People v. Kirkland

198 N.W.2d 811, 40 Mich. App. 22, 1972 Mich. App. LEXIS 1182
CourtMichigan Court of Appeals
DecidedApril 24, 1972
DocketDocket 10159
StatusPublished
Cited by6 cases

This text of 198 N.W.2d 811 (People v. Kirkland) 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. Kirkland, 198 N.W.2d 811, 40 Mich. App. 22, 1972 Mich. App. LEXIS 1182 (Mich. Ct. App. 1972).

Opinions

J. H. Gillis, J.

Defendant Leroy Kirkland was convicted by a jury of breaking and entering a building with intent to commit a felony, MCLA 750.110; MSA 28.305, and possession of burglary tools, MCLA 750.116; MSA 28.311. From these convictions, defendant appeals as of right.

Defendant’s sole allegation of error is that the trial court committed reversible error by refusing his request to defend himself in propria persona.

Defendant was given assigned counsel, Mr. Arthur Arduin, immediately after his arraignment on February 4, 1970. Mr. Arduin represented the defendant at his preliminary examination and appeared with him when the case was assigned for trial on May 21, 1970.

Before the jury was selected, defendant addressed the trial judge, Judge Davenport, as follows:

"Defendant: With all due respect to the court I would like to ask for a change of counsel, please.
"The Court: Will you hire your own?
"Defendant: I am not able to.”

The court explained the difficulty of assigning different counsel, and asked the defendant to explain why he did not want Mr. Arduin. The defendant stated, "I cannot communicate with my lawyer”. In the colloquy that follows, defendant’s dissatisfaction appeared to be based on Mr. Ar[25]*25duin’s inability to locate three alleged alibi witnesses, two of whom were thought to be overseas in the Marine Corps, and a third who was a prostitute with no known address. Defendant had apparently advised Mr. Arduin that he would have the woman contact him, which she failed to do. Mr. Arduin explained that he had made four separate trips to a bar that she allegedly frequented in order to locate her. He further indicated that he had conferred with his client on numerous occasions in the county jail. There were additional written communications between counsel and defendant.

After considerable discussion, the trial judge concluded that there was no evidence to justify discharging assigned counsel. Court was then adjourned with the announcement that trial would start the following morning.

The next morning, defendant requestéd an adjournment so that he could obtain sufficient funds to hire his own attorney. The judge stated that the trial would proceed, and further commented that he had the overall impression that the defendant just didn’t want to go to trial. The defendant quite candidly admitted, "That may be true”. The defendant then stated that he would like to represent himself because he did not have confidence in his attorney, and did not trust him.

The trial judge advised the defendant that he could represent himself if he wanted to, but that he would have the lawyer sit with him to advise him, and that the defendant could ask questions if he so desired.

In response to the prosecutor’s query as to whether defendant would represent himself, the judge declared that the defendant would be unable to do so because he did not know enough to try his [26]*26own case, but that he could confer with his lawyer about questions he wanted asked.

It was apparent to the trial court that this was a case that would be most difficult to defend. The defendant was observed by police officers exiting the rear door of a florist shop, crowbar in hand, and was apprehended hiding under a porch after a short chase. The outer door and an inner office door in the shop had been pried open, and numerous burglar tools were found at the scene. Defendant admitted that he had been in the area but stated that he had run and attempted to hide under the porch when someone "hollered 'Police’ ”. He ran because he had just left an after-hours drinking establishment, and was afraid that he would be apprehended and charged with violating his parole. Defendant had prior convictions for burglaries and receiving stolen property.

In these circumstances, the trial judge had ample reason to conclude that the defendant would be unable to fairly represent himself. There can be no argument that counsel’s work was excellent throughout the trial, especially in light of the overwhelming evidence against the defendant.

The right of the accused to represent himself at trial is not absolute when it conflicts with the interest of the public in ensuring a fair trial. For instance, the right has been held to be limited, if asserted after trial has commenced, in the interest of preventing obstruction of criminal justice by the calculated manufacture of new hindrances and novel speculations of error. People v Henley, 382 Mich 143 (1969).

When it conflicts with the defendant’s own interest in receiving a fair trial, his right to represent himself may be likewise limited. Certainly of equal importance to the accused is the right to be repre[27]*27sented by counsel, at public expense if necessary. It falls on the trial judge in the first instance to attempt to accommodate both of these equally important rights, to the end of achieving a fair trial. While the right to counsel may be waived, it is always the duty of the trial court to determine whether the waiver is voluntarily and intelligently made.

The tentative draft of the American Bar Association Standards relating to the function of the trial judge offers sound guidelines:

"A defendant should be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the court makes thorough inquiry and is satisfied that he
"(a) possesses the intelligence and capacity to appreciate the consequences of his decision; and
"(b) comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case.
"Commentary
"Although Federal statutes (28 USC § 1654) and many state constitutions, e.g., Art 1, § 9, Constitution of Pennsylvania, authorize defendants in criminal cases to represent themselves, the right is not absolute. The defendant’s Sixth Amendment right to the assistance of counsel cannot be abrogated unless knowingly and intelligently waived, however strongly the defendant may desire to proceed alone. See Von Moltke v Gillies, 332 US 708 (1948); ABA Standards, Providing Defense Services, §§ 7.1-7.3 (Approved Draft, 1968). Particularly when a trial is involved, the interest of the public in an orderly, rational trial is entitled to consideration in determining the defendant’s right to appear pro se. See United States v Bentvena, 319 F2d 916, 937 (2d Cir 1963); Butler v United States, 317 F2d 249, 258 (8th Cir 1963).
"A fair trial is impossible if a defendant is tried for a crime while denied counsel. Gideon v Wainwright, 372 [28]*28US 335 (1963). This is so for the reason that, except in most unusual circumstances, a trial in which the accused is unrepresented by counsel is a farcical effort to ascertain guilt. No intervention by the trial judge on behalf of the accused can eliminate the need for competent counsel. Cf. Powell v Alabama, 287 US 45, 69 (1932).
"Most defendants who seek to appear pro se

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Related

People v. Holcomb
235 N.W.2d 343 (Michigan Supreme Court, 1975)
People v. McMillan
234 N.W.2d 499 (Michigan Court of Appeals, 1975)
People v. Holcomb
209 N.W.2d 701 (Michigan Court of Appeals, 1973)
People v. Overby
201 N.W.2d 303 (Michigan Court of Appeals, 1972)
People v. Kirkland
198 N.W.2d 811 (Michigan Court of Appeals, 1972)

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Bluebook (online)
198 N.W.2d 811, 40 Mich. App. 22, 1972 Mich. App. LEXIS 1182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kirkland-michctapp-1972.