People v. Wilson
People v. Wilson
Opinion of the Court
Defendant was convicted by jury verdict of robbeiy armed. MCLA 750.529; MSA 28.797. From this conviction he appeals, raising three allegations of error. Finding only two issues meritorious, we limit our discussion to them.
Evidence of defendant’s dissatisfaction with appointed counsel appeared during his preliminary examination and continued until the trial judge permitted counsel to be discharged. Defendant complained that counsel had not made himself available to discuss the case at length or prepare an adequate defense, and failed to work for his best interests. Defendant further informed the trial judge that the attorney-client relationship was strained to the extent that communications between the parties had ceased. Although defendant’s sole defense rested upon alibi, he was afraid to disclose the names of such potential witnesses, believing that his attorney was conspiring with the prosecutor.
The truth of these allegations cannot be determined upon the inadequate record presented, yet we find that they are serious. The trial judge refused to consider the merits of defendant’s complaints, replying that defendant had been appointed competent counsel and he had no right to an attorney of his choice. He then directed defendant to accept this appointed attorney or proceed in propria persona, and defendant reluctantly accepted the latter choice.
The trial judge’s conclusion that an indigent defendant had no right to appointed counsel of his choice is a correct statement of law. People v
In the present case the trial judge failed to investigate defendant’s claims or exercise his discretion. His conclusion that appointed counsel was competent was unresponsive to defendant’s allegation regarding the inadequacy of counsel’s performance and the destruction of communication and confidence between the parties. Appellate counsel has procured an affidavit from appointed counsel, attesting to the deterioration of the attorney-client relationship. The trial judge received timely notice of defendant’s dissatisfaction with counsel and the judicial process would not have been subverted by the appointment of new coun
Defendant raises a second allegation of error which further discloses his need to be represented below. He contends that the prosecutor committed reversible error by cross-examining him with regard to a vacated conviction. This type of impeachment was clearly rejected in People v Crable, 33 Mich App 254 (1971). The error was compounded by the trial judge’s instruction that the conviction could be considered as bearing upon defendant’s credibility. Had defendant been represented by counsel, knowledge of the vacated conviction would have been denied the jury by a timely objection or proper jury instruction. We are confident that repetition of this error at new trial will be eliminated with the assistance of counsel.
Our reading of the record discloses an additional problem that may arise upon remand. The trial judge considered defendant’s juvenile record for sentencing purposes and this procedure should no longer be permitted. People v Bukoski, 41 Mich App 498 (1972); People v McFarlin, 41 Mich App 116 (1972), leave granted 388 Mich 761 (1972). Contra, People v Pence, 42 Mich App 215 (1972). Since the trial judge has been exposed to this prejudicial information, we direct that retrial be heard before a new trial judge.
Reversed and remanded.
The coercive effect of such a mandatorily imposed choice without the benefit of an evaluation of his claims negates any contention that defendant voluntarily waived his right to counsel.
This right to substitution of appointed attorneys in Federal courts is currently codified in 18 USC 3006A(c). See United States v White, 451 F2d 1225 (CA 6,1971).
Concurring in Part
(concurring in part, dissenting in part). I am in agreement with the majority on all of the issues considered except the question of
"Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. (Citations, omitted.) This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.”
Reference
- Cited By
- 25 cases
- Status
- Published