            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 26, 2019
               Plaintiff-Appellee,

v                                                                    No. 340033
                                                                     Wayne Circuit Court
WALTER AARON KELLY,                                                  LC No. 16-008683-01-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

     Defendant appeals as of right his jury trial conviction of carrying a concealed weapon,
MCL 750.227. Defendant was sentenced to 18 months’ probation. We affirm.

                               I. WAIVER OF TRIAL COUNSEL

        Defendant asserts that the trial court erroneously allowed him to represent himself at trial
because the trial court did not comply with People v Anderson, 398 Mich 361; 247 NW2d 857
(1976), and MCR 6.005(D). However, defendant did not raise this issue as the basis now
asserted on appeal before the trial court. “As a general rule, this Court will not review an issue
raised for the first time on appeal. However, where a significant constitutional question is
presented, as in this case, appellate review is appropriate.” People v Blunt, 189 Mich App 643;
473 NW2d 792 (1991) (citation omitted).

        Generally, “[w]e review for an abuse of discretion the trial court’s decision to permit
defendant to represent himself.” People v Hicks, 259 Mich App 518, 521; 675 NW2d 599
(2003). We review de novo whether a defendant has waived his Sixth Amendment right to
counsel. People v Williams, 470 Mich 634, 640; 683 NW2d 597 (2004). However, we review
for clear error the trial court’s factual findings regarding a knowing and intelligent waiver. Id. A
finding is clearly erroneous if this Court is definitely and firmly convinced that the trial court
made a mistake. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012).

        However, with respect to unpreserved claims of constitutional error, our review is for
plain error affecting substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130


                                                -1-
(1999). “To avoid forfeiture under the plain error rule three requirements must be met: (1) error
must have occurred, (2) the error was plain, i.e. clear or obvious, (3) and the plain error affected
substantial rights. Id. at 763. “The third requirement generally required a showing of prejudice,
i.e. that the error affected the outcome of the lower court proceedings.” Id. “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 fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.” Id. at 763-764 (quotations
omitted).

        Defendant argues that the trial court abused its discretion by allowing him to represent
himself at trial. Defendant contends that the trial court did not comply with Anderson and MCR
6.005(D) because defendant’s waiver was not (1) knowing, intelligent, and voluntary, and (2)
defendant did not know the risks of self-representation. Additionally, defendant asserts that the
trial court did not provide an express finding that defendant “fully understood, and agreed to
proceed despite the serious ramifications of self-representation. Therefore, defendant claims, he
did not validly waive his right to counsel. We disagree.

        Under the Sixth Amendment, which applies to the states through the Due Process Clause
of the Fourteenth Amendment, “[d]efendants who face incarceration are guaranteed the right to
counsel at all critical stages of the criminal process . . . .” People v Willing, 267 Mich App 208,
219; 704 NW2d 472 (2005). “Both federal and state law also guarantee a defendant the right of
self-representation, although this right is subject to the trial court’s discretion.” Id. The trial
court must determine that the three factors delineated in Anderson are met before granting
defendant’s request to represent himself: “(1) the defendant’s request is unequivocal, (2) the
defendant is asserting the right knowingly, intelligently, and voluntarily after being informed of
the dangers and disadvantages of self-representation, and (3) the defendant’s self-representation
will not disrupt, unduly inconvenience, and burden the court and the administration of the court’s
business.” Id.; Anderson, 398 Mich at 367-368. Additionally,

       a trial court must satisfy the requirements of MCR 6.005(D), which prohibits the
       trial court from allowing the defendant to make an initial waiver of counsel
       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.

       A trial court must substantially comply with the Anderson factors and MCR
       6.005(D) for a defendant to effect a valid waiver of the right to counsel. [Willing,
       267 Mich App at 219-220 (footnoted omitted).]

“[I]f the trial court fails to substantially comply with the requirements in Anderson and the court
rule, then defendant has not effectively waived his Sixth Amendment right to the assistance of

                                                -2-
counsel.” People v Russell, 471 Mich 182, 191-192; 684 NW2d 745 (2004). “Substantial
compliance requires that the trial 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 procedures.” Russell,
471 Mich at 191. “Proper compliance with the waiver of counsel procedures is a necessary
antecedent to a judicial grant of the right to proceed in propria persona. Proper compliance
requires that the court engage, on the record, in a methodical assessment of the wisdom of self-
representation by the defendant.” Hicks, 259 Mich App at 523.

