**_______________________________** Michigan Supreme Court Lansing, Michigan

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor 

# Opinion

Robert P. Young, Jr. Stephen J. Markman

**FILED JULY 20, 2004**

**THE PEOPLE OF THE STATE OF MICHIGAN**  **Plaintiff -Appellant,**

**v No. 123537**  **RODNEY WILLIAMS, Defendant-Appellee.** 

**BEFORE THE ENTIRE BENCH CORRIGAN, C.J.**  **We granted leave to appeal to determine whether the trial court’s denial of defendant’s request to read his**  **preliminary examination transcript during a waiver-of**   ** counsel proceeding violated the requirements of** People v Anderson **, 398 Mich 361; 247 NW2d 857 (1976), and MCR 6.005(D).**  1 **The Court of Appeals held that the trial court’s waiver proceeding did not comply with the requirements of** 

**1 468 Mich 945 (2003).** Anderson **and reversed defendant’s conviction on that basis.** 2 **We hold that the trial court did not abuse its discretion in denying defendant’s request and that defendant’s waiver**  **of counsel was unequivocal, knowing, and voluntary. Accordingly, we reverse the Court of Appeals decision and**  **remand for consideration of defendant’s remaining claims.**

**I. FACTS AND PROCEEDINGS**  **Defendant was charged with first-degree felony murder,** 3 **possession of a firearm during the commission of a felony (felony firearm),**  4 **and armed robbery.** 5 **The trial court appointed counsel for defendant, but following defendant’s**  **preliminary examination, counsel withdrew because of a breakdown in the attorney-client relationship. The trial**  **court provided defendant with a replacement court-appointed attorney.**  **During the prosecutor’s case-in-chief, defendant became unhappy with his attorney’s cross-examination of two**  **prosecution witnesses. Defendant informed the court that he wished to represent himself:** 

**2 Unpublished opinion per curiam, issued February 28,**  **2003 (Docket No. 232827).**

3 **MCL 750.316(1)(b).**

4 **MCL 750.227b.**

5 **MCL 750.529.**

**2 I do not wish to adjourn the proceeding,**  **because I know this has been going on all along. But I would like to represent myself, in proper**  **person. . . .** *** * *** **[O]nly if this Court would agree orally, and a written consent, please, that [two prosecution**  **witnesses] may be brought back to court, and allow me to recross-examine [them].**  **The trial court explained to defendant the risks he faced in defending himself, including defendant’s lack of**  **familiarity with the Michigan rules of criminal procedure. Defendant answered that he understood the risks involved.**  **He stated that he wished to “confront [his accusers] and question them” as was his “right by the United States**  **Constitution.” The trial court again asked defendant whether he**  **wished to represent himself; again, defendant answered, “Yes, ma’am.” The trial court advised defendant that he**  **would not later be permitted to appeal a conviction on the basis of his own ineffective assistance of counsel.**  **Defendant answered, “Yes I read that.” The trial court then asked defendant, “Are you making**  **this request knowingly, intelligently, and voluntarily?” Defendant answered, “Yes, ma’am.” The trial court informed**  **defendant that he would not be permitted to disrupt the courtroom, and that if he did, his attorney would be**  **brought back to represent defendant. Defendant answered,**

**3 “Yes ma’am. I would not disrespect this Court, or do**  **anything that’s unconduct of a gentleman [sic].” The trial court then advised defendant of the sentence**  **he would face if convicted. Defendant said that he understood. Defendant again stated that he wished to**  **reexamine two excused prosecution witnesses:** The Defendant **: Ma’am, is it also on the**  **record, and it will probably be written down, that I will have an opportunity to recross**  **** **examine the prosecution’s first two witnesses**

**. . . .** The Court **: No, we’re not bringing in those**  **other witnesses, we’re continuing with the trial. It’s the Court’s opinion that you had proper**  **representation. . . . You can still have [your court-appointed attorney] if you want, or you can**  **continue and represent yourself, but you are taking serious risks. . . . Do you understand**  **that? Defendant insisted that at his preliminary examination**  **one of the prosecution’s witnesses had testified that he was “only fifty percent sure” that defendant was the**  **perpetrator. Defendant was dissatisfied with his attorney because he did not cross-examine the witness on this**  **alleged testimony. The prosecutor objected to defendant’s characterization of the witness’s testimony:**  **And there is nothing in that exam transcript [preliminary examination] that indicates that**  **[the witness is] only fifty percent sure. What [defendant]’s saying he’s taking out of context.**  **And if [defendant] reads the whole thing, I think he’ll understand why [defendant’s attorney]** 

