Opinion
352111
12-21-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CEDELL JONES III, Defendant-Appellant.
UNPUBLISHED
Calhoun Circuit Court LC No. 2018-003095-FC
Before: Rick, P.J., and Ronayne Krause and Letica, JJ.PER CURIAM
Defendant appeals as of right his convictions following a jury trial of one count of felonious assault, MCL 750.82; one count of carrying a concealed weapon, MCL 750.227; and one count of carrying or possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to serve 14 to 48 months' imprisonment for the conviction of felonious assault, 18 to 60 months' imprisonment for the concealed weapon conviction, and 2 years' imprisonment for the felony-firearm conviction. We reverse defendant's convictions, vacate his sentence, and remand to the trial court for a new trial. We further direct the trial court to address the pretrial release of defendant within 28 days of the release of this opinion and accompanying order.
I. BACKGROUND
This case stems from an altercation between defendant, Cedell Jones III, and Phillip and Erica Overley. In the early morning hours, defendant, driving alone in his car, encountered a motorcycle with Phillip driving and Erica sitting on the back. Defendant thought that the Overleys were following him, and the Overleys thought that defendant was driving erratically. Eventually, both vehicles stopped near each other. According to the Overleys, defendant got out of his car, pointed a gun at Phillip's helmet, and fired. There was no damage as a result of the alleged gun shot to helmet. On the other hand, Defendant testified that he was forced to stop because Phillip parked his motorcycle in front of his car in the road. Next, defendant testified, Phillip approached defendant's car and Phillip put both of his hands on the car frame, near the driver's side window. Defendant stated that he tried to drive away, but could not as a result of Phillip's parked motorcycle and another car that was parked to the right of defendant's car. Defendant eventually exited his car holding a gun and Phillip and defendant then wrestled over the gun. According to defendant, the gun fired while the two men were wrestling and while both men had their hands on the gun. Both defendant and the Overleys said that defendant then got back in his car. According to the Overleys, defendant then got back out of his car, and with Phillip standing between defendant and Erica, defendant pointed his gun at them and told the Overleys either to not follow him or not to call the police. Defendant denied that he got out of his car the second time or that he ever pointed a gun at either of the Overleys.
Defendant was represented by appointed counsel. The day before trial was scheduled to begin, defendant requested an adjournment so that he could retain counsel, explaining that he had already found an attorney willing to represent him. The trial court held that defendant could be represented by retained counsel, but it refused to adjourn the trial. The trial court initially believed-not unreasonably-that defendant wished to have substitute counsel appointed. The trial court correctly informed defendant that he was not entitled to appointed counsel of his choosing. However, the trial court permitted defendant to clarify that he wished to retain new counsel and that an attorney was willing to take his case if the trial court granted an adjournment. The trial court then recognized its misapprehension and permitted defendant to explain the basis for his request.
According to defendant, there was a lack of communication between him and his defense counsel and counsel had failed to promptly inform him of new evidence before trial. Defendant also asserted that his defense counsel was unprepared for trial and that he and defense counsel disagreed on strategic matters regarding evidence. Defense counsel disagreed that there had been a lack of communication and represented that she was prepared for trial, although she admitted that she and defendant disagreed on some strategic matters. Defense counsel contended that to the extent she encountered difficulty preparing for trial, some of the blame lay with defendant, who had failed to read a police report she provided to him and had delayed in providing possible defense witnesses. However, defense counsel conceded that she had received a CD with photographs and video and audio recordings from the investigative process approximately eight months previously; she failed to inform defendant about the evidence, and she and defendant had only reviewed the evidence the previous day. Further, although defense counsel did not file a motion to withdraw, she had no objection to defendant obtaining retained counsel.
The trial court ruled that defendant could be represented by his retained counsel of choice but that the trial would begin the following day and no adjournment would be granted, stating:
Had you wished to retain your own attorney you had time to do that. But at this point it would cause prejudice to the People and it would also inconvenience the schedule of the Court to give you a last-minute adjournment to retain an attorney.
At trial, defendant was convicted of one count of felonious assault, one count of carrying a concealed weapon, and one count of felony-firearm. The jury found defendant not guilty of assault with intent to murder and one count of felony-firearm. Defendant now appeals.
