4.9Valid Waiver of Right to Counsel

A.Right of Self-Representation

“The right of self-representation is secured by both the Michigan Constitution, Const 1963, art 1, § 13, and by statute, MCL 763.1. The right of self-representation is also implicitly guaranteed by the Sixth Amendment of the United States Constitution. Although the right to counsel and the right of self-representation are both fundamental constitutional rights, representation by counsel, as a guarantor of a fair trial, is the standard, not the exception, in the absence of a proper waiver.” People v Spears (On Remand), ___ Mich App ___, ___ (2023) (cleaned up). A defendant necessarily waives the correlative Sixth Amendment right to counsel in exercising the right of self-representation. People v Dennany, 445 Mich 412, 427 (1994). “Consequently, a knowing and intelligent waiver of the right to counsel [is] an essential prerequisite to the right to proceed pro se[.]” Id. at 427-428.See Section 4.9(C) for more information on a valid waiver of counsel.

There is no federal constitutional right to self-representation on direct appeal from a criminal conviction. Martinez v California, 528 US 152, 163 (2000). The United States Supreme Court clearly stated, however, that nothing in its Martinez holding prevented any state from recognizing a right to self-representation in appellate proceedings under the state’s constitution. Id. at 163.

A juvenile defendant may waive the right to assistance of counsel according to the requirements of MCR 6.905(C). These requirements mandate that the court appoint standby counsel to assist the juvenile at trial and sentencing. MCR 6.905(C)(5).¹

A defendant is not required to personally assert his or her constitutional right to self-representation for the request to be valid; the request may be made through counsel. People v Hill, 485 Mich 912 (2009).

B.Scope of Right

“While a defendant’s right to self-representation encompasses certain specific core rights, including the right to be heard, to control the organization and content of his [or her] own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at times, the right to self-representation is not unfettered.” People v Arthur, 495 Mich 861, 862 (2013). “The trial court did not unconstitutionally ‘nullify’ the defendant’s right to self-representation by declining to remove the defendant’s leg shackles. That the defendant elected to relinquish his right of self-representation rather than exercise that right while seated behind the defense table does not amount to a denial of the defendant’s right of self-representation.” Id. “[T]he trial court did not violate the defendant’s due process rights by ordering the defendant to wear leg shackles in the first place because the court was justified in imposing those limited restraints to avoid the risk of flight and to ensure the safety of those present” in light of the defendant’s reported escape attempt and history of physical violence. Id.

Under MRE 611(a), “‘a trial court, in certain circumstances, may prohibit a defendant who is exercising his right to self-representation from personally questioning the victim.’” People v Daniels, 311 Mich App 257, 268 (2015) (citation omitted). “MRE 611(a) allows the trial court to prohibit a defendant from personally cross-examining vulnerable witnesses—particularly children who have accused the defendant of committing sexual assault[; t]he court must balance the criminal defendant’s right to self-representation with ‘the State’s important interest in protecting child sexual abuse victims from further trauma.’” Daniels, 311 Mich App at 269 (citation omitted). “[T]he trial court wisely and properly prevented [the] defendant from personally cross-examining [his children regarding their testimony that he sexually abused them], to stop the children from suffering ‘harassment or undue embarrassment,’” following “a motion hearing at which [the court] heard considerable evidence that [the] defendant’s personal cross-examination would cause [the children] significant trauma and emotional stress.” Id. at 270-271, quoting MRE 611(a) (additional citations omitted). The defendant’s right to self-representation was not violated under these circumstances where the defendant was instructed “to formulate questions for his [children], which his advisory attorney then used to cross examine them.” Daniels, 311 Mich App at 270.

C.Requirements for Valid Waiver

“Absent a defendant’s valid waiver of their right to counsel, deprivation of counsel during critical stages of the criminal proceedings is a structural error subject to automatic reversal, even when a defendant formally requests to represent themself.” People v King, ___ Mich ___, ___ (2023). The right to counsel “is a fundamental right that cannot be forfeited and is preserved absent a personal waiver.” Id. at ___ (quotation marks and citation omitted). “Accordingly, a defendant need not affirmatively invoke their right to counsel in order to preserve that right—the right is preserved absent a personal and informed waiver, and it is not forfeitable. Therefore, without a valid waiver, a defendant remains entitled to the right to counsel for every critical stage of criminal proceedings.” Id. at ___. “Because defendant’s waiver of his right to counsel was invalid,” the King Court held that “he was deprived of counsel during significant portions of the critical stages in the proceedings, including trial, and the error [was] subject to automatic reversal.” Id. at ___.