**4 didn’t elaborate with further questioning of the**  **witness. Defendant requested time to read the written**  **preliminary examination testimony. The trial court denied defendant’s request:**  **No. I’m going to ask you one more time. Do you want to represent yourse**  **lf? Because we’re bringing in the jury.**  The Defendan **t: Your Honor, with all due respect. . . .**  The Court **: I asked you one question.**
*** * *** The Court **: Answer my question.**  The Defendant **: Yes, ma’am.**  The Court **: All right. Let’s bring in the jury.**  **The trial court once again informed defendant that if he disrupted the proceedings, his court-appointed attorney**  **would be brought back to represent him. Defendant stated that he understood.**  **Defendant’s court-appointed attorney remained as standby counsel. He advised defendant throughout the**  **trial, took part in sidebar discussions, helped defendant prepare his closing argument, and argued to the court**  **regarding jury instructions and the form of the verdict.**

**5 Defendant was ultimately convicted**  **6 and appealed by**  **right. In a split decision, the Court of Appeals reversed defendant’s conviction and remanded for a new trial. The**  **majority held that defendant’s waiver of counsel was not unequivocal because defendant might not have elected self**  **** **representation had the trial court allowed him to read the preliminary examination transcript. The majority opined:**  **[The trial court’s] cursory handling of defendant’s request violated defendant’s right to**  **have the proceeding conducted so as to ensure “that he knows what he is doing and his choice is**  **made with eyes open.” [Slip op at 1 (citations omitted).]**  **The Court of Appeals dissent would have held that the trial court’s denial of defendant’s request to read the**  **preliminary examination transcript occurred after the court had already concluded the waiver of counsel procedure, and**  **related solely to how the trial would proceed from that point forward.** 

**II. STANDARD OF REVIEW**  **The inquiry regarding waivers of Sixth Amendment rights mirrors the inquiry of whether a defendant has**  **validly waived his Fifth Amendment rights: In each instance, the question is whether the defendant gave a** 

6 **The trial court vacated defendant’s conviction for armed robbery on a double jeopardy ground.** 

**6 knowing, intelligent, and voluntary waiver. See**  Patterson v Illinois **, 487 US 285, 297-298; 108 S Ct 2389; 101 L Ed 2d 261 (1988) (waiver of Sixth Amendment rights is not more**  **difficult to effectuate than waiver of Fifth Amendment rights).**  **Accordingly, we adopt the standard of review that has been used for trial court decisions regarding waivers of**  **Fifth Amendment rights, finding it equally applicable to**  **decisions regarding waivers of Sixth Amendment rights: “Although engaging in a de novo review of**  **the entire record . . ., this Court does not disturb a trial court’s factual findings**  **regarding a knowing and intelligent waiver of [Sixth Amendment] rights “unless that ruling is**  **found to be clearly erroneous.” [** People v Burrell **, 417 Mich 439, 448; 339 NW2d 403 (1983).] Credibility is crucial in determining a**  **defendant’s level of comprehension, and the trial judge is in the best position to make this**  **assessment.” Although we review for clear error the trial**  **court’s factual findings regarding a defendant’s knowing and intelligent waiver of [Sixth**  **Amendment] rights, . . . the meaning of “knowing and intelligent” is a question of law. We review**  **questions of law de novo. [** People v Daoud **, 462 Mich 621, 629-630; 614 NW2d 152 (2000), quoting**  People v Cheatham **, 453 Mich 1, 30; 551 NW2d 335 (1996).]**  **Thus, the reviewing court is not free to simply substitute its view for that of the trial court, but must be careful** 

**7 to respect the trial court’s role in determining factual**  **issues and issues of credibility.** 7

**III. DISCUSSION AND ANALYSIS** 

**A. T**  **HE S**  **IXTH A**  **MENDMENT AND THE R**  **IGHT TO S**  **ELF -R**  **EPRESENTATION The Sixth Amendment safeguards the right to counsel at**  **all critical stages of the criminal process for an accused who faces incarceration.**  Maine v Moulton **, 474 US 159, 170; 106 S Ct 477 ; 88 L Ed 2d 481 (1985). The Sixth Amendment**  **right to counsel is applicable to the states through the Due Process Clause of the Fourteenth Amendment.**  Gideon v Wainwright, **372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).**  **The United States Supreme Court has stated that courts should “‘indulge every reasonable presumption against**  **waiver of fundamental constitutional rights.’”** Johnson v Zerbst, **304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938),**  **quoting** Aetna Ins Co v Kennedy, **301 US 389, 393; 57 S Ct 809; 81 L Ed 1177 (1937).**  **The United States Constitution does not, however, force a lawyer upon a defendant; a criminal defendant may** 

**7 To clarify, to the extent that**  People v Adkins (After Remand), **452 Mich 702, 721 n 16; 551 NW2d 108 (1996), can be read to say that trial court decisions regarding Sixth**  **Amendment waivers are only reviewed for abuse of discretion, it is erroneous. We believe the correct**  **standard is that set forth above.**

