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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 28, 2017

v No. 329964
Kent Circuit Court

CLIFTON SHARY-SHMORREE-L WITHERSPOON, LC No. 15-001542-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and M ARKEY and M. J. K ELLY , JJ.

P ER C URIAM

.

Defendant appeals as of right his conviction of perjury, MCL 7 67A.9(1)(b). For the
reasons set forth in th is opinion, we affirm.

I. BACKGROUND

This appeal arises from a homicide that occurred near the Chic ken Coop restaurant in Grand Rapids, Michigan in the early morning hours of September 21, 2013. On that date, Rick Hammond was killed when he suffered four gunshot wounds to his abdomen, lower back, upper leg and the base of his thumb. An autopsy revealed that the le thal shots had been fired from close range. An investigative subpoena was obtained by police and defendant was interviewed on September 11, 2014. While under oath, defendant stated that he went to the Chicken Coop restaurant once the night of the slaying. Defendant also told police that he was driven to the “Cocktailz Bar” by a person named “Trenton” in a black Malibu. Defendant also informed police during the interview that on the day and night in questi on he had been drinking and smoking marijuana such that he w as “high as hell.” According t o other witnesses, defendant’s testimony was not truthful so he was charged with perjury in vi olation of MCL 767A.9(1)(b) and
as a fourth-offense habitual o ffender in violation of MCL 769.1 2.

Prior to trial, defendant wrote notes to trial judges in Kent County initially complaining, among other things, that his tria l counsel and the prosecutor h ad provided him w ith transcripts on-2- the proceedings in the underlying murder trial. 1 Defendant contended th at he should not be in possession of those materials and as such, he was essentially c omplaining that he had received
too much information from his trial counsel.

Defendant, through counsel, brought a motion to quash the Amen ded Information. The trial court denied the motion. Then, on July 6, 2015, a brief hearing was held during which the trial was adjourned for a later date. At the hearing, defendan t addressed the trial court, stating, “Your Honor, can I address the Court, please?” The trial court responded, “No, you can’t,” and then defendant stated, “I don’t want him representing me.” The trial court responded, “Okay. All right. Hold on a second. I’ ll listen to him for a moment. ” Defendant then stated as follows: “This attorney, I don’t know w hat it is, and I don’t know what’ s the problem with the—the [assistant prosecuting attorney], here. But he—he has not brou ght me my discovery. He got like, six or seven other investigative subpoenas—[.]” The tria l court asked defendant what he had in his hand, and defendant indicated it was part of the dis covery. The trial court stated that then the prosecutor had actually given defendant discovery and that defendant was lying to the court. Defendant respo nded, stating as follows:

He hasn’t given me full discovery. He keep tellin’ me he got w itnesses transcripts, and I said, well, we got trial today. And it was a couple witnesses on the witness list that he was supposed to call. I don’t even kn ow what they
testified to or sai d because I don’t have t heir transcripts. S o—

The trial court res ponded, “All right. Jus t a second, sir. I’ ve heard enough. I’m not going to excuse [trial counsel]. He’s a very experienced attorney.” De fendant insisted that he did not want defense counsel to represent him, but the trial court conc luded that it was “not going to excuse him” because it did not “see a basis for that,” and the case was “going to be adjourned for only a couple of weeks.” The tri al court indicated that a subs titution of counsel at that point in the case would be a delay that th e trial court was not going to cause. The trial court instructed defense counsel to provide defendant with copies of anything he had not yet provided to defendant and concluded the hearing. Thereafter, a trial was h eld and the jury found defendant guilty of perjury. Defendant was s entenced as previously state d, and he appeals as of right.

II. ANALYSIS

On appeal, defendant argues that the trial court abused its dis cretion by denying his request for substitution of couns el without making adequate inq uiry regarding disagreement
between defendant and defense counsel. This Court reviews this preserved claim for an abuse of
discretion. People v Strickland , 293 Mich App 393, 397; 810 NW2d 660 (2011). “A trial court

1 Additionally, defendant contended, among other things, that th e assistant prosecutor had conspired with his trial counsel to deprive defendant of his co nstitutional rights. Defendant additionally asked that the tri al court place hold both counsel in contempt. Lastly, defendant informed the trial judges that he was planning to file a multi- million dollar lawsuit against Kent County.-3- abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes.” People v Yost , 278 Mich App 341, 353; 749 NW2d 753 (2008).