II. DENIAL OF COUNSEL OF CHOICE
Defendant first argues that he was denied his Sixth Amendment right to counsel of choice on the basis that the trial court denied his request for an adjournment. Had the trial court granted the adjournment, defendant would have been represented at trial by his retained counsel of choice. We conclude that the trial court abused its discretion in denying defendant's request for an adjournment to accommodate the counsel he sought to retain. We further conclude that defendant was denied his Sixth Amendment right to counsel of choice because the trial court failed to grant defendant's request for an adjournment.
A. STANDARD OF REVIEW
"We review for an abuse of discretion a trial court's exercise of discretion affecting a defendant's right to counsel of choice." People v Akins, 259 Mich.App. 545, 556; 675 N.W.2d 863 (2003) (cleaned up). An abuse of discretion occurs when the trial court's decision "falls outside the range of principled outcomes." People v March, 499 Mich. 389, 397; 886 N.W.2d 396 (2016). A trial court's factual findings are reviewed for clear error. MCR 2.613(C). "Clear error occurs if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." People v Johnson, 502 Mich. 541, 565; 918 N.W.2d 676 (2018) (cleaned up). Questions of constitutional law, such as whether defendant was denied his right to counsel of choice, are generally reviewed de novo. See People v Kennedy, 502 Mich. 206, 213; 917 N.W.2d 355 (2018).
B. PRINCIPLES OF LAW
A defendant has a constitutional right to counsel, which includes the right of a defendant to choose his or her own retained counsel. U.S. Const, Am VI; 1963 Const, art 1, §§ 13 and 20. As our Supreme Court has recognized:
The right to assistance of counsel is a precious constitutional right. It is probably the most important right of any defendant in a criminal trial . . . . It is guaranteed by the United States Constitution and has been included in every Constitution of this State since Michigan entered the Union. This right has been jealously protected by the courts and is of critical importance to any defendant in a criminal trial. Hence, whenever this right is asserted, the trial court must take special care to insure that it is protected. [People v Williams, 386 Mich. 565, 575-576; 194 N.W.2d 337 (1972) (cleaned up).]
This Court has recognized that "[t]he Sixth Amendment commands that the accused be defended by the counsel he [or she] believes to be best." People v Aceval, 282 Mich.App. 379, 386; 764 N.W.2d 285 (2009) (cleaned up). "Deprivation of the right is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants." Id. (cleaned up). The erroneous deprivation of a defendant's right to retain counsel of his choice is a structural error requiring reversal without a showing of prejudice. United States v Gonzalez-Lopez, 548 U.S. 140, 152; 126 S.Ct. 2557; 165 L.Ed.2d 409 (2006); see Aceval, 282 Mich.App. at 386 ("It is not necessary that a defendant show prejudice; it is enough that a defendant merely show that a deprivation occurred.").
"[S]tructural errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence." People v Duncan, 462 Mich. 47, 52; 610 N.W.2d 551 (2000) (cleaned up). "Structural errors . . . are intrinsically harmful, without regard to their effect on the outcome, so as to require automatic reversal. Such an error necessarily renders unfair or unreliable the determining of guilt or innocence . . . ." Id. at 51 (cleaned up).
On November 6, 2018, defendant's trial was scheduled for March 5, 2019. On February 13, 2019, another notice was sent, scheduling defendant's trial between March 5 and 29, 2019. Defendant's case was listed sixth. On February 20, 2019, counsel filed defendant's witness list, exhibit list, notice of self-defense, and requested jury instructions. On February 27, 2019, defendant's trial was scheduled for a date certain-October 8, 2019. On September 19, 2019, a criminal jury trial notice showed defendant's trial was listed first and was the only one designated "DATE CERTAIN" for October 8th. On September 30, 2019, defendant's case was adjourned from October 8 to October 22, 2019.