**8 choose to waive representation and represent himself.**  Iowa
v Tovar **, 541 US ___; 124 S Ct 1379, 1387; 158 L Ed 2d 209**  **(2004). “Waiver of the right to counsel . . . must be a ‘knowing, intelligent ac[t] done with sufficient awareness**  **of the relevant circumstances.’"** Id. **at 1383, quoting** Brady v United States **, 397 US 742, 748, 90 S Ct 1463; 25 L Ed 2d 747 (1970). A waiver is sufficient if the defendant “knows**  **what he is doing and his choice is made with eyes open.”** Adams v United States ex rel McCann **, 317 US 269, 279; 63 S Ct 236; 87 L Ed 268 (1942);**  Godinez v Moran **, 509 US 389, 401 n 12; 113 S Ct 2680; 125 L Ed 2d 321 (1993).** 

**B. T**  **HE R**  **IGHT TO C**  **OUNSEL U**  **NDER M**  **ICHIGAN L**  **AW The right of self-representation under Michigan law**  **is secured by Const 1963, art 1, § 13** 8 **and by statute, MCL 763.1.**  9 **In** Anderson **,** supra **at 367-368, this Court held that a trial court must make three findings before granting a**  **defendant’s waiver request. First, the waiver request must**

**8 “A suitor in any court of**  **this state has the right to prosecute or defend his suit, either in his own proper**  **person or by an attorney.”**

**9 “On the trial of every indictment or other criminal**  **accusation, the party accused shall be allowed to be heard by counsel and may defend himself, and he shall have a**  **right to produce witnesses and proofs in his favor, and meet the witnesses who are produced against him face to**  **face.”**

**9 be unequivocal. Second, the trial court must be satisfied**  **that the waiver is knowingly, intelligently, and voluntarily made. To this end, the trial court should**  **inform the defendant of potential risks. Third, the trial court must be satisfied that the defendant will not**  **disrupt, unduly inconvenience, and burden the court or the administration of court business.**  **Consistent with** Anderson **, MCR 6.005(D)(1) governs procedures concerning a defendant’s waiver of the right to**  **an attorney. It prohibits a court from granting a defendant’s waiver request without first**  **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 . . . .**  **[MCR 6.005(D)(1).]**
**C. A**  **PPLICATION 1.**  **D EFENDANT**  **’ S**  **W AIVER WAS**  **U NEQUIVOCAL**  **Initially, defendant conditioned his waiver of the right to counsel on the trial court’s granting of his**  **request to recall for cross-examination two excused witnesses. A defendant who elects to proceed in propria**  **persona after proceedings are underway, however, is not entitled to retry the case. The decision whether to recall**  **a witness is left to the sound discretion of the trial court. MRE 611(a);**  People v Fedderson, **327 Mich 213, 220;**

**10 41 NW2d 527 (1950);**  Potts v Shepard Maine Constr Co **, 151 Mich App 19, 26; 391 NW2d 357 (1986).**  **In this case, during the waiver of counsel proceeding, the trial court explicitly informed defendant that he would**  **not be permitted to recall any excused witnesses. The court told him, “No, we’re not bringing in those other**  **witnesses, we’re continuing with the trial.” The court had previously and repeatedly asked defendant if he still**  **wished to represent himself given this ruling. Defendant unequivocally answered, “Yes, ma’am.”**  **We believe the record reflects that the trial court exercised admirable patience in deal**  **ing with a defendant who wished to represent himself according to his own rules.**  **The court advised defendant very clearly that he would not be permitted to recall the excused witnesses, regardless of**  **what they had said during their preliminary examination testimony.**  **The dissent may well be correct that defendant was “listening” without “hearing” what t**  **he court was saying.**

Post **at 14. Defendant’s subjective understanding, however, can only be gleaned by reference**  **to what he said on the record. The record shows that after the court ruled that**  **his insistence on being allowed to recall excused witnesses would not be indulged, defendant answered affirmatively** 

**11 that he, nevertheless, wished to invoke his right of self**  **** **representation. Defendant’s unrealistic “hopes of introducing evidence” in contravention of the court’s**  **explicit ruling do not render invalid defendant’s unequivocal invocation of his right to self-representation.** 

Post **at 15. The Court of Appeals misread the colloquy between the**  **trial court and defendant. The record reveals that defendant was dissatisfied with the**  **trial court’s ruling that he could not recall an excused witness. Defendant**  **argued with that ruling by claiming his attorney did not adequately cross-examine the excused witness on the basis**  **of the witness’s preliminary examination testimony. Whatever was contained in the preliminary examination**  **transcript, however, was irrelevant at that point because the trial court had already ruled that the witnesses could**  **not be recalled by defendant. The trial court was not required to permit defendant to read transcript testimony**  **when the content was immaterial and the jury was assembled and waiting. Therefore, the Court of Appeals incorrectly**  **held that the trial court erred in refusing to honor defendant’s request to read the preliminary examination**  **transcript. The requirement under** Anderson **that a**

