Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 20, 2004
THE PEOPLE OF THE STATE OF
MICHIGAN
Plaintiff -Appellant,
v No. 123537
RODNEY WILLIAMS,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave to appeal to determine whether the
trial court’s denial of defendant’s request to read his
preliminary examination transcript during a waiver-of-
counsel proceeding violated the requirements of People v
Anderson, 398 Mich 361; 247 NW2d 857 (1976), and MCR
6.005(D).1 The Court of Appeals held that the trial court’s
waiver proceeding did not comply with the requirements of
1
468 Mich 945 (2003).
Anderson and reversed defendant’s conviction on that basis.2
We hold that the trial court did not abuse its discretion
in denying defendant’s request and that defendant’s waiver
of counsel was unequivocal, knowing, and voluntary.
Accordingly, we reverse the Court of Appeals decision and
remand for consideration of defendant’s remaining claims.
I. FACTS AND PROCEEDINGS
Defendant was charged with first-degree felony murder,3
possession of a firearm during the commission of a felony
(felony firearm),4 and armed robbery.5 The trial court
appointed counsel for defendant, but following defendant’s
preliminary examination, counsel withdrew because of a
breakdown in the attorney-client relationship. The trial
court provided defendant with a replacement court-appointed
attorney.
During the prosecutor’s case-in-chief, defendant
became unhappy with his attorney’s cross-examination of two
prosecution witnesses. Defendant informed the court that
he wished to represent himself:
2
Unpublished opinion per curiam, issued February 28,
2003 (Docket No. 232827).
3
MCL 750.316(1)(b).
4
MCL 750.227b.
5
MCL 750.529.
2
I do not wish to adjourn the proceeding,
because I know this has been going on all along.
But I would like to represent myself, in proper
person. . . .
* * *
[O]nly if this Court would agree orally, and
a written consent, please, that [two prosecution
witnesses] may be brought back to court, and
allow me to recross-examine [them].
The trial court explained to defendant the risks he
faced in defending himself, including defendant’s lack of
familiarity with the Michigan rules of criminal procedure.
Defendant answered that he understood the risks involved.
He stated that he wished to “confront [his accusers] and
question them” as was his “right by the United States
Constitution.”
The trial court again asked defendant whether he
wished to represent himself; again, defendant answered,
“Yes, ma’am.” The trial court advised defendant that he
would not later be permitted to appeal a conviction on the
basis of his own ineffective assistance of counsel.
Defendant answered, “Yes I read that.”
The trial court then asked defendant, “Are you making
this request knowingly, intelligently, and voluntarily?”
Defendant answered, “Yes, ma’am.” The trial court informed
defendant that he would not be permitted to disrupt the
courtroom, and that if he did, his attorney would be
brought back to represent defendant. Defendant answered,
3
“Yes ma’am. I would not disrespect this Court, or do
anything that’s unconduct of a gentleman [sic].”
The trial court then advised defendant of the sentence
he would face if convicted. Defendant said that he
understood. Defendant again stated that he wished to
reexamine two excused prosecution witnesses:
The Defendant: Ma’am, is it also on the
record, and it will probably be written down,
that I will have an opportunity to recross-
examine the prosecution’s first two witnesses
. . . .
The Court: No, we’re not bringing in those
other witnesses, we’re continuing with the trial.
It’s the Court’s opinion that you had proper
representation. . . . You can still have [your
court-appointed attorney] if you want, or you can
continue and represent yourself, but you are
taking serious risks. . . . Do you understand
that?
Defendant insisted that at his preliminary examination
one of the prosecution’s witnesses had testified that he
was “only fifty percent sure” that defendant was the
perpetrator. Defendant was dissatisfied with his attorney
because he did not cross-examine the witness on this
alleged testimony. The prosecutor objected to defendant’s
characterization of the witness’s testimony:
And there is nothing in that exam transcript
[preliminary examination] that indicates that
[the witness is] only fifty percent sure. What
[defendant]’s saying he’s taking out of context.
And if [defendant] reads the whole thing, I think
he’ll understand why [defendant’s attorney]
4
didn’t elaborate with further questioning of the
witness.
Defendant requested time to read the written
preliminary examination testimony. The trial court denied
defendant’s request:
No. I’m going to ask you one more time. Do
you want to represent yourself? Because we’re
bringing in the jury.
The Defendant: Your Honor, with all due
respect. . . .
The Court: I asked you one question.
* * *
The Court: Answer my question.
The Defendant: Yes, ma’am.
The Court: All right. Let’s bring in the
jury.
