                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 15, 2016
               Plaintiff-Appellee,

v                                                                    No. 324006
                                                                     Wayne Circuit Court
ROGER KENNETH BOWLING,                                               LC No. 12-008235-FC

               Defendant-Appellant.


Before: SAAD, P.J., and SAWYER and HOEKSTRA, JJ.

PER CURIAM.

       A jury convicted defendant of two counts of first-degree premeditated murder, MCL
750.316(1)(a), two counts of disinterment, mutilation, defacement, or carrying away of a human
body, MCL 750.160, tampering with evidence, MCL 750.483a(6)(b), and two counts of
possession of a firearm during the commission of a felony, MCL 750.227b. The trial court
sentenced defendant to concurrent prison terms of life in prison for each murder conviction, and
54 months to 10 years each for the disinterment and tampering with evidence convictions, to be
served consecutive to two concurrent two-year terms of imprisonment for the felony-firearm
convictions. Defendant appeals as of right. We affirm.

        Defendant’s murder convictions arise from the shooting deaths of Danielle Greenway and
Christopher Hall in Allen Park in July 2012. Greenway died from a single gunshot wound to the
head. Hall died of multiple gunshot wounds. Their bodies were dismembered and body parts
were cast into the Detroit River. Hall’s sister went to the victims’ home on July 18, 2012,
because Hall had not responded to her attempts to contact him. Defendant, whom Hall’s sister
had not seen before, was present in the home and said he had been staying there as a house guest.
He stated that he did not know where the victims had gone, but he thought they might have gone
up north. The police obtained a search warrant for the home and discovered areas with blood
and bullet holes, and there were indications that blood had been cleaned from other areas.
Defendant told the police that he was out for a bicycle ride at the time the victims left their home,
but the only bicycle on the premise was covered with cobwebs and substantial dust.

        Defendant’s trial was adjourned multiple times, mostly for reasons related to discovery,
expert analysis of DNA evidence, cell phone records, and ballistics and fingerprint evidence, and
review of more than one thousand photographs. On July 28, 2014, two weeks before trial was
scheduled to begin, defendant wrote a letter to the assigned judge, Judge Ulysses Boykin, and

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filed a pro se motion for another adjournment. Defendant asserted that he needed more time to
review the evidence and plan his defense. He complained that appointed counsel, Henry
Greenwood, and appointed co-counsel, Luther Glenn, were not prepared, and he criticized
Greenwood for failing to move for a Walker1 hearing to determine whether defendant’s police
statement was voluntarily given. The case was reassigned to a visiting judge, Judge Brian Levy,
but in the interim his motion to adjourn was heard by Judge Timothy Kenny. In a letter to Judge
Kenny, dated August 5, 2014, defendant reiterated his reasons for requesting an adjournment.
Defendant complained about Greenwood’s lack of preparation and motivation. He made
references to dissatisfaction with appointed counsel but also complained about untimely
discovery, alleged judicial bias, and a lack of resources at the Wayne County Jail that interfered
with his ability to prepare for trial. Judge Kenny denied the motion for an adjournment. On the
first day of trial, defendant again raised his concerns with Judge Levy, who also denied an
adjournment.

        In his only issue on appeal, defendant argues on appeal that the trial court violated his
right to self-representation and erroneously compelled him to accept representation by an
attorney he did not want. A trial court’s decision regarding a defendant’s request to represent
himself is reviewed for an abuse of discretion. People v Hicks, 259 Mich App 518, 521; 675
NW2d 599 (2003). A decision whether to appoint substitute counsel is also within the trial
court’s discretion, and will not be reversed absent an abuse of discretion. People v Russell, 471
Mich 182, 192 n 25; 684 NW2d 745 (2004); People v Traylor, 245 Mich App 460, 462; 628
NW2d 120 (2001).

        The right of self-representation is guaranteed by both the Michigan Constitution, Const
1963, art 1, § 13, and by statute, MCL 763.1. People v Dunigan, 299 Mich App 579, 587; 831
NW2d 243 (2013). The right of self-representation is also implicitly guaranteed by the Sixth
Amendment of the United States Constitution. People v Anderson, 398 Mich 361, 366; 247
NW2d 857 (1976), citing Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562
(1975). A defendant exercising the right of self-representation must take positive action to assert
that right. In Dunigan, 299 Mich App at 587, this Court, quoting Anderson, 398 Mich at 367-
368, observed:

         To invoke the right of self-representation: (1) a defendant must make an
         unequivocal request to represent himself, (2) the trial court must determine that
         the choice to proceed without counsel is knowing, intelligent, and voluntary, and
         (3) the trial court must “determine that the defendant’s acting as his own counsel
         will not disrupt, unduly inconvenience and burden the court and the
         administration of the court’s business.”

       In this case, the record does not contain an unequivocal request by defendant to represent
himself. Defendant’s July 28 letter to Judge Boykin, which accompanied a pro se motion for an
adjournment, made no mention of self-representation. Defendant criticized Greenwood for his


1
    People v Walker, 374 Mich 331, 336-339; 132 NW2d 87 (1965).


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lack of communication, failure to move for a Walker hearing, and inability to recognize
exculpatory evidence, but he did not request self-representation or substitution of counsel. He
complained that he did not have access to a computer and other resources at the Wayne County
Jail, which interfered with his own ability to prepare for trial. In his August 5 letter to Judge
Kenny, defendant expressed a lack of confidence with Greenwood and a lack of trust with Glenn,
and a belief that Judge Boykin was biased. Under the heading “PLEASE HELP ME SIR”
defendant wrote, “I need an immediate adjournment and re-assignment of judge. With a bit of
time I can work out counsel one way or the other.” After further discussing his discovery
requests and his need for a laptop computer, defendant wrote: “It’s looking like I may just have
to hold a Walker hearing and fight my case pro-se since the court refuses to assign me competent
cou[n]sel.” Defendant accused Greenwood of compromising the defense to obtain more court-
appointed criminal defense assignments.