**12 defendant unequivocally assert his right to waive counsel**  **was therefore satisfied in this case. 2.**  **D EFENDANT**  **’ S**  **W AIVER**  **W AS**  **K NOWING**  **, I NTELLIGENT**  **, AND**  **V OLUNTARY**  **As indicated from the portions of the record quoted above, the trial court methodically complied with the**  **remainder of the requirements of** Anderson **. Defendant was fully apprised of the risks he faced by choosing to**  **represent himself and he knowingly and voluntarily chose to accept them. He may not now be heard to complain about his**  **choice. In** Adkins, supra **at 725, we quoted with approval language ultimately from**  People v Morton **, 175 Mich App 1, 8-9; 437 NW2d 284 (1989), that applies equally here:**  **“‘To permit a defendant in a criminal case to indulge in the charade of insisting on a right**  **to act as his own attorney and then on appeal to use the very permission to defend himself in pro**  **per as a basis for reversal of conviction and a grant of another trial is to make a mockery of**  **the criminal justice system and the constitutional rights sought to be protected.’”**  **The trial court determined on the record that defendant’s motion to proceed in propria persona was made**  **knowingly, intelligently, and voluntarily. The trial court complied with the**  Anderson **requirements. 3.**  **MCR 6.005 R**  **EQUIREMENTS W**  **ERE S**  **ATISFIED Contrary to the dissent, we believe the trial court**  **followed the letter, and not just the spirit, of MCR**

**13 6.005(D). The trial court advised defendant of “the**  **charge, the maximum possible prison sentence for the offense, [and] any mandatory minimum sentence required by**  **law”:** The Court **: And let me first inform you, then, and I have to do this on the record, what**  **the max—the minimum and maximum sentences are, so that if you are found guilty, you know what’s**  **ahead of you. For the homicide felony murder, the maximum is life. For the armed robbery, the**  **sentence is life or any term of years, unless aggravated assault or serious injury is involved,**  **and then it’s not less than two years. And for the felony firearm, that’s two years, which would**  **be. . . in addition to, and preceding, before, any term of imprisonment imposed for the felony**  **or attempted felony conviction. Do you understand all that?**  The Defendant **: Yes, ma’am.** *** * *** The Court **: Mr. Williams, I want you to fully understand that if you are found guilty of**  **homicide felony murder which alleges that you did, while in the perpetration attempted**  **perpetration of a robbery, murder one Jerry Jones, that is a mandatory life sentence. Life**  **is the minimum and life is the maximum. Do you understand that?**  The Defendant **: Yes, ma’am. The court further explicitly complied with MCR**  **6.005(D)(1) by advising defendant of “the risk involved in self-representation:”**  The Court **: Now, sir, as I mentioned before, there are great risks that you are taking on in**  **representing yourself. Do you understand that?**

**14**The Defendant **: Well, your Honor. I know ya’ all could possibly get me another attorney,**  **but it would be another court-appointed attorney.** The Court **: No, that’s not an option. We’re**  **in the middle of trial.** The Defendant **: Well, good.**  **The trial court complied with the requirement of MCR 6.005(D)(2) by providing defendant his court-appointed**  **attorney as an advisor:** The Court **: He’s going to be here during the**  **trial so that you can ask him any questions and he can give you any counsel that you might need.**  The Defendant **: Thank you, your Honor. The record reflects that the trial court**  **conscientiously complied with** every **requirement of MCR 6.005(D), exceeding the “substantial compliance” required**  **under** Adkins, supra **at 706. We do not agree with the dissent that 6.005(D) requires that a court “indicate**  **whether it believe[s] defendant’s request [is] contingent on other factors.”**  Post **at 13. The trial court satisfied all of the waiver-of-counsel procedure required under MCR**  **6.005(D) and did not err in granting defendant’s request to waive counsel and allowing defendant to proceed in propria** 

**persona.**

**15 III.**  **CONCLUSION Although 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, he**  **subsequently made an intelligent, knowing, and voluntary waiver of his right to counsel after the trial court**  **rejected defendant’s request to recall and cross-examine the witnesses. Defendant is not entitled to a new trial.**  **We reverse the Court of Appeals decision and remand to the Court of Appeals to consider defendant’s remaining claims.**  **Maura D. Corrigan Elizabeth A. Weaver**  **Clifford W. Taylor Robert P. Young, Jr.**  **Stephen J. Markman**

**16 _______________________________**  **v S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**THE PEOPLE OF THE STATE OF MICHIGAN,**  **Plaintiff-Appellant,**