“[A] trial judge must recognize that the first ground on appeal is probably going to be that the defendant was allowed to represent himself without having intelligently and voluntarily made that decision. . . . Therefore, pragmatically, and defensively, in addition to the legal necessity of establishing that a defendant voluntarily and intelligently reached this decision, the trial court should also protect itself — and the record.” People v Dennany, 445 Mich 412, 437-438 (1994) (quotation marks and citation omited). “[T]he most effective way for a trial court to safeguard against the opening of an appellate parachute is to comply with the court rules and [People v Anderson, 398 Mich 361 (1976)]). Dennany, 445 Mich at 438.

Under MCR 6.005(D), “[t]he 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.”

MCR 6.005(E) provides:

“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 refer the defendant to the local indigent criminal defense system’s appointing authority for the appointment of 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 for the appointment of 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.”

Additionally, pursuant to Anderson, 398 Mich 361 (1976), upon the defendant’s initial request to represent himself, the court must determine whether (1) the request was unequivocal, (2) the choice to proceed without counsel is knowing, intelligent, and voluntary, and (3) defendant acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court's business. People v Spears (On Remand), ___ Mich App ___, ___ (2023). In Spears, “defendant never unequivocally requested to represent himself” because “defendant actually was requesting substitute counsel, as clarified by his oral motion for new counsel at a . . . pretrial hearing.” Id. at ___. Accordingly, “the trial court did not abuse its discretion by ‘failing’ to address this request or by otherwise ‘denying’ self-representation.” Id. at ___.

“[T]rial 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.” Adkins, 452 Mich at 726-727. There is no specific list of questions that must be used; rather, the inquiry should be tailored to the particular case and stage of the proceedings. Iowa v Tovar, 541 US 77, 88-92 (2004). “If a judge is uncertain regarding whether any of the waiver procedures are met, he [or she] should deny the defendant’s request to proceed in propria persona, noting the reasons for the denial on the record.” People v Ratliff, 424 Mich 874 (1986). See also People v Russell, 471 Mich 182, 188 (2004) (“[I]t is a long-held principle that courts are to make every reasonable presumption against the waiver of a fundamental constitutional right, including the waiver of the right to the assistance of counsel.”). “The defendant should then continue to be represented by retained or appointed counsel, unless the judge determines substitute counsel is appropriate.” Adkins, 452 Mich at 727.

The trial court substantially complied with the requirements of MCR 6.005(D) and Anderson, 398 Mich 361, where “[b]oth the prosecutor and the trial court asked [defendant] a series of questions to ascertain whether he fully understood the dangers of self-representation;” “the trial court could properly consider the prosecutor’s questions and [defendant’s] responses as part of its ‘short colloquy’ to determine whether [defendant] fully understood the import of his waiver.” People v Campbell, 316 Mich App 279, 286, 288 (2016), overruled on other grounds by People v Arnold, 502 Mich 438 (2018).² Furthermore, although the trial court failed to specifically list the charges against the defendant and “never explicitly found that his waiver request was unequivocal, knowing, and voluntary,” these errors were harmless; “there [was] record support that [defendant] was fully aware of the charges against him” and that the trial court “endeavored to make the requisite determinations and . . . actually found that [the] waiver was unequivocal, knowing, and voluntary.” Campbell, 316 Mich App at 287-288.

