People v. Holcomb

235 N.W.2d 343, 395 Mich. 326, 1975 Mich. LEXIS 165

• Court: Michigan Supreme Court
• Decided: November 25, 1975
• Docket: 55048, (Calendar No. 3)
• Status: Published

Opinions

Levin, J.

Thomas Holly Holcomb was convicted of armed robbery. The Court of Appeals affirmed, but remanded for resentencing.¹

Before trial, Holcomb requested that he be allowed to represent himself. The trial court, relying on the Forensic Center psychiatric report that Holcomb was competent to stand trial, denied the motion.

We reverse on the authority of Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975),² where the United States Supreme Court held that a defendant in a criminal case has a Sixth Amendment right to refuse to be represented by a lawyer and to conduct his own defense.

Because we remand this case, we also address a question raised by Holcomb likely to recur on retrial.³

I

Holcomb was charged with stealing a portable radio from Chris Holzapfel, a student at Eastern Michigan University.

Holcomb, accompanied by Michael Jerome Harper and Arthur Michenor, visited a friend on campus and then went to Holzapfel’s dormitory.

Holzapfel testified that when, in response to a knock on the door of his room, he opened the door Holcomb "pulled out a gun and shoved [him] back into the corner of the room and the other two just kind of rummaged around through the room”. Holzapfel said he attempted to "shove the gun away”, then "got in a little argument” with Holcomb, and eventually succumbed when struck on the head with the gun. Holcomb tied Holzapfel up and left. A stereo tape deck, and radio were missing.

Harper testified that, believing Holcomb was going to another friend’s room, he followed him to Holzapfel’s hallway. Harper stopped for a drink of water "about three or four minutes maybe” and as he approached Holzapfel’s open door he saw Holcomb "sitting on [Holzapfel], he was beating, he was beating on him.” Harper said that Holcomb directed Michenor to take "the tape or something”. As Harper left; Michenor handed him some of the stolen equipment. Harper and Michenor were then apprehended.

Holcomb testified that Holzapfel had sold him some "bull drugs” which made his "head hurt.” When Holcomb confronted Holzapfel with this charge, Holzapfel "swung” at him and told him he was in the wrong building. Holcomb denied entering Holzapfel’s room with a gun, striking Holzapfel with the gun, or taking anything from the room. He made no demand on Holzapfel, but only "asked for [his money]”. (Emphasis supplied.)

Holcomb said he tied Holzapfel up "because he wouldn’t give me no money back and [Holcomb] got mad”.

Holcomb reiterated that he went to Holzapfel to get his money back, not to rob him: "I am not guilty of armed robbery. I might have committed a crime, but the intention wasn’t going to stick no one up. I went to ask for my money back, [and] there was a fight there.”

In his short summation, Holcomb’s lawyer argued that Holcomb lacked the requisite felonious intent:

"The defendant has denied the armed robbery, he has admitted to an assault to recover some money.

"[H]e has admitted the assault * * * for the purpose of recovering payment of money for defective drugs.”

In instructing the jury, the judge defined the crime of armed robbery as a taking with "a felonious intent and without any claim or color of right”.

However, in elaborating on the requisite intent, he further instructed the jury that "[wrongful acts, knowingly or intentionally committed can neither be justified nor excused on the grounds of innocent intent.”⁴

Felonious intent is a requisite element of armed robbery. This Court, in reversing a conviction in People v Henry, 202 Mich 450, 455; 168 NW 534 (1918), said:

"If the defendant in good faith believed that the money which he demanded was his money, and that he was entitled to its possession, he could not be guilty of either robbery or larceny in taking it, because there would be no felonious intent, 'and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed.’ People v Walker, 38 Mich 156 [1878]; State v Koerner, 8 ND 292; 78 NW 981 [1899].”

Holcomb testified that he went to Holzapfel’s room "to ask for [his] money back”, he did not intend to rob Holzapfel. (Emphasis supplied.)

If a jury believes Holcomb, it may not properly convict him of armed robbery. A jury instructed that "[wrongful acts” are not "excused on the ground of innocent intent”, might feel compelled to return a verdict of guilty of armed robbery despite its belief that Holcomb’s intent was "innocent”, not felonious.

The instruction given tended to negate the intent element of armed robbery* ***⁵ and to vitiate Holcomb’s defense. On retrial, that portion of the instruction on intent should not be given and a correct instruction on this essential element of the offense charged should be given.⁶

II

On the morning of trial, before a jury was impaneled, Holcomb moved to substitute counsel ("I would like to have a new lawyer”) or alternatively to proceed as his own counsel ("I would like to defense this my own self’).