**No. 123537**  **RODNEY WILLIAMS, Defendant-Appellee.** 

**CAVANAGH, J. (** dissenting **).**

**In** People v Anderson **, 398 Mich 361, 367-368; 247 NW2d 857 (1976), this Court held that basic requirements must be**  **satisfied before a defendant’s request to waive counsel and proceed in propria persona may be granted. Michigan law**  **additionally requires a trial court to follow the mandates of MCR 6.005(D) before granting such a request. Here, the**  **Court of Appeals found that the trial court provided the disclosures required by MCR 6.005(D). However, the panel**  **ultimately concluded that defendant’s waiver of his right to counsel was not unequivocal, fully knowing, intelligent,**  **and voluntary as required by** Anderson **. Because I agree with the Court of Appeals assessment of the proceedings, I**  **must respectfully dissent from today’s decision. I.**  **Discussion The Sixth Amendment, made applicable to the states by**  **the Fourteenth Amendment, guarantees that “a person brought to trial in any state or federal court must be afforded the**  **right to the assistance of counsel before he can be validly convicted and punished by imprisonment.”**  Faretta California **, 422 US 806, 807; 95 S Ct 2525; 45 L Ed 2d 562 (1975);**  Gideon v Wainwright **, 372 US 335, 340-344; 83 S Ct 792; 9 L Ed 2d 799 (1963). Concomitantly, the Sixth**  **Amendment right to counsel also implies a “correlative right to dispense with a lawyer’s help.”**  Adams v United
States **, 317 US 269, 279; 63 S Ct 236; 87 L Ed 268 (1942). Under Michigan law, the right to self-representation is**  **expressly protected by Const 1963, art 1, § 13 and by statute, MCL 763.1. At times, however, the right to**  **counsel and the right to self-representation may appear to be at odds.**  **1**

**1 “There can be no blinking the**  **fact that the right of an accused to conduct his own defense seems to cut against**  **the grain of this Court’s decisions holding that the Constitution requires that no accused can be convicted and**  **imprisoned unless he has been accorded the right to the assistance of counsel.”**  Faretta **,** supra **at 832. “This Court, however, has found that a defendant has either a**  **right to counsel or a right to proceed in propria persona, but not both. . . . Consequently, there is unavoidable**  **tension created between two constitutional rights when a** (continued...)

2 v**In order to preserve the delicate balance between these two rights, the United States Supreme Court has held**  **that any waiver of the right to counsel must be knowing, intelligent, and voluntary.**  Johnson v Zerbst **, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938). Moreover, the**  **waiver must be made with “sufficient awareness of the relevant circumstances” and the defendant “must be warned**  **specifically of the hazards ahead.”** Iowa v Tovar **, 541 US __; 124 S Ct 1379; 158 L Ed 2d 209 (2004). Finally, a**  **court must “indulge every reasonable presumption against waiver . . . .”**  Johnson **,** supra **at 464. This Court has likewise determined that specific**  **requirements must be satisfied and express disclosures must be made before a trial court may grant a defendant’s**  **request to waive counsel. First, the defendant’s request to waive the right to counsel must be unequivocal.**  Anderson **,** supra **at 367. “Second, once the defendant has unequivocally declared his desire to proceed**  pro se **the trial court must determine whether defendant is asserting**  **his right knowingly, intelligently and voluntarily. . . . The trial court must make the**  pro se **defendant aware of the**

(...continued) **defendant chooses self-representation.”** People v Adkins (After Remand) **, 452 Mich 702, 720; 551 NW2d 108 (1996).**

3**dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing**  **and his choice is made with eyes open.”** Id **. at 368. Third, the trial court must determine that the defendant**  **will not disrupt or unduly inconvenience the proceedings.** Id **. Fourth, the trial court must give the necessary disclosures set forth under MCR 6.005(D).**  **2** Adkins **,** supra **at 722-723.**  **Thus, in order to determine whether the instant defendant “kn[e]w what he [was] doing and his choice [was]**  **made with eyes open,”** Adams **,** supra **at 279, a thorough examination of the trial court proceedings is required.**  **Indeed, the existence of a valid waiver “must depend in each case upon the particular facts and circumstances** 

**2 MCR 6.005(D) provides in pertinent part:** 

**The 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.**

4**surrounding that case . . . .”** Anderson **,** supra **at 370; see also**  People v McKinley **, 383 Mich 529, 536; 176 NW2d 406 (1970). Because the majority’s recitation of the facts and**  **proceedings omits large portions of the exchange between**  **defendant and the trial court, I find it necessary to fill in the blanks left by the majority’s opinion.** 

**II. Trial Court Proceedings**  **During its case-in-chief, the prosecution called Florian Mager as a witness. At the end of defense**  **counsel’s recross-examination, the following exchange took place:**  Mr. Cook (defense counsel) **: I have no further questions of this witness.**  The Court **: Thank you, sir. You can step down.**  Mr. King (prosecutor) **: The People call as their next witness, your Honor, Tracey Jo**  **Williams.** The Court **: All right. If there are any people in the . . .**  Mr. Cook **: (Interposing) Your Honor, there is one more question that I would ask.**  The Court **: All right. Sir, can you come back to the stand? . . . You’re still under oath**  **to tell the truth, sir.** The Deputy **: Mr. Williams? Mr. Williams?** Mr. Cook **: No, your Honor, no more questions.** The Court **: Thank you, sir. You can step down.**  **(Witness excused)** Mr. King **: Once again, your Honor, the People call, as their next witness, Tracey Jo Williams.** 

