People of Michigan v. Dale Lester Morris

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 21, 2018
Plaintiff-Appellee,
v No. 333468
Washtenaw Circuit Court
DALE LESTER MORRIS, LC Nos. 15-001036-FC and
15-001037-FC
Defendant-Appellant.
Before: CAMERON, P.J., and METER and BORRELLO, JJ.
PER CURIAM.
Defendant was convicted following a bench trial of two counts of bank robbery in
violation of MCL 750.531. The trial court sentenced defendant to two concurrent terms of 71
months to 30 years’ imprisonment. Defendant now appeals as of right. For the reasons set forth
in this opinion, we affirm.
I. BACKGROUND
On the morning of July 8, 2015, defendant entered the Bank of Ann Arbor in Ypsilanti,
Michigan and handed a teller a note demanding money. Defendant wore a black suit, a fedora, a
bandana around his neck, and tinted glasses. Defendant threatened the teller and ordered her to
not give him the money in bundles. The teller complied and gave him $1,077. Defendant left
the bank and fled in a car that the police later traced to his girlfriend. The bank’s surveillance
cameras recorded the robbery inside the bank, and surveillance cameras at the adjacent City Hall
building recorded his arrival and getaway.
The next day, on July 9, 2015, defendant entered the Eastern Michigan University Credit
Union in Ypsilanti, interrupted a teller assisting a customer, and gave the teller a note demanding
money. The note read, “Give me all your money. No dye pack.” Defendant wore nylons over
his face and a hat. Both the teller and the customer testified at trial that they could see through
the nylon material and could see defendant’s face. Defendant told the teller to give him one
hundred dollar bills and then ordered her to give him all of the money she had. She complied
and gave him $6,000. Defendant fled the scene. The robbery was recorded on the credit union’s
surveillance cameras.
The police investigated the robberies by reviewing the surveillance videos, interviewing
the witnesses, and circulating to other law enforcement agencies still photos of defendant that
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were reproduced from the surveillance camera footage of the robberies. The Bank of Ann Arbor
teller identified defendant from a photo array as the person who robbed the bank. The credit
union teller and customer both identified defendant from a photo array as the robber of the
Eastern Michigan University Credit Union. Defendant evaded capture, but a United States
Marshall eventually arrested defendant outside the state of Michigan on a bank robbery warrant
issued by the Washtenaw County Prosecutor’s Office. Defendant was extradited to Michigan.
On September 9, 2015, in the district court, defendant was arraigned on the warrant for
the Bank of Ann Arbor robbery. The magistrate informed defendant that a felony complaint had
been issued accusing him of committing a bank robbery on July 8, 2015, at 7 West Michigan
Avenue in the City of Ypsilanti, Michigan. Specifically, the magistrate stated that defendant was
accused of intending to commit the crime of larceny in a bank and putting the teller in fear for
the purpose of stealing money from the bank. Defendant was informed that this was a felony
charge with a maximum penalty of life in prison. The magistrate asked defendant if he
understood the charge, and defendant responded affirmatively. After the magistrate read the
contents of the warrant on the record, defendant objected to the warrant and the information
contained in it as follows:
The Defendant: Yeah, I just want it for the record that I object to this.
The Court: Of course, a not guilty plea has been entered.
The Defendant: Yeah, I object to the warrant and it’s [sic] information, I
want that on record.
The Court: Okay, it’s on record.
The Defendant: Okay let’s proceed.
Additionally, the magistrate informed defendant that he had a right to remain silent, that
anything he said at the proceeding could be used against him at a later proceeding, that he had a
right to be represented by an attorney, and that he had a right to have an attorney appointed to
him by the court if he could not afford one. The magistrate asked defendant if he needed an
attorney to be appointed, and defendant indicated that he needed a court-appointed attorney.
After inquiring about defendant’s financial status, the magistrate indicated that an attorney would
be appointed to represent defendant. Defendant reiterated that he objected to the warrant and
complaint, and the magistrate responded, “That’s right, it is noted on the record.”
At a subsequent proceeding on October 1, 2015, defendant was arraigned in the district
court on the warrant for the Eastern Michigan University Credit Union robbery. Defendant was
represented by appointed counsel at this proceeding. The judge indicated that defendant was
being charged with committing a robbery at a credit union or bank located at 761 Jenness Street
in the City of Ypsilanti for the purpose of stealing money. Defendant was informed that this was
a felony offense that was punishable by life in prison or any term of years. The magistrate
further informed defendant that he had the right to be represented by an attorney and that one
could be appointed for him. After discussions with defendant, the judge indicated that an
attorney would be appointed for defendant on the second bank robbery charge as well.
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Defendant pleaded not guilty. The second bank robbery charge was assigned a separate case
number.
On October 8, 2015, a hearing was held that had been scheduled as both a preliminary
examination for the first robbery charge and a probable cause hearing for the second robbery
charge. At the outset, defendant’s appointed counsel indicated that defendant had expressed his
desire to represent himself and that defense counsel had filed a motion to withdraw. When the
judge asked defendant if he wished to represent himself in the matter, defendant responded,
“Yes.” Defendant further indicated, “I’d like to represent myself as my constitutional right.”
The district court judge then proceeded to advise defendant of his rights regarding a
waiver of the right to counsel, as set forth in MCR 6.005(D). The judge asked defendant again
whether he wished to have appointed counsel represent him and whether defendant wished to
represent himself. Defendant affirmatively indicated that he did not want to be represented by
appointed counsel and that he wanted to represent himself. The judge asked defendant if he
understood that he had been charged with bank robbery in each case, that these charges were
felonies, and that they were punishable by life or any term of years. Defendant responded
affirmatively that he understood each of these facts. The judge asked defendant if he wanted to
be represented by appointed or retained counsel, understanding the charges and penalties
involved. Defendant indicated that he did not want to be represented by counsel. The judge
further informed defendant that he could ask the court to be represented by counsel at any time
during the proceedings if he decided that he wanted counsel. Defendant indicated that he
understood this. Additionally, the judge advised defendant that “by representing yourself, there
can be certain issues involved,” that defendant would be held to an understanding of the law and
court procedure just as the prosecution would be, and that defendant would not receive favorable
treatment. Defendant indicated his understanding. Finally, the judge asked defendant if he had
any questions regarding his self-representation, and defendant indicated that he did not. The
judge determined that defendant would be permitted to represent himself based on the inquiry
conducted with defendant. The judge also appointed standby counsel for defendant to assist in
filing documents and answering any of defendant’s procedural or substantive questions.
At the same hearing, the district court subsequently accepted a motion to dismiss filed by
defendant in both cases. The district court adjourned both preliminary examinations to a later
date in order to allow for a response to defendant’s motions by the prosecution and for the
district court to address the motions at a hearing before holding the preliminary examinations.
A probable cause conference was held on November 5, 2015. As the judge was advising
defendant of his rights with respect to his assertion of his right to self-representation, defendant
objected to the continuing availability of standby counsel. The judge confirmed with defendant
that it was defendant’s desire to no longer have standby counsel and then granted his request.
After being advised of the risks of self-representation, defendant confirmed that he wanted to
continue representing himself.
