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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 26, 2017

v No. 328331 Wayne Circuit Court ELLIOT RIVERS, also known as, MELVIN JONES, LC No. 14-008795-01-FH

Defendant-Appellant.

Before: S AAD , P.J., and M ETER and M URRAY , JJ.

P ER C URIAM

.

Defendant appeals as of right from his conviction following a jury trial of first-degree home invasion, MCL 750.110a(2). The court sentenced defendant as a third-offense habitual offender, MCL 769.11, to 36 months’ to 20 years’ imprisonment. We affirm.

Defendant’s neighbor, Jerome Bro wn, requested that defendant r etrieve his pit bull from Brown’s yard. Defendant approach ed defendant’s front door, pus hed in a glass or plastic portion of the door, and entered Brown’s home. When Brown asked defend ant to leave, defendant punched Brown. Brown retrieved a knife from his kitchen and st abbed defendant, who briefly backed out of the home onto the front porch, but then defendant again entered Brown’s home. Brown testified that he tried to stab defendant again, but defe ndant deflected the knife, which hit defendant above his eyebrow. After defendant left the home a s econd time, Brown went to a neighbor’s home to call the police. He described defendant to the responding officers, and they returned with defendant in a pol ice car after canvassing the ne ighborhood. Brown confirmed
that defendant was the man w ho entered his home and punched him

.

Defendant first contends that the trial court failed to comply with the requirements of
case law and the court rules when it secured his waiver of the right to counsel. This Court
reviews de novo whether a defendant waived his Sixth Amendment right to counsel, but reviews for clear error any factual findings underlying the trial court ’s decision. People v Williams , 470 Mich 634, 640-641; 683 NW2d 597 (2004). We give due respect to the trial court’s assessment of credibility. Id . “Clear error exists if the reviewing court is left with a de finite and firm
conviction that a mistake has been made.” People v Johnson , 466 Mich 491, 497-498; 647 NW2d 480 (2002). Defendant also contends that the court failed to reaffirm his decision to waive the right to counsel at all subsequent proceedings. Howe ver, defendant did not preserve-2- this issue below, so our review is for plain error affecting su bstantial rights. People v Carines

, 460 Mich 750, 763; 597 NW2d 130 (1999); People v Lane , 453 Mich 132, 140 ; 551 NW2d 382 (1996).

A person accused of a crime and facing the possibility of inca rceration has a constitutional right to have the assistance of a lawyer at every critical stage of the criminal

process. Williams , 470 Mich at 641. “The United States Constitution does not, h owever, force a lawyer upon a defendant; a crim inal defendant may choose to wai ve representation and represent
himself.” Id

.

When confronted with a defendant who wishes to represent himse lf or herself, a trial
court must determine that the three requirements stated in People v Anderson , 398 Mich 361; 247 NW2d 857 (1976), have been met: the court must ensure that the defendant’s request is unequivocal; that he or she “is asserting the right knowingly, intelligently, and voluntarily after being informed of the dangers and disadvantages of self-represe ntation;” and that the defendant’s self-representation “will not d isrupt, unduly inconvenience, an d burden the court and the
administration of the court’s business.” People v Willing , 267 Mich App 208, 219; 704 NW2d 472 (2005). Similarly, a trial court “may not permit the defen dant to make an initial waiver of the right to . . . a lawyer” unless the trial court first advis es him or her “of the charge, the maximum possible prison sentence . . . , any mandatory minimum sentence . . . , and the risk involved in self-representation,” and offers “the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportuni ty to consult with an appointed lawyer.” MCR 6.005(D).

Trial courts must substantially comply with the requirements s tated in Anderson and MCR 6.005(D). People v Adkins (After Remand) , 452 Mich 702, 726; 551 NW2d 108 (1996), overruled in part on other grounds by Williams , 470 Mich at 641 n 7. “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 proced ures.” Adkins , 452 Mich at 726-
727. “The nonformalistic nature o f a substantial compliance ru le affords the protection of a strict compliance rule with far less of the problems associated with r equiring courts to engage in a word-for-word litany approach.” Id . at 727. The Michigan Supreme Court has stated that the substantial compliance standard “protects the vital constitutio nal rights involved while avoiding the unjustified manipulation which can otherwise throw a real b ut unnecessary burden on the criminal justice system.” Id . (citation and quotation marks omitted).

Appointed counsel Richard Glanda initially represented defenda nt, but the trial court
allowed Glanda to withdraw after defendant filed a grievance ag ainst him. The court then appointed attorney Charles Longstr eet to represent defendant, a nd after defendant expressed a desire to represent himself, the court advised defendant to con sult with Longstreet about this decision and indicated it would address the matter later. Long street represented defendant at a subsequent pretrial hearing without complaint, and, at another pretrial hearing, defendant affirmed that he wanted Longs treet to represent him.