“The Sixth Amendment provides that the accused in a criminal p rosecution ‘shall enjoy the right . . . to have the Assist ance of counsel for his defen ce.’ ” People v Russell , 471 Mich 182, 187; 684 NW2d 745 ( 2004), quoting US Const, Am VI. Howeve r, a defendant i n a criminal case has only a limited right to challenge the appointed defens e counsel:

An indigent defendant is guarant eed the right to counsel; howev er, he is not entitled to have the attorney o f his choice appointed simply by requesting that the attorney originally appointed be replaced. Appointment of a su bstitute counsel is warranted only upon a showing of good cause and where substitut ion will not unreasonably disrupt the judicial process. Good cause exists w here a legitimate difference of opinion develops b etween a defendant and his appo inted counsel with regard to a fundamental trial tactic. [ People v Mack , 190 Mich App 7, 14; 475 NW2d 830 (1991) (citations omitted).]

The presence of circumstances j ustifying good cause depend on t he individual facts in each case. People v Buie , 298 Mich App 50, 67; 825 NW2d 361 (2012).

“When a defendant asserts that the defendant’s assigned attorn ey 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 conc lusion on the record.” Strickland

, 293 Mich App at 397 (citation and quotation marks omitted). Ho wever, good cause for substitution of counsel does not exist merely because a defenda nt is generally unhappy with the appointed attorney’s representation or because a defendant lack s confidence in the appointed attorney without subs tantial reason. Id. at 398. Furthermore, “a defendant’s conviction will not be set aside, even in the absenc e of judicial consideration of the defendant’s allegation, if ‘the record does not show that the lawy er assigned to represent [the defendant] was in fact inattentive to his [or her] res ponsibilities.’ ” Buie , 298 Mich App at 67, quoting People v Ginther , 390 Mich 435, 442; 212 NW2d 922 (1973).

In this case, defendant argues that the trial court should hav e conducted a more exhaustive inquiry at the July 6, 2015 hearing. Therefore, def endant’s claim on appeal does not concern whether trial counsel was effective, but rather whether the trial court erred by not making more factual findings regar ding defendant’s claim for a different attorney. We find defendant’s claims, however they are presented, meritless.

When defendant was writing tria l judges in Kent County his comp laint was that he was given transcripts of proceedings to which he had no right to po ssess. In short, he claimed he had acquired too much information. Then, as his trial date loomed, defendant told the trial judge that he did not have enough informati on. The trial judge had this v ery information in front of him at the time he made his decision to deny defendant’s request for a different attorney. As this Court has previously held, substitution of counsel is only warranted upon a showing of good cause.

Mack , 190 Mich App at 14. General unhappiness or lack of confidenc e in defense counsel by defendant is not enough for a showing of good cause. Strickland , 293 Mich App at 398. When-4- defendant asserted that he wanted a substitution of counsel, th e trial court in this case did have a duty to hear defendant’s claim, and make and findings if there was a factual dispute. Id . at 397. Here, though, defendant did not present a factual dispute, he d id not allege good cause for substitution of counsel, and in fact he only minimally addresse d defense counsel’s actions in representing him as a basis for his claim—he instead accused th e prosecution of not providing as much discovery material as it should have. Hence, when defenda nt was given the opportunity to explain to the trial court why a different attorney should be a ppointed for him, he complained about what he perceived as the prosecution and defense counsel’ s failure to provide him with all
the documents that he believed he should have received. That c laim simply did not present good cause for substitution of counsel or call for any kind of furth er factual inquiry into a dispute between defendant and defense counsel, especially after defenda nt admitted that he had in fact received discovery materials. Therefore, the trial court did n ot abuse its discretion by denying defendant’s request for substitution of counsel. Strickland , 293 Mich App at 397. 2

Affirmed.

/s/ Stephen L. Borrello /s/ Jane E. Markey /s/ Michael J. Kelly

2 To the extent defendant seemingly argues that his complaints ag ainst defense counsel were more fully addressed in letters that he wrote to the trial cour t, we find this contention also
without merit. Defendant claimed in the letters that defense c ounsel should have cited cases in his motion to quash, but such an assertion does not support def endant’s claim for substitution of counsel. In sum, none of the issues raised on appeal represent ed a legitimate difference of opinion with regard to a fundamental trial tactic. Instead, th ese complaints, at best, represented nothing more than general unhappiness or lack of confidence in defense counsel by defendant, which was not enough for a showing of good cause. Strickland , 293 Mich App at 398. Additionally, even if there were an absence of judicial conside ration of defendant’s claims in this case, the trial court’s decisi on should be affirmed because the record does not show that defense
counsel was in fact inattenti ve to his responsibilities. Buie , 298 Mich App at 67. The record
demonstrates that defense counsel raised appropriate pretrial m otions, presented arguments to the trial court and jury, cross-exam ined witnesses, raised proper o bjections, moved for a directed verdict, and otherwis e appropriately preformed his duties repre senting defendant.