The preliminary examinations for both bank robbery charges were conducted on
November 12, 2015. The proceedings began with the preliminary examination for the Bank of
Ann Arbor robbery. At the outset, the district court judge confirmed with defendant that he
wished to continue representing himself as follows:
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The Court: And Mr. Morris, you are wishing to represent yourself and you
do not want—
The Defendant: I am representing myself—
The Court: —You do not want appointed counsel? I just want to make
that clear for the record—
The Defendant: Your Honor, I have been through this several times.
The Court: All right. And you want to continue representing yourself?
All right.
The Defendant: Yes sir.
The judge also advised defendant again of the potential penalties associated with the
charged offense, and defendant indicated that he understood the serious nature of the charge.
Defendant then launched into a drawn-out argument about why the district court lacked subject-
matter jurisdiction. The district court had already denied motions to dismiss for lack of
jurisdiction made by defendant at two previous hearings. Nonetheless, the judge allowed
defendant to ramble on at the beginning of the November 12 proceeding. Defendant asserted
that he could file a lawsuit against the judge. Defendant concluded, “I don’t have nothing else to
say about this case. Police, take me out of here.” The judge ordered defendant to sit down.
Defendant refused to comply, and he then argued with the judge. The judge warned defendant
that he would be held in contempt if he continued his course of conduct. Defendant stated,
“There is nothing to talk about. I’m ready to leave.” The judge informed defendant that if he
left the courtroom, he would voluntarily forfeit his right to be present at the hearing. Defendant
continued to argue with the judge, and he was held in contempt. The following exchange
occurred:
The Court: Do you understand that if you continue to talk and you don’t
hold yourself in the proper decorum of this court, I will have you removed and
you are violating your right to be present at this hearing[?] And this hearing will
continue without you—
The Defendant: All I’m—
The Court: You may remain in the courtroom—
The Defendant: —All I’m saying is why—
The Court: —But, if you continue to talk, you will be gagged—
Defendant continued to argue with the judge. The judge denied defendant’s challenge to
the court’s subject-matter jurisdiction and then asked defendant if he wished to remain in the
courtroom, provided that he would follow the instructions and decorum of the court. The
following exchange occurred at the conclusion of the judge’s explanation:
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The Court: If you don’t want to be gagged and you refuse to stop talking
when I tell you to stop, you will be removed and then you will be forfeiting your
right to be in this courtroom during this hearing. But, this hearing will be
conducted without you.
So, you have to tell me how you want to proceed.
The Defendant: Okay. I—I believe I’m ready to go. And you—You all
can conduct this hearing without me.
The Court: All right—
The Defendant: Okay—
The Court: —Please remove the Defendant.
After defendant was removed from the courtroom, the preliminary examination continued
with the prosecution calling the Bank of Ann Arbor teller to testify. The district court judge
determined that defendant would be bound over to the circuit court. The judge then asked to
have defendant brought back to the courtroom to conduct the arraignment on the information and
to “see if he wants to be present for that.” The judge was subsequently informed that defendant
was resisting Michigan Department of Corrections (MDOC) officers. On the record, the judge
questioned an MDOC officer who was involved. The MDOC officer indicated that defendant
was placed in lockup after he requested to leave the courtroom and that defendant refused to
come back to the courtroom after the judge’s request. The MDOC officer further indicated that
he would potentially have to physically fight defendant to bring him to the courtroom and that
this would pose a security risk. The judge found that defendant voluntarily rejected his
opportunity to return to the courtroom to participate in the proceedings and that defendant would
not be ordered to return to the courtroom because doing so would create a potential security risk.
A plea standing defendant mute to the charge was entered. The prosecutor indicated that as far
as he knew, defendant had received the discovery packet and that a copy of the information was
typically included in the discovery packet.
The November 12, 2015 proceedings continued with the preliminary examination for the
Eastern Michigan University Credit Union robbery. The judge indicated that defendant had
forfeited his right to be present in the matter through his previous conduct during the proceedings
that day, specifically noting that defendant had voluntarily removed himself from the hearing and
had refused to return for the arraignment process. The prosecutor further stated that he had also
asked the MDOC officer to ask defendant again whether he wanted to participate in the second
preliminary examination. Defendant refused to participate. The preliminary examination was
conducted without defendant in the courtroom, and the district court judge determined that
defendant would also be bound over to the circuit court on the second bank robbery charge. The
prosecutor affirmatively indicated that defendant had been provided with a discovery packet and
that the standard discovery packet always includes a copy of the information. The judge
determined that defendant would not be forced to return to the courtroom for an arraignment for
the same reasons he was not ordered to return for an arraignment on the first charge. A plea
standing defendant mute to the second charge was entered.
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The two bank robbery cases were joined for trial. During the course of addressing
preliminary matters on the first day of trial and before any potential jurors were brought into the
courtroom for voir dire, defendant asserted that he wanted a bench trial. Defendant was sworn
in, and the trial court proceeded to conduct a colloquy with defendant. The trial court again
advised defendant of the nature of the two bank robbery charges and the potential penalties if
convicted of those offenses. The trial court also advised defendant that he had a constitutional
right to a jury trial, and defendant affirmatively indicated that he understood that he had this
right. The trial court further asked defendant if he understood that by giving up his right to a jury
trial, the matter would proceed that morning to a bench trial. Defendant indicated that he
understood. The trial court asked defendant if he was voluntarily giving up this constitutional
right, and defendant responded affirmatively. Additionally, the trial court confirmed for a
second time at that proceeding that defendant was knowingly choosing to represent himself.
After taking advantage of the opportunity to consult with appointed standby counsel, the trial
court asked defendant how he wished to proceed. Defendant again confirmed that he was
waiving his constitutional right to a jury trial. Both defendant and the prosecution signed a
waiver of trial by jury form. The trial court found that defendant had been properly advised of
his right to a jury trial, had been given an opportunity to consult with counsel, and had executed
a valid waiver in open court of his right to a jury trial. The trial court approved defendant’s
request and signed the waiver form. Following the bench trial, the trial court found defendant
guilty of both bank robberies. This appeal ensued.
II. ANALYSIS
A. WAIVER OF RIGHT TO COUNSEL AT NOVEMBER 12, 2015 PROCEEDINGS
Defendant first argues that the district court violated the requirements of People v
Anderson, 398 Mich. 361; 247 NW2d 857 (1976), and MCR 6.005(D) and (E) by failing to obtain
a valid waiver from defendant of his right to counsel at the proceedings on November 12, 2015.
Defendant argues that both the preliminary examination and the arraignment on the information
are critical stages where a defendant has a right to counsel. With respect to the arraignments on
the informations specifically, defendant argues that the district court violated MCR 6.005(E)
because he was never asked whether he was waiving his right to counsel for purposes of those
proceedings or whether he desired standby counsel. Finally, defendant argues that a structural
error requiring automatic reversal occurred because he was denied counsel during the
preliminary examinations. Defendant also raises essentially the same arguments in his Standard
4 brief. Defendant additionally argues that the district court erred by failing to provide him with
appointed standby counsel for the November 12, 2015 proceedings and that he never waived his
right to standby counsel.