There are, however, limits to a defendant's right to choose counsel. We must balance the defendant's right to counsel of his choice and "the public's interest in the prompt and efficient administration of justice" to determine whether the defendant's right to choose counsel has been violated. Akins, 259 Mich.App. at 557 (cleaned up). Trial courts have wide latitude in balancing the right to counsel of choice against the demands of the court's calendar and fairness. Gonzalez-Lopez, 548 U.S. at 152; Aceval, 282 Mich.App. at 387. When reviewing a trial court's decision to deny a motion for continuance to obtain another attorney, we consider the following factors:
However, as indicated, when the Sixth Amendment right to counsel is at issue, a defendant is not required to show prejudice. Gonzalez-Lopez, 548 U.S. at 152; Aceval, 282 Mich.App. at 386. Furthermore, it is clear that defendant was not merely engaging in delaying tactics, and although our dissenting colleague accurately observes that trial was delayed several times, nothing in the record suggests that those delays were attributable to defendant. Consequently, the only two concerns meaningfully at issue are whether defendant had a legitimate reason for asserting the right and whether defendant was negligent in asserting the right.(1) whether the defendant is asserting a constitutional right, (2) whether the defendant has a legitimate reason for asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and (5) whether the defendant demonstrated prejudice resulting from the trial court's decision. [Akins, 259 Mich.App. at 557 (cleaned up).]
C. ANALYSIS
As an initial matter, we note that the trial court technically did not forbid defendant to retain counsel of his choosing, although affording no time for retained counsel to prepare for trial achieved the same effective result.
In Williams, the defendant requested an adjournment to obtain new counsel on the day before trial because of a disagreement with his counsel on whether to call certain alibi witnesses. Williams, 386 Mich. at 574-575. Our Supreme Court concluded that the defendant's reason for seeking new counsel "was a bona fide dispute and not a delaying tactic." Id. at 576. Therefore, although the defendant made his request the day before trial was set to begin, the defendant "was not guilty of negligence in informing the court of his desire for different counsel" because the disagreement had only occurred the day before. Id. The trial court denied defendant's request for an adjournment to obtain new counsel in part because of the burden it would impose on the court's docket. Id. at 576-577. However, our Supreme Court held that "the desire of the trial courts to expedite court dockets is not a sufficient reason to deny an otherwise proper request for a continuance." Id. at 577. Further, the Court also concluded that the purpose of defendant's request was not a "delaying tactic" and that the defendant had not caused prior adjournments, despite the trial court's contrary findings, because there was no evidence to support such findings. Id.
Similarly, in the instant case, defendant was asserting his constitutional right to counsel and had a legitimate reason for asserting this right. Defense counsel had received evidence, including video evidence admitted at trial, approximately eight months before trial and had only informed defendant of the evidence the day before trial was set. Defendant was also not negligent for his eleventh-hour request for different counsel because he was only made aware of the issues that led to his request the day before trial. There was no evidence that defendant had been notified of the evidence earlier. Additionally, there was no evidence that defendant requested new counsel as a delaying tactic or that he had requested previous adjournments. Importantly, as discussed, it is unnecessary for defendant to show prejudice. We do not necessarily disagree with our dissenting colleague's assessment that defendant was probably not surprised by anything on the CD. However, we think it misses the point that failing to keep defendant apprised of evidence that had the potential to be important, especially when viewed in combination with defendant's disagreement with his counsel's proposed tactics, is a legitimate reason to abruptly lose all faith in counsel.
We also do not necessarily disagree with our dissenting colleague that defendant seemingly made his own contributions to any breakdown between himself and appointed counsel. However, we do not believe the record shows counsel's failure to inform defendant of the CD was due to any act or omission committed by defendant.
Counsel was appointed to represent defendant on July 16, 2018, and filed her appearance, including a discovery demand, two days later.
Plaintiff argues that this case is similar to Akins, 259 Mich.App. at 545, because the trial court did not prohibit defendant from retaining counsel, but rather denied an "eleventh hour" adjournment. In Akins, the defendant first requested an adjournment to retain new counsel approximately one month before trial. Id. at 557. The defendant asserted "general claims that his attorney was not competently representing him and specifically protested that his attorney had not filed a motion to have a separate jury from his codefendants." Id. Approximately 2½ weeks before trial at a hearing, the defendant renewed his request that he be allowed to dismiss his counsel because counsel "was not good enough to represent him and because he disapproved of his attorney's [sic] talking with the prosecutor." Id. at 558. In concluding that the trial court did not abuse its discretion by denying defendant's request, this Court concluded that the trial court allowed defendant to retain any attorney he wanted as long as the attorney could be present for the scheduled trial date. Id. Additionally, this Court concluded that the trial court's reluctance to adjourn trial was reasonable because defendant was scheduled to be tried jointly with his codefendant. Id. This Court also noted that the defendant failed to establish that he had legitimate complaints about his trial counsel's performance, which supported the trial court's conclusion that defendant's request was a delay tactic. Id. at 558 n 15.