At a final conference before trial, defendant refused to state whether he was accepting or rejecting the prosecution’s plea offer and twice stated that he wanted to represent himself. The-3- court relieved Longstreet of his d efense duties, but Longstreet nevertheless continued to advocate for defendant. Longstreet convinced defendant to answ er the court’s question;
defendant then asserted that he was rejecting the prosecution’s plea offer. Defendant again asserted that he wanted to represent himself, and the court sta ted that Longstreet was free to go. However, Longstreet asserted tha t he could function as defendan t’s standby counsel, and the court agreed. Thereafter, the court allowed defendant to repre sent himself and argue motions asserting that the court lacked j urisdiction and that the courthad violated his right to a speedy trial. The prosecutor then noted t hat the court needed to furt her address the waiver of counsel.

The court inquired if defendant understood that he had the rig ht to have a lawyer appointed, and defendant asserted that he understood. Defendan t agreed that he had indicated previously in writing and on the record that he wanted to repre sent himself. The court explained
that it would be unable to assist him and that he would be held to the same standard as a lawyer if he represented himself; defendant asserted that he understoo d. The court informed defendant that he would have to abide by the rules of evidence and by the court rules; defendant again affirmed that he understood. The court inquired whether defend ant believed he could adequately represent himself without a law yer, and defendant raised concer ns about his lack of access to legal resources while in jail. The court suggested that defend ant could consult with standby counsel Longstreet about legal r esources, and defendant stated that he was open to that arrangement. The court inquired whether defendant understood that he would be opposed by a “seasoned prosecutor,” and he sta ted that he understood. The c ourt informed defendant that the situation was “very serious” and there were “very serious charg es” levied against him, indicated
that he was a third-offense ha bitual offender, and warned that the “sentencing gui delines are very high.” Defendant affirmed that he understood and still desired to represent himself.

Defendant has presented us with no basis for reversal in conne ction with his waiver of counsel. Defendant unequivocally asserted, several times, that he wanted to represent himself. Defendant knowingly, intelligently, and voluntarily waived his right to counsel after being informed of the dangers of self-representation. The court warn ed defendant that he would have to follow the rules of evidence and the court rules, that the c ourt could not assist him, and that he would face a “seasoned prosecutor.” Defendant affirmed that he had indicated in writing and on
the record that he desired sel f-representation. The court also verified that defendant was not under the influence of any substances that could affect his abi lity to make decisions. In short, the court apprised defendant of the perils of self-representation s uch that defendant waived his right to counsel knowingly, intelligently, and voluntarily. The cour t stated that it had no “doubt in [defendant’s] competence . . . .” With regard to the third pro ng of Anderson , there was no evidence (and defendant points to none) to indica te that defend ant would burden the court.

The sole argument concerning MCR 6.005(D) that defendant makes on appeal is that “[t]he trial court did not advise [d]efendant of the maximum po ssible prison sentence . . . .” Under the specific circumstances of this case, we find no basis for reversal. In Adkins , 452 Mich at 731, the Court found adequate compliance with MCR 6.005 when the trial court stated that a “ ‘very serious case’ ” was at issue and where the possible punis hment had been expressed to the defendant at the arraignment. Here, the trial court twice note d the “very serious” nature of the case. The court also stated that “very serious consequences” c ould result, that defendant’s habitual offender status “enhances the penalty,” and that the “ sentencing guidelines are very high.” Defendant indicated that he understood and still wanted to represent himself. In a motion-4- signed by defendant himself befor e the final conference, defend ant acknowledged that he had been arraigned on September 26, 2014; the register of actions i ndicates that the arraignment on the warrant took place on that date. In addition, the register of actions indicates that defendant was arraigned on the information on October 15, 2014. The warra nt and information specified the maximum penalty for the cha rge and also set forth the habit ual offender enhancement. Under these circumstances, we simply cannot find that defendant is en titled to appellate relief.

Defendant contends that the tr ial court failed to reaffirm def endant’s waiver of the right to counsel at each subsequent proceeding pursuant to MCR 6.005( E), which states:

(E) Advice at Subsequent Proceedings. If a defendant has waived the assistance of a lawyer, the record of each subsequent proceedin g (e.g., preliminary examination, arraignment, proceedings leading to po ssible revocation of youthful trainee status, hearings, trial, or sentencing) nee d 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 defen dant 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 unab le to retain one, the court must appoint one; or

(3) if the defendant wants to retain a lawyer and has the fina ncial ability to do so, the court must allow the defendant a reasonable opportun ity to retain one.

The court may refuse to adjourn a proceeding to appoint counse l or allow a defendant to retain counsel if an adjournment would significa ntly prejudice the prosecution, and the defendant has not been reasonably diligent in seeking
counsel.

Unlike the rules relating to an initial waiver of counsel, the procedure outlined in MCR 6.005(E) does not stem from any cons titutional requirement. Lane , 453 Mich at 139.

Although the trial court had defe ndant affirm that he wanted t o represent himself at a pretrial hearing, at trial, and at sentencing, the court did no t fully comply with MCR 6.005(E) because the court did not prompt this affirmation at certain other hearings and did not remind defendant of the continuing right to a lawyer’s assistance. Ho wever, defendant has not demonstrated that the trial court’s failures constitute plain e rror affecting his s ubstantial rights because defendant does not explain how the proceedings would ha ve been different had defendant been represented by counsel. See, generally, Lane , 453 Mich at 140, and Carines , 460
Mich at 763.

