Opinion
No. 124142.
October 2, 2003. February 27, 2004.
Summary Disposition.
No. 124142. In lieu of granting leave to appeal, the June 10, 2003, opinion of the Court of Appeals is vacated, and the matter is remanded to that Court for consideration of defendant's remaining claims. MCR 7.302(G)(1). After review of the record, the Supreme Court is not persuaded that the trial court abused its discretion in denying defendant's motion to admit out-of-state counsel pro hac vice to serve as co-counsel. In this case, the out-of-state attorney was to serve as second counsel along with defendant's retained local counsel. Defendant cites to no authority, nor is this Court aware of any authority, holding that, under the facts of this case, the right to the effective assistance of counsel is violated where a defendant is represented by her attorney of choice, but is denied a second attorney of choice. Accordingly, there is no basis to hold that defendant was denied the right to effective assistance of counsel for the purposes of the state and federal constitutions. Const 1963, art 1, § 20; US Const, Am VI. Because the trial court did not abuse its discretion in denying defendant's motion, the Court of Appeals erred in vacating defendant's conviction and sentence. Jurisdiction is not retained. Reported below: 257 Mich App 76.
KELLY, J. I would deny leave to appeal.
Reconsideration denied.
Because I agree that this Court's October 2, 2003, order vacating the June 10, 2003, opinion of the Court of Appeals and remanding this matter to the Court of Appeals for consideration of defendant's remaining claims was not entered erroneously, I concur with this Court's decision to deny defendant's motion for reconsideration.
Neither the state nor the federal constitution guarantees a defendant the absolute right to choose his own attorney; rather, they guarantee a defendant the right to the effective assistance of counsel. See Wheat v. United States, 486 US 153, 159 (1988) ("while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers"). In this case, in which the trial court denied defendant her choice of out-of-state counsel and defendant proceeded to trial and was convicted, defendant has not alleged that her retained local counsel provided her with ineffective assistance, or that an out-of-state counsel was otherwise necessary. Const 1963, art 1, § 20; US Const, Am VI. Therefore, the Court of Appeals erred in vacating defendant's conviction and sentence.
The constitutional right to the effective assistance of counsel is intended to ensure fairness in the adversarial criminal process. United States v. Morrison, 449 US 361, 364 (1981). The United States Supreme Court has held that, in the interest of preserving the integrity of the judicial system, a court may curtail a defendant's right to counsel of his own choosing. Wheat v. United States, 486 US 153, 159-160 (1988). However, it has never ruled that a court may do so absent a compelling reason.
The right to counsel is fundamental. People v. Pubrat, 451 Mich 589, 593 (1996). A presumption exists in favor of petitioner's counsel of choice. Wheat at 164. When, to further a compelling interest, a court infringes a fundamental right it must employ narrowly tailored means. See Socialist Worker's Party v. Secretary of State, 412 Mich 571, 590 (1982).
The trial court did not meet this standard in this case. It simply refused defendant's motion to admit a member in good standing of the Ohio bar pro hac vice. It indicated no compelling interest that explained the refusal, unlike the court in Wheat. There, the "institutional interest in the rendition of just verdicts," Wheat at 160, would have been compromised if the defendant had been allowed to proceed with counsel who was already representing two codefendants. The testimony anticipated from the defendants in Wheat created an irreconcilable conflict of interest among the defendants. No conflict or other institutional interest was at stake here.
As a consequence, I believe that the trial court abused its discretion. On reconsideration, I would affirm the decision of the Court of Appeals and remand the case to the trial court for a new trial with defendant's counsel of choice.
CAVANAGH, J. I concur in the statement of Justice KELLY.