Defendant apparently had some concerns about his appointed counsel for "several months" before trial. Defendant was released on bond, so as the trial court observed, it would have been physically possible for defendant to seek out and retain new counsel at a much earlier date. However, not all disagreements are created equal. Vague concerns and unspecified strategic disagreements might not be enough to drive a client to seek new counsel until those concerns are suddenly and starkly confirmed by an unambiguous failure to keep the client informed of concrete evidence. Furthermore, minor issues can accumulate to the point of becoming intolerable. See Strickland v Washington, 466 U.S. 668, 688; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984) ("From [defense] counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution."). The record does not disclose any reason why defendant should have raised his concerns with the trial court earlier, even if doing so was realistically possible. The trial court noted that "we've had status conferences where you appear but you don't go on the record and [appointed counsel] disappears in the back room." In context, it is unclear whether the trial court used "you" to refer to defendant or as a more general abstraction. It is therefore unclear whether defendant had been personally present, or whether the trial court was reassuring defendant that his appointed counsel had been acting with diligence. In any event, the lower court register of actions reflects that those status conferences, seemingly all held in chambers, had last occurred approximately eight months previously. We are unable to conclude that defendant was negligent in failing to pursue substitute retained counsel before he became aware of any solid reason for doing so.
The trial court provided two additional reasons for denying defendant's request for an adjournment: (1) that it would prejudice the prosecution, and (2) that it would inconvenience the trial court's schedule. The trial court noted that this was a 2018 case, and that defendant had had time to retain an attorney if he so wished. We also do not dispute our dissenting colleague's observation that-although not cited by the trial court-witness memories tend to decay over time, and one witness would shortly become unavailable. However, as discussed, there is nothing in the record to suggest that the age of the case was attributable to defendant, and the fact that defendant technically could have sought retained counsel earlier overlooks whether defendant had any earlier reason to do so. As stated earlier, the trial court's schedule alone is not an adequate reason to deny an otherwise proper request for an adjournment. Williams, 386 Mich. at 577. Witness unavailability might have been more persuasively countervailing, had the trial court considered the issue. However, in the absence of any exploration on the record of how long the witness would remain unavailable and whether the witness could have testified by telephone or videoconferencing software, we have no basis for upholding the trial court's ruling. Therefore, we conclude that the trial court abused its discretion by denying defendant's request for an adjournment to obtain retained counsel.
Because we conclude that the trial court abused its discretion in denying defendant's request for an adjournment to retain counsel, we also conclude that defendant was denied his Sixth Amendment right to counsel. The structural error infected the entire trial and requires automatic reversal. See Duncan, 462 Mich. at 51. Having determined that the trial court improperly denied defendant's request for an adjournment to obtain new counsel where there was no justification for doing so, that the trial court violated the defendant's Sixth Amendment right to counsel, that such an action is not subject to harmless-error analysis, and that prejudice need not be shown, we vacate defendant's convictions and sentence and remand for a new trial. Additionally, within 28 days of the release of this opinion, the trial court shall address the reinstatement of pretrial release of defendant pending an appeal or a new trial. See MCR 7.216(A)(7); MCR 7.208(G); see also MCL 765.7 and MCR 6.106.
In light of our holding, we need not consider the remaining issues that defendant raised on appeal, including sufficiency of the evidence, prosecutorial error, and jury instruction defects. See People v Johnson, 215 Mich.App. 658, 673; 547 N.W.2d 65 (1996). Although we note that these issues raised other compelling concerns, these issues can be remedied during a new trial should one be undertaken.
Defense counsel worked in the Calhoun Public Defender's Office.
We reverse defendant's convictions, vacate his sentence, and remand the case for a new trial and proceedings consistent with this opinion. We retain jurisdiction as to the issue of defendant's pretrial release.
Anica Letica, J. (dissenting).