The trial court once again informed defendant that if
he disrupted the proceedings, his court-appointed attorney
would be brought back to represent him. Defendant stated
that he understood.
Defendant’s court-appointed attorney remained as
standby counsel. He advised defendant throughout the
trial, took part in sidebar discussions, helped defendant
prepare his closing argument, and argued to the court
regarding jury instructions and the form of the verdict.
5
Defendant was ultimately convicted6 and appealed by
right. In a split decision, the Court of Appeals reversed
defendant’s conviction and remanded for a new trial. The
majority held that defendant’s waiver of counsel was not
unequivocal because defendant might not have elected self-
representation had the trial court allowed him to read the
preliminary examination transcript. The majority opined:
[The trial court’s] cursory handling of
defendant’s request violated defendant’s right to
have the proceeding conducted so as to ensure
“that he knows what he is doing and his choice is
made with eyes open.” [Slip op at 1 (citations
omitted).]
The Court of Appeals dissent would have held that the
trial court’s denial of defendant’s request to read the
preliminary examination transcript occurred after the court
had already concluded the waiver of counsel procedure, and
related solely to how the trial would proceed from that
point forward.
II. STANDARD OF REVIEW
The inquiry regarding waivers of Sixth Amendment
rights mirrors the inquiry of whether a defendant has
validly waived his Fifth Amendment rights: In each
instance, the question is whether the defendant gave a
6
The trial court vacated defendant’s conviction for
armed robbery on a double jeopardy ground.
6
knowing, intelligent, and voluntary waiver. See Patterson
v Illinois, 487 US 285, 297-298; 108 S Ct 2389; 101 L Ed 2d
261 (1988) (waiver of Sixth Amendment rights is not more
difficult to effectuate than waiver of Fifth Amendment
rights).
Accordingly, we adopt the standard of review that has
been used for trial court decisions regarding waivers of
Fifth Amendment rights, finding it equally applicable to
decisions regarding waivers of Sixth Amendment rights:
“Although engaging in a de novo review of
the entire record . . ., this Court does not
disturb a trial court’s factual findings
regarding a knowing and intelligent waiver of
[Sixth Amendment] rights “unless that ruling is
found to be clearly erroneous.” [People v
Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).]
Credibility is crucial in determining a
defendant’s level of comprehension, and the trial
judge is in the best position to make this
assessment.”
Although we review for clear error the trial
court’s factual findings regarding a defendant’s
knowing and intelligent waiver of [Sixth
Amendment] rights, . . . the meaning of “knowing
and intelligent” is a question of law. We review
questions of law de novo. [People v Daoud, 462
Mich 621, 629-630; 614 NW2d 152 (2000), quoting
People v Cheatham, 453 Mich 1, 30; 551 NW2d 335
(1996).]
Thus, the reviewing court is not free to simply substitute
its view for that of the trial court, but must be careful
7
to respect the trial court’s role in determining factual
issues and issues of credibility.7
III. DISCUSSION AND ANALYSIS
A. THE SIXTH AMENDMENT AND THE RIGHT TO SELF-REPRESENTATION
The Sixth Amendment safeguards the right to counsel at
all critical stages of the criminal process for an accused
who faces incarceration. Maine v Moulton, 474 US 159, 170;
106 S Ct 477 ; 88 L Ed 2d 481 (1985). The Sixth Amendment
right to counsel is applicable to the states through the
Due Process Clause of the Fourteenth Amendment. Gideon v
Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).
The United States Supreme Court has stated that courts
should “‘indulge every reasonable presumption against
waiver of fundamental constitutional rights.’” Johnson v
Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938),
quoting Aetna Ins Co v Kennedy, 301 US 389, 393; 57 S Ct
809; 81 L Ed 1177 (1937).
The United States Constitution does not, however,
force a lawyer upon a defendant; a criminal defendant may
7
To clarify, 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, it is erroneous. We believe the correct
standard is that set forth above.
8
choose to waive representation and represent himself. Iowa
v Tovar, 541 US ___; 124 S Ct 1379, 1387; 158 L Ed 2d 209
(2004). “Waiver of the right to counsel . . . must be a
‘knowing, intelligent ac[t] done with sufficient awareness
of the relevant circumstances.’" Id. at 1383, quoting Brady
v United States, 397 US 742, 748, 90 S Ct 1463; 25 L Ed 2d
747 (1970). A waiver is sufficient if the defendant “knows
what he is doing and his choice is made with eyes open.”
Adams v United States ex rel McCann, 317 US 269, 279; 63 S
Ct 236; 87 L Ed 268 (1942); Godinez v Moran, 509 US 389,
401 n 12; 113 S Ct 2680; 125 L Ed 2d 321 (1993).