Defendant did not raise these arguments below. In fact, defendant asserted numerous
times throughout the proceedings that he wanted to represent himself and continue without
representation by an attorney. Therefore, these arguments are unpreserved. People v Campbell,
316 Mich. App. 279, 283; 894 NW2d 72 (2016).
Our Supreme Court has set forth the standard of review that is ordinarily applicable to
appellate challenges to the validity of a defendant’s waiver of the Sixth Amendment right to
counsel:
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We review for clear error the trial court’s factual findings surrounding a
defendant’s waiver. However, to the extent that a ruling involves an
interpretation of the law or the application of a constitutional standard to
uncontested facts, our review is de novo. [People v Russell, 471 Mich. 182, 187;
684 NW2d 745 (2004).]
Nonetheless, we review unpreserved claims of constitutional error for plain error
affecting substantial rights. People v Carines, 460 Mich. 750, 764; 597 NW2d 130 (1999). On
plain-error review, the defendant has the burden to show (1) “error”; (2) that was “plain,”
meaning “clear or obvious”; (3) and that affected substantial rights or caused prejudice, meaning
“that the error affected the outcome of the lower court proceedings.” Id. at 763. “[O]nce a
defendant satisfies these three requirements, an appellate court must exercise its discretion in
deciding whether to reverse,” but “[r]eversal is warranted only when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed]
the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” Id. (citation and quotation marks omitted; last alteration in original).
“The Sixth Amendment safeguards the right to counsel at all critical stages of the
criminal process for an accused who faces incarceration.” People v Williams, 470 Mich. 634,
641; 683 NW2d 597 (2004), citing Maine v Moulton, 474 U.S. 159, 170; 106 S. Ct. 477; 88 L. Ed.
2d 481 (1985); see also US Const, Am VI. The right to counsel protected by the Sixth
Amendment “is applicable to the states through the Due Process Clause of the Fourteenth
Amendment.” Williams, 470 Mich. at 641, citing Gideon v Wainwright, 372 U.S. 335; 83 S. Ct.
792; 9 L. Ed. 2d 799 (1963). The Michigan Constitution also protects the right to counsel in
criminal prosecutions. Const 1963, art 1, § 20. The United States Supreme Court has described
“ ’critical’ stages” of criminal proceedings as those “ ‘where the results might well settle the
accused’s fate and reduce the trial itself to a mere formality,’ ” Moulton, 474 U.S. at 170; 106 S. Ct.
477, 484; 88 L. Ed. 2d 481 (1985) (citation omitted), or where “[a]vailable defenses may be as
irretrievably lost, if not then and there asserted,” Hamilton v Alabama, 368 U.S. 52, 54; 82 S. Ct.
157; 7 L. Ed. 2d 114 (1961).
The Sixth and Fourteenth Amendments also protect the right of self-representation for an
accused in a criminal proceeding. Faretta v California, 422 U.S. 806, 818-821; 95 S. Ct. 2525; 45
L. Ed. 2d 562 (1975). In Faretta, 422 U.S. at 807, the United States Supreme Court held that “a
defendant in a state criminal trial has a constitutional right to proceed without counsel when he
voluntarily and intelligently elects to do so.” Accordingly, the constitutionally protected right to
counsel may be waived if the waiver is made knowingly, voluntarily, and intelligently. Id. at
835; see also Iowa v Tovar, 541 U.S. 77, 87-88; 124 S. Ct. 1379; 158 L. Ed. 2d 209 (2004).
“Although a defendant need not himself have the skill and experience of a lawyer in order
competently and intelligently to choose self-representation, he should be made aware of the
dangers and disadvantages of self-representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835 (quotation
marks and citation omitted).
Furthermore, the right of self-representation is also protected under Michigan law, both
by the Michigan Constitution and by statute. Const 1963, art 1, § 13; MCL 763.1; see also
Williams, 470 Mich. at 642. In Anderson, 398 Mich. at 367-368, our Supreme Court set forth
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three requirements that must be met before a trial court may grant a defendant’s request to assert
the right to self-representation and waive the right to counsel: (1) “the request must be
unequivocal”; (2) “trial court must determine whether defendant is asserting his right knowingly,
intelligently and voluntarily”; and (3) “the trial judge [must] determine that the defendant’s
acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the
administration of the court’s business.” With respect to the finding that the waiver is knowingly,
intelligently, and voluntarily made, “[t]he trial court must make the Pro se defendant aware of
the dangers and disadvantages of self-representation, so that the record will establish that he
knows what he is doing and his choice is made with eyes open.” Id. at 368.
In addition to the Anderson three-part inquiry, the trial court must also satisfy the
requirements in MCR 6.005 regarding requests by a defendant to waive the right to counsel and
assert the right to self-representation. People v Adkins (After Remand), 452 Mich. 702, 722; 551
NW2d 108 (1996), overruled in part on other grounds by Williams, 470 Mich. at 641 n 7.1 The
pertinent provisions in MCR 6.005 are as follows:
(A) Advice of Right. At the arraignment on the warrant or complaint, the
court must advise the defendant
(1) of entitlement to a lawyer’s assistance at all subsequent court
proceedings, and
(2) that the court will appoint a lawyer at public expense if the defendant
wants one and is financially unable to retain one.
The court must question the defendant to determine whether the defendant
wants a lawyer and, if so, whether the defendant is financially unable to retain
one.
* * *
(D) Appointment or Waiver of a Lawyer. If the court determines that the
defendant is financially unable to retain a lawyer, it must promptly appoint a
lawyer and promptly notify the lawyer of the appointment. 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
1
In Williams, 470 Mich. at 641 n 7, our Supreme Court stated that the decision in Adkins was
erroneous only “to the extent that People v Adkins (After Remand), 452 Mich. 702, 721 n 16; 551
NW2d 108 (1996), can be read to say that trial court decisions regarding Sixth Amendment
waivers are only reviewed for abuse of discretion.”
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(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.
(E) Advice at Subsequent Proceedings. If a defendant has waived the
assistance of a lawyer, the record of each subsequent proceeding (e.g.,
preliminary examination, arraignment, proceedings leading to possible revocation
of youthful trainee status, hearings, trial or sentencing) need show only that the
court advised the defendant of the continuing right to a lawyer’s assistance (at
public expense if the defendant is indigent) and that the defendant waived that
right. Before the court begins such proceedings,
(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or
(2) if the defendant requests a lawyer and is financially unable to retain
one, the court must appoint one; or
(3) if the defendant wants to retain a lawyer and has the financial ability to
do so, the court must allow the defendant a reasonable opportunity to retain one.
The court may refuse to adjourn a proceeding to appoint counsel or allow
a defendant to retain counsel if an adjournment would significantly prejudice the
prosecution, and the defendant has not been reasonably diligent in seeking
counsel.
In Adkins, our Supreme Court held that substantial compliance is the standard by which
to evaluate a trial court’s decision to grant a defendant’s request for self-representation:
We hold, therefore, that trial courts must substantially comply with the
aforementioned substantive requirements set forth in both Anderson and MCR
6.005(D). Substantial compliance requires that the court discuss the substance of
both Anderson and MCR 6.005(D) in a short colloquy with the defendant, and
make an express finding that the defendant fully understands, recognizes, and
agrees to abide by the waiver of counsel procedures. 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. Further, we believe this standard protects the “vital
constitutional rights involved while avoiding the unjustified manipulation which
can otherwise throw a real but unnecessary burden on the criminal justice
system.” [Adkins, 452 Mich. at 726-727 (citation omitted).]