I respectfully dissent. In my view, the trial court did not abuse its discretion when it denied defendant's day-of-trial motion to adjourn so that he could retain counsel.
I. FACTUAL BACKGROUND
On the day set for jury trial, 1 after defendant rejected the prosecution's plea offer, he told the trial court that he had "lost all confidence and faith [in court-appointed counsel] due to the fact there was significant lack of communication . . . the last several months."2 Defendant explained that yesterday "there was new evidence," "new statements or video evidence brought up[.]" Therefore, he felt "underprepared" and opined that counsel's caseload was "probably, maybe, too high."3 Defendant also complained that counsel had not called him that weekend as they had arranged. Instead, because "some things came up," counsel told defendant to meet with her on the Monday before trial. Although counsel met with defendant, that made him "think that maybe she had not - couldn't - not wanting to - but couldn't put enough time and [sic] preparing for my case or at least briefing me enough well in advance as far as yesterday to prepare for the case." Defendant added that he "felt like even though she is a great person and she's always . . . treated [him] well," "there could have been a lot more done up to this point to prepare."
In response, counsel noted that she had been working with defendant "for quite some time." Her "records show[ed] that [she] provided [defendant] with a copy of his complaint, his police report, [and] supplemental reports on July 20th, 2018." Counsel "pretty much met with [defendant] at every single hearing." Defendant had called her "throughout the case" and she "return[ed] [his] calls." She received the CD on February 25, 2019, and defendant "may be accurate in the fact that [she] didn't let him know about that CD." However, they had reviewed it in her office. The CD contained "some pictures and also videos from the officers as well as [defendant's] interview." It was not a video of the actual incident, but of the investigative process. Moreover, there was a video that "was basically just audio," containing defendant's statements made while defendant was being transported to jail. Defendant was "aware that he had made those prior statements."
This was two days before defendant's trial was adjourned to a date certain in October.
Defendant had a witness list and an exhibit list. Counsel had "multiple conversations" with defendant about those lists. "Multiple times," she "asked him if there were any witnesses, any individuals, that could refute any of the statements made in the police reports." Counsel just "learned that [defendant] actually never read or reviewed the police reports." Even so, counsel and defendant had "further conversations late last week." Defendant's girlfriend was identified as a potential witness and counsel added her to defendant's witness list along with defendant's father.Defendant had also provided some phone records, which counsel would seek to admit.
Both defendant's girlfriend and his father testified on the second day of trial.
The trial court informed defendant that he was entitled to an attorney to represent him, but not necessarily entitled to an attorney of his choice. The court understood that defendant felt as though "a lot of last-minute things [were] happening here." The court assured defendant that counsel had "been working diligently on [his] case," explaining that there were court dates and status conferences where defendant appeared, but did not go on the record. The court added that counsel had discovery and the opportunity to digest it. Counsel affirmed that she was "ready and prepared to go [to] trial."
Although defendants have the right to counsel of their choice if they retain one, indigent defendants only have the right to effective appointed counsel. People v Aceval, 282 Mich.App. 379, 386-387; 764 N.W.2d 285 (2009). As such, counsel appointed for an indigent defendant need not be of the defendant's choosing, and a defendant may not obtain counsel of his choice by requesting substitute counsel. People v Traylor, 245 Mich.App. 460, 462; 628 N.W.2d 120 (2001)." 'Appointment of a substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. Good cause exists where a legitimate difference of opinion develops between a defendant and his appointed counsel with regard to a fundamental trial tactic.'" Id., quoting People v Mack, 190 Mich.App. 7, 14; 475 N.W.2d 830 (1991) (citations omitted). "When a defendant asserts that the defendant's assigned attorney is not adequate or diligent, or is disinterested, the trial court should hear the defendant's claim and, if there is a factual dispute, take testimony and state its findings and conclusion on the record." People v Strickland, 293 Mich.App. 393, 397; 810 N.W.2d 660 (2011) (quotation marks and citation omitted).
The trial court ruled that defendant should have raised the issue "before the day of trial." The court had not heard any information that counsel was unprepared to proceed.
Defendant then told the court that there were "key things," "evidence . . . that [he] wanted to implement[] that [counsel]" did not. Counsel added that there were "some matters with regard to strategy," where they disagreed. The court explained that there was still time for discussion.