5**Your Honor, may this witness be excused? He is working at this time.**  The Court **: Any objection? Mr. Cook, any objection to . . .**  Mr. Cook **: (Interposing) I’m sorry, your Honor?**  The Court **: Any objection to this witness being excused?**  Mr. Cook **: No, your Honor.** The Defendant **: Yes. Wait.** The Court **: He’s excused. Mr. Williams.** The Deputy **: Mr. Williams. Mr. Williams.** The Defendant **: Could we get a recess for five minutes, please, your Honor?**  The Deputy **: No, you don’t talk to your Honor, you talk to your attorney.**  Mr. Cook **: Your Honor, may I have just a few minutes with my client?**  The Court **: All right. We’ll excuse the jury for a few minutes.**  **For nearly one half-hour, the trial court was in recess. Once the parties reconvened, the following**  **exchange ensued:** The Court **: Are we ready to bring in the jury?**  Mr. King **: Yes, your Honor.** Mr. Cook **: Yes, your Honor.** The Court **: Back on the record on case number 4026—hold off—the People versus Rodney Williams,**  **out of the presence of the jury. Mr. Williams, I’m going to inform you, right**  **now, that if you act up, again, you are going to be taken out of the courtroom. And I didn’t want**  **to say that in front of the jury, but that’s what’s going to happen.**  The Defendant **: Yes, ma’am.**

6**The prosecutor called the next witness, Tracey Jo Williams. After defense counsel’s second recross**  **** **examination, the trial court instructed Ms. Williams to step down and the court broke for lunch. The parties**  **reconvened after the break and the following occurred outside the presence of the jury:**  Mr. Cook **: For the record, your Honor, my name is Donald Cook, appearing on behalf of Mr.**  **Williams. Your Honor, I believe he wants to address**  **the Court. And I think we probably need to get it out of the way before we have the jury here.**  The Court **: All right. Out of the presence of the jury. What would you like to say, Mr.**  **Williams?** The Defendant **: Good morning [sic], your Honor.**  **Your Honor, due to circumstances, I would like to terminate my representation of my**  **attorney, Mr. Donald A. Cook, due to the fact that Mr. Cook has failed to represent me,**  **appropriately. He has allowed the prosecution witnesses to testify. And he has failed to ask**  **them pertinent questions that’s pertaining to my life. Also, he has allowed the first witness to**  **be excused from this courtroom. And I am entitled, I hope, to a proper, fair**  **representation, and also a fair trial. And, also, if the Court deems proper, with**  **all honor and due respect, I would like to have— I do not wish to adjourn this proceeding, because**  **I know this has been going on all along. But I would like to represent myself, in proper person.**  And, also, if . . . The Deputy **: (Interposing) Quiet in the courtroom.**  The Defendant **: (Continuing) --** if, only if this Court would agree orally, and a written

7consent, please, that Mr. Florian Mager be brought back to court, and allow me to recross examine him, as well as Ms. Tracey Jo Williams. **This is for my life. And I accept and I appreciate all that Mr. Donald Cook has done, but**  **these records have facts here, statements that cannot be denied, reports from the Detroit police**  **officers, a Mr. Jerry Jones, making statements, himself, and Mr. Florian Mager, that have not**  **been brought out. And I can do that. [Emphasis added.]**  **The trial court then gave defense counsel an**  **opportunity to place comments on the record. Defense counsel indicated that he appropriately cross-examined the**  **witnesses in question and that he believed those witnesses had been excused. The trial court then informed defendant**  **that the court must abide by the rules of evidence and that certain things that defendant believ**  **ed may be introduced may not actually be admissible. At this point, the trial**  **court asked defendant if he realized the risk he was taking by representing himself. The prosecutor then weighed in,**  **stating:** Mr. King **: I was just going to indicate, your Honor, that the People would strenuously object**  **to this, especially in this stage of the proceedings. I agree with Mr. Cook that he’s**  **done all that he can do in this case. And you can only play with the hand that you’re dealt.**  **And Mr. Cook has represented Mr. Williams, I think, in the best possible**  **light that someone can represent someone. He hasn’t done anything—**  **or left anything out, that I can see, at least at this point. . . .** 

8**The trial court attempted to further inform defendant of the great risks involved with self-representation. For**  **example, the trial court noted that another attorney would not be appointed, defendant could not later claim he was**  **ineffective as his own counsel, defendant had not attended law school, and defendant was not trained in the rules of**  **evidence. Further, the trial court warned that if defendant disrupted the proceedings,**  **Mr. Cook would take over defendant’s representation. The trial court also**  **posed the following question:** The Court **: Are you making this request knowinging [sic], intelligently, and voluntarily?**  The Defendant **: Yes ma’am. The trial court also informed defendant of the charges**  **against him and the possible penalties he faced. Despite this exchange, the following colloquy then took place:**  The Court **: . . . Do you understand all that?** The Defendant **: Yes, ma’am.** The Court **: Okay.** The Defendant **: Your Honor?** The Court **: Yes?** The Defendant **: Ma’am, is it also on the record, and it will probably [be] written down,**  **that I will have an opportunity to recross**   ** examine the prosecutor’s first two witnesses,** **Florian Mager and --** The Court **: (Interposing) No, we’re not bringing in those other witnesses, we’re**  **continuing with the trial. It’s the Court’s opinion that you had proper representation. Mr.**  **Cook is an excellent attorney. And we are not**