Noting the “unavoidable tension created between two constitutional rights when a
defendant chooses self-representation,” our Supreme Court has stated that “a defendant has
either a right to counsel or a right to proceed in propria persona, but not both.” Id. at 720. “The
defendant must exhibit an intentional relinquishment or abandonment of the right to counsel, and
the court should indulge every reasonable presumption against waiver of that right.” Id. at 721,
quoting Johnson v Zerbst, 304 U.S. 458, 464; 58 S. Ct. 1019; 82 L. Ed. 1461 (1938) (internal
quotation marks omitted). “The record must show, or there must be an allegation and evidence
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which show, that an accused was offered counsel but intelligently and understandingly rejected
the offer.” Adkins, 452 Mich. at 721 (quotation marks and citation omitted). But the Adkins
Court also recognized “the potential for savvy defendants to use these competing rights as a
means of securing an appellate parachute.” Id. at 724. “To permit a defendant in a criminal case
to indulge in the charade of insisting on a right to act as his own attorney and then on appeal to
use the very permission to defend himself in pro per as a basis for reversal of conviction and a
grant of another trial is to make a mockery of the criminal justice system and the constitutional
rights sought to be protected. We would not permit it.” Id. at 725 (quotation marks and citation
omitted).
In this case, the district court complied with MCR 6.005. At both arraignments on the
warrants in each of the respective bank robbery charges, defendant was informed of his right to
be represented by counsel and his right to have an attorney appointed to him if he could not
afford one. Thus, MCR 6.005(A) was satisfied. Counsel was appointed for defendant.
Next, the district court followed MCR 6.005(D) in obtaining a waiver of his right to
counsel from defendant at the October 8, 2015 hearing. The district court judge advised
defendant that he had been charged with two bank robberies, that these were felony offenses, and
that they were punishable by life or any term of years. The judge further informed defendant that
if he chose to represent himself, he would be held to the same understanding of the law as the
prosecutor and would not receive favorable treatment. Defendant indicated that he understood
each of the judge’s explanations, and he affirmatively expressed his desire to represent himself
and to not be represented by appointed counsel. The judge also informed defendant that he could
still request to be represented by counsel at any time during the proceedings. Accordingly,
defendant was made aware of the nature of the charges, the applicable potential penalties
(including the maximum possible sentence of life in prison), and the risk involved in self-
representation. Defendant also had the opportunity to consult with his appointed counsel, who
was present at the October 8, 2015 hearing and indicated at the beginning of the hearing that she
had spoken with defendant and had been told that he wished to discharge appointed counsel in
order to represent himself. After the judge conducted the previously described inquiry with
defendant on the record, the judge permitted defendant to represent himself. Thus, MCR
6.005(D) was also satisfied.
Defendant’s appellate arguments focus on the November 12, 2015 proceedings, which
included the preliminary examinations and arraignments on the informations for both charges.
At the November 12, 2015 proceedings, the district court only had to follow subrule (E), which
pertains to “Advice at Subsequent Proceedings,” because an initial waiver had already been
obtained under subrule (D) at the October 8, 2015 hearing. MCR 6.005(E); see also Adkins, 452
Mich. at 723 n 21. At the beginning of the November 12, 2015 proceeding, the judge asked
defendant if he still wanted to represent himself and if he wanted appointed counsel. Defendant
reaffirmed that he did not desire the assistance of counsel by replying that he still wanted to
represent himself and that he had “been through this several times.” The colloquy satisfied the
requirements of MCR 6.005(E).
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Subsequently, defendant was removed from the courtroom after defiantly arguing with
the judge and requesting to be removed from the proceedings. The preliminary examinations
and arraignments were then conducted consecutively in essentially one proceeding.2 The
arraignment on the information may be conducted by a district court judge immediately
following the bindover of a defendant to circuit court. MCR 6.111. Defendant has cited no
authority in support of his argument that the district court was required to confirm again with
defendant between portions of the same proceeding that he still wished to represent himself. As
our Supreme Court has stated, “[t]he comments to MCR 6.005 indicate that this Court does not
desire or expect that a trial court will repeat the inquiry required at the initial waiver of counsel
procedure unless the judge believes the particular circumstances warrant such an inquiry.”
Adkins, 452 Mich. at 723 n 21. Furthermore, in People v Suggs, the companion case in Adkins,
our Supreme Court concluded that “[t]he fact that the judge did not have the defendant reaffirm
his right to counsel before sentencing is not enough to defeat a finding of substantial compliance
with the waiver of counsel procedures in this case.” Id. at 736.
In this case, considering the fact that defendant refused to participate in the November 12,
2015 proceedings after leaving the courtroom and despite being given multiple opportunities to
return, it does not appear to us that further inquiry about defendant’s desire to represent himself
was warranted after the district court had already complied with MCR 6.005(E) that day. Id. at
723 n 21, 736. To the extent that the proceedings of November 12, 2015, could be considered
divisible into separate proceedings, the fact that defendant did not reaffirm his waiver in between
each stage does not negate the district court’s substantial compliance with MCR 6.005(E). See
id. at 736. Moreover, defendant’s persistent refusal to participate in any form in the November
12, 2015 proceedings operated as a forfeiture of his right to counsel without the necessity of
obtaining a formal reaffirmance on the record of his waiver of that right. Cf. People v
Kammeraad, 307 Mich. App. 98, 100; 858 NW2d 490 (2014) (holding that a defendant “forfeited
his constitutional rights to counsel, self-representation, and to be present in the courtroom during
his trial, given the severity of his misconduct and his absolute refusal to participate in any
manner in the proceedings”).
Next, there is no merit to defendant’s argument that the district court violated subrule (E)
by not asking if he desired standby counsel for the arraignment on the information. There is no
such requirement in MCR 6.005(E). Moreover, there is no requirement that standby counsel be
appointed for a defendant who asserts the right to self-representation; a defendant does not have
the right to both represent himself and be assisted by counsel. Adkins, 452 Mich. at 720; see also
People v Dennany, 445 Mich. 412, 443; 519 NW2d 128 (1994) (opinion by GRIFFIN, J.) (“We
conclude that [Const 1963,] art 1, § 13 permits the use of standby counsel as a matter of grace,
2
There are two separate transcripts for the November 12, 2015 proceedings: one for the
preliminary examination and arraignment on the information in the first bank robbery case, and
one for the preliminary examination and arraignment on the information in the second bank
robbery case. However, the transcripts indicate that the proceedings in the second case were
commenced four minutes after the proceedings in the first case were concluded. It goes without
saying that it is common to take short breaks during a single court proceeding.
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but not as a matter of right.”). Defendant’s argument also ignores the fact that he had previously
been appointed standby counsel but rejected the continued participation of standby counsel at the
November 5, 2015 hearing. The judge granted defendant’s request to dismiss standby counsel.3
Turning to the Anderson three-part test, we note that in accepting defendant’s initial
waiver of his right to counsel, the district court judge never referenced this test, nor did the judge
make explicit findings directed at the three prongs. Nonetheless, for the reasons that follow, we
conclude that the district court judge’s inquiry under MCR 6.005(D) also substantially complied
with the substantive requirements of the Anderson test, thus satisfying the standard of substantial
compliance required under Adkins.
In reaching this conclusion, we find our Supreme Court’s analysis in Suggs to be
instructive. In Suggs, the trial court engaged in a colloquy with the defendant before permitting
the defendant to represent himself. Adkins, 452 Mich. at 716-718. However, the trial court did
not state its reasons for finding that the defendant made a proper waiver of his right to counsel.
