STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED January 27, 2015 Plaintiff-Appellee, v No. 318555 Oakland Circuit Court JIMMY ALDAOUD, LC No. 2012-241102-FH Defendant-Appellant. Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ. PER CURIAM. Defendant appeals by right from his bench trial convictions of home invasion, first degree, MCL 750.110a(2), and misdemeanor possession of marihuana, MCL 333.7403(2)(d). He was sentenced to serve 36 months to 30 years in prison for home invasion and 365 days for possession of marihuana. On appeal, defendant does not contest the factual basis of his convictions. To the contrary, he concedes it. However, because the trial court failed to substantially comply with the requirements of People v Anderson, 398 Mich. 361; 247 NW2d 857 (1976), and MCR 6.005(D)(1) in permitting defendant to represent himself at trial, we hold there was structural constitutional error requiring reversal. Accordingly, we vacate defendant’s convictions and remand for a new trial. I. FACTUAL BACKGROUND The complainant, Douglas Courter, was sleeping in his home in Ferndale when he was awakened by the sound of his garage door opening or closing. Upon investigating, Courter observed that the automatic garage door light was on. When the light went out about a minute later, Courter surmised that the garage door had just closed. Courter immediately called 911, and within five minutes the police arrived. While en route, Officer Palazzolo observed defendant walking down the street about two blocks from Courter’s home. Officer Palazzolo testified that defendant was the only person he saw and that he did not otherwise notice any vehicles driving on the street at this time. -1- Office Palazzolo then informed Office Brugnoli by radio that defendant had a bag in his possession that contained three power drills: a Black & Decker, a Kawasaki, and a Porter Cable.1 At this, Courter informed Officer Brugnoli—who was already at the scene—that he owned those types of drills. Courter subsequently discovered the drills were missing from his garage. The drills were then brought to the home at which point Courter identified them as his own. Courter confirmed that no one, including defendant, had permission to take those drills from his garage or to enter his home. During the investigation, it was determined that defendant gained entry to the garage by using a garage door opener from an unlocked vehicle in Courter’s driveway. II. COMPETENCY DETERMINATION AND SELF-REPRESENTATION Defendant waived both his preliminary examination and arraignment. At a pretrial hearing, defense counsel informed the court that although he had explained the home invasion charge and potential sentence to defendant, a competency report was in order. The trial court agreed. Defendant informed the trial court, however, that he may wish to represent himself at trial. The trial court took the matter under advisement, noting that it may be appropriate “to engage [defense counsel] to sit by you, by your side.” The parties subsequently stipulated, consistent with a competency report finding, that defendant was incompetent to stand trial. The trial court disagreed,2 however, and a bench trial commenced. It was then that defendant reiterated his request to represent himself: THE COURT: You had mentioned something else just a second ago about proceeding on your own, I—another matter that is water under the bridge, so to speak, is whether or not there’s any plea bargain between the parties, it doesn’t sound like there was, I don’t know if there still is, I don’t know if the prosecutor intends to dismiss the case or intends to go forward with trial— * * * THE COURT: Okay. Now, today is the date set for trial; Mr. Correll, you’re ready, willing, and able to proceed? MR. CORRELL: That is correct, your Honor. THE COURT: You’ve heard your client; I invited him to speak even though you are his spokesman, anything you wish to say concerning that, as to representation? MR. CORRELL: Your Honor, I’ve known [defendant] through the pendency of this case, I’ll be glad to stand in, I’m familiar with the issues in this case. We have had a disagreement as to the—some of the legal issues involved, 1 Officer Palazzolo also discovered “a small container of . . . suspected marijuana.” 