9**starting the trial over, we are continuing with the trial. You can still have Mr. Cook, if you**  **want, or you can continue and represent yourself**

**. . . . Notwithstanding the trial court’s best efforts,**  **defendant continued to articulate his reasons for wanting to recall the first witness. Apparently, defendant**  **remained under the impression that the first witness’s preliminary examination testimony conflicted with his trial**  **testimony.** The Defendant **: But the jury have heard Mr. Mager only state that at the lineup he was not**  **sure. That’s one not sure. And if, at the preliminary exam, if Mr. Mager is not sure,**  **again, then this man has no—he’s not sure if it was me, or not. . . .**  **The prosecutor then indicated that if defendant was permitted to look at the preliminary examination, his**  **concerns would disappear. While the majority includes some portions of this exchange, I believe that the proceedings**  **at this particular stage should be viewed in more detail.** Mr. King **: And I only stand, your Honor, not to entertain the defendant, but that is a gross**  **misrepresentation of the preliminary examination transcript. . . . What he’s saying he’s taking**  **out of context. And if he reads the whole thing, I think he’ll understand why Mr. Cook didn’t**  **elaborate with further questioning of the witness.**  The Court **: All right. I’m going to . . .** The Defendant **: (Interposing) May I read it?** The Court **: No. I’m going to ask you one more time. Do you want to represent yourself?**  **Because we’re bringing in the jury.**

10The Defendant **: Your Honor, with all due respect . . .**  The Court **: (Interposing) I asked you one question.**  The Defendant **: Your Honor, this is my life.** The Court **: Do you want to represent yourself?**  The Defendant **: Your Honor? Please. I’m pleadin’ with you, your Honor.**  The Court **: Answer my question.** The Defendant **: What’s a little minute in my life? Please.**  The Court **: Answer my question.** The Defendant **: Yes, ma’am.** The Court **: All right. Let’s bring in the jury.**  **After this colloquy, defendant nevertheless attempted to recall the second witness because he was under the**  **impression that the witness had not been excused.**

**III. Analysis** 

**In** Adkins **, this Court concluded that proper compliance with waiver of counsel procedures requires that the trial**  **court “engage,** on the record **, in a methodical assessment of the wisdom of self-representation by the defendant.”**  Adkins **,** supra **at 721 (emphasis added). Moreover, this Court abides by the general principle that a trial court**  **“should indulge every reasonable presumption against waiver**

**. . . .”** Id **., quoting** Johnson **,** supra **at 464. “The right to counsel, as guarantor of a fair trial, is a fundamental**  **right that should not be deemed waived unless the record**

11**clearly and unequivocally evidences such waiver, a record that must be made by the trial judge’s diligent inquiry**  **into the relevant factors.”** Adkins **,** supra **at 740-741 (C**  **AVANAGH ,**  **J., concurring in part and dissenting in part). Because the record indicates that defendant did not**  **unequivocally, knowingly, intelligently, and voluntarily waive his right to co**  **unsel, defendant’s attempted waiver was invalid.** 

**A. Defendant’s Waiver Was Not Unequivocal**  **While the trial court followed the spirit of MCR 6.005(D) and asked defendant if his waiver was made**  **“knowingly, intelligently, and voluntarily,” the trial court did not make an express finding on the record that**  **defendant unequivocally waived his constitutional right to counsel. In**  Adkins **, this Court held that trial courts must substantially comply with the requirements of**  Anderson **and MCR 6.005(D).**  **3 Thus,**  Adkins **directs a trial court to indicate on the record whether the attempted waiver is** 

**3 In**  Adkins **, I agreed that “substantial compliance” with the requirements of**  Anderson **and MCR 6.005(D) adequately protects a defendant’s rights.**  Adkins **,** supra **at 737-738 (C**  **AVANAGH ,**  **J., concurring in part and dissenting in part). However, I remain committed to the view that strict**  **compliance with these requirements better protects a defendant’s rights, as well as ensures that an appellate**  **parachute is not created.** People v Dennany **, 445 Mich 412, 456-458; 519 NW2d 128 (1994) (C**  **AVANAGH , J., concurring in**  **part and dissenting in part).**