B. THE RIGHT TO COUNSEL UNDER MICHIGAN LAW
The right of self-representation under Michigan law
is secured by Const 1963, art 1, § 138 and by statute, MCL
763.1.9 In Anderson, supra at 367-368, this Court held that
a trial court must make three findings before granting a
defendant’s waiver request. First, the waiver request must
8
“A suitor in any court of this state has the right to
prosecute or defend his suit, either in his own proper
person or by an attorney.”
9
“On the trial of every indictment or other criminal
accusation, the party accused shall be allowed to be heard
by counsel and may defend himself, and he shall have a
right to produce witnesses and proofs in his favor, and
meet the witnesses who are produced against him face to
face.”
9
be unequivocal. Second, the trial court must be satisfied
that the waiver is knowingly, intelligently, and
voluntarily made. To this end, the trial court should
inform the defendant of potential risks. Third, the trial
court must be satisfied that the defendant will not
disrupt, unduly inconvenience, and burden the court or the
administration of court business.
Consistent with Anderson, MCR 6.005(D)(1) governs
procedures concerning a defendant’s waiver of the right to
an attorney. It prohibits a court from granting a
defendant’s waiver request without first
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 . . . .
[MCR 6.005(D)(1).]
C. APPLICATION
1. DEFENDANT’S WAIVER WAS UNEQUIVOCAL
Initially, defendant conditioned his waiver of the
right to counsel on the trial court’s granting of his
request to recall for cross-examination two excused
witnesses. A defendant who elects to proceed in propria
persona after proceedings are underway, however, is not
entitled to retry the case. The decision whether to recall
a witness is left to the sound discretion of the trial
court. MRE 611(a); People v Fedderson, 327 Mich 213, 220;
10
41 NW2d 527 (1950); Potts v Shepard Maine Constr Co, 151
Mich App 19, 26; 391 NW2d 357 (1986).
In this case, during the waiver of counsel proceeding,
the trial court explicitly informed defendant that he would
not be permitted to recall any excused witnesses. The
court told him, “No, we’re not bringing in those other
witnesses, we’re continuing with the trial.” The court had
previously and repeatedly asked defendant if he still
wished to represent himself given this ruling. Defendant
unequivocally answered, “Yes, ma’am.”
We believe the record reflects that the trial court
exercised admirable patience in dealing with a defendant
who wished to represent himself according to his own rules.
The court advised defendant very clearly that he would not
be permitted to recall the excused witnesses, regardless of
what they had said during their preliminary examination
testimony.
The dissent may well be correct that defendant was
“listening” without “hearing” what the court was saying.
Post at 14. Defendant’s subjective understanding, however,
can only be gleaned by reference to what he said on the
record. The record shows that after the court ruled that
his insistence on being allowed to recall excused witnesses
would not be indulged, defendant answered affirmatively
11
that he, nevertheless, wished to invoke his right of self-
representation. Defendant’s unrealistic “hopes of
introducing evidence” in contravention of the court’s
explicit ruling do not render invalid defendant’s
unequivocal invocation of his right to self-representation.
Post at 15.
The Court of Appeals misread the colloquy between the
trial court and defendant. The record reveals that
defendant was dissatisfied with the trial court’s ruling
that he could not recall an excused witness. Defendant
argued with that ruling by claiming his attorney did not
adequately cross-examine the excused witness on the basis
of the witness’s preliminary examination testimony.
Whatever was contained in the preliminary examination
transcript, however, was irrelevant at that point because
the trial court had already ruled that the witnesses could
not be recalled by defendant. The trial court was not
required to permit defendant to read transcript testimony
when the content was immaterial and the jury was assembled
and waiting. Therefore, the Court of Appeals incorrectly
held that the trial court erred in refusing to honor
defendant’s request to read the preliminary examination
transcript. The requirement under Anderson that a
12
defendant unequivocally assert his right to waive counsel
was therefore satisfied in this case.
2. DEFENDANT’S WAIVER WAS KNOWING, INTELLIGENT, AND VOLUNTARY
As indicated from the portions of the record quoted
above, the trial court methodically complied with the
remainder of the requirements of Anderson. Defendant was
fully apprised of the risks he faced by choosing to
represent himself and he knowingly and voluntarily chose to
accept them. He may not now be heard to complain about his
choice. In Adkins, supra at 725, we quoted with approval
language ultimately from People v Morton, 175 Mich App 1,
8-9; 437 NW2d 284 (1989), that applies equally here:
“‘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.’”
