People of Michigan v. Larry Deshawn Lee ( 2017 )


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  •                            STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
    November 14, 2017
    Plaintiff-Appellee,
    v                                                                    No. 333664
    Washtenaw Circuit Court
    LARRY DESHAWN LEE,                                                   LC Nos. 06-000987-FH
    06-000988-FH
    Defendant-Appellant.
    Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
    PER CURIAM.
    In both LC No. 06-000987-FH and LC No. 06-000988-FH, defendant was charged with
    third-degree criminal sexual conduct (CSC III), MCL 750.520e(1)(a), and fourth-degree criminal
    sexual conduct (CSC IV), MCL 750.520d(1).1 The matters were consolidated for trial, and the
    jury convicted defendant of one count of CSC III and one count of CSC IV. The trial court
    sentenced defendant to concurrent sentences of 3 to 15 years’ imprisonment for the CSC III
    conviction and nine months in jail for the CSC IV conviction. Defendant appealed by right, and
    this Court affirmed defendant’s convictions and sentences in 2008.2 The Michigan Supreme
    Court denied leave to appeal.3
    This case is again before this Court following the issuance of a federal district court
    opinion and order conditionally granting defendant’s petition for a writ of habeas corpus. Lee v
    Haas, 197 F Supp 3d 960 (ED Mich, 2016). The federal court held that defendant’s appellate
    counsel was ineffective in failing to raise a claim in defendant’s prior appeal (in this Court) that
    his convictions had been obtained in violation of his Sixth Amendment right to self-
    representation. 
    Id. The federal
    court ordered that defendant be permitted to file an appeal by
    right in this Court. This appeal followed, relative to the issue that was first raised in the federal
    1
    The charges related to allegations of sexual assault of two men while they were sleeping or
    incapacitated.
    2
    People v Lee, unpublished opinion per curiam of the Court of Appeals, issued September 16,
    2008 (Docket Nos. 277551 & 277552).
    3
    People v Lee, 
    483 Mich. 1132
    ; 767 NW2d 450 (2009).
    -1-
    court proceeding. We now vacate defendant’s convictions and sentences, and remand for a new
    trial.
    I. PERTINENT FACTS AND PROCEDURAL HISTORY
    The facts underlying defendant’s convictions are set forth in this Court’s prior opinion. 4
    In or before October 2006, and before his original trial date of October 23, 20065 defendant sent
    multiple letters to the trial court expressing his dissatisfaction with his court-appointed counsel
    and stating that he wanted either to represent himself or, if the court would not allow him to
    represent himself, to have the court appoint substitute counsel or allow another attorney to
    represent him. In one letter (which reflected that it was not his first), which is undated but refers
    to a hearing to be held in October 2006, defendant informed the court that he was dissatisfied
    with his trial counsel’s performance and that he had asked his trial counsel “many times to file a
    motion to withdraw as counsel so that I can excercise [sic] my right to self-representation,” and
    that counsel had refused to file the motion. Defendant stated, “I will represent myself before I let
    [trial counsel] represent me . . . . I am competent, educated and will take that risk [to represent
    himself]. Please do intervene and force [trial counsel] to withdraw so that I can represent myself,
    its my right isn’t that correct.” Defendant further stated, “If you won’t allow me to represent
    myself, then please appoint me new counsel. I will see you at the motion hearing early Oct.
    2006 and will ask that you force [trial counsel] to file the motion to withdraw so that I can
    represent myself. If you don’t appoint me new counsel, I am certain that I am willing and
    prepared to represent myself. Please make it happen.” Finally, he stated, “hopefully you will
    help my issue and get me on the road to self-representation.”
    Defendant again told the court in an October 6, 2006 letter that he was “serious about
    representing [him]self” and that his trial counsel would not withdraw. He stated, “not only do I
    want to represent myself, it is my right. Thats why I want you to force her to withdraw.” With
    multiple designations of the following as “*Important*,” he stated that “only in the event that
    you will not allow me to self represent myself, and also if you deny me court appointed
    substitute counsel at the same time. If you do that, I have on my own found a qualified
    attorney . . . to take the case to relieve [trial counsel]. She’s fired!”