2 There were conflicting reports and opinions as to defendant’s competency to stand trial. -2- but I’d be glad to proceed on his behalf if the Court wishes me to do that and [defendant] wishes me to do that. THE COURT: Okay. I’m just curious—I will speak to you directly since the request is to proceed on your own, I’m—why? THE DEFENDANT: I hear—I’m not literally dumb, I spent 16 months day and night constantly studying the book of Michigan Compiled Laws. THE COURT: No, here’s my question,— THE DEFENDANT: Why would I want to speak for myself, because I got an understanding— THE COURT: Well, it’s— THE DEFENDANT: I didn’t commit the crime of home invasion. THE COURT: Is there a conflict between the two of you, or are you both on the same page on how to proceed, because if you both are on the same page— THE DEFENDANT: He’s a good attorney, I like him, but I feel that I want to put up my own argument because I got a better understanding of the books. THE COURT: And you’re ready to proceed today; even if I grant the motion, I’m not—I can’t postpone it, they’ve already brought witnesses out here, you understand that and that’s your desire? THE DEFENDANT: (Indiscernible)— * * * THE COURT: Yeah, that—is—I don’t want to invade attorney-client privilege, but I am curious whether there is a breakdown between Mr. Correll, yourself, and your client as it pertains to anything in particular, i.e., advising your client of whether he should testify or not. MR. CORRELL: The only thing with respect that I indicated to [defendant] about testifying . . . is that what he had indicated to me, and I’m not divulging attorney-client issues, what he wishes to testify to [is] his legal understanding of the charge, not the factual issues of the case. Is that correct, [defendant]? THE DEFENDANT: Yes, sir. * * * -3- THE COURT: Well, it’s your advice, and if he elects not to accept that advice and proceeds to testify, if you are both otherwise in accord in how to proceed, then I’m curious why he wouldn’t just have you represent him, he can accept your advice where he chooses to accept it and not accept it, i.e., with respect to testifying, and then he can testify. MR. CORRELL: And your Honor, to be clear, I indicated to [defendant] downstairs that if he wished to testify, he could testify to anything that he wishes to. THE COURT: If you elect to testify, even though it’s contrary to Mr. Correll’s advice, you certainly would be permitted, and any reason, then, not to have him represent you otherwise? THE DEFENDANT: I just—I’d rather just, you know, what he just said. THE COURT: Well, okay. Well, he’s either in or he’s out. THE DEFENDANT: Well, I mean I really like him as an attorney, but I kind of—I kind—I’m saying I’ll—but I mean there’s no offense towards him at all, he’s a good attorney, believe me he’s a good attorney, it’s just that he— THE COURT: Okay. THE DEFENDANT: —he’s got a million things on his desk, he can’t put everything like I did, I put everything into it, I’m positive it’s not home invasion. I’m not lying about it, I admit to everything they said I did, it’s considered a misdemeanor according to the book of Michigan laws. THE COURT: You choose to represent yourself? THE DEFENDANT: Yes. THE COURT: Mr. Correll, I will accept your client’s request, but I will retain your services if you would be willing to sit next to him. MR. CORRELL: I will. THE COURT: And we’ll see what, if any, services, will be needed from you. MR. CORRELL: That will be fine, your Honor. THE COURT: Okay. All right. Very well. * * * THE COURT: [Defendant], you’re reminded that you’re still under oath, required to testify truthfully and honestly, okay? -4- THE DEFENDANT: Yes, sir. THE COURT: You understand you have a constitutional right to have a lawyer represent you? THE DEFENDANT: Yes, sir. THE COURT: And that right includes trial, and if you were convicted at trial, for sentencing and appeal, and if you could not appoint [sic] an attorney, I’d appoint one for you, do you understand that? THE DEFENDANT: Oh, yes; yes, sir. THE COURT: You have a constitutional right to decline to have representation, and— THE DEFENDANT: Yes, sir. THE COURT: —you have the absolute right; and you wish to exercise that right and decline constitutional representation? THE DEFENDANT: Yes, sir. THE COURT: Do you have any questions? THE DEFENDANT: No, sir. The trial court then proceeded with the bench trial, during which defendant, himself, cross-examined witnesses and made his own opening statement and closing argument. Defendant presented no evidence and only twice consulted his standby counsel, who—like defendant—offered not a single objection. Defendant’s claim during closing argument was that the felony home invasion charge was improper; instead the charge of misdemeanor breaking and entering3 was appropriate. The trial court ultimately found defendant guilty of both home invasion and marihuana possession, and this appeal ensued.
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