Defendant then returned to the trial court's earlier comment, noting that he did not "attempt to get another [c]ourt[-]appointed lawyer, but . . . attempted to hire a private one. . . ." Defendant named the attorney he had attempted to hire and admitted that the attorney was not available on the date scheduled for trial; even so, the attorney had indicated that he would be willing to take over if the trial court permitted it.
Court-appointed counsel interjected that she was prepared, but had no objection to defendant retaining an attorney, explaining that there was no prejudice to him because he was out on bond. The trial court explained that it was concerned about prejudice to the People's case.The court then recessed to check on the status of the jury.
At trial, Battle Creek Police Officer Ryan O'Connell had to be called out of order the next day because he was scheduled to report for military duty at 6 a.m. the following morning. Officer O'Connell had stopped defendant's vehicle, obtained consent to search it for the gun, took a recorded statement from defendant in his police car that was admitted during trial, and searched for the shell casing after the incident.
Forty minutes later, the court returned, indicating that it had "had an opportunity to talk with the attorney[]s . . . and . . . the jury clerk . . ." It then ruled:
[W]e are going to proceed with this trial tomorrow morning at 8:30. At that time we will have the number of jurors that we need and this case has been scheduled for quite some time. It is a 2018 case. Had you wished to retain your own attorney you had time to do that. But at this point it would cause prejudice to the People and
it would also inconvenience the schedule of the [c]ourt to give you a last-minute adjournment to retain an attorney.
That being said, if [the retained attorney] is available and prepared to go tomorrow morning, you are certainly welcome to bring [the retained attorney] here to proceed with the case. But I have every confidence that [court-appointed counsel] is ready to go.
Furthermore, you have the remainder of the afternoon to speak with [court-appointed counsel] about any concerns that you have and any information that you may need to see, before we proceed with trial.
Counsel added that she would get the phone records to the prosecutor to see if she would stipulate to their entry. And the trial court noted that they had discussed the "issues of the video . . . and . . . a way of handling that . . .," which counsel could discuss with defendant.
The following morning, the trial court directly addressed defendant and inquired if he was "ready" "with [his court-appointed] attorney." Defendant replied: "Yes, Your Honor."
II. STANDARDS OF REVIEW
We review a trial court's decisions on whether to permit the substitution of counsel and a continuance for an abuse of discretion. People v McFall, 309 Mich.App. 377, 382; 873 N.W.2d 112 (2015); People v Echavarria, 233 Mich.App. 356, 368; 592 N.W.2d 7373 (1999). A trial court abuses its discretion when its decision "falls outside the range of principled outcomes." McFall, 309 Mich.App. at 382. "We review de novo questions of constitutional law." People v Vaughn, 491 Mich. 642, 650; 821 N.W.2d 288 (2012).
III. ANALYSIS
The constitutional right to counsel includes the right of a defendant, who does not require appointed counsel, to choose his own retained counsel. U.S. Const, Am VI; Const 1963, art 1, § 13; United States v Gonzales-Lopez, 548 U.S. 140, 144; 126 S.Ct. 2557; 165 L.Ed.2d 409 (2006); Aceval, 282 Mich.App. at 386. The right to counsel of choice "commands, not that a trial be fair, but that a particular guarantee of fairness be provided-to wit, that the accused be defended by the counsel he believes to be best." Gonzalez-Lopez, 548 U.S. at 146. "A choice-of-counsel violation occurs whenever the defendant's choice is wrongfully denied." Id. at 150. Consequently, an erroneous deprivation of a defendant's right to retained counsel of his choice is a structural error requiring reversal. Id. at 148-149.
As noted by the majority, the right to retained counsel of choice, however, is not absolute. Id. at 144. A trial court retains "wide latitude in balancing the right of counsel of choice against the needs of fairness . . . and against the demands of its calendar . . . ." Id. at 152 (citations omitted). Stated otherwise, a court must weigh the defendant's right to retained counsel of choice against" 'the public's interest in the prompt and efficient administration of justice.'" Aceval, 282 Mich.App. 386-387, quoting People v Krysztopaniec, 170 Mich.App. 588, 598; 429 N.W.2d 828 (1988).