The trial court determined on the record that
defendant’s motion to proceed in propria persona was made
knowingly, intelligently, and voluntarily. The trial court
complied with the Anderson requirements.
3. MCR 6.005 REQUIREMENTS WERE SATISFIED
Contrary to the dissent, we believe the trial court
followed the letter, and not just the spirit, of MCR
13
6.005(D). The trial court advised defendant of “the
charge, the maximum possible prison sentence for the
offense, [and] any mandatory minimum sentence required by
law”:
The Court: And let me first inform you,
then, and I have to do this on the record, what
the max—the minimum and maximum sentences are, so
that if you are found guilty, you know what’s
ahead of you. For the homicide felony murder,
the maximum is life. For the armed robbery, the
sentence is life or any term of years, unless
aggravated assault or serious injury is involved,
and then it’s not less than two years. And for
the felony firearm, that’s two years, which would
be. . . in addition to, and preceding, before,
any term of imprisonment imposed for the felony
or attempted felony conviction. Do you understand
all that?
The Defendant: Yes, ma’am.
* * *
The Court: Mr. Williams, I want you to
fully understand that if you are found guilty of
homicide felony murder which alleges that you
did, while in the perpetration attempted
perpetration of a robbery, murder one Jerry
Jones, that is a mandatory life sentence. Life
is the minimum and life is the maximum. Do you
understand that?
The Defendant: Yes, ma’am.
The court further explicitly complied with MCR
6.005(D)(1) by advising defendant of “the risk involved in
self-representation:”
The Court: Now, sir, as I mentioned before,
there are great risks that you are taking on in
representing yourself. Do you understand that?
14
The Defendant: Well, your Honor. I know
ya’ all could possibly get me another attorney,
but it would be another court-appointed attorney.
The Court: No, that’s not an option. We’re
in the middle of trial.
The Defendant: Well, good.
The trial court complied with the requirement of MCR
6.005(D)(2) by providing defendant his court-appointed
attorney as an advisor:
The Court: He’s going to be here during the
trial so that you can ask him any questions and
he can give you any counsel that you might need.
The Defendant: Thank you, your Honor.
The record reflects that the trial court
conscientiously complied with every requirement of MCR
6.005(D), exceeding the “substantial compliance” required
under Adkins, supra at 706. We do not agree with the
dissent that 6.005(D) requires that a court “indicate
whether it believe[s] defendant’s request [is] contingent
on other factors.” Post at 13. The trial court satisfied
all of the waiver-of-counsel procedure required under MCR
6.005(D) and did not err in granting defendant’s request to
waive counsel and allowing defendant to proceed in propria
persona.
15
III. CONCLUSION
Although defendant appeared to condition his initial
waiver of counsel on the trial court’s agreement to allow
him to recall and cross-examine two excused witnesses, he
subsequently made an intelligent, knowing, and voluntary
waiver of his right to counsel after the trial court
rejected defendant’s request to recall and cross-examine
the witnesses. Defendant is not entitled to a new trial.
We reverse the Court of Appeals decision and remand to the
Court of Appeals to consider defendant’s remaining claims.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
16
S T A T E O F M I C H I G A N
SUPREME COURT
THE PEOPLE OF THE STATE OF
MICHIGAN,
Plaintiff-Appellant,
v No. 123537
RODNEY WILLIAMS,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (dissenting).
In People v Anderson, 398 Mich 361, 367-368; 247 NW2d
857 (1976), this Court held that basic requirements must be
satisfied before a defendant’s request to waive counsel and
proceed in propria persona may be granted. Michigan law
additionally requires a trial court to follow the mandates
of MCR 6.005(D) before granting such a request. Here, the
Court of Appeals found that the trial court provided the
disclosures required by MCR 6.005(D). However, the panel
ultimately concluded that defendant’s waiver of his right
to counsel was not unequivocal, fully knowing, intelligent,
and voluntary as required by Anderson. Because I agree
with the Court of Appeals assessment of the proceedings, I
must respectfully dissent from today’s decision.
I. Discussion
The Sixth Amendment, made applicable to the states by
the Fourteenth Amendment, guarantees that “a person brought
to trial in any state or federal court must be afforded the
right to the assistance of counsel before he can be validly
convicted and punished by imprisonment.” Faretta v
California, 422 US 806, 807; 95 S Ct 2525; 45 L Ed 2d 562
(1975); Gideon v Wainwright, 372 US 335, 340-344; 83 S Ct
792; 9 L Ed 2d 799 (1963). Concomitantly, the Sixth
Amendment right to counsel also implies a “correlative
right to dispense with a lawyer’s help.” Adams v United
States, 317 US 269, 279; 63 S Ct 236; 87 L Ed 268 (1942).
