People v. Hammerquist

309 N.W.2d 637, 107 Mich. App. 771
CourtMichigan Court of Appeals
DecidedJuly 1, 1981
DocketDocket No. 47785
StatusPublished
Cited by2 cases

This text of 309 N.W.2d 637 (People v. Hammerquist) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hammerquist, 309 N.W.2d 637, 107 Mich. App. 771 (Mich. Ct. App. 1981).

Opinion

Per Curiam.

Pursuant to a plea bargain, defendant, who was originally charged with second-degree murder, MCL 750.317; MSA 28.549, entered a plea of guilty to manslaughter. Thereafter sentenced to a prison term of not less than 10 nor more than 15 years, defendant appeals as of right.

This Court previously remanded to the trial court for an evidentiary hearing and the matter is now again before us. While defendant raises numerous issues on appeal, extended discussion is unnecessary since we find resolution of one of them to mandate reversal.

It is defendant’s basic claim that he was denied the assistance of counsel at a critical stage in the proceedings. We agree and reverse.

During the plea taking defendant did ultimately admit to sufficient facts for the court to accept defendant’s plea. Defendant did, however, make other statements which tend to support statements made by him at a subsequent proceeding during which he professed his innocence. These statements are as follows:

"The Court: And what did you say happened at that time?
"The Defendant: I was being funny and I pulled out the gun and it went off and shot him.
"The Court: You are telling me that the gun just went off accidentally?
"The Defendant: Well, when I pulled it out and come up with it, it went off.
* * *
"The Court: You say you were trying to be funny?
"The Defendant: Yes, your Honor, from drinking too much.”

[773]*773Prior to sentence the defendant requested an opportunity to talk with the trial judge in chambers. The request was honored and the following transpired:

'The Court: * * * You have indicated to your attorney you want to talk to me.
'The Defendant: Yes, I do.
'The Court: And I am very glad to afford you that opportunity, sir.
"What is it you would like to say to me?
'The Defendant: * * * It was a stupid accident. I admit this, I had been drinking too much and probably since I bought the bar, I have been having a drinking problem.
"The night this happened it was stupid accident. I pulled out the gun, it went off. I threw it on the table. * * * Once I threw it on the table, I never touched it.
"The Defendant: I know it was my fault. But God, I didn’t take and mean to do it and I didn’t take and purposely do it and want to do it like I had to say. * * * I wanted to let you know I lied to you when I said I did it and I purposely did it and I am sorry for it, but I don’t know what to do beyond that point.
"Mr. Marchione [Defense Counsel]: I am not too sure that what he is saying as far as second thoughts and everything else is not true. * * *
"I can say Mr. Hammerquist is terribly upset, was terribly upset and I guess I ought to put it to you like this on the record as long as we are in front of the Judge and we ought to know this.
"Number one, do you want to retract your plea of guilty?
"The Defendant: I don’t know what to do.
"The Defendant: All I know is it was an accident.
"The Court: Sir, you told me facts from which I found [774]*774that you were guilty of the offense to which you were pleading. That is, that you intentionally killed Richard —whatever his name was — Armstrong; that you knew what you were doing and it was wrong.
"The Defendant: I was told I had to say that to take the cop to manslaughter because I was afraid to go up for the murder charge, that I might get held a lot more time if I was found guilty * * *.
"The Court: Sir, this is the moment of truth now. You made that decision and you told me facts then which you then told me was the truth.
"The Defendant: I am just saying I am apologizing for lying to you and I want you to know that it was a lie
"The Court: Do you want to withdraw your plea at this time, sir, and stand trial on second-degree murder? That is what you are charged with.
"The Defendant: That is why I say I can’t understand why I am being charged with murder when it is a goofy accident.
"Mr. Marchione: You can’t take the benefit of a plea and say you were lying and say you don’t want to face a murder charge.
"The Defendant: All I am saying is it is an accident. I didn’t mean to do it. * * * We were just being funny, being a bunch of noise and everything else. I don’t know. Only God knows, I guess. I just want you to know—
"The Court: I think at this time I will defer sentencing for one week while I give you an opportunity to determine, Mr. Marchione, whether you want this plea withdrawn.
"The Court: * * * Now, I can go ahead and sentence you on that basis. I can defer it for a week and then perhaps still sentence you on that basis if that is what you want me to do.
"Other than that, you would have to request to withdraw the plea. Then I have to make the considera[775]*775tion and determination whether I am going to allow you to do it. I am not at all sure that I am going to allow you to do it, would allow you to do it even if you asked, for the reason that I had a jury here.
* * *

Nevertheless, I am very reluctant to deal with a man for manslaughter, that is intentional killing, when he is sitting here now adamently [sic] saying to me, I didn’t intentionally kill anybody.

"The Defendant: No. I didn’t say that, Your Honor. I said I did kill him. It was a stupid thing, but I didn’t mean to take and just go right out and kill him like I told you.
"The Court: Did you mean to shoot the gun?
"The Defendant: No. It went off when I pulled it out of my belt and I come up with it and it went off.
"The Court: Well, sir, I am sorry. I can’t sentence you with your telling me that.
"The Court: We will defer sentencing for one week.
"Back to the custody of the sheriff.
"Mr. Marchione, I will expect to hear from you as to what your client’s intentions are.
"Mr. Marchione: I will talk to you, Lee.”

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Bluebook (online)
309 N.W.2d 637, 107 Mich. App. 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hammerquist-michctapp-1981.