        Although defendant concedes that the trial court did address some of the Anderson
factors, he maintains that he never made an unequivocal waiver of his right to counsel.
Defendant’s argument is premised on his representation to the trial court that he had sought
representation from attorney Hugh Davis, but Davis was not available for defendant’s June trial.
Absent the trial court moving defendant’s trial date, defendant would represent himself.
However, based on our review of the record before us, we conclude that the trial court did
substantially comply with the factors enumerated in Anderson. Although defendant did express
his desire to have Davis represent him, Davis never filed an appearance or requested an
adjournment. On the day of trial, the following exchange took place between defendant and the
trial court:

              Trial Court. Today is the day set for trial. It is my understanding that you
       continue or persist in wishing to represent yourself in this case; is that correct?

              Defendant. I was trying to rep -- get representation by Hugh Davis, but he
       doesn’t have the time. The timeline in which you tried to push up to the 22nd of
       June did not allow him enough time to represent me, so I, I’m here representing
       myself, your Honor.

                Trial Court. Well, um, I have no idea what Hugh Davis’ position is on
       representing you. He’s never filed an appearance or asked for an adjournment or
       come into court here. But absent Hugh Davis you wish to represent yourself, is
       that, is that correct?

               Defendant. Uh, yes, your Honor.

The trial court then told defendant that he was charged with a five-year felony, and cautioned
defendant that:

       there are a lot of laws and rules and, um, processes that everybody is obligated to
       follow in the -- um, in a jury trial. And you would not be necessarily aware of
       how to conduct a trial as a lawyer would be, and that’s one of the reasons why I
       want you to have an adviser.

Additionally, the trial court said, “I have hardly ever seen, um, someone try to represent
themselves in a jury trial very successfully. But if that’s what you wanna do, and that’s the right
you wanna exercise, well then that’s -- I, I don’t have much choice in that matter.” Accordingly,
on the record before us, we are satisfied that the trial court substantially complied with Anderson,

                                                -3-
and that defendant knowingly, intelligently, and understandingly waived his right to counsel and
proceeded in propria persona.

        Moreover, we conclude that the trial court complied with MCR 6.005(D). Regarding
MCR 6.005(D)(1), by “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,” the trial court satisfied this requirement. Willing, 267 Mich App
at 220. Here, the trial court apprised defendant that he was charged with “a single count of
carrying a concealed weapon,” and which was “a five year felony.” The trial court further
cautioned defendant that there were a lot of laws, rules, and processes that defendant would have
to follow in a jury trial and that defendant was not aware of how to conduct a trial like a lawyer.
The trial court also stated that those who represent themselves in a jury trial are usually
unsuccessful. Furthermore, the trial court informed defendant that he would have “the
opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to
consult with an appointed lawyer[.]” Willing, 267 Mich App at 220. Specifically, the trial court
instructed defendant as follows:

         [Y]ou would not be necessarily aware of how to conduct a trial as a lawyer would
         be, and that’s one of the reasons why I want you to have an adviser.

         Whether you wanna consult with [standby counsel] or not or whether you wanted
         to even consult with [the previous standby counsel] or not I just feel much more
         comfortable, um, with you at least having somebody standing by so that you can
         consult with them or ask him questions about process because I’m going to expect
         the same of you as I would expect of the lawyer.


       Finally, defendant argues that he was prejudiced by not being represented by counsel.
Defendant contends that neither he, standby counsel, the prosecutor, nor the trial court suggested
using M Crim JI 11.14, Exemption-Licensed Pistol Carried for a Lawful Purpose. However, M
Crim JI 11.14 requires a gun to be “in a closed case or container,” and the gun in this case was
not in a case or container. Additionally, defendant wanted to raise a defense under MCL
750.227d.1 The trial court, defendant, and the prosecutor discussed the applicability of the

1
    MCL 750.227d provides:
(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a
motor vehicle . . . either of the following:
         (a) A firearm, other than a pistol, unless the firearm is unloaded and is 1 or more
         of the following:

         (i) Taken down.

         (ii) Enclosed in a case.

         (iii) Carried in the trunk of the vehicle.


                                                      -4-
statute. Therefore, defendant raised this issue. The trial court stated that it would “go to the
jury” in M Crim JI 11.1, which is the jury instruction for carrying a concealed pistol. Further,
defendant did not testify because he did not know how to cross-examine himself. Toward the
end of the trial, the trial court asked defendant if he wanted to testify. Defendant responded that
he did not know how he would do so. The trial court did not know either. Defendant
highlighted that his cross-examination of Detective Markel was unsuccessful so it “would
probably be a waste of everybody’s time” to testify and cross-examine himself. The trial court
responded, “fine. you - - um, all right.” Therefore, defendant decided not to testify. Finally,
defendant claims he was prejudiced when neither he nor standby counsel objected to the
prosecutor’s rebuttal argument, which discussed hearsay. Specifically, the prosecutor argued
that Detective Markel knew that defendant was previously in the vehicle because another officer
told her. However, the prosecutor was merely arguing facts already admitted into evidence.
Accordingly, we conclude that defendant’s claim that he was prejudiced by his own self-
representation lacks merit.

