Opinion
No. 334610
11-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MITCHEL STEVEN SAVICKAS, Defendant-Appellant.
UNPUBLISHED Kent Circuit Court
LC No. 16-002012-FC Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Defendant appeals by right after a jury convicted him of felony murder, MCL 750.316(1)(b); three counts of armed robbery, MCL 750.529; carrying a concealed weapon, MCL 750.227; carrying a firearm during commission of a felony (felony-firearm), MCL 750.227b(1); and premeditated murder, MCL 750.316(1)(a). The trial court sentenced defendant to concurrent terms of life imprisonment without the possibility of parole for the first-degree murder conviction, three to five years' imprisonment for the carrying a concealed weapon conviction, and life imprisonment for each armed robbery conviction, and consecutive to two years' imprisonment for the felony-firearm conviction. We affirm.
Because defendant was convicted under two theories of first-degree murder—felony murder, § 316(1)(b), and premeditated murder, § 316(1)(a)—and each conviction required a sentence of life imprisonment without the possibility of parole, the trial court "eliminate[d] or vacate[d]" the felony-murder conviction sentence and sentenced on the premeditated murder conviction. --------
Late in the evening of January 27, 2016, defendant and two others approached the victims—Isiah Blue, Jeremiah Gurel, and Malick Mack—at a bus stop in Grand Rapids, Michigan. Defendant pulled out a gun and told the victims to "empty [their] pockets." When Blue tried to run away, defendant shot him four times. Gurel and Mack were uninjured, but Blue died as a result of the gunshot wounds.
Defendant's trial was originally to begin on July 5, 2016; however, on that day, defendant told his appointed counsel that he wanted to raise a defense that was "somewhat questionable." The trial court adjourned the trial. Defendant's attorney then filed a motion to withdraw as counsel which stated that she was appointed counsel and that she "must follow all rules of professional conduct and ethics in representing [defendant]." She also wrote that there had been such a breakdown in the relationship between counsel and defendant that she could no longer represent defendant. Counsel also requested that the court appoint successor counsel for defendant. Counsel did not support the motion with a brief or provide other details.
On July 11, 2016, the first day of trial and before jury voir dire, defendant confirmed for the trial court that he had discussed the charges with his appointed counsel. The trial court attempted to dissuade defendant from representing himself and allowed defendant to consult with counsel several times. The trial court denied counsel's motion to withdraw but that defendant had the absolute right to self-representation. Ultimately, the trial permitted defendant to act as his own lawyer with counsel remaining as legal advisor.
Q. [BY THE COURT] All right. . . . [defendant], anything further?
A. [BY DEFENDANT] No, sir.
Q. All right. You ready to proceed with [counsel] as your lawyer?
A. No, sir.
Q. Okay. You want to represent yourself?
A. Yes, sir.
Q. All right. Would you like [counsel] to sit next to you and be your legal advisor?
A. Yes, sir.
Q. All right. Very good. We'll proceed with picking a jury.
The trial then proceeded with voir dire and jury selection with defendant representing himself. Defendant questioned potential jurors about their employment, family, and whether any of their children had ever been in trouble. Defendant asked one juror if she knew anyone who had been "killed, either murdered, or maybe in a war . . . ." Defendant exercised one challenge for cause, which the trial court denied, and he did not exercise any peremptory challenges.
The next day, before the jury was sworn in, the trial court reaffirmed defendant's desire to represent himself, stating, "And what I'm going to do now is just reaffirm or give you a chance to reconsider your decision yesterday to represent yourself . . . ." The trial court advised defendant of each charge against him and the possible penalties, and defendant responded each time that he understood. Defendant then gave a speech to the trial court regarding his lack of legal knowledge and ability to represent himself.
The trial court responded to defendant's speech and also informed defendant that it had "a responsibility to run these proceedings orderly, efficiently, and fairly." It also opined that delaying the proceedings would prejudice the prosecution. The prosecutor confirmed that delaying the case for substitute counsel would prejudice him. The prosecutor stated that he had "reluctant witnesses," and they would become more reluctant if the trial were delayed.
The proceedings were then recessed for 28 minutes. After the recess, the trial court and defendant engaged in the following exchange:
Q. [BY THE COURT] Well, [defendant], I'm looking for a direct answer here at this point. I understand how you feel. However, are you going to represent yourself or are you going to have [counsel] represent you?Defense counsel confirmed that she was "prepared to go to trial" and represent defendant.