Under Michigan law, the right to self-representation is
expressly protected by Const 1963, art 1, § 13 and by
statute, MCL 763.1. At times, however, the right to
counsel and the right to self-representation may appear to
be at odds.1
1
“There can be no blinking the fact that the right of
an accused to conduct his own defense seems to cut against
the grain of this Court’s decisions holding that the
Constitution requires that no accused can be convicted and
imprisoned unless he has been accorded the right to the
assistance of counsel.” Faretta, supra at 832. “This
Court, however, has found that a defendant has either a
right to counsel or a right to proceed in propria persona,
but not both. . . . Consequently, there is unavoidable
tension created between two constitutional rights when a
(continued…)
2
In order to preserve the delicate balance between
these two rights, the United States Supreme Court has held
that any waiver of the right to counsel must be knowing,
intelligent, and voluntary. Johnson v Zerbst, 304 US 458,
464; 58 S Ct 1019; 82 L Ed 1461 (1938). Moreover, the
waiver must be made with “sufficient awareness of the
relevant circumstances” and the defendant “must be warned
specifically of the hazards ahead.” Iowa v Tovar, 541 US
__; 124 S Ct 1379; 158 L Ed 2d 209 (2004). Finally, a
court must “indulge every reasonable presumption against
waiver . . . .” Johnson, supra at 464.
This Court has likewise determined that specific
requirements must be satisfied and express disclosures must
be made before a trial court may grant a defendant’s
request to waive counsel. First, the defendant’s request
to waive the right to counsel must be unequivocal.
Anderson, supra at 367. “Second, once the defendant has
unequivocally declared his desire to proceed pro se the
trial court must determine whether defendant is asserting
his right knowingly, intelligently and voluntarily. . . .
The trial court must make the pro se defendant aware of the
(…continued)
defendant chooses self-representation.” People v Adkins
(After Remand), 452 Mich 702, 720; 551 NW2d 108 (1996).
3
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.
Third, the trial court must determine that the defendant
will not disrupt or unduly inconvenience the proceedings.
Id. Fourth, the trial court must give the necessary
disclosures set forth under MCR 6.005(D).2 Adkins, supra at
722-723.
Thus, in order to determine whether the instant
defendant “kn[e]w what he [was] doing and his choice [was]
made with eyes open,” Adams, supra at 279, a thorough
examination of the trial court proceedings is required.
Indeed, the existence of a valid waiver “must depend in
each case upon the particular facts and circumstances
2
MCR 6.005(D) provides in pertinent part:
The court may not permit the defendant to
make an initial waiver of the right to be
represented by a lawyer without first
(1) advising the defendant of the charge,
the maximum possible prison sentence for the
offense, any mandatory minimum sentence required
by law, and the risk involved in self-
representation, and
(2) offering the defendant the opportunity
to consult with a retained lawyer or, if the
defendant is indigent, the opportunity to consult
with an appointed lawyer.
4
surrounding that case . . . .” Anderson, supra at 370; see
also People v McKinley, 383 Mich 529, 536; 176 NW2d 406
(1970). Because the majority’s recitation of the facts and
proceedings omits large portions of the exchange between
defendant and the trial court, I find it necessary to fill
in the blanks left by the majority’s opinion.
II. Trial Court Proceedings
During its case-in-chief, the prosecution called
Florian Mager as a witness. At the end of defense
counsel’s recross-examination, the following exchange took
place:
Mr. Cook (defense counsel): I have no
further questions of this witness.
The Court: Thank you, sir. You can step
down.
Mr. King (prosecutor): The People call as
their next witness, your Honor, Tracey Jo
Williams.
The Court: All right. If there are any
people in the . . .
Mr. Cook: (Interposing) Your Honor, there is
one more question that I would ask.
The Court: All right. Sir, can you come
back to the stand? . . . You’re still under oath
to tell the truth, sir.
The Deputy: Mr. Williams? Mr. Williams?
Mr. Cook: No, your Honor, no more questions.
The Court: Thank you, sir. You can step
down.
(Witness excused)
Mr. King: Once again, your Honor, the People
call, as their next witness, Tracey Jo Williams.
5
Your Honor, may this witness be excused? He
is working at this time.
The Court: Any objection? Mr. Cook, any
objection to . . .
Mr. Cook: (Interposing) I’m sorry, your
Honor?
The Court: Any objection to this witness
being excused?
Mr. Cook: No, your Honor.