The trial court in this case did precisely that and informed defendant that if the attorney he wished to retain was available and prepared for trial, he was welcome. Defendant did not do so, but appeared with court-appointed counsel, indicating that he was ready for trial with her.
This Court should not ignore the fact that readying defendant's case for trial required the trial court to clear its schedule and to summon jurors, no small task. It further required the parties to prepare witnesses, exhibits, and proposed jury instructions, and defendant to prepare a notice of self-defense. All of this occurred before defendant's last-minute request to adjourn.
Again, October 22, 2019 was not defendant's first trial date or even his first trial date certain. Recognizing the principle that justice delayed is justice denied, our Supreme Court has adopted guidelines to ensure the timely administration of justice. See Administrative Order No. 2013-12, 495 Mich. cxx (2013). In relevant part, AO 2013-12 states: "70% of all felony cases should be adjudicated within 91 days from the date of entry of the order binding the defendant over to the circuit court; 85% within 154 days; and 98% within 301 days." In this case, defendant was bound over on October 17, 2018, and his second trial date certain was October 22, 2019-370 days later. And review of the trial transcript demonstrates that several witnesses expressed a lack of memory due to the passage of time between the date the crimes were committed and the date of trial. Moreover, as already mentioned, one of the investigating police officers had to report for military duty the day after trial actually commenced. Given these circumstances, the trial court properly prioritized the public's interest in the administration of justice and did not erroneously deprive defendant of his Sixth Amendment right to counsel of choice by denying his last-minute request to be represented by retained counsel in a case that had been pending for more than a year.
Likewise, a trial should not be adjourned except for good cause shown. People v Jackson, 467 Mich. 272, 276; 650 N.W.2d 665 (2002); MCR 2.503(B)." 'When reviewing a trial court's decision to deny . . . a defendant's motion for a continuance to obtain another attorney, we consider the following factors: (1) whether the defendant is asserting a constitutional right, (2) whether the defendant has a legitimate reason for asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and (5) whether the defendant demonstrated prejudice resulting from the trial court's decision.'" People v Akins, 259 Mich.App. 545, 557; 675 N.W.2d 863 (2003), quoting Echavarria, 233 Mich.App. at 369.
In this case, defendant was asserting a constitutional right-his right to counsel of choice.Defendant's reason for asserting this right was his contention that court-appointed counsel was ill- prepared and had not shared "new evidence" with him, namely, the photographs and videotapes contained on the CD. But the court determined that court-appointed counsel was prepared. And, there was no new evidence. The photographs admitted at trial showed the victims' motorcycle as well as the gun located in defendant's car. Defendant was aware of the gun in his glovebox as he told Officer O'Connell about it. Defendant was also aware that the victims were on a motorcycle because he eventually admitted being present and armed at the scene where the events occurred and a shell casing matching the bullets in his gun was found. As for the videos, defendant was certainly aware of the statements he had made to police, including initially denying any involvement before he apologized for lying and suggested an accidental discharge scenario after a self-defense struggle over his gun. Thus, defendant's allegations that he was uncomfortable and lacked confidence in court-appointed counsel because she did not show him the videos until the day before trial were specious. See People v Mitchell, 454 Mich. 145 n 30; 560 N.W.2d 600 (1997) (Although "[g]rievances against attorneys . . . may be legitmate[, ] "[t]hey are also prompted by a desire for . . . a new attorney, or an adjournment, and are routine incidents in Recorder's Court."). Cf. Traylor, 245 Mich.App. at 461-464 (The defendant's allegations that he lacked confidence in and was uncomfortable with his court-appointed attorney due to a grievance he had filed did not constitute good cause to appoint substitute counsel absent a specific claim suggesting a legitimate difference of opinion over a fundamental trial tactic). In the end, defendant presented no specific facts demonstrating that his relationship with court-appointed counsel led to an irreconcilable conflict or that their communication had irretrievably broken down. At best, they had some unspecified disagreement regarding evidentiary or strategic matters that they were able to further address.