Id. at 735. Nonetheless, our Supreme Court concluded that “in light of both the defendant’s
eagerness to proceed with his case as a tactical decision and the thorough judicial compliance
with the other procedures, the judge’s oversight in this matter is also not enough to defeat a
finding of substantial compliance with the waiver of counsel procedures in this case.” Id. Our
Supreme Court reviewed the record of the discussion between the trial court and the defendant,
concluding that the record demonstrated an unequivocal request by the defendant to represent
himself, that the record established a knowing and voluntary waiver because the trial court
advised the defendant of his lack of legal knowledge and the inherent dangers of self-
representation, and that the record showed that the trial court inquired into the defendant’s ability
to comply with courtroom procedures and protocol. Id. at 732-735. Our Supreme Court
determined that the trial court substantially complied with the requirements set forth in Anderson
and MCR 6.005 “because the judge conveyed the substance of both Anderson and the court rule
to the defendant” and “the defendant understood these concepts and made the decision to
proceed in propria persona unequivocally and with his eyes open.” Id. at 736.
In this case, the record demonstrates that defendant’s October 8, 2015 waiver of his right
to counsel was valid. First, defendant unequivocally requested to represent himself. He stated
on more than one occasion that he wanted to exercise his constitutional right to represent
himself, and he also responded by saying “Yes” when the judge asked him if he wanted to
represent himself. The judge also specifically asked defendant again if he wanted to be
represented by counsel after the judge explained the charges and penalties involved, and
defendant responded that he did not want to be represented.
Next, the judge advised defendant of the nature of the charges, the potential penalties,
and that he could subsequently request to be represented by counsel at any point during the
proceedings if he wanted counsel. The following exchange also occurred:
3
Defendant had the assistance of appointed standby counsel during his trial.
-12-
The Court: Okay. Now sir, you understand also, that by representing
yourself, there can be certain issues involved in that? And that means that the
Court is not going to treat you any favorably [sic] because you are not represented
by counsel. Do you understand that?
The Defendant: I understand.
The Court: All right. And that the Court is going to hold you both to an
understanding of the law, as well as, court procedure? Do you understand that—?
The Defendant: Yes—
The Court: —as I would hold the prosecution in this case? Do you
understand that?
The Defendant: Yes.
The Court: All right. There has been an indication that—I guess,
discovery—I want to make sure—And that—You know—Requests that you need
to make, either regarding the filing of a motion, requests for evidence, and those
kinds of things can be a bit difficult for you. Do you understand that, sir? At
least, in terms of getting the information, either promptly to the Court of over to
the Prosecutor’s Office? Do you understand that? And that there are some perils
in terms of doing that to making sure that things are filed timely?
The Defendant: Yes.
Defendant interrupted the judge during the waiver colloquy to challenge the court’s subject
matter jurisdiction in the case:
The Defendant: —Subject Matter Jurisdiction [sic] can be brought up at
any time and phase [sic] during the trial or hearings—
The Court: All right—
The Defendant: —I’m bringing this up now and I want it ruled on.
The Court: Okay. Sir, I’m going to get to that—
The Defendant: This is—
The Court: —I’m going to get to it. But, I got to do—
The Defendant: So, why do you keep telling me about something that’s
insignificant and—
The Court: Now, sir—
The Defendant: —I’m talking about Subject Matter Jurisdiction.
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The Court: Sir—Sir? It’s not insignificant. You may think it’s
insignificant, but in terms of the protection of your rights—
The Defendant: Huh huh?
The Court: —I do not consider it insignificant in the least.
The Defendant: Okay. Can you tell me this? Did you make an oath of
office to uphold the Constitution?
The Court: Sir, yes, I did.
The Defendant: Well, my constitutional rights are being violated and I put
it down in my motion.[4] And it’s all constitutional.
The Court: All right. Sir—
The Defendant: And you took an oath to uphold the Constitution. And I
would—
The Court: And sir, by—
The Defendant: —I’d expect for you to rule on that.
The Court: —Sir, by my asking you questions, that is my sole intent to
uphold the Constitution to make sure that all of your rights are protected, whether
you want me to or not.
And so, we’re going to get through my questions, so that your rights are
protected and so that you understand where we are proceeding. I have to do that.
That is part of my oath. That is part of the Constitution. And so, it would go a lot
smoother if you would just answer my questions so, that ultimately, in terms of
your motion; in terms of your communication to the Court that we can get to
those issues. But, I have to go through, procedurally, these steps, first.
Sir, do you have any questions, whatsoever, with reference to you
representing yourself—
The Defendant: No—
The Court: —before the Court? Thank you.
4
This appears to be a reference to defendant’s motion to dismiss for lack of subject matter
jurisdiction.
-14-
What the Court is going to do based upon the Court’s inquiry of the
Defendant in this—The Court is going to permit the Defendant to represent
himself. I will appoint the Public Defender’s Office to act as standby counsel to
assist in the filing of documents, so that there is not delay. And, also, to assist
with any procedural questions that the Defendant—Procedural or substantive
questions that the Defendant may have.
Defendant had also previously interrupted the judge during the course of the waiver colloquy to
argue that the bank robbery statute was not a valid law because it had not been properly enacted
under the Michigan Constitution.
We conclude that the colloquy that the judge conducted with defendant in this case
adequately apprised defendant of the dangers and disadvantages of self-representation. The
record reflects that defendant was clearly determined to represent himself and was impatient to
move forward with the proceedings. The purpose of both the Anderson requirements and MCR
6.005 is “to inform the defendant of the risks of self-representation” before the defendant waives
the right to counsel. Adkins, 452 Mich. at 722-723. That is exactly what the district court judge
did in the instant case. Moreover, the Adkins Court further explained that “[t]he Anderson and
court rule requirements are merely vehicles to ensure that the defendant knowingly and
intelligently waived counsel with eyes open” and that a “particular court’s method of inquiring
into and satisfying these concepts is decidedly up to it, as long as the concepts in these
requirements are covered.” Id. at 725. The judge in the instant case patiently explained the
dangers of self-representation and was clearly cognizant of the importance of protecting
defendant’s constitutional rights. It is difficult to imagine how defendant’s waiver of his right to
counsel could be considered anything but knowingly, intelligently, and voluntarily made, given
that the record clearly demonstrates that defendant was made aware of the risk he faced in
representing himself and that he asserted this right with his eyes open. Faretta, 422 U.S. at 835;
Anderson, 398 Mich. at 368. “[T]he effectiveness of an attempted waiver does not depend on
what the court says, but rather, what the defendant understands.” Adkins, 452 Mich. at 723.
Indeed, to have denied defendant’s unequivocal and persistent request to represent himself would
have been to improperly “forc[e] a lawyer upon an unwilling defendant,” which is an action that
the United States Supreme Court has held to violate a defendant’s constitutional right to conduct
his own defense. Faretta, 422 U.S. at 817-820, 836.5
Furthermore, we conclude that the record establishes that the district court judge clearly
did not believe that defendant’s self-representation would disrupt or unduly burden the court,
since the judge granted defendant’s request and appointed standby counsel to assist defendant
with procedural matters and defendant’s questions. Anderson, 398 Mich. at 368.