The Defendant: Yes. Wait.
The Court: He’s excused. Mr. Williams.
The Deputy: Mr. Williams. Mr. Williams.
The Defendant: Could we get a recess for
five minutes, please, your Honor?
The Deputy: No, you don’t talk to your
Honor, you talk to your attorney.
Mr. Cook: Your Honor, may I have just a few
minutes with my client?
The Court: All right. We’ll excuse the
jury for a few minutes.
For nearly one half-hour, the trial court was in
recess. Once the parties reconvened, the following
exchange ensued:
The Court: Are we ready to bring in the
jury?
Mr. King: Yes, your Honor.
Mr. Cook: Yes, your Honor.
The Court: Back on the record on case number
4026—hold off—the People versus Rodney Williams,
out of the presence of the jury.
Mr. Williams, I’m going to inform you, right
now, that if you act up, again, you are going to
be taken out of the courtroom. And I didn’t want
to say that in front of the jury, but that’s
what’s going to happen.
The Defendant: Yes, ma’am.
6
The prosecutor called the next witness, Tracey Jo
Williams. After defense counsel’s second recross-
examination, the trial court instructed Ms. Williams to
step down and the court broke for lunch. The parties
reconvened after the break and the following occurred
outside the presence of the jury:
Mr. Cook: For the record, your Honor, my
name is Donald Cook, appearing on behalf of Mr.
Williams.
Your Honor, I believe he wants to address
the Court. And I think we probably need to get
it out of the way before we have the jury here.
The Court: All right. Out of the presence
of the jury. What would you like to say, Mr.
Williams?
The Defendant: Good morning [sic], your
Honor.
Your Honor, due to circumstances, I would
like to terminate my representation of my
attorney, Mr. Donald A. Cook, due to the fact
that Mr. Cook has failed to represent me,
appropriately. He has allowed the prosecution
witnesses to testify. And he has failed to ask
them pertinent questions that’s pertaining to my
life. Also, he has allowed the first witness to
be excused from this courtroom. And I am
entitled, I hope, to a proper, fair
representation, and also a fair trial.
And, also, if the Court deems proper, with
all honor and due respect, I would like to have—
I do not wish to adjourn this proceeding, because
I know this has been going on all along. But I
would like to represent myself, in proper person.
And, also, if . . .
The Deputy: (Interposing) Quiet in the
courtroom.
The Defendant: (Continuing) -- if, only if
this Court would agree orally, and a written
7
consent, please, that Mr. Florian Mager be
brought back to court, and allow me to recross-
examine him, as well as Ms. Tracey Jo Williams.
This is for my life. And I accept and I
appreciate all that Mr. Donald Cook has done, but
these records have facts here, statements that
cannot be denied, reports from the Detroit police
officers, a Mr. Jerry Jones, making statements,
himself, and Mr. Florian Mager, that have not
been brought out. And I can do that. [Emphasis
added.]
The trial court then gave defense counsel an
opportunity to place comments on the record. Defense
counsel indicated that he appropriately cross-examined the
witnesses in question and that he believed those witnesses
had been excused. The trial court then informed defendant
that the court must abide by the rules of evidence and that
certain things that defendant believed may be introduced
may not actually be admissible. At this point, the trial
court asked defendant if he realized the risk he was taking
by representing himself. The prosecutor then weighed in,
stating:
Mr. King: I was just going to indicate, your
Honor, that the People would strenuously object
to this, especially in this stage of the
proceedings. I agree with Mr. Cook that he’s
done all that he can do in this case. And you
can only play with the hand that you’re dealt.
And Mr. Cook has represented Mr. Williams, I
think, in the best possible light that someone
can represent someone. He hasn’t done anything—
or left anything out, that I can see, at least at
this point. . . .
8
The trial court attempted to further inform defendant
of the great risks involved with self-representation. For
example, the trial court noted that another attorney would
not be appointed, defendant could not later claim he was
ineffective as his own counsel, defendant had not attended
law school, and defendant was not trained in the rules of
evidence. Further, the trial court warned that if
defendant disrupted the proceedings, Mr. Cook would take
over defendant’s representation. The trial court also
posed the following question:
The Court: Are you making this request
knowinging [sic], intelligently, and voluntarily?
The Defendant: Yes ma’am.
The trial court also informed defendant of the charges
against him and the possible penalties he faced. Despite
this exchange, the following colloquy then took place:
The Court: . . . Do you understand all that?
The Defendant: Yes, ma’am.
The Court: Okay.
The Defendant: Your Honor?
The Court: Yes?