    Defendant attempted to address the court about “representation” at the conclusion of an
    evidentiary hearing on October 13, 2016. The trial court acknowledged having received
    defendant’s letters, but made reference only to the competency of defendant’s counsel, not
    defendant’s request to represent himself. The trial court stated, “Yeah you wrote me letters
    about that, Mr. Lee. Stop. You wrote me letters about that. This is your attorney. This is going
    to be your attorney at trial. There has been so far as I can see effective representation. I’m not
    going to take any further action on that.”
    4
    Lee, unpub op at 1-3.
    5
    Defendant’s trial ultimately commenced on December 11, 2006.
    -2-
    II. STANDARD OF REVIEW
    We review for clear error factual findings made by the trial court regarding a defendant’s
    waiver of his right to counsel, but review de novo as a question of law the trial court’s ultimate
    decision to grant or deny self-representation. See People v Williams, 
    470 Mich. 634
    , 640; 683
    NW2d 597 (2004), citing People v Daoud, 
    462 Mich. 621
    , 629-630; 614 NW2d 152 (2000).
    III. ANALYSIS
    Defendant argues that the trial court’s failure to conduct an inquiry into defendant’s
    attempted assertion of his right to represent himself, see Faretta v California, 
    422 U.S. 806
    ; 
    95 S. Ct. 2525
    ; 
    45 L. Ed. 2d 562
    (1975), People v Anderson, 
    398 Mich. 361
    ; 247 NW2d 857 (1976),
    and MCR 6.005(D)(1), was a structural error requiring reversal of his convictions and a new
    trial. We agree.
    The Sixth Amendment of the United States Constitution, made applicable to the states
    through the Due Process Clause of the Fourteenth Amendment, provides that a person accused of
    a crime has the right to the assistance of counsel for his defense. People v Williams, 
    470 Mich. 634
    , 641; 683 NW2d 597 (2004); People v Kammeraad, 
    307 Mich. App. 98
    , 122; 858
    NW2d 490 (2014). “The analogous provision of the Michigan Constitution provides that ‘[i]n
    every criminal prosecution, the accused shall have the right to . . . have the assistance of counsel
    for his or her defense[.]’ ” 
    Id., quoting Const
    1963, art 1, § 20 (alterations and ellipsis in
    original).
    “The United States Constitution does not, however, force a lawyer upon a defendant; a
    criminal defendant may choose to waive representation and represent himself.” 
    Williams, 470 Mich. at 641
    . The right of self-representation is guaranteed by both the Michigan Constitution,
    Const 1963, art 1, § 13, and by statute, MCL 763.1. People v Dunigan, 
    299 Mich. App. 579
    , 587;
    831 NW2d 243 (2013). The right of self-representation is also implicitly guaranteed by the Sixth
    Amendment of the United States Constitution. 
    Anderson, 398 Mich. at 366
    , citing Faretta, 
    422 U.S. 806
    . “[A]lthough the right to counsel and the right of self-representation are both
    fundamental constitutional rights, representation by counsel, as guarantor of a fair trial, ‘is the
    standard, not the exception,’ in the absence of a proper waiver.” People v Russell, 
    471 Mich. 182
    , 189-190; 684 NW2d 745 (2004) (citations omitted). Nonetheless, an erroneous denial of
    the right to self-representation is a structural error requiring reversal of defendant’s conviction.
    McKaskle v Wiggins, 
    465 U.S. 168
    , 177 n 8; 
    104 S. Ct. 944
    ; 
    79 L. Ed. 2d 122
    (1984); see also
    Washington v Renico, 455 F 3d 772, 734 (CA 6, 2006), and People v Brooks, 
    293 Mich. App. 525
    ,
    540; 809 NW2d 644 (2011), vacated in part on other grounds and appeal denied in part 
    490 Mich. 993
    (2012) (the denial of the right to self-representation amounts to a structural error).