5
We acknowledge that the right to self-representation is not absolute. Indiana v Edwards, 554
U.S. 164, 171; 128 S. Ct. 2379; 171 L. Ed. 2d 345 (2008). However, for the reasons explained in
this opinion, we conclude that defendant made a knowing, intelligent, and voluntary waiver of
his right to counsel under the circumstances in this case.
-15-
Therefore, although the judge neglected to expressly announce findings on each of the
Anderson prongs, we conclude that the judge nonetheless substantially complied with the
requirements of Anderson and MCR 6.005 by sufficiently conveying the substance of these
requirements to defendant and honoring defendant’s unequivocal and informed intention to
relinquish his right to counsel. Adkins, 452 Mich. at 736. The judge’s oversight, in the midst of
defendant’s persistent assertion of nonsensical arguments during the course of the waiver
colloquy, is not sufficient to constitute plain error requiring reversal. Id. at 735; see also
Campbell, 316 Mich. App. at 286-288 (holding that it was not plain error requiring reversal where
the trial court failed to explicitly state on the record that a defendant’s waiver of the right to
counsel was unequivocal, knowing, and voluntary after engaging in the colloquy with the
defendant to inform him of the risks of self-representation). Finally, because defendant validly
waived his right to counsel, he was not deprived of this right and there was accordingly no
structural error.
B. DEFENDANT’S RIGHT TO BE PRESENT DURING THE NOVEMBER 12, 2015
PROCEEDINGS
Next, defendant argues that the arraignments on the informations were not held in
conformity with MCR 6.113(B) because the charges against him were not read to him and he did
not receive a copy of the informations. Defendant appears to further argue in connection with
this argument that the district court erred in conducting the arraignments on the informations
because defendant was not represented by counsel at the November 12, 2015 proceedings despite
having had standby counsel at previous proceedings, that no waiver of his right to counsel for the
arraignments was taken by the district court, and that there was a violation of his constitutional
right to be present during the arraignments on the informations. Defendant additionally argues in
his Standard 4 brief that he was denied his right to be present at both the second preliminary
examination and second arraignment on the information because these were part of a separate
case, that the lack of an arraignment on the information requires reversal of his conviction, and
that he was denied his right to counsel by being deprived of standby counsel at the November 12,
2015 proceedings.
As an initial matter, defendant was not deprived of his right to counsel during any portion
of the November 12, 2015 proceeding for the same reasons that we have already discussed
regarding defendant’s waiver of his right to counsel. Defendant had already waived his right to
counsel at an earlier proceeding and did not have to waive this right a second time. Furthermore,
in addition to there being no requirement to appoint standby counsel for a defendant exercising
the right to self-representation, defendant’s appellate argument that he was wrongfully deprived
of standby counsel ignores the fact that he expressly rejected the continued participation of
standby counsel at the November 5, 2015 hearing (before the preliminary examinations and
arraignments on the informations occurred) and that the judge granted defendant’s request to
dismiss standby counsel. Therefore, these arguments are without merit.
Moving to defendant’s other arguments that he was denied his constitutional right to be
present during portions of the November 12, 2015 proceedings and that the arraignments were
not conducted in accordance with MCR 6.113(B), defendant failed to raise these arguments
below. Accordingly, they are unpreserved. People v Metamora Water Serv, Inc, 276 Mich App
-16-
376, 382; 741 NW2d 61 (2007). We review unpreserved claims of nonconstitutional and
constitutional error for plain error affecting substantial rights. Carines, 460 Mich. at 763-764.
The Confrontation Clause of the Sixth Amendment to the United States Constitution,
made applicable to the States through the Fourteenth Amendment, guarantees “the accused’s
right to be present in the courtroom at every stage of his trial.” Illinois v Allen, 397 U.S. 337, 338;
90 S. Ct. 1057; 25 L. Ed. 2d 353 (1970).6 The right to be present is also “protected by the Due
Process Clause in some situations where the defendant is not actually confronting witnesses or
evidence against him.” United States v Gagnon, 470 U.S. 522, 526; 105 S. Ct. 1482; 84 L. Ed. 2d
486 (1985). The United States Supreme Court has also described the right to be present as a
right that belongs to a defendant in a felony prosecution “whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the charge.” Snyder v
Massachusetts, 291 U.S. 97, 105-106; 54 S. Ct. 330; 78 L. Ed. 674 (1934), overruled in part on other
grounds by Malloy v Hogan, 378 U.S. 1, 2 n 1, 3; 84 S. Ct. 1489; 12 L. Ed. 2d 653 (1964); see also
Faretta, 422 U.S. at 816 (explaining that “the Confrontation Clause of the Sixth Amendment
gives the accused a right to be present at all stages of the proceedings where fundamental
fairness might be thwarted by his absence”).
The right to be present is also protected by the analogous provisions of the Michigan
Constitution. People v Mallory, 421 Mich. 229, 246 n 10; 365 NW2d 673 (1984).7 Accordingly,
“[a] defendant has a right to be present during the voir dire, selection of and subsequent
challenges to the jury, presentation of evidence, summation of counsel, instructions to the jury,
rendition of the verdict, imposition of sentence, and any other stage of trial where the
defendant’s substantial rights might be adversely affected.” Id. at 247. A defendant may waive
the right to be present at a court proceeding through voluntary absence or disorderly behavior
that requires the defendant to be removed from the courtroom. People v Buie, 298 Mich. App. 50,
57; 825 NW2d 361 (2012). Waiver is “the intentional relinquishment or abandonment of a
known right.” People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000) (quotation marks and
citation omitted).
“An accused does not have a constitutional right to a preliminary examination, a
procedure established by the Legislature, MC. 766.1 et seq., and recognized by court rule, MCR
6.110(A).” People v McGee, 258 Mich. App. 683, 695; 672 NW2d 191 (2003). “The
magistrate’s bindover to the circuit court, after a preliminary examination or a defendant’s
waiver of an examination, authorizes the prosecutor to file an information.” Id. “Although a
preliminary examination may assist in fulfilling the constitutional requirement that the accused
be informed of the nature of the charge, the primary function of a preliminary examination is to
determine if a crime has been committed and, if so, if there is probable cause to believe that the
defendant committed it.” Id. at 696 (quotation marks and citations omitted).
6
See also US Const, Ams VI and XIV.
7
See also Const 1963, art 1, §§ 17 and 20.
-17-
“The purpose of an arraignment is to provide formal notice of the charge against the
accused.” People v Nix, 301 Mich. App. 195, 208; 836 NW2d 224 (2013) (quotation marks and
citation omitted). “Another purpose of the arraignment is to allow the defendant to enter a plea
on the charges.” Id. “A person’s right to reasonable notice of a charge against him, and an
opportunity to be heard in his defense—a right to his day in court—are basic in our system of
jurisprudence.” People v Darden, 230 Mich. App. 597, 600; 585 NW2d 27 (1998) (quotation
marks and citation omitted). The procedure for the arraignment on the information is set forth in
MCR 6.113(B), which provides as follows:
(B) Arraignment Procedure. The prosecutor must give a copy of the
information to the defendant before the defendant is asked to plead. Unless
waived by the defendant, the court must either state to the defendant the substance
of the charge contained in the information or require the information to be read to
the defendant. If the defendant has waived legal representation, the court must
advise the defendant of the pleading options. If the defendant offers a plea other
than not guilty, the court must proceed in accordance with the rules in subchapter
6.300. Otherwise, the court must enter a plea of not guilty on the record. A
verbatim record must be made of the arraignment.