A. I'm representing myself.
Defendant then represented himself during the remainder of the trial. Defendant delivered an opening statement, during which he asserted that he would present a self-defense theory. Defendant also cross-examined witnesses, elicited testimony that supported his theory of the case, and called a witness of his own. Defendant consulted with his standby counsel multiple times throughout the trial. Before defendant presented his case, the trial court again encouraged defendant to allow counsel to represent him, stating, "I would encourage you, again, give some thought to whether or not you want [counsel] to represent you. I'm not going to bug you on that, but if at any point you have any concerns or you'd like her to resume representation, please call that to my attention." Defendant testified on his own behalf. He then gave a closing statement, during which he argued that he had proven all of the elements of self-defense.
While the jury retired for deliberations, the trial court complimented defendant on his ability to represent himself, stating, "Actually, I think you did quite well in representing yourself, under the circumstances, and I think, as I said this before, too, you certainly were able to convey to the jury your theory of what happened here." The trial court also noted that defendant's former counsel remained at the defense table throughout the trial as a legal advisor and confirmed that defendant consulted with counsel during the trial. The trial court stated, "I would state, also, that even though [counsel] has not been your attorney, she's been seated by your side along with her intern, and I have noticed that you've been able to consult with her . . . ."
The jury convicted defendant, and the trial court sentenced him as stated above. Defendant now appeals.
Defendant first argues that the trial court erred in permitting him to represent himself during jury voir dire because his decision to represent himself was not made knowingly and intelligently. We disagree.
A trial court's findings regarding whether the defendant's waiver of counsel was knowing and intelligent are reviewed for clear error, while the determination of the meaning of "knowing" and "intelligent" waiver is a question of law that is reviewed de novo, People v Williams, 470 Mich 634, 640; 683 NW2d 597 (2004). A reviewing court will find clear error if left with a definite and firm conviction that a mistake has been made. People v Waclawski, 286 Mich App 634, 645; 780 NW2d 321 (2009). A trial court's ultimate decision regarding a defendant's assertion of the right of self-representation is reviewed for an abuse of discretion. People v Daniels, 311 Mich App 257, 265; 874 NW2d 732 (2015). Id. "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." Id.
The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right counsel at all critical stages of a criminal proceeding. Williams, 470 Mich at 641. The Sixth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Id., citing Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963). The Michigan Constitution, Const 1963, art 1, § 20, also extends the right to counsel to criminal defendants. People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). A criminal trial is a critical stage. Coleman v Alabama, 399, US 1, 9-10; 90 S Ct 1999; 26 L Ed 2d 387 (1970). A defendant may choose to waive representation and instead represent himself. Williams, 470 Mich at 641. Defendant's right to represent himself is implicitly guaranteed by the United States Constitution, US Const, Am VI, and is explicitly guaranteed by the Michigan Constitution, Const 1963, art 1, § 13. People v Anderson, 398 Mich 361, 366; 247 NW2d 857 (1976).
Defendant must meet several requirements before he may proceed in propria persona. First, the trial court must determine that defendant's request was unequivocal. People v Russell, 471 Mich 182, 190; 684 NW2d 745 (2004) (discussing Anderson). Second, the trial court must determine that defendant asserted the right knowingly, intelligently, and voluntarily through a colloquy advising defendant of the dangers and disadvantages of self-representation. Id. The purpose of the determination is to ensure that defendant is making his choice "with eyes open." People v Dennany, 445 Mich 412, 432; 519 NW2d 128 (1994). The existence of a knowing and intelligent waiver of counsel depends on the particular facts and circumstances of the case. Anderson, 398 Mich at 370. Although defendant's general competence is relevant to the determination of whether he knowingly and intelligently asserted his right to self-representation, his legal competence is not. Id. at 368. Third, the trial court must determine that defendant's self-representation will not disrupt, unduly inconvenience, or burden the court. Id. Fourth, the trial court must comply with the requirements of MCR 6.005(D), which states 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 self-representation, 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.
A trial court must substantially comply with these requirements. Russell, 471 Mich at 191. "The nonformalistic nature of a substantial compliance rule affords the protection of a strict compliance rule with far less of the problems associated with requiring courts to engage in a word-for-word litany approach." Id. (citation omitted). Where there is error but it is not one of complete omission of the court rule and caselaw requirements, reversal is not necessarily required. Dennany, 445 Mich at 439. Whether reversal is warranted will depend on the nature of the noncompliance. Id.
We conclude that defendant unequivocally, knowingly, and intelligently asserted his right to self-representation before jury voir dire, and the trial court did not abuse its discretion by permitting defendant to do so. Defendant clearly did not want his appointed counsel to represent him, but he did want her to remain as standby counsel. He consulted with her multiple times before very clearly stating that he wanted to represent himself. The trial court advised him against it multiple times. Defendant made his decision "with eyes open." Dennany, 445 Mich at 432. We hold that the trial court did not clearly err in finding that defendant unequivocally, knowingly, and intelligently asserted his right to self-representation, and it was not an abuse of discretion for the trial court to permit defendant to represent himself during voir dire.