    A defendant exercising his right of self-representation must take positive action to assert
    that right:
    To invoke the right of self-representation: (1) a defendant must make an
    unequivocal request to represent himself, (2) the trial court must determine that
    the choice to proceed without counsel is knowing, intelligent, and voluntary, and
    (3) the trial court must “determine that the defendant’s acting as his own counsel
    -3-
    will not disrupt, unduly inconvenience and burden the court and the
    administration of the court’s business.” 
    [Dunigan, 299 Mich. App. at 587
    , quoting
    
    Anderson, 398 Mich. at 367-368
    ; see also Faretta, 
    422 U.S. 835
    .]
    Additionally, a trial court “may not permit the defendant to make an initial waiver of the right
    to . . . a lawyer” unless the trial court first advises him or her “of the charge, the maximum
    possible prison sentence . . . , any mandatory minimum sentence . . . , and the risk involved in
    self-representation,” and offers “the defendant the opportunity to consult with a retained lawyer
    or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.”
    MCR 6.005(D).
    A trial court need not conduct a Faretta/Anderson inquiry when a defendant’s request for
    self-representation is untimely, such as one made after the trial has begun. See People v
    Richards, 
    315 Mich. App. 564
    , 575; 891 NW2d 911 (2016), application for leave to appeal on
    other grounds held in abeyance 889 NW2d 258 (2017). Therefore, in order to trigger the trial
    court’s obligation to conduct such an inquiry, a defendant’s request of self-representation in a
    criminal trial must be made clearly and unequivocally, and timely. The pivotal question in this
    case is whether defendant’s assertion of his right to represent himself obligated the trial court to
    conduct such an inquiry. We conclude that it did.
    On at least two occasions, defendant specifically requested to represent himself, noted the
    constitutional nature of his right to do so, and expressly referred to his competence, his
    education, and his willingness to “take th[e] risk” of representing himself. He clearly expressed
    his desire to represent himself and his confidence in his ability to do so. His letters represent an
    unambiguous request for self-representation. The request was made no later than early October
    2006, which was well before the original trial date of October 23, 2006, and months before the
    trial actually began on December 11, 2006. Given these facts, defendant unequivocally and
    timely requested to waive counsel and represent himself. 6 When defendant made that request,
    the trial court had a duty at that time to at least “substantially comply” with the waiver of counsel
    procedures described in Anderson and MCR 6.005(D). People v Ahumada, 222 Mich App
    612,614; 564 NW2d 188 (1997). That inquiry consists of an examination, on the record, of
    whether defendant’s stated choice was voluntary, knowing, and intelligent, in light of the charges
    and possible prison sentences he faced. 
    Id. at 614-615.
    Here, faced with a timely, unequivocal,
    and clear request by defendant to self-represent, the trial court made no attempt to comply with
    the Anderson procedures. Had the trial court even conducted any sort of colloquy with defendant
    on his right to self-representation, we might have been able to review whether substantial
    6
    Although requests for substitute counsel or expressions of mere dissatisfaction with counsel do
    not constitute unequivocal requests for self-representation, see, e.g., United States v Martin, 25
    F3d 293, 296 (CA 6, 1994); People v Payne, 
    27 Mich. App. 133
    , 135-136; 183 NW2d 371 (1970),
    defendant’s letters in this case, while expressing dissatisfaction with counsel and alternatively
    requesting substitute counsel, clearly requested self-representation as defendant’s preferred
    option, with his request for substitute counsel as an alternative only in the event the trial court
    refused to allow defendant to represent himself.
    -4-
    compliance with Anderson and MCR 6.005(D) had been achieved. But as it stands the trial
    court’s failure to inquire further constituted structural error requiring that defendant’s
    convictions be vacated and the he receive a new trial. 
    McKaskle, 465 U.S. at 177
    n 8;
    Washington, 455 F 3d at 734, 
    Brooks, 293 Mich. App. at 540
    .
    We vacate defendant’s convictions and sentences and remand for a new trial. We do not
    retain jurisdiction.
    /s/ Michael J. Kelly
    /s/ Amy Ronayne Krause
    /s/ Mark T. Boonstra
    -5-