Defendant also contends that the trial court violated MCR 6.00 5(E)(2) because it failed to appoint an attorney for him at tr ial after he allegedly request ed an attorney. Defendant initially affirmed that he wanted to represent himself at trial. After j ury selection concluded, defendant told the trial court, “I don’t know if I want to participate inthis.” The trial court told defendant-5- to “think about it and . . . let us know when you get back from lunch,” adding, “I don’t know how you’re going to represent you rself and not participate.” T he trial court later explained that it
was in defendant’s best interest to participate because no one would question witn esses for him if he decided not to participate. Defendant explained that he had “second thoughts” about representing himself, and the court responded, “I tried to tell you that you shouldn’t represent yourself but you were determined to represent yourself so final ly I’m just letting you do what you wanted.” After asserting thatthe “process [wasn’t] fair,” defendant stated, “so I think I might be going back to allowing counsel to represent me.” The trial court responded, “[n]o, that’s not how this works,” asserting that defendant had repeat edly requested that he be allowed to represent himself. The court recalled that defendant had pr eviously accused the court and Longstreet of “conspiring” and forcing him to accept appointed counsel. The trial court reiterated that the one thing defendant had been “steadfast in from the beginning” was his desire to represent himself. The court noted that he had appointed tw o different lawyers for defendant and that defendant had fired appointed counsel Longstreet “abou t three times . . . .” The court stated that it had “gone above and beyond and you know it.” Th ereafter, defendant continued to represent himself at trial.

Defendant contends that the tria l court’s actions violated MCR 6.005(E)(2), which states that “if the defendant requests a lawyer and is financially una ble to retain one, the court must appoint one.” However, defendant never affirmatively requested a lawyer. Defendant offered equivocal declarations that he w as having “second thoughts” abo ut self-representation and stated
that “I think I might be going back to allowing counsel to represent me.” (Emphasis added.) Defendant offered equivocations and never made an unambiguous r equest to be represented by an attorney. We will not allow defendant to use gamesmanship i n attempting to obtain appellate relief with regard to a waiver of counsel. S ee, generally, People v Russell , 471 Mich at 182, 192; 684 NW2d 745 (2004). Significantly, the trial court specifical ly advised defenda nt immediately before trial that he had access to two standby lawyers and that the court would allow recesses if defendant needed to consult with them; the court then stated, “ But you are representing yourself today because that’s what you wa nted, right?” and defendant ans wered, “Yes.” Finally, although it is not crucial to our analysis, we note that “[t]he court may refuse to adjourn a proceeding to appoint counsel if . . . an adjournment would significantly pre judice the prosecution, and the defendant has not been reasonably diligent in seeking counsel.” MCR 6.005(E). Defendant’s equivocal statements about counsel occurred after a significant part of trial (jury selection) had already occurred, and defendant w as not anywhere near “diligent ” in seeking counsel and in fact was quite the opposite: steadfast in his desire to represent hi mself. Under the specific
circumstances of this case , we find no basis for reversal.

Defendant next argues that the trial court denied defendant hi s right to confront a witness against him when the court, sua sponte, entered the report of D etroit Police Evidence Technician David Andrews into evidence because he was not present to testi fy. This Court reviews unpreserved claims of nonstructura l, constitutiona l error for p lain error. Carines , 460 Mich at 763; see also People v Shepherd , 472 Mich 343, 347; 697 NW2d 144 (2005).

To avoid forfeiture under the pl ain error rule, three requireme nts must be met: 1) error must have occurred, 2) the error was plain, i.e., clear o r obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court-6- proceedings. It is the defendant rather than the Government wh o bears the burden of persuasion with respect to pr ejudice. Finally, once a defen dant satisfies these three requirements, an appellate court must exercise its discre tion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairne ss, integrity or public reputati on of judicial proceedings independent of the defendant’s innocence. [ Carines , 460 Mich at 763-764 (citations and quotation marks omitted.]

The foundation of defendant’s appellate argument is faulty bec ause he asserts that Andrews was a “prosecutor witness . . . .” The transcript inst ead reveals that Andrews was on defendant’s witness list. Defendant states that “[t]he error prejudiced [d ]efendant because he was not allowed to gain admissions for [sic] Officer Andrews th at the evidence gathering in the present case was woefully inadequate.” This argument simply do es not indicate how the report itself, even assuming its admission was plain error, was prejud icial. Defendant appears to be making a roundabout argument that Andrews should have been comp elled to appear, but his appellate argument is inadequate in this respect; for example, he cites no law relating to compulsory process. See, e.g., Mitcham v Detroit , 355 Mich 182, 203; 94 NW2d 388 (1959) (discussing inadequate briefi ng). In addition, defendant used the report itself to cross-examine the officer in charge and has not indicated how actual testimon y from Andrews would have
further serviced him. We find no basis for reversal.

Affirmed.

/s/ Henry William Saad
/s/ Patrick M. Meter /s/ Christopher M. Murray