The judge, after reading from Holcomb’s psychiatric report prepared by the Forensic Center in evaluating his competency to stand trial, denied his motion because "it would not be in the best interest of the defendant, would not afford him a proper defense, would not satisfactorily protect his constitutional rights if he were permitted to represent himself and not have the benefit of a trained experienced and skilled counsel, that if he were to attempt to defend himself his demeanor before the jury would probably result in irreparable prejudice against him”.

Subsequently, near the completion of the people’s case, the judge elaborated "for the benefit of the appellate court” his reasons for denying Holcomb’s request.

First, he noted that the defendant’s right to proceed in propria persona is not, according to ABA standards, an "absolute right”. Then he read portions of Holcomb’s competency report into the record and concluded:

"[T]hat this man is not qualified mentally, properly to represent himself and secondly, that to attempt — for him to attempt to do so would clearly and without question result in disruption of trial proceedings and the probability of a mistrial.”

In Faretta v California, supra, the United States Supreme Court held that a defendant in a criminal case has a Sixth Amendment right to refuse to be represented by a lawyer and to conduct his own defense. In so holding, the Court declared that in order to represent himself the accused must "knowingly and intelligently” forego the traditional benefits associated with the right to counsel. The Court said: "he should be made aware of the 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.’ ”

The record in that case affirmatively showed that Faretta was "literate, competent, and understanding, and that he was voluntarily exercising his informed free will”.

In this case, the record does not affirmatively show that Holcomb was literate, competent, understanding and voluntarily exercising his informed free will. But neither did the trial judge — no doubt because he could not anticipate Faretta v California — seek to establish on the record that Holcomb did not know what he was doing or that he was not literate, competent, understanding and voluntarily exercising his informed free will.

We have considered remanding this case for determination whether Holcomb was at the time "literate, competent, and understanding”, and "voluntarily exercising his informed free will”.

We are of the view, however, that it is most improbable at this late date that it could satisfactorily be demonstrated that Holcomb could not have been adequately apprised of the nature of the right to proceed pro se and of the consequences of the exercise of that right and, therefore, the court was justified in depriving him of the right to represent himself. Accordingly, we reverse and remand for a new trial.⁷

If Holcomb again requests to proceed pro se, the trial judge shall inform him of the "dangers and disadvantages of self-representation” and seek affirmatively to establish on the record that Holcomb "knows what he is doing and his choice is made with eyes open”. The record should show whether the defendant is "literate, competent and understanding” of the choice which confronts him and "voluntarily exercising his informed free will” in declining to be represented by counsel and in seeking to represent himself.

Neither the quality of a defendant’s advocacy skills nor his technical legal knowledge are "relevant to an assessment of his knowing exercise of the right to defend himself’. Faretta v California, supra8

Reversed and remanded for a new trial.

T. G. Kavanagh, C. J., and Williams, and Fitzgerald, JJ., concurred with Levin, J. Lindemer, J., took no part in the decision of this case.

1 The Court of Appeals held that Holcomb’s sentence of "35 years to life” violated MCLA 769.9; MSA 28.1081, which provides that "[i]n no case can a valid sentence be hereafter made in which the maximum penalty shall be life imprisonment with a minimum for a term of years included in the same sentence”. People v Holcomb, 47 Mich App 573, 590; 209 NW2d 701 (1973).

2 Holcomb argues that his right to represent himself is an "absolute” one guaranteed by art 1, § 13 of the Michigan Constitution of 1963 which provides: "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.”

Additionally, he contends that he has a statutory right to proceed pro se: "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 * * * .” MCLA 763.1; MSA 28.854.

The decision of the United States Supreme Court in Faretta v California holding that the right of a criminal defendant to proceed pro se is guaranteed by the Sixth Amendment and applicable to the states through the Fourteenth Amendment of the United States Constitution makes it supererogatory to consider either the Michigan constitutional provision or the statute.

3 Holcomb also contends that his rights were abridged by the judge’s denial of his requests for a continuance and for substitute counsel and he asserts that he was denied the effective assistance of counsel. Our disposition of this case makes it unnecessary for us to address these issues.

4 "Now, the question of the intent, the question of intent is one that is hard to establish directly because grown persons do not always disclose the object they have in view in any action in which they may indulge. You have to gather the intent from the character of the act, the circumstances surrounding it and from the conduct of like character which may appear as tending to aid you in finding and discovering it, but in connection with all this, unless the testimony satisfies you of something else, you are warranted in holding a party responsible for the natural, probable and legitimate consequences of his acts. The intent may be presumed from the doing of a wrongful, fraudulent or illegal act but this inference or presumption is not necessarily conclusive. The law presumes that every man intends the legitimate consequences of his own acts. Wrongful acts, knowingly or intentionally committed can neither be justified nor excused on the grounds of innocent intent.

