People v. Stinson , 6 Mich. App. 648 ( 1967 )

6 Mich. App. 648 (1967) 150 N.W.2d 171

PEOPLE
v.
STINSON.

Docket No. 1,475.

Michigan Court of Appeals.

Decided May 9, 1967. Leave to appeal denied October 19, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

J. Leonard Hyman (Stanley M. Weingarden, of counsel), for defendant.

Leave to appeal denied October 19, 1967. See 379 Mich. 785.

LESINSKI, C.J.

The defendant appeals from a judgment entered on a jury verdict of guilty of the offense charged: uttering and publishing.^[1]

The record reveals that the defendant was arraigned on a complaint and warrant on July 6, 1965. Without benefit of counsel, he demanded preliminary examination. On July 21, 1965, he was arraigned on the information and a plea of not guilty was entered by the court. On August 12, 1965, trial was adjourned to September 9, 1965. The August 12th date is the first notation on the record of the defendant's representation by counsel (court-appointed). Pursuant to defense counsel's motion to set aside waiver of examination, examination was, on August 30, 1965, set for September 9, 1965, and held on said date. On September 24, 1965, defendant was arraigned on the information. Trial began on October 12, 1965.

The defendant raises three issues on appeal. The first asserts that the trial court committed reversible error in its refusal to permit an adjournment sought by defendant just prior to the commencement of trial, for the purpose of retaining counsel of his own — or more accurately, his mother's — choosing.

The second issue questions the sufficiency of evidence at the preliminary examination to show that the offense charged had been committed, and that there was probable cause to believe that the defendant committed it. Within the context of this issue, the defendant also contends that the court committed reversible error in its conduct of the preliminary examination.

In his brief defendant poses as a third issue that certain remarks of the trial judge in front of the jury were prejudicial and ground for reversal here.

The last-mentioned issue is without merit. The remarks complained of, taken out of context and given inferences by appellate argument, cannot be said to have been prejudicial in the framework in which they were made.

At the beginning of trial, defendant sought to get the court's attention in order to request the postponement of trial mentioned above. The court admonished the defendant that prospective jurors were present before allowing the defendant to proceed. There was nothing improper in so doing. The court was not clairvoyant and could not anticipate the tenor of defendant's remarks. The warning was properly made to safeguard, not to prejudice, defendant.

It is further apparent from a reading of the transcript as a whole that the court did not commit reversible error when it refused to allow the defense counsel to continue to ask the same question of the people's witness on cross-examination which he had answered several times for defense counsel.

Defendant also contends that the trial judge prejudiced him by certain remarks during the course of the charge to the jury. The court used the name of the complaining witness in an example given to the jury to explain that knowledge that an instrument is false is one of four elements which must be shown in the offense of uttering and publishing. Although it might have been preferable for the court to employ a totally fictional appellation in his analogy, we cannot say under the facts of this case that the use of "Mr. Seidman" rather than "Mr. X" was prejudicial error.

And finally, we note that no objection was made by defense counsel at trial to any of the above-discussed remarks. In fact, defense counsel, on the record, expressed satisfaction with the charge at its conclusion, which makes the raising of objection thereto tardy as well.

The second issue concerning the validity of the preliminary examination was not raised at trial and cannot be raised here. People v. Willis (1965), 1 Mich. App. 428.

The first issue raised by the defendant cannot be so summarily dismissed on appeal. Here defendant argues that the court committed prejudicial error in refusing to allow the defendant to retain counsel of his own choosing in derogation of said defendant's constitutional rights.

As was noted above, the defendant was arraigned on a complaint and warrant on July 6, 1965, and the date of the trial was October 12, 1965. On the latter day, defendant stated that he had asked court-appointed counsel "to come out and ask for a postponement for a week until next week until I can see my people Friday to get me a lawyer." The court's grounds for denial of this request were that the defendant had been arraigned three months before; that he had had three months to get an attorney, and that this was the third trial date set. The preliminary examination was held September 9, 1965, and the arraignment on the information September 24, 1965. Eighteen days elapsed between this last date and the trial. Defendant stated that he had been unable to see his "people in two weeks, over in the county jail."

The right to assistance of counsel is guaranteed each defendant in both the Constitution of the State of Michigan^[2] and the Constitution of the United States.^[3] This guarantee affords a defendant a reasonable opportunity to obtain counsel of his own choosing. See Powell v. Alabama (1932), 287 U.S. 45 (53 S. Ct. 55, 77 L ed 158). A defendant may, however, effectively waive this right by taking advantage of appointed counsel's services.

While reaffirming every defendant's right to counsel, we cannot find that this right has been denied the defendant before us. Defendant had three months in which to retain counsel. There is no showing that he had attempted to avail himself of this opportunity. The defendant, at the time of trial, sought adjournment to allow his mother time to hire an attorney. There was no showing at any time that his mother was prepared to do so, or that she had, in fact, hired an attorney. No attorney (other than his court-appointed attorney) communicated with the court in any manner to convey to the court that he was ready to undertake the defendant's cause. No other attorney's name was ever mentioned. The defendant said he was unable to see his people as he was in jail for two weeks. However, there is no showing that he attempted in any way to communicate with them or with the court, or that "seeing his people" would have produced the result of retained counsel in his behalf. Further, there was no showing that his family was barred from seeing him.

The cases cited by defendant are factually distinguishable from the instant case. We note two of them.

In People v. Cohen (1949), 402 Ill 574 (85 NE2d 19), there was a motion for substitution of counsel by the prospective retained counsel. No such motion is a part of this record.

In United States v. Johnston, III (CA 6, 1963), 318 F2d 288, defendant's retained counsel told one of the defendants (Balk) on a Friday that he would be unable to represent him at the trial which was scheduled to begin on the following Tuesday, and that his associate would represent Balk. On Monday Balk informed his counsel that the substitute was unsatisfactory. The next day the trial court refused the defendant's request for additional time. The court of appeals for the sixth circuit reversed, on the basis that the defendant was deprived of a fair opportunity and a reasonable time to select his own counsel.

The length of time which Balk had in United States v. Johnston, III, supra, in which to obtain counsel which he would consider a satisfactory substitute, is in sharp contrast to the time element here before us. It is interesting to note in passing that in United States v. Rundle (ED Pa 1964), 230 F Supp 323, aff'd (CA 3, 1965), 341 F2d 303, the Federal court denied a writ of habeas corpus sought where the State court had denied a continuance because the defendant had more than three months in which to obtain an attorney, was not handicapped in communicating with any attorney he desired, and the case had been continued several times. The court held that there was no abuse of discretion in requiring the case to proceed without counsel to represent defendant. The Rundle trial court cited United States v. Johnston, III, supra, saying at p 327:

"Consequently the denial by a court of a trial continuance in order to give the defendant sufficient time to engage an attorney will in appropriate circumstances constitute a denial of due process."

We would agree. The crucial prepositional phrase "in appropriate circumstances" is not fulfilled by the circumstances before us. To permit adjournment on these facts would seriously undermine the administration of justice in a metropolitan area, with no commensurate benefit to defendants to mitigate the burden.

There was neither a denial of defendant's constitutional rights nor a judicial abuse of discretion.

Affirmed.

BURNS and QUINN, JJ., concurred.

NOTES

[1] CL 1948, § 750.249 (Stat Ann 1962 Rev § 28.446).

[2] Const 1963, art 1, § 20. It is noteworthy that the language of another provision also guarantees him the right to conduct his own defense. See Const 1963, art 1, § 13.

[3] US Const, Am 6.