The circuit court arraignment, also called the arraignment on the information, may be conducted
by a district court judge immediately following bindover. MCR 6.111.
Our Supreme Court has held that “the presence of defendant in court through a trial of the
cause upon the merits represented by counsel, who failed to call attention to the omission of
arraignment and plea, was a waiver of his right thereto.” People v Weeks, 165 Mich. 362, 364;
130 N.W. 697 (1911). The Weeks Court also indicated that a failure to arraign is a defect that is
“merely technical, affecting no substantial right whatever” and that “[w]here the prisoner appears
with his own counsel, the omission formally to arraign and ask for a plea is immaterial to his
rights and may be deemed to be waived.” Id. at 365 (quotation marks and citation omitted).
More recently, this Court has stated that “[a] showing of prejudice is required to merit relief for
the failure to hold a circuit court arraignment.” Nix, 301 Mich. App. at 208, citing MCR
6.113(A).
In this case, during the course of defendant’s argumentative behavior toward the district
court judge at the beginning of the first preliminary examination on November 12, 2015, the
judge informed defendant multiple times that he could remain in the courtroom but had to
behave appropriately. The judge also informed defendant multiple times that he would forfeit
his right to be present in the courtroom if he left the courtroom or chose to continue disrupting
the proceedings to the point that it was necessary to remove him. Furthermore, the judge clearly
indicated that the hearing would continue in defendant’s absence if defendant forfeited his right
to be present, and the judge gave defendant numerous opportunities to reform his conduct and
remain in the courtroom. Finally, the judge asked defendant how he wanted to proceed, and
defendant responded,
Okay. I—I believe I’m ready to go. And you—You all can conduct this hearing
without me.
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After continuing with the preliminary examination and determining that defendant would
be bound over to the circuit court, the district court judge attempted to arraign defendant on the
information, pursuant to MCR 6.111. The record reflects that the judge asked for the defendant
to be returned to the courtroom for the arraignment and for an inquiry to be made of defendant
regarding his desire to be present for that proceeding. An MDOC officer informed the judge on
the record that defendant refused to return to the courtroom and that the officer would potentially
have to physically fight defendant in order to force his return to the courtroom. The district court
judge found that defendant posed a potential security risk and voluntarily rejected his
opportunity to participate in the arraignment proceedings. Defendant was subsequently given
another opportunity to return to the courtroom before the district court moved on to the
preliminary examination for the second charge. Defendant again refused this opportunity. The
judge bound defendant over on this charge as well and found that defendant’s conduct during the
course of the proceedings constituted a voluntary refusal to participate in the second arraignment
as well. A plea standing defendant mute was entered for both charges.
We conclude that defendant’s conduct at the November 12, 2015 proceedings constituted
a waiver of his right to participate in the remainder of the proceedings that day, including both
preliminary examinations and circuit court arraignments, because he intentionally and
voluntarily chose to leave the courtroom and refused to return despite being given two
opportunities and being fully aware of the nature of the proceedings and that the proceedings
would continue without him. Carter, 462 Mich. at 215; Buie, 298 Mich. App. at 57. “One who
waives his rights under a rule may not then seek appellate review of a claimed deprivation of
those rights, for his waiver has extinguished any error.” Carter, 462 Mich. at 215 (quotation
marks and citation omitted).
Moreover, defendant cannot establish error requiring reversal based on his lack of a
formal arraignment proceeding for either underlying bank robbery charge because he was not
prejudiced. Defendant was informed on the record of the charges against him on multiple
occasions, he does not claim to have raised any objection in the lower court based on any alleged
lack of a circuit court arraignment, and he was convicted of both bank robbery offenses after a
trial on the merits for which he was present. Although he was not formally represented by
counsel at the trial, his lack of counsel was due to his own valid waiver of the right to counsel
and assertion of right to self-representation. We also note that defendant had court-appointed
standby counsel during his trial. Under these circumstances, defendant has failed to show
prejudice, and any claim of error based on the circuit court arraignment proceedings is deemed
waived. Weeks, 165 Mich. at 364-365; Nix, 301 Mich. App. at 208.
C. WAIVER OF JURY TRIAL
Next, defendant argues that the trial court failed to comply with MCR 6.402(B) in
accepting defendant’s waiver of his constitutional right to a jury trial. Defendant argues that his
waiver was not voluntary because he repeatedly informed the trial court that he was being
“forced” to waive his right to a jury trial.
“The adequacy of a jury trial waiver is a mixed question of fact and law.” People v Cook,
285 Mich. App. 420, 422; 776 NW2d 164 (2009). Because defendant failed to raise this issue
below, it is unpreserved. Metamora Water Serv, Inc, 276 Mich. App. at 382. We review
-19-
unpreserved claims of constitutional error for plain error affecting substantial rights. Carines,
460 Mich. at 764.
This Court has previously set forth the applicable legal principles regarding a jury trial
waiver:
A criminal defendant has a constitutionally guaranteed right to a jury
determination that he is guilty beyond a reasonable doubt. However, with the
consent of the prosecutor and the approval of the trial court, a defendant may
waive his right to a jury trial. In order for a jury trial waiver to be valid, however,
it must be both knowingly and voluntarily made.
By complying with the requirements of MCR 6.402(B), a trial court
ensures that a defendant’s waiver is knowing and voluntary. [Cook, 285 Mich
App at 422 (citations omitted).]
Pursuant to MCR 6.402(B),
Before accepting a waiver, the court must advise the defendant in open court of
the constitutional right to trial by jury. The court must also ascertain, by
addressing the defendant personally, that the defendant understands the right and
that the defendant voluntarily chooses to give up that right and to be tried by the
court. A verbatim record must be made of the waiver proceeding.
As this Court has explained regarding MCR 6.402(B):
The language of the rule is clear. Before accepting a waiver, a trial court
must advise the defendant in open court of the constitutional right to trial by a
jury and the court must ascertain, by addressing the defendant personally, that the
defendant understands the right and voluntarily chooses to give up that right and
to be tried by the court. [People v Mosly, 259 Mich. App. 90, 93; 672 NW2d 897
(2003).]
In this case, on the first day of trial and before the voir dire process had begun, defendant
made an unequivocal request for a bench trial. The trial court then addressed defendant
personally, under oath, and in open court. The trial court advised defendant of his constitutional
right to a jury, and defendant affirmatively indicated that he understood this right. The trial court
explained that the matter would proceed to a bench trial if defendant gave up his right to a jury,
advised defendant of the potential penalties if convicted of the charged offenses, and gave
defendant the opportunity to consult with appointed standby counsel. Defendant also confirmed
his desire to represent himself. Defendant responded affirmatively when the trial court asked if
he was voluntarily giving up his constitutional right to a jury trial in order to proceed to a bench
trial. The trial court’s colloquy clearly satisfied the requirements of MCR 6.402(B), and the
record supports the conclusion that defendant knowingly and voluntarily waived his right to a
jury trial. Cook, 285 Mich. App. at 422. Defendant’s subjective reasons for choosing to proceed
with a bench trial, which were based on nothing more than speculative assumptions and his
disagreement with various pretrial rulings, are completely irrelevant because there is absolutely
no indication on the record that defendant’s waiver was not the product of his own free will. The
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trial court carefully conducted the waiver colloquy and gave defendant the opportunity to choose
whether he wanted to proceed with a jury trial or bench trial. Accordingly, defendant has failed
to demonstrate plain error requiring reversal. Carines, 460 Mich. at 763.