“‘[A] defendant may forfeit his self-representation right if he does not assert it “in a timely manner.”’” People v Richards, 315 Mich App 564, 576 (2016), rev’d in part on other grounds 501 Mich 921 (2017)³ (citations omitted). Although “‘Faretta[, 422 US 806,] did not establish a bright-line rule for timeliness,’” the timeliness of a motion for self-representation “is established, at least in part, by the date of trial relative to the date of the request.” Richards, 315 Mich App at 579 (citations omitted). Accordingly, “the trial court’s decision denying defendant’s request for self-representation [as untimely] was well within the range of reasonable and principled outcomes and was not an abuse of discretion” where “[i]t was not until after the jury had been sworn that defendant, through counsel, made the request to proceed in proper personia [sic].” Id. at 580, 581 (noting that “defendant never made a [pretrial] request for self-representation” and that he filed multiple motions for new counsel) (citations omitted). Additionally, case law does not require “that a trial court must conduct a Faretta inquiry prior to denying a request as untimely;” nor must the court “engage[] in an inquiry pursuant to MCR 6.005(D)” regarding waiver of counsel. Richards, 315 Mich App at 578 (citations omitted). “[B]ecause the underlying rationale for a trial court to conduct an inquiry pursuant to MCR 6.005(D) ‘is to inform the defendant of the hazards of self-representation, not to determine whether a request is timely,’” it is “unnecessary for the trial court to engage in an inquiry pursuant to MCR 6.005(D)” when the dispositive issue is “whether defendant asserted his right to self-representation in a timely manner.” Richards, 315 Mich App at 578 (citations omitted).

Cases discussing waiver of counsel:

•People v Russell, 471 Mich 182, 184 (2004).

A defendant’s refusal to cooperate with his or her appointed counsel and his or her unequivocal request to be provided with a different defense attorney at trial does not constitute a waiver of counsel or operate as an implicit request to proceed in propria persona (in pro per or pro se) where the record shows that “[the] defendant clearly and unequivocally declined self-representation.”

In Russell, 471 Mich at 184, the defendant informed the trial court at the beginning of trial that he wanted the trial court to appoint a substitute for the defendant’s second court-appointed attorney. The court refused to appoint different counsel unless the defendant offered “some valid reason” other than “personality difficulties” to justify the appointment of a third defense attorney. Id. at 184. The defendant failed to provide any such explanation, and the court explained to the defendant his options: (1) the defendant could retain the counsel of his choice; (2) the defendant could continue with the present attorney’s representation; (3) the defendant could represent himself without any legal assistance; or (4) the defendant could represent himself with the assistance of his present attorney. Id. at 184-185. The defendant continued to express his dissatisfaction with his present attorney’s defense at the same time that he clearly indicated that he did not wish to conduct his own defense, and that he “need[ed]” to be provided with “competent counsel.” Id. at 185-186. However, at trial he “expressly rejected self-representation[.]” Id. at 192. Accordingly, the Court of Appeals erred in determining “that [the] defendant implicitly ‘made his unequivocal choice’ to proceed in propria persona ‘by his own conduct’ when he continued to reject appointed counsel’s representation.” Id. at 186-187.

•People v Kammeraad, 307 Mich App 98, 129-130 (2014).

While “the circuit court attempted to obtain a formal waiver of counsel by [the] defendant, along with the attendant invocation of the right to self-representation, carefully imparting the information encompassed by MCR 6.005(D) and then directly querying [the] defendant with respect to whether he wished to represent himself[,] [he] . . . vigorously voiced a refusal to represent himself, and he refused to expressly acknowledge, let alone accept, the right-to-counsel and waiver-related information conveyed to him by the court.” Because “[t]he circuit court was unable to make an express finding that [the] defendant fully understood, recognized, and agreed to abide by the waiver of counsel procedures[,] . . . the required waiver procedures were not met, ostensibly dictating that appointed counsel continue to represent [the] defendant.” However, the Court concluded that the defendant had forfeited his right to counsel.

• People v Williams, 470 Mich 634, 647 (2004).

Even where the 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,” the defendant “subsequently made an intelligent, knowing, and voluntary waiver of this right to counsel after the trial court rejected [the] defendant’s request to recall and cross-examine the witnesses.”

D.Standard of Review

A trial court’s factual determination whether a waiver was knowing and intelligent is reviewed for clear error, while the meaning of “knowing and intelligent” is a question of law reviewed de novo on appeal. Williams, 470 Mich at 640.