Opinion
Docket No. 58967.
Decided February 18, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
Parker, Adams Mazur, P.C. (by Robert Matyjaszek), for defendant.
Before: R.B. BURNS, P.J., and D.F. WALSH and MacKENZIE, JJ.
This case comes to us by leave granted. The sole issue is whether the trial court erred by refusing to grant defendant's motion to appear in pro per.
Defendant was charged with assaulting a prison employee, MCL 750.197(c); MSA 28.394(3), and as being a third-time habitual offender, MCL 769.11; MSA 28.1083.
Defendant filed a motion to proceed in pro per and a motion to permit his attorney to withdraw. In support of the motion he filed an affidavit:
"4. That the defendant does not accept Robert Matyjaszek as his attorney, does not want to be represented by him and merely wants Mr. Matyjaszek to act in an advisory capacity should the defendant desire to ask Mr. Matyjaszek any questions concerning any legal matters that might arise during the course of the trial.
"5. That the defendant unequivocally states that he wishes to represent himself at his trial.
"6. That he knowingly, intelligently and voluntarily waives his right to be represented by an attorney.
"7. That he has been informed of the dangers and disadvantages of self-representation, understands them and still chooses to represent himself.
"8. That he is literate, competent, understands the choice that confronts him and exercises his own free will in declining to be represented."
The trial judge denied the motion, holding that the request was not unequivocal and that the defendant would use such an opportunity to express his views on the prison system.
Defendant's request was unequivocal to the extent that he definitely stated that he desired to represent himself and that he knew the consequences. However, he also wants counsel standing by in an advisory capacity. He cannot have it both ways.
The right of a criminal defendant to represent himself is guaranteed by the United States Constitution. US Const, Am VI, Faretta v California, 422 U.S. 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975). However, "a defendant must choose between his right to court-appointed counsel and his right to conduct his own defense". People v Ramsey, 89 Mich. App. 260, 264; 280 N.W.2d 840 (1979).
The decision as to whether or not to appoint advisory counsel is within the trial court's discretion. On remand, if the defendant indicates that he wishes to represent himself, even if it means foregoing the presence of advisory counsel, he should be allowed to proceed. He still should be permitted to request advisory counsel. As previously stated, the appointment of advisory counsel is within the discretion of the trial judge.
As to the court's anticipation that the defendant would use such an opportunity to expound his personal views of the prison system and disrupt the proceedings, we quote from Faretta, supra, 834, fn 46:
"We are told that many criminal defendants representing themselves may use the courtroom for deliberate disruption of their trials. But the right of self-representation has been recognized from our beginnings by federal law and by most of the States, and no such result has thereby occurred. Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." (Emphasis supplied.)
Remanded for proceedings consistent with this opinion.