Defendant is incorrect when he asserts in his brief that the trial court "treated the claim as if it were a request for the appointment of substitute counsel by emphasizing the fact that [defendant] did not have the right to an attorney of his choice as an indigent defendant." The trial court did initially assert that defendant was "not necessarily entitled to the attorney of [his] choice," but that was before the trial court was made aware that defendant was seeking to be represented by retained counsel, and was not seeking to have the trial court appoint substitute counsel. After the trial court was made aware that defendant was seeking to be represented by retained counsel, the trial court ruled that defendant could be represented by the retained counsel of his choosing, but it denied defendant's request for an adjournment of the trial. The trial court provided two reasons for denying defendant's request for an adjournment: (1) it would prejudice the People and (2) it would inconvenience the trial court's schedule. The trial court noted that this was a 2018 case and that defendant had had time to retain an attorney if he so wished.
Apparently somewhat successfully as defendant was acquitted of the highest charge he faced.
The majority also minimizes defendant's last-minute request, attributing it to a recent discovery of counsel's alleged failings. But this ignores defendant's own description of the "lack of communication . . . [spanning] the last several months," which counsel refuted.
Again, defendant was charged in July 2018, and his third trial date was October 22, 2019. Over the course of a year, the trial court "had status conferences where [defendant] appear[ed] but . . . [didn't] go on the record . . . ." Regardless, defendant, who was free on bond throughout the proceedings, admitted that he only voiced concern with court-appointed counsel the day before the scheduled trial date. And, in my view, the trial court appropriately determined that "[h]ad [defendant] wished to retain [his] own attorney [he] had time to do that."
Those conferences were noticed and scheduled for December 18, 2018, and January 29, February 12, and February 26, 2019.
I also disagree with the majority's determination that "the trial court failed to consider, let alone balance, defendant's right to counsel of choice . . . ." The record shows that the trial court was exceedingly patient and allowed defendant to fully explain why his perceived issues with court-appointed counsel led him to attempt to retain counsel. The record further reflects that the trial court was aware that defendant's purported dissatisfaction occurred as the result of events occurring within days of trial, even as defendant claimed a lack of communication spanning months.
Moreover, this case is not People v Williams, 386 Mich. 565; 194 N.W.2d 337 (1972). There, the attorney the defendant sought to retain had actually come to the courtroom at one point, the defendant's mother had informed current counsel, who had filed a motion to withdraw, that the defendant no longer wanted him to represent the defendant, and current counsel had failed to contact and ensure the presence of the defendant's alibi witnesses. Id. at 568-570. The trial court denied the request for adjournment because the defendant, who was incarcerated, had sufficient time "to retain someone else" and opined that "this is a delaying tactic and nothing more." Id. at 569-570. The Supreme Court reversed because "the trial court abused its discretion in denying [the defense] counsel's motion to withdraw and in preventing [the] defendant from changing attorneys and granting a continuance in this case" because
1) [the] defendant was asserting a constitutional right-the right to counsel; 2) he had a legitimate reason for asserting this right-an irreconci[l]able [b]ona fide dispute with his attorney over whether to call his alibi witnesses; 3) he was not guilty of negligence [given that the dispute arose the day before trial]; and 4) the trial court was incorrect in stating that defendant had caused the trial to be adjourned several times . . . . [Id. at 576, 578.]
In this case, although defendant asserted the same right to counsel, there was no "irreconcilable bona fide dispute" regarding the defense to be employed. And, in contrast to Williams, counsel added the witnesses that defendant had just named to a witness list and called them at trial. Moreover, while it does not appear that defendant acted merely in order to delay trial, it is clear that court-appointed counsel was prepared and ready for trial.
Accordingly, defendant failed to demonstrate good cause and lack of negligence concerning court-appointed counsel's lack of communication. Given the record below, I cannot agree that the trial court abused its discretion when it denied defendant's day-of-trial oral motion to adjourn his third trial date.
In light of the majority's resolution, I also decline to further address defendant's remaining claims.
ORDER
Pursuant to the majority opinion issued concurrently with this order, this case is REMANDED for a new trial and further proceedings consistent with the opinion of this Court. We retain jurisdiction as to the issue of defendant's pretrial release.
Proceedings on remand in this matter shall commence within 28 days of the Clerk's certification of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, within 28 days of the release of this opinion, the trial court shall address the reinstatement of pretrial release of defendant pending an appeal or new trial. The proceedings on remand are limited to these issues.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings.
Michelle M. Rick Presiding Judge
Letica, J. would decline to remand for the reasons set forth in the dissent.