People v. Ahumada , 222 Mich. App. 612 ( 1997 )

564 N.W.2d 188 (1997) 222 Mich. App. 612

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Hymen Louie AHUMADA, Defendant-Appellant.

Docket No. 175664.

Court of Appeals of Michigan.

Submitted November 12, 1996, at Grand Rapids. Decided April 4, 1997, at 9:30 a.m. Released for Publication June 16, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Kevin A. Lynch, Senior Assistant Prosecuting Attorney, for People.

State Appellate Defender by Charles J. Booker, for Defendant-Appellant on appeal.

Before WAHLS, P.J., and YOUNG and J.H. FISHER^[*], JJ.

WAHLS, Presiding Judge.

A jury convicted defendant of assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, and assault with a dangerous weapon, M.C.L. § 750.82; M.S.A. § 28.277. Subsequently, defendant pleaded guilty of being an habitual offender, fourth offense, M.C.L. § 769.12; M.S.A. § 28.1084. The trial court sentenced defendant as an habitual offender to concurrent terms of life imprisonment for the assault with intent to murder conviction and ten to fifteen years' imprisonment for the assault with a dangerous weapon conviction. Defendant appeals as of right. We affirm.

Defendant argues that the trial court erred in denying his motion for self-representation. We disagree. Before granting a defendant's request to proceed in propria persona, trial courts must substantially comply with the waiver of counsel procedures set forth in People v. Anderson, 398 Mich. 361, 247 N.W.2d 857 (1976), and MCR 6.005(D). People v. Adkins, 452 Mich. 702, 706, 551 N.W.2d 108 (1996). Substantial compliance requires the court to discuss with the defendant the waiver of counsel requirements set forth in both Anderson and the court rule and to determine that the defendant fully understands, recognizes, and agrees to abide by these procedures. Id. The trial judge is in the best position to determine whether the defendant has made the waiver knowingly and voluntarily. Id., p. 723, 551 N.W.2d 108.

There are three main requirements with which a court must comply in this context. First, the defendant's request must be unequivocal. Id., p. 722, 551 N.W.2d 108. Second, the defendant must assert his right to self-representation knowingly, intelligently, and voluntarily. Id. In assuring a knowing and voluntary waiver, the trial court must make the defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and that his choice is made with eyes open. Id. Third, the court must establish that the defendant will not unduly disrupt the court while acting as his own counsel. Id. In addition, MCR 6.005 requires the trial court to offer the assistance of an attorney and to advise the defendant about the possible punishment for the charged offense. Id.

Here, the record indicates that the trial court properly determined that defendant's attempted waiver would be unduly burdensome on the court. Defendant first moved to dismiss his attorney because of an alleged personality conflict in the middle of jury selection. At that time, the court ruled that it would not hear defendant's motion until after jury selection. Later, defendant raised the issue a second time, and the court repeated its ruling. Defendant continued to implore the court, even after the court requested several times that defendant be quiet. Finally, the trial court excused the jurors from the courtroom. After questioning defendant and his counsel, the trial court denied defendant's request, concluding that it would be a "travesty of justice" to allow the withdrawal of counsel and that it believed that defendant was manipulating the court to cause error. Defendant continued to voice his objection, interrupting the court repeatedly. This continued until defendant was handcuffed and removed for the remainder of jury selection.

In addition, the record indicates that the court properly determined that defendant's desire to represent himself was not knowing or intelligent. At the same time as defendant first moved to represent himself, he also moved to substitute counsel. The next day, the trial court considered defendant's motion. After it had questioned defendant and his counsel further, the court found that defendant had voluntarily waived his right to representation. At this point, however, the trial court asked if it was defendant's position that he wanted an adjournment to prepare the case. Defendant replied that he would, claiming not to know his attorney's strategy. However, defendant's counsel claimed that he had informed defendant about his trial strategy. The court asked defendant what he hoped to achieve by adjourning the case. Defendant replied that he wanted another attorney. The court responded that it would not appoint a third attorney for defendant. It was at this point that the trial court ruled that defendant had not intelligently waived his right to counsel. The trial court added that it believed that the motion was made for surreptitious reasons and that allowing defendant to represent himself would be an undue inconvenience and burden on the court.

Although the right to proceed in propria persona is guaranteed by the United States Constitution, the Michigan Constitution, and state statute, this right is not absolute. Adkins, supra, pp. 720, 721, n. 16, 551 N.W.2d 108; People v. Dennany, 445 Mich. 412, 426-427, 519 N.W.2d 128 (1994) (Griffin, J.). Proper compliance with the waiver of counsel procedures requires that the court engage, on the record, in a methodical assessment of the wisdom of self-representation by the defendant. Adkins, supra, pp. 720-721, 551 N.W.2d 108. The defendant must exhibit an intentional relinquishment or abandonment of the right to counsel, and the court should indulge every assumption against waiver. Id., p. 721, 551 N.W.2d 108. The presumption against waiver is in large part attributable to society's belief that defendants with legal representation stand a better chance of having a fair trial than people without lawyers. Id. If a court does not believe the record evidences a proper waiver, the court should note the reasons for its belief and require counsel to continue to represent the defendant. Id. Here, indulging every presumption against waiver, the court's reasons for denying defendant's motion were supported by the record. Accordingly, the trial court did not abuse its discretion by denying defendant's motion.

Defendant also argues that the trial court improperly considered his trial behavior in imposing a sentence. We disagree. Deferring to the trial court's superior ability to assess the credibility of witnesses, MCR 2.613(C), there was ample evidence to support the court's finding that defendant feigned an injury to extricate himself from trial. Similarly, when the trial court's comments are read in context, the record does not support defendant's contention that he was punished for asserting his right to self-representation. Finally, the trial court properly considered defendant's trial conduct as one of numerous factors that had negative implications with respect to the defendant's prospects for rehabilitation. See People v. Houston, 448 Mich. 312, 323, 532 N.W.2d 508 (1995); People v. Eason, 435 Mich. 228, 240, 458 N.W.2d 17 (1990).

Finally, defendant argues that the trial court abused its discretion in summarily holding him in contempt. We disagree. The issuance of an order of contempt is in the sound discretion of the trial court and will be reviewed for an abuse of discretion. Deal v. Deal, 197 Mich.App. 739, 743, 496 N.W.2d 403 (1993). Imprisonment for criminal contempt is appropriate where a defendant does that which he has been commanded not to do. In re Contempt of Dougherty, 429 Mich. 81, 93, 413 N.W.2d 392 (1987). When contempt is committed in the immediate view and presence of the court, it may be punished summarily by fine, imprisonment, or both. MCL 600.1711; MSA 27A.1711; In re Contempt of Robertson, 209 Mich.App. 433, 437, 531 N.W.2d 763 (1995). Here, the record indicates that defendant repeatedly refused to obey the trial court's orders, even after being warned that he would be held in contempt. As in In re Contempt of Warriner, 113 Mich.App. 549, 555, 317 N.W.2d 681 (1982), modified on other grounds 417 Mich. 1100.26, 338 N.W.2d 888 (1983), summary punishment was required to restore order in the courtroom and to ensure respect for the judicial process. Under these circumstances, there was no need for a hearing before a different judge. Id. The trial court did not abuse its discretion by holding defendant in contempt.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.