       When defendant was allowed to address the court on the first day of trial, he reiterated his
concerns about delayed and incomplete discovery. Regarding Greenwood, defendant stated:

              I wish you had the letter so that I had all of this information present –
       issues with Counsel. There has been some serious issues that I have with Defense
       Counsel right now regarding strategy of the case.

               There was a Walker Hearing that was supposed to have been scheduled in
       this case well over a year ago, and to this date it hasn’t been scheduled. I’ve
       myself spent many hours planning and working on the material for this Walker
       Hearing and for whatever reason, at the last minute it was dropped in my lap by
       Defense Counsel that the Walker Hearing wasn’t going to be planned and abruptly
       I was going to have to take the stand.

Judge Levy asked, “Anything else, sir?” Defendant replied, “I mean the letter contains a lot
more than that, sir.” Judge Levy commented that Judge Kenny had previously denied an
adjournment, and ruled that they would proceed with trial.

        Defendant’s letters, and his oral remarks to the trial court, do not contain any unequivocal
request to represent himself. Dunigan, 299 Mich App at 587. Defendant’s only positive requests
were for an adjournment and assignment to a different judge. Defendant made two references to
self-representation in his August 5, 2014 letter. These were: “It’s looking like I may just have to
hold a Walker hearing and fight my case pro-se,” and “[t]that’s why I said I may have to go pro-
se.” (Emphasis added.) These statements expressed a possibility that defendant might exercise
his right to self-representation if his concerns about Greenwood’s competency were not resolved.
Defendant’s statement that he “may” have to exercise his right to self-representation referred to
self-representation as a future option he was contemplating, not as a present demand.
Accordingly, defendant did not unequivocally invoke his right to self-representation. Cf. People
v Granderson, 212 Mich App 673, 676-677; 538 NW2d 471 (1995).

        Defendant also argues that the trial court did not properly respond to his request for
substitute counsel. In People v Akins, 259 Mich App 545, 557; 675 NW2d 863 (2003), this
Court observed:


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               “The Sixth Amendment guarantees an accused the right to retain counsel
       of choice.” “However, the right to counsel of choice is not absolute.” “ ‘A
       balancing of the accused’s right to counsel of his choice and the public’s interest
       in the prompt and efficient administration of justice is done in order to determine
       whether an accused’s right to choose counsel has been violated.’ ”

                       When reviewing a trial court’s decision to deny a defense
               attorney’s motion to withdraw and a defendant’s motion for a
               continuance to obtain another attorney, we consider the following
               factors: (1) whether the defendant is asserting a constitutional
               right, (2) whether the defendant has a legitimate reason for
               asserting the right, such as a bona fide dispute with his attorney,
               (3) whether the defendant was negligent in asserting his right, (4)
               whether the defendant is merely attempting to delay trial, and (5)
               whether the defendant demonstrated prejudice resulting from the
               trial court’s decision. [People v Echavarria, 233 Mich App 356,
               369; 592 NW2d 737 (1999).] [Citations omitted.]

In addition, although an “indigent defendant is entitled to the appointment of counsel, . . . he
does not have the right to have counsel of his choosing appointed.” People v Portillo, 241 Mich
App 540, 543; 616 NW2d 707 (2000). “When a defendant asserts that the defendant’s assigned
attorney 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 conclusion on the
record.” People v Strickland, 293 Mich App 393, 398; 810 NW2d 660 (2011) (quotation marks
and citation omitted). It is the defendant’s responsibility to request a hearing to determine
whether his attorney should be replaced. People v Ceteways, 156 Mich App 108, 118; 401
NW2d 327 (1986). “Appointment of a substitute counsel is warranted only upon a showing of
good cause and where substitution will not unreasonably disrupt the judicial process. Good
cause exists where a legitimate difference of opinion develops between a defendant and his
appointed counsel with regard to a fundamental trial tactic.” People v Traylor, 245 Mich App
460, 462; 628 NW2d 120 (2001) (citation and quotation marks omitted). A genuine
disagreement over the use of a substantive defense or a fundamental trial tactic is adequate cause,
but the defendant’s mere allegation that he or she lacks confidence in his or her lawyer is not. Id.
at 463-464.

        Defendant did not raise his concerns about Greenwood’s representation until two weeks
before his repeatedly adjourned trial. When he finally raised these concerns in his July 28 letter
to Judge Boykin, he complained that he did not believe that Greenwood was prepared, but
Greenwood had been defendant’s appointed counsel for more than a year and did not voice any
concern that he felt unprepared. Defendant cited one specific disagreement with Greenwood’s
strategy, namely his refusal to move for a Walker hearing. But although defendant’s pro se
motion for adjournment included a statement that he and his counsel were in conflict regarding
defense strategy, defendant did not move for substitution of counsel. Defendant’s August 5 letter
further expressed a lack of confidence with appointed counsel, but it also stated that “[w]ith a bit
of time I can work out counsel one way or the other.” Defendant’s complaints about counsel
were intermingled with complaints about untimely discovery, judicial bias, and insufficient
resources at the Wayne County Jail. The letter principally advanced reasons why defendant
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believed that further adjournment was necessary, in a case that had been pending for two years
and had already been adjourned four times, and did not clearly convey a present demand for
substitution of counsel. Defendant failed in his duty to timely request a hearing regarding
replacement of his attorney. Ceteways, 156 Mich App at 118.

       Affirmed.



                                                         /s/ Henry William Saad
                                                         /s/ David H. Sawyer
                                                         /s/ Joel P. Hoekstra




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