The Defendant: Ma’am, is it also on the
record, and it will probably [be] written down,
that I will have an opportunity to recross-
examine the prosecutor’s first two witnesses,
Florian Mager and --
The Court: (Interposing) No, we’re not
bringing in those other witnesses, we’re
continuing with the trial. It’s the Court’s
opinion that you had proper representation. Mr.
Cook is an excellent attorney. And we are not
9
starting the trial over, we are continuing with
the trial. You can still have Mr. Cook, if you
want, or you can continue and represent yourself
. . . .
Notwithstanding the trial court’s best efforts,
defendant continued to articulate his reasons for wanting
to recall the first witness. Apparently, defendant
remained under the impression that the first witness’s
preliminary examination testimony conflicted with his trial
testimony.
The Defendant: But the jury have heard Mr.
Mager only state that at the lineup he was not
sure. That’s one not sure. And if, at the
preliminary exam, if Mr. Mager is not sure,
again, then this man has no—he’s not sure if it
was me, or not. . . .
The prosecutor then indicated that if defendant was
permitted to look at the preliminary examination, his
concerns would disappear. While the majority includes some
portions of this exchange, I believe that the proceedings
at this particular stage should be viewed in more detail.
Mr. King: And I only stand, your Honor, not
to entertain the defendant, but that is a gross
misrepresentation of the preliminary examination
transcript. . . . What he’s saying he’s taking
out of context. And if he reads the whole thing,
I think he’ll understand why Mr. Cook didn’t
elaborate with further questioning of the
witness.
The Court: All right. I’m going to . . .
The Defendant: (Interposing) May I read it?
The Court: No. I’m going to ask you one more
time. Do you want to represent yourself?
Because we’re bringing in the jury.
10
The Defendant: Your Honor, with all due
respect . . .
The Court: (Interposing) I asked you one
question.
The Defendant: Your Honor, this is my life.
The Court: Do you want to represent
yourself?
The Defendant: Your Honor? Please. I’m
pleadin’ with you, your Honor.
The Court: Answer my question.
The Defendant: What’s a little minute in my
life? Please.
The Court: Answer my question.
The Defendant: Yes, ma’am.
The Court: All right. Let’s bring in the
jury.
After this colloquy, defendant nevertheless attempted
to recall the second witness because he was under the
impression that the witness had not been excused.
III. Analysis
In Adkins, this Court concluded that proper compliance
with waiver of counsel procedures requires that the trial
court “engage, on the record, in a methodical assessment of
the wisdom of self-representation by the defendant.”
Adkins, supra at 721 (emphasis added). Moreover, this
Court abides by the general principle that a trial court
“should indulge every reasonable presumption against waiver
. . . .” Id., quoting Johnson, supra at 464. “The right to
counsel, as guarantor of a fair trial, is a fundamental
right that should not be deemed waived unless the record
11
clearly and unequivocally evidences such waiver, a record
that must be made by the trial judge’s diligent inquiry
into the relevant factors.” Adkins, supra at 740-741
(CAVANAGH, J., concurring in part and dissenting in part).
Because the record indicates that defendant did not
unequivocally, knowingly, intelligently, and voluntarily
waive his right to counsel, defendant’s attempted waiver
was invalid.
A. Defendant’s Waiver Was Not Unequivocal
While the trial court followed the spirit of MCR
6.005(D) and asked defendant if his waiver was made
“knowingly, intelligently, and voluntarily,” the trial
court did not make an express finding on the record that
defendant unequivocally waived his constitutional right to
counsel. In Adkins, this Court held that trial courts must
substantially comply with the requirements of Anderson and
MCR 6.005(D).3 Thus, Adkins directs a trial court to
indicate on the record whether the attempted waiver is
3
In Adkins, I agreed that “substantial compliance”
with the requirements of Anderson and MCR 6.005(D)
adequately protects a defendant’s rights. Adkins, supra at
737-738 (CAVANAGH, J., concurring in part and dissenting in
part). However, I remain committed to the view that strict
compliance with these requirements better protects a
defendant’s rights, as well as ensures that an appellate
parachute is not created. People v Dennany, 445 Mich 412,
456-458; 519 NW2d 128 (1994) (CAVANAGH, J., concurring in
part and dissenting in part).
12
unequivocal. Id. at 721-722. Even under a substantial
compliance analysis, however, the trial court in this case
wholly failed to indicate whether it believed defendant’s
request was contingent on other factors—namely, recalling
the prosecution’s witnesses and examining the preliminary
examination transcripts—or whether the request was
unequivocal.
In any event, the record more than adequately
demonstrates that defendant’s choice was not unequivocal.