12**unequivocal.** Id **. at 721-722. Even under a substantial compliance analysis, however, the trial court in this case**  **wholly failed to indicate whether it believed defendant’s request was contingent on other factors—namely, recalling**  **the prosecution’s witnesses and examining the preliminary examination transcripts—or whether the request was**  **unequivocal. In any event, the record more than adequately**  **demonstrates that defendant’s choice was not unequivocal. The majority states that “[i]nitially, defendant**  **conditioned his waiver of the right to counsel on the trial court’s granting of his request to recross-examine two**  **excused witnesses.”** Ante **at 8. An evenhanded reading of the trial transcripts, however, reve**  **als that despite the trial court’s best efforts, defendant’s waiver was**  **conditional throughout the proceeding. The trial court informed defendant that he would not be able to recall the**  **excused witnesses and then repeatedly asked defendant if he wished to represent himself. In spite of this line of**  **questioning, defendant still expressed his desire to recall the witnesses and review the preliminary examination**  **transcript. As such, a balanced evaluation of the record indicates that although defendant was listening to the** 

13**trial court, defendant was not hearing what the trial court had to say.**  **This Court has previously noted that “the effectiveness of an attempted waiver does not depend on**  **what the court says, but rather, what the defendant understands.”**  Adkins **,** supra **at 723. Under the circumstances of this case, it is clear that defendant did**  **not fully comprehend the trial court’s warnings and defendant wavered in his request throughout the proceeding.**  **When the record is objectively viewed, one is left with the distinct impression that defendant eventually surrendered**  **to the trial court’s questioning in the hopes of introducing evidence that he believed favorable to his**  **case. Thus, defendant’s attempted waiver was invalid. Further, I am puzzled by the majority’s conclusion**  **that defendant’s “unrealistic” hopes did not render defendant’s attempted waiver invalid.**  Ante **at 12. The majority acknowledges that defendant was not truly hearing**  **what the trial court was saying. Further, the majority appropriately notes that defendant’s understanding “can**  **only be gleaned by reference to what he said on the record.”**  Ante **at 10. Upon its review of the record, the majority effortlessly concludes that defendant’s hopes were**  **“unrealistic.” However, defendant nevertheless harbored**

14**these hopes and the trial court should have similarly recognized that these “unrealistic” hopes were preventing**  **defendant from hearing what the trial court was saying.** Adkins **could not be more clear that the effectiveness of the attempted waiver depends on what the defendant**  **understands. Finally, although the trial court may not have been**  **under any obligation to permit defendant to view the transcripts or recall the witnesses, the trial court erred**  **when it failed to recognize that defendant’s attempted waiver was equivocal. The overarching rule of this Court’s**  **decision in** Adkins, **as well as the United States Supreme Court’s decision in**  Johnson **, is that if there is any doubt about the unequivocal nature of a defendant’s attempted**  **waiver of counsel, then the trial court should deny the defendant’s request and defendant should proceed with**  **counsel. 4** 

**4 It has often been said that “[a]n indigent defendant,**  **entitled to the appointment of a lawyer at public expense, is not entitled to choose his lawyer. He may, however,**  **become entitled to have his assigned lawyer replaced upon a showing of adequate cause for a change in lawyers.”**  People v Ginther **, 390 Mich 436, 441; 212 NW2d 922 (1973). Here, the trial court found that defense counsel provided proper**  **representation. Moreover, defendant did not assert a breakdown in the attorney-client relationship. Under these**  **particular circumstances, the trial court, and defendant** (continued...)

15**B. Defendant’s Waiver Was Not Knowing, Intelligent,**  **and Voluntary For essentially the same reasons as detailed above, I**  **cannot lightly assume defendant possessed the requisite state of mind under the facts of this case. Specifically,**  **the record evidences that defendant’s attempted waiver was not knowing, intelligent, and voluntary. Even though the**  **trial court followed the spirit of** Anderson **and its progeny, the record indicates defendant was fixated on his**  **ability to recall the excused witnesses and view the preliminary examination transcripts. As**  **the hearing was drawing to a close and the trial court was understandably**  **losing its patience, defendant kept pleading for his life. Nevertheless, the trial court continued its questioning and**  **defendant eventually answered affirmatively to the question repeatedly posed. When the record is reviewed fairly, I**  **believe it is apparent defendant’s waiver was not knowing, intelligent, or voluntary.** 

(...continued) **for that matter, may have been better served by reliance on the general presumption against**  **waiver. “Where a defendant,**  for whatever reason **, has not unequivocally stated a desire for s**  **elf-representation, the trial court should inform the defendant that present counsel will**  **continue to represent him.”** Adkins **,** supra **722 n 18 (emphasis added).** 

16**IV. Conclusion** 

**In sum, I agree with the Court of Appeals assessment of the proceedings. Defendant’s attempted waiver was**  **conditional throughout the proceedings. Further, despite the trial court’s best efforts, it was evident that**  **defendant did not fully understand the nature of the trial court’s admonishments. Thus, defendant’s attempted waiver**  **was not unequivocal, knowing, intelligent, and voluntary. I would, therefore, affirm the decision of the Court of**  **Appeals. Michael F. Cavanagh**  **Marilyn Kelly**

17