                                     II. MOTION TO SUPPRESS

       Next, defendant argues that the trial court erred in denying his motion to suppress his
statements, and the gun found in the vehicle based on those statements, after being questioned by
police while handcuffed, but without first being given Miranda 2 warnings. We disagree.

        “We review a trial court’s factual findings in a ruling on a motion to suppress for clear
error.” People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001). “A finding of fact is
clearly erroneous if, after a review of the entire record, [we are] left with a definite and firm
conviction that a mistake has been made.” People v Wilkens, 267 Mich App 728, 732; 705
NW2d 728 (2005). “To the extent that a trial court’s ruling on a motion to suppress involves an
interpretation of the law or the application of a constitutional standard to uncontested facts, our
review is de novo.” Attebury, 463 Mich at 668.

        “[A]n officer’s obligation to give Miranda warnings to an accused attaches only when
the person is subject to custodial interrogation.” People v Ish, 252 Mich App 115, 118; 652
NW2d 257 (2002). Therefore, generally, a defendant’s statements made during “custodial
interrogation” must be suppressed if the defendant was not read his Miranda rights before
questioning. Miranda, 384 US at 444; People v Anderson, 209 Mich App 527, 531; 531 NW2d
780 (1995).

        Detective Markel concedes that the officer that questioned defendant did not Mirandize
defendant. Therefore, the pertinent question is whether the officer’s detainment of defendant
constituted custodial interrogation. People v Elliott, 494 Mich 292, 302; 833 NW2d 284 (2013).
If the detainment did not constitute custodial interrogation, the ruling of the trial court was
correct and the statement and gun were properly admitted into evidence. Id. However, if the


         (iv) Inaccessible from the interior of the vehicle.
2
    Miranda v Arizona, 384 US 436; 86 S Ct 1602, 16 L Ed 2d 694 (1966).


                                                   -5-
detainment did constitute custodial interrogation, the trial court erred, and the statement and gun
were improperly admitted into evidence. Id.

        A defendant is in “custody” if, based on the totality of the circumstances, he could
reasonably believe that he was not free to leave. People v Steele, 292 Mich App 308, 316-317;
806 NW2d 753 (2011). In this case, both defendant and Detective Markel testified that
defendant was handcuffed when defendant was questioned. However, the trial court found that
defendant was not handcuffed at the time of questioning, which was clearly erroneous based on
the testimony presented at the suppression hearing. Even though defendant was not formally
under arrest, because he was in handcuffs, he reasonably believed that he was not free to leave,
and therefore, was in custody. Steele, 292 Mich App at 316-317.

        However, regardless of whether defendant was handcuffed, defendant’s statement to the
officer regarding the gun should not have been suppressed because defendant was not
interrogated. “Interrogation, for purposes of Miranda, refers to express questioning or its
functional equivalent. In other words, interrogation refers to express questioning and to any
words or actions on the part of the police that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Anderson, 209 Mich App at 532-533.
However, “a police officer may ask general on-the-scene questions to investigate the facts
surrounding the crime without implicating the holding in Miranda.” Ish, 252 Mich App at 118.

       Here, defendant testified that the officer asked him his name, for identification, where he
came from, how he got there, which vehicle was his, if the vehicle was registered to him, if there
was anybody in the vehicle, if there were any items in the vehicle, his purpose for coming to the
home, and if he lived at the home. Defendant stated that he answered the questions, stating:

       I told them my name was Walter Kelly. I told them I have identification in my
       pocket in which they seized. I told them that I came over there to check on my
       brother because my mother informed me that he was being arrested by SWAT. I
       told them that I drove over there. I told them the specific location of the vehicle.
       They asked to be very specific so I told them exactly where it was at because it
       was behind a big white commercial cargo vehicle. I told them the name of my
       wife as well as my daughter in the vehicle. I told them that I did not have a valid
       CPL. I told them that I did have a firearm in the vehicle. I told them that it was
       registered.

Defendants statements made on the scene were not taken in violation of Miranda. The officer
asked general, on-the-scene questions, and defendant’s statement regarding the gun was in
response to that general, on-the-scene questioning. Ish, 252 Mich App at 118. “The police
officer reacted naturally and spontaneously to the scene before him.” Id. The officer detained
and questioned defendant because he was recognized as the suspect. Therefore, the trial court
did not err by failing to suppress defendant’s statements to the officer. Moreover, the subsequent
search of the vehicle (regardless of defendant’s wife’s consent) was proper because the police
had probable cause for the search given the fact that defendant had indicated that there was a gun
in the vehicle and he did not have a concealed pistol license. See People v Dunlop, 82 Mich App
171, 174; 266 NW2d 637 (1978).


                                                -6-
Affirmed.


                  /s/ Colleen A. O’Brien
                  /s/ Kathleen Jansen




            -7-