"When an act forbidden by law is intentionally done, the intent to do the act is the criminal intent which imparts to the character of the offense and no one who violates the law which he is conclusively presumed to know, can be heard to say that he had no criminal intent to do the forbidden act. A party cannot excuse himself for an act intentionally done which is in itself a violation of law by saying that he did not so intend because where an act is unlawful in itself, the law presumes it was done with an unlawful intent, but where acts are equivocal, as in this case, they become criminal only by reason of the intent with which they are done. Both the commission of the act and the criminal intent with which it is committed must unite to constitute the offense and both must be proved in such case unless the criminal intent is proved, the offense is not proved.‘The question of the intent is one that is hard to establish directly because as I have indicated, grown persons do not always disclose the object they have in view in any acts which they may indulge and you have to gather the intent from the character of the acts, the circumstances surrounding it and from the conduct of a like character which may appear as tending to aid you in finding and discovering it. Intent, except when confessed is a matter of inference. Intent, unless confessed, can only be proved by acts, as jurors cannot look into the breast or heart of the accused. Jurors have to draw inferences as to the intent with which a particular act was done as they draw all other inferences from any fact in evidence, which to their minds fairly proves its existence.”

5 Holcomb’s counsel neither requested an instruction nor objected to the instruction given.

Because we are reversing on account of the denial of defendant’s asserted right to proceed pro se, we need not decide whether this failure to object constituted a waiver of the instructional error. In this regard we note, however, that a judge has the duty properly to instruct the jury on all the essential elements of the crime. See People v Guillett, 342 Mich 1, 7-8; 69 NW2d 140 (1955); People v Obersiaedt, 372 Mich 521, 526; 127 NW2d 354 (1964).

6 While the trial judge adopted his instructions directly from Gillespie, Michigan Criminal Law & Procedure (2d ed), § 906, form 337, and in so doing no doubt acted in good faith, Gillespie is simply another treatise. Gillespie instructions do not have the force of precedent and are not protected by the principle of stare decisis.

7 The United States Supreme Court has accorded retroactive effect to its decisions recognizing a criminal defendant’s right to counsel at trial, Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799, 93 ALR2d 733 (1963) [Kitchens v Smith, 401 US 847; 91 S Ct 1089; 28 L Ed 2d 519 (1971)] and Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972) [Berry v Cincinnati, 414 US 29; 94 S Ct 193; 38 L Ed 2d 187 (1973)]; at certain arraignments, Hamilton v Alabama, 368 US 52; 82 S Ct 157; 7 L Ed 2d 114 (1961) [Walton v Arkansas, 371 US 28; 83 S Ct 9; 9 L Ed 2d 9 (1962)] and White v Maryland, 373 US 59; 83 S Ct 1050; 10 L Ed 2d 193 (1963) [Arsenault v Massachusetts, 393 US 5; 89 S Ct 35; 21 L Ed 2d 5 (1968)], at sentencing, Mempa v Rhay, 389 US 128; 88 S Ct 254; 19 L Ed 2d 336 (1967) [McConnell v Rhay, 393 US 2; 89 S Ct 32; 21 L Ed 2d 2 (1968)] and on appeal, Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963) [Holmes v California, 372 US 710; 83 S Ct 1020; 10 L Ed 2d 126 (1963)].

In these cases, the Court, citing Linkletter v Walker, 381 US 618, 639; 85 S Ct 1731; 14 L Ed 2d 601 (1965), found that the right to counsel related to "the very integrity of the fact-finding process”.

We see no reason to treat differently the right to proceed pro se. The right to representation at trial, whether by counsel or by the defendant himself, affects the truth and accuracy of the guilt determining process.

To deny retroactive effect to the right to proceed pro se on the ground that the right to counsel at trial enhanced the reliability of the fact-finding process while the right to proceed pro se inhibits or lessens the probability that the defendant’s case will be adequately presented would be to reject the premise of Faretta v California, supra, fn 2.

In Sixth Amendment terms, the right to proceed pro se is not qualitatively different from the right to counsel and accordingly, unless and until the United States Supreme Court limits the application of that right, we will accord it full retroactive effect.

8 It was not proper for the trial judge to consider in denying defendant’s request to proceed pro se his belief that "to permit him to proceed to represent himself would result in trial disruption, could not help but prejudice the defendant’s right to a fair trial”.

Nor was it relevant that the court had appointed for the defendant “trained, experienced and skilled” counsel who "is held in the highest respect by all members of the bar of this county”.