ante at 12.
The
majority acknowledges that defendant was not truly hearing
what the trial court was saying.
appropriately
only
be
record.”
notes
gleaned
that
by
Ante at 10.
Further, the majority
defendant’s
reference
to
understanding
what
he
said
on
“can
the
Upon its review of the record, the
majority effortlessly concludes that defendant’s hopes were
“unrealistic.”
However,
defendant
14
nevertheless
harbored
these
hopes
and
the
trial
court
should
have
similarly
recognized that these “unrealistic” hopes were preventing
defendant from hearing what the trial court was saying.
Adkins could not be more clear that the effectiveness of
the
attempted
waiver
depends
on
what
the
defendant
understands.
Finally, although the trial court may not have been
under
any
obligation
to
permit
defendant
to
view
the
transcripts or recall the witnesses, the trial court erred
when
it
failed
to
recognize
waiver was equivocal.
that
defendant’s
attempted
The overarching rule of this Court’s
decision in Adkins, as well as the United States Supreme
Court’s decision in Johnson, is that if there is any doubt
about
the
unequivocal
nature
of
a
defendant’s
attempted
waiver of counsel, then the trial court should deny the
defendant’s
request
and
defendant
should
proceed
with
counsel.4
4
It has often been said that “[a]n indigent defendant,
entitled to the appointment of a lawyer at public expense,
is not entitled to choose his lawyer. He may, however,
become entitled to have his assigned lawyer replaced upon a
showing of adequate cause for a change in lawyers.” People
v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973).
Here,
the trial court found that defense counsel provided proper
representation.
Moreover, defendant did not assert a
breakdown in the attorney-client relationship. Under these
particular circumstances, the trial court, and defendant
(continued…)
15
B. Defendant’s Waiver Was Not Knowing, Intelligent,
and Voluntary
For essentially the same reasons as detailed above, I
cannot
lightly
assume
defendant
possessed
state of mind under the facts of this case.
the
requisite
Specifically,
the record evidences that defendant’s attempted waiver was
not knowing, intelligent, and voluntary.
trial
court
followed
the
spirit
of
Even though the
Anderson
and
its
progeny, the record indicates defendant was fixated on his
ability
to
recall
the
excused
witnesses
preliminary examination transcripts.
and
view
the
As the hearing was
drawing to a close and the trial court was understandably
losing its patience, defendant kept pleading for his life.
Nevertheless, the trial court continued its questioning and
defendant eventually answered affirmatively to the question
repeatedly posed.
When the record is reviewed fairly, I
believe it is apparent defendant’s waiver was not knowing,
intelligent, or voluntary.
(…continued)
for that matter, may have been better served by reliance on
the
general
presumption
against
waiver.
“Where
a
defendant, for whatever reason, has not unequivocally
stated a desire for self-representation, the trial court
should inform the defendant that present counsel will
continue to represent him.”
Adkins, supra 722 n 18
(emphasis added).
16
IV. Conclusion
In sum, I agree with the Court of Appeals assessment
of
the
proceedings.
Defendant’s
attempted
conditional throughout the proceedings.
the
trial
court’s
best
efforts,
it
waiver
was
Further, despite
was
evident
that
defendant did not fully understand the nature of the trial
court’s admonishments.
Thus, defendant’s attempted waiver
was not unequivocal, knowing, intelligent, and voluntary.
I would, therefore, affirm the decision of the Court of
Appeals.
Michael F. Cavanagh
Marilyn Kelly
17
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