Defendant next argues that, after voir dire, the trial court erred in finding that defendant knowingly and intelligently asserted his right to self-representation after engaging in a methodical analysis. We disagree.
On the morning of the second day of trial, before the jury was sworn, the trial court reaffirmed defendant's decision to represent himself. Defendant responded that he understood each of the charges against him and the penalties. Defendant then gave a speech about his incompetence regarding the practice of law. However, incompetency regarding the law or a defendant's legal skills is not relevant to the determination of whether defendant knowingly and intelligently waived his right to counsel. Anderson, 398 Mich at 368. Defendant consulted with counsel for 28 minutes before stating on the record, "I'm representing myself." Accordingly, we hold that the trial court did not clearly err in finding that defendant unequivocally, knowingly, and intelligently asserted his right to self-representation.
Lastly, defendant argues that the trial court abused its discretion in denying his request for substitute counsel because there were irreconcilable differences between him and his counsel. We disagree.
A trial court's decision regarding the substitution of counsel is reviewed for an abuse of discretion. People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011). Choosing an outcome that is outside the range of reasonable and principled outcomes is an abuse of discretion. Id.
As we discussed above, a criminal defendant has a constitutional right to be represented by counsel. Williams, 470 Mich at 641. The state must provide appointed counsel to an indigent defendant who requests an attorney. People v Jackson, 483 Mich 271, 278; 769 NW2d 630 (2009). But an indigent defendant is not entitled to appointment of an attorney of his choice. Russell, 471 Mich at 192 n 25. "Appointment of a substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. Good cause exists where a legitimate difference of opinion develops between a defendant and his appointed counsel with regard to a fundamental trial tactic." People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001)(citation omitted).
Defendant first claims that the trial court did not even reach the issue of his request for substitute counsel. That is not accurate. The trial court directly said to defendant,
"[T]he Court has a responsibility to run these proceedings orderly, efficiently, and fairly. And there's considerable prejudice, I would imagine, to [the prosecutor] with his witnesses, his case, and the victims here, and the victim's families. To appoint another attorney for you, for instance, would require at least a two-to-three month[] delay."Therefore, we conclude that the trial court reached and discussed the issue of substitute counsel.
Defendant next claims that he demonstrated good cause for substitute counsel because a legitimate difference of opinion existed regarding a fundamental trial tactic. We disagree.
Although defendant did not explain the difference of opinion as he saw it, the record supports that the difference of opinion was in regard to counsel's refusal to pursue a self-defense theory, which she believed would be unethical. We conclude that defendant has not shown that counsel's refusal to pursue a defense that she felt was unethical rose to the level of a legitimate difference in fundamental trial tactics.
Defendant next claims that there was good cause to substitute counsel based on a destruction of communication and a breakdown in the attorney-client relationship. We disagree.
Defendant stated on the first day of trial that he discussed the charges with counsel. Despite this, defendant argued to the trial court, "I haven't had enough time to discuss nothing. That's why finally you guys think I'm coming up with this defense. This would have been—this would have already been discussed, but she never came to see me. She never gave me the opportunity to discuss it, to discuss anything."
In response, defense counsel stated that she was in "constant communication" with defendant through written correspondence. Although it was not clear from the record if defendant responded to counsel's written correspondences, counsel stated that defendant, "always could communicate with me through writing to me, and so there hasn't been any lack of communication on my part." Regardless of whether defendant actually communicated with counsel via writing, or whether he chose not to respond to her written correspondences, we conclude that defendant has not demonstrated that there was a "destruction of communication."
Additionally, we conclude that defendant did not demonstrate that there was a breakdown in the attorney-client relationship sufficient to warrant substitute counsel. Despite defense counsel's filing a motion to withdraw, she appeared in court on the first day of trial and confirmed that she was ready and prepared to represent defendant at trial. Defendant chose to keep counsel on as a standby legal advisor. More importantly, defendant actually consulted with counsel during the trial. The evidence demonstrates that the attorney-client relationship had not soured to the point that there was a destruction of communication or that counsel was unable to represent defendant. Accordingly, we conclude that defendant has not demonstrated a breakdown in the attorney-client relationship sufficient to warrant substitute counsel.
Finally, we conclude that substitution of counsel would have unreasonably disrupted the judicial process. The prosecutor noted that he had "reluctant witnesses that don't want to testify" with him that day. He opined that the witnesses' reluctance would be even worse if the trial was delayed until "months down the road."
Accordingly, we hold that the trial court did not abuse its discretion in denying defendant's request for substitute counsel.
We affirm.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey