Opinion
Docket No. 6,596.
Decided December 3, 1970. Leave to appeal denied March 10, 1971. 384 Mich. 814.
Appeal from Recorder's Court of Detroit, Elvin L. Davenport, J. Submitted Division 1 November 6, 1970, at Detroit. (Docket No. 6,596.) Decided December 3, 1970. Leave to appeal denied March 10, 1971. 384 Mich. 814.
David Armstrong was convicted of second-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow (Defenders' Office — Legal Aid and Defender Association of Detroit) for defendant on appeal.
Defendant was convicted by a jury of second-degree murder on August 20, 1968, MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). He appeals as of right.
On the second day of the trial, defendant expressed a desire to discharge his retained counsel because the latter "was not doing anything". Defendant said nothing as to his intention to either obtain another attorney or to defend himself in his own proper person. Indeed, defendant's motives for dismissal of his attorney were so nebulous that the trial court was given the impression that defendant wished to substitute another attorney. Because the trial had progressed too far and dismissal of defendant's attorney at that stage of the proceedings might have warranted a mistrial, the trial court declined to discharge the attorney.
On appeal, defendant contends that the trial court's ruling contravened his constitutional right to defend himself in proper person, as guaranteed by the Michigan Constitution. The right to personally conduct one's defense in a criminal prosecution is absolute but the right to discharge counsel after commencement of the trial is but a qualified right. People v. Henley (1969), 382 Mich. 143, 148. As was observed by this Court in People v. Payne (1970), 27 Mich. App. 133:
Const 1963, art 1, § 13, 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."
"This Court looks with approval to the latter case of United States, ex rel. Maldonado, v. Denno (CA2, 1965), 384 F.2d 12, 15, where the court stated:
"`The right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial. [Citations omitted.]
"`Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance.'"
Furthermore, in the instant case, defendant's request that his attorney be released from the case was not accompanied by an unequivocal demand to represent himself. In People v. Payne, supra, we held that one's constitutional right to defend himself in proper person is not violated where the accused's request that his attorney be dismissed was not made concomitantly with a clear demand personally to defend himself.
Defendant also argues on appeal that he was denied effective assistance of counsel in that his attorney below, in arguing before the jury, uttered a statement which destroyed the essence of defendant's defense of self-defense. Defendant's attorney said:
"How he [the prosecutor] could stand before you and ask you, on a charge as serious as this, to guess that this defendant feloniously, deliberately, willfully, with malice and premeditation killed this young man — now, it's unfortunate that this has taken place, I don't condone it, * * * and I'm sure that you will not condone it. But, we all have a duty to perform. Now, the court's duty will be to tell you what the law is in connection with this case. It will be your duty to determine the facts." (Emphasis supplied.)
An accused is denied effective assistance of counsel, "only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation". People v. Degraffenreid (1969), 19 Mich. App. 702, 710. This standard focuses the attention of the appellate court upon the entire representation of defendant by his attorney. Even where the lawyer makes an egregious mistake which conceivably convicted his client, ordinarily it cannot properly be said that the trial was a sham if, putting that mistake aside, the case was well handled or even adequately handled by the lawyer. A careful review of the entire trial convinces us that the proceedings below were not a sham, that defendant's attorney was adequately prepared to try the case, and that defendant's lawyer adequately represented defendant's interests.
Next, defendant claims that he was not sufficiently apprised of his constitutional rights prior to his interrogation by the police. Defendant cites Miranda v. Arizona (1966), 384 U.S. 436, 469 ( 86 S Ct 1602, 1625; 16 L Ed 2d 694, 720, 721; 10 ALR 3d 974, 1008):
Defendant made oral and written admissions concerning the incident to the police as a result of this interrogation. An officer who participated in the questioning of defendant testified as to the oral statements; the written document was also admitted.
"The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court." (Emphasis supplied.)
While one of the interrogating officers gave testimony which indicated that the words "in court" were not included in the warning that any statement might be used later against defendant, a perusal of the Detroit Police Department's "Constitutional Rights Certificate of Notification" which was read to and by defendant prior to interrogation demonstrates that this contention is utterly without merit. This certificate, handed to the accused before interrogation so as to comply with Miranda, reads, inter alia:
Inasmuch as the plain language of the Detroit Police Department's " Miranda card" communicates the idea that any statement made by defendant might be admitted against him in the future in court, we find it unnecessary to pass upon whether a warning which fails to include the phrase "in court" satisfies the guidelines set by Miranda v. Arizona (1966), 384 U.S. 436 ( 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).
"I understand that:
* * *
"2. Any statement I make or anything I say can be used against me in a court of law." (Emphasis supplied.)
See, also, People v. Bynum (1970), 21 Mich. App. 596, where the Detroit Police Department's certificate was held to be consistent with Miranda in another context.
Defendant's other assignments of error as to the trial court's instructions to the jury are not now properly before us inasmuch as defendant failed to register timely objection to these charges. GCR 1963, 516.2; GCR 1963, 785.1. People v. Terrell (1969), 20 Mich. App. 562.
Affirmed.