D. VALIDITY OF THE ARREST WARRANTS
Next, defendant argues that the warrants in both of the underlying cases were invalid
because they were not supported by probable cause, were not properly sworn to, and were not
supported by affidavits. Defendant further argues that a proper record was not made of the
“swear-tos” that occurred on July 11, 2015 and October 1, 2015, and that the oral testimony
relied on by the magistrate to issue the warrants was therefore not adequately preserved to permit
review. Defendant appears to argue that the trial court did not have “jurisdiction”8 to conduct the
proceedings that occurred below.
Whether a complaint adequately supports the issuance of an arrest warrant
raises a federal question under the Fourth Amendment as applied to the states
through the Fourteenth Amendment. However, whether the judicial phase of a
prosecution is properly initiated by a complaint infirm under Fourth Amendment
standards is primarily a question of Michigan law. [People v Burrill, 391 Mich.
124, 128; 214 NW2d 823 (1974).]
In this case, defendant’s appellate argument is entirely without merit because even if the
arrest warrants were somehow legally deficient, he would not be entitled to reversal of his
convictions. As our Supreme Court has explained:
[C]ontrary to [the defendant’s] contentions, the invalidity of the arrest warrant did
not oust the circuit court of jurisdiction. The sole sanction imposed by the United
States Supreme Court for the invalidity of an arrest warrant has been the
suppression of evidence obtained from the person following his illegal arrest.
The Court has consistently held that a court’s jurisdiction to try an accused
person cannot be challenged on the ground that physical custody of the accused
was obtained in an unlawful manner. In Frisbie v Collins, 342 U.S. 519, 522; 72 S
Ct 509; 96 L. Ed. 541 (1952), the Court declared:
This Court has never departed from the rule announced in
Ker v Illinois, 119 U.S. 436, 444; [7 S. Ct. 225; 30 L. Ed. 421 1886,]
that the power of a court to try a person for crime is not impaired
by the fact that he has been brought within the court’s jurisdiction
by reason of a “forcible abduction.” No persuasive reasons are
now presented to justify overruling this line of cases. They rest on
the sound basis that due process of law is satisfied when one
8
Defendant does not specify on appeal whether he is referring to personal jurisdiction or subject
matter jurisdiction.
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present in court is convicted of crime after having been fairly
apprized of the charges against him and after a fair trial in
accordance with constitutional procedural safeguards. There is
nothing in the Constitution that requires a court to permit a guilty
person rightfully convicted to escape justice because he was
brought to trial against his will.
On the rationale of Frisbie v Collins and the authority of the long line of
cases preceding and including France[9] and Mosley,[10] we conclude that the
invalidity of the arrest warrant in this case did not affect the court’s jurisdiction to
try [the defendant]. [Burrill, 391 Mich. at 133-134.]
In this case, defendant was convicted after a trial on the merits, for which he was present.
He had previously been made aware of the charges against him on numerous occasions
throughout the district court and circuit court proceedings. Defendant does not claim that there
was any evidence obtained from him as a result of his arrest, and the suppression remedy is
therefore inapplicable. Regardless of the legal sufficiency of the arrest warrants in this case, the
trial court was not somehow deprived of subject matter jurisdiction or personal jurisdiction such
that defendant’s convictions could be considered invalid. Id. Defendant is not entitled to
reversal of his convictions on this ground.
E. RIGHT TO COUNSEL AT INITIAL ARRAIGNMENT ON THE WARRANT
Finally, defendant argues in his Standard 4 brief that he was unconstitutionally prevented
from invoking his right to counsel or voicing his objections to the proceedings at his initial
arraignment on the warrant that occurred on September 9, 2015. Defendant argues that the initial
arraignment on the warrant was a critical stage during which he was entitled to be represented by
counsel because the legal or factual basis for the arrest warrant was unknown. Though much of
his argument is nonsensical, from what we can glean, it appears defendant argues that he was
unable to challenge the legality of the complaint and arrest warrant because he was not
represented by counsel at the September 9, 2015 arraignment on the warrant.
As previously noted, an accused facing incarceration has a right to counsel “at all critical
stages of the criminal process,” which is protected by the Sixth Amendment. Williams, 470
Mich. at 641. A critical stage of the criminal proceedings is one “ ‘where the results might well
settle the accused’s fate and reduce the trial itself to a mere formality.’ ” Moulton, 474 U.S. at
170; 106 S. Ct. 477, 484; 88 L. Ed. 2d 481 (1985) (citation omitted); see also Hamilton, 368 U.S. at
53-54 (explaining that a critical stage of a criminal proceeding is one where certain rights and
available defenses will be “irretrievably lost” if not asserted at that time); Buie, 298 Mich. App. at
61 (“This right to counsel extends to all critical stages of the proceedings where counsel’s
absence might harm defendant’s right to a fair trial.”) (quotation marks and citation omitted).
9
People v France, 370 Mich. 156; 121 NW2d 476 (1963).
10
People v Mosley, 338 Mich. 559; 61 NW2d 785 (1953).
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The right to counsel attaches once a prosecution is “commenced,” which occurs at “the initiation
of adversary judicial criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.” Rothgery v Gillespie Co, Texas, 554 U.S. 191,
198; 128 S. Ct. 2578; 171 L. Ed. 2d 366 (2008) (quotation marks and citations omitted). However,
the Rothgery Court also explained that “[t]he question whether arraignment signals the initiation
of adversary judicial proceedings . . . is distinct from the question whether the arraignment itself
is a critical stage requiring the presence of counsel.” Id. at 212 (quotation marks and citation
omitted; alterations and ellipsis in original). Accordingly,
Once attachment occurs, the accused at least is entitled to the presence of
appointed counsel during any “critical stage” of the postattachment proceedings;
what makes a stage critical is what shows the need for counsel’s presence. Thus,
counsel must be appointed within a reasonable time after attachment to allow for
adequate representation at any critical stage before trial, as well as at trial itself.
[Id. (emphasis added).]
In this case, defendant’s argument is factually inaccurate. At the September 9, 2015
arraignment, defendant invoked his right to counsel and was informed by the magistrate that
counsel would be appointed for him. His objections to the warrant and complaint were noted for
the record, and there was nothing about the proceeding that prevented him from subsequently
raising more completely argued objections to the legality of the warrant or complaint. Counsel
was appointed for defendant, but he subsequently asserted his right to self-representation and
waived his right to counsel. Then he asked that his standby counsel be dismissed. In sum,
defendant has not demonstrated that any of his rights or defenses were irretrievably lost, or that
his trial was rendered fundamentally unfair, as a result of not having counsel present at the initial
arraignment on the warrant; this proceeding was therefore not a “critical stage” where the
absence of counsel could constitute a violation of defendant’s right to counsel. Moulton, 474 U.S.
at 170; Hamilton, 368 U.S. at 53-54; Buie, 298 Mich. App. at 61.
Affirmed.
/s/ Thomas C. Cameron
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
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