The majority states that “[i]nitially, defendant
conditioned his waiver of the right to counsel on the trial
court’s granting of his request to recross-examine two
excused witnesses.” Ante at 8. An evenhanded reading of
the trial transcripts, however, reveals that despite the
trial court’s best efforts, defendant’s waiver was
conditional throughout the proceeding. The trial court
informed defendant that he would not be able to recall the
excused witnesses and then repeatedly asked defendant if he
wished to represent himself. In spite of this line of
questioning, defendant still expressed his desire to recall
the witnesses and review the preliminary examination
transcript. As such, a balanced evaluation of the record
indicates that although defendant was listening to the
13
trial court, defendant was not hearing what the trial court
had to say.
This Court has previously noted that “the
effectiveness of an attempted waiver does not depend on
what the court says, but rather, what the defendant
understands.” Adkins, supra at 723. Under the
circumstances of this case, it is clear that defendant did
not fully comprehend the trial court’s warnings and
defendant wavered in his request throughout the proceeding.
When the record is objectively viewed, one is left with the
distinct impression that defendant eventually surrendered
to the trial court’s questioning in the hopes of
introducing evidence that he believed favorable to his
case. Thus, defendant’s attempted waiver was invalid.
Further, I am puzzled by the majority’s conclusion
that defendant’s “unrealistic” hopes did not render
defendant’s attempted waiver invalid. Ante at 12. The
majority acknowledges that defendant was not truly hearing
what the trial court was saying. Further, the majority
appropriately notes that defendant’s understanding “can
only be gleaned by reference to what he said on the
record.” Ante at 10. Upon its review of the record, the
majority effortlessly concludes that defendant’s hopes were
“unrealistic.” However, defendant nevertheless harbored
14
these hopes and the trial court should have similarly
recognized that these “unrealistic” hopes were preventing
defendant from hearing what the trial court was saying.
Adkins could not be more clear that the effectiveness of
the attempted waiver depends on what the defendant
understands.
Finally, although the trial court may not have been
under any obligation to permit defendant to view the
transcripts or recall the witnesses, the trial court erred
when it failed to recognize that defendant’s attempted
waiver was equivocal. The overarching rule of this Court’s
decision in Adkins, as well as the United States Supreme
Court’s decision in Johnson, is that if there is any doubt
about the unequivocal nature of a defendant’s attempted
waiver of counsel, then the trial court should deny the
defendant’s request and defendant should proceed with
counsel.4
4
It has often been said that “[a]n indigent defendant,
entitled to the appointment of a lawyer at public expense,
is not entitled to choose his lawyer. He may, however,
become entitled to have his assigned lawyer replaced upon a
showing of adequate cause for a change in lawyers.” People
v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973). Here,
the trial court found that defense counsel provided proper
representation. Moreover, defendant did not assert a
breakdown in the attorney-client relationship. Under these
particular circumstances, the trial court, and defendant
(continued…)
15
B. Defendant’s Waiver Was Not Knowing, Intelligent,
and Voluntary
For essentially the same reasons as detailed above, I
cannot lightly assume defendant possessed the requisite
state of mind under the facts of this case. Specifically,
the record evidences that defendant’s attempted waiver was
not knowing, intelligent, and voluntary. Even though the
trial court followed the spirit of Anderson and its
progeny, the record indicates defendant was fixated on his
ability to recall the excused witnesses and view the
preliminary examination transcripts. As the hearing was
drawing to a close and the trial court was understandably
losing its patience, defendant kept pleading for his life.
Nevertheless, the trial court continued its questioning and
defendant eventually answered affirmatively to the question
repeatedly posed. When the record is reviewed fairly, I
believe it is apparent defendant’s waiver was not knowing,
intelligent, or voluntary.
(…continued)
for that matter, may have been better served by reliance on
the general presumption against waiver. “Where a
defendant, for whatever reason, has not unequivocally
stated a desire for self-representation, the trial court
should inform the defendant that present counsel will
continue to represent him.” Adkins, supra 722 n 18
(emphasis added).
16
IV. Conclusion
In sum, I agree with the Court of Appeals assessment
of the proceedings. Defendant’s attempted waiver was
conditional throughout the proceedings. Further, despite
the trial court’s best efforts, it was evident that
defendant did not fully understand the nature of the trial
court’s admonishments. Thus, defendant’s attempted waiver
was not unequivocal, knowing, intelligent, and voluntary.
I would, therefore, affirm the decision of the Court of
Appeals.
Michael F. Cavanagh
Marilyn Kelly
17