PEOPLE OF MI V JERMAINE CURTIS BRANNER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2008
Plaintiff-Appellee,
v
No. 275911
Oakland Circuit Court
LC No. 2006-209376-FH
JERMAINE CURTIS BRANNER,
Defendant-Appellant.
Before: Servitto, P.J., and Cavanagh and Kelly, JJ.
Servitto, J. (dissenting)
I respectfully dissent.
I do not quarrel with the majority’s conclusion that defendant waived his right to a jury
trial and that the trial court essentially complied with the requirements of MCR 6.402 in
accepting defendant’s waiver. Defendant, when questioned by counsel, stated on the record that
he understood that he had a right to a trial by jury and he wished to waive his right to a jury trial
and have the judge decide his case. Defendant also acknowledged signing a waiver of trial by
jury form, indicating that he read and understood the form before signing it. I do, however, take
issue with the events that transpired thereafter.
After defendant’s waiver of a jury trial was established, the trial court indicated that it
understood that the parties were asking the court to decide the matter as a bench trial. The trial
court also indicated its’ understanding that rather than having the trial court conduct a bench
trial, the parties had stipulated that the preliminary examination transcript and several other
documents would be the basis for the trial court’s determination. On that issue, the prosecution
stated:
I just would like to have the defendant put on the record that he is agreeable to
instead of having the witnesses testify, to use these documents to establish the
record for purposes of both the evidentiary hearing and the trial.
Defendant responded, “Yes.”
That was the entirety of the exchange with defendant about his understanding of how his “trial”
would proceed. The trial court thereafter reviewed the preliminary examination transcript, the
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police report, and the toxicology report and issued a written verdict finding defendant guilty as
charged.
Again, while I do not disagree with the conclusion that defendant validly waived his right
to a jury trial, defendant in actuality waived far more than that here. Defendant effectively
waived all of the rights he had at a trial, except to have his guilt determined beyond a reasonable
doubt. While there is no court rule that directs a court how to proceed when approached with a
waiver such as the one that occurred here, MCR 6.302 addresses a waiver of trial with respect to
guilty pleas. That rule provides that before accepting a plea of guilty, the trial court must advise
the defendant that he will not have a trial of any kind, and so gives up the rights the defendant
would have at trial, including to have the witnesses against the defendant appear at trial, to
question the witnesses, to remain silent during trial and not have that silence used against the
defendant, and the right to testify at trial.
Where, as here, defendant is giving up those same fundamental rights, he should be
advised of the same before his waiver can be accepted. I harbor serious doubts as to whether
such a waiver should ever be employed and accepted by a court given that “a trial court sitting as
a trier of the facts determines the credibility of witnesses, and has not only the right but the duty
to ask material questions of witnesses so as to clarify the matters before it.” People v Jablonski,
70 Mich App 218, 224; 245 NW2d 571 (1976). At the very least, however, I fail to see how a
defendant’s waiver of most of the rights associated with a trial could be accepted (or be
voluntary and understanding) by a court without the court first ensuring that defendant is advised
of exactly what rights he is waiving. All trial courts are, after all, under some obligation to guard
and enforce the personal rights secured by our state and federal constitutions. People v
Kamischke, 3 Mich App 236, 241; 142 NW2d 21 (1966). Because I believe that the procedure
employed in this matter to determine defendant’s guilt was wholly inadequate and the trial court
failed to abide by its obligation to guard and enforce defendant’s most basic and fundamental
rights, I would reverse.
I would also reverse based upon defendant’s claim that counsel was ineffective for
stipulating to allow the trial court to decide defendant’s case based solely upon the preliminary
examination record, the police report, and the toxicology report. The purpose of a preliminary
examination is to determine whether probable cause exists to believe that a crime was committed
and that the defendant committed it. People v Perkins, 468 Mich 448, 452; 662 NW2d 727
(2003). Probable cause requires a quantum of evidence “sufficient to cause a person of ordinary
prudence and caution to conscientiously entertain a reasonable belief” of the accused's guilt.
People v Justice (After Remand), 454 Mich 334, 344, 562 NW2d 652 (1997).
The probable-cause standard of proof is, of course, less rigorous than the guilt-beyond-areasonable-doubt standard of proof that governs at a criminal trial. People v Yost, 468 Mich 122,
125-126; 659 NW2d 604 (2003). “The gap between these two concepts is broad.” People v
Justice, 454 Mich 334, 344; 562 NW2d 652 (1997).
Given that the prosecution’s burden of proof at a preliminary examination is far lower
than that at trial, the proceedings are vastly different and the motive in developing witnesses’
testimony at preliminary examination is unlike that at trial. The defense often presents less than
its full arsenal of defenses and witnesses, often electing, as a matter of trial strategy not to “tip
his hand,” so to speak, at the preliminary examination. The preliminary examination is, as a
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result, generally much shorter than a trial, and enforcement of the rules of evidence is often, as a
matter of practice, a little more relaxed at the preliminary examination. Here, in fact, the
preliminary examination lasted only 45 minutes, no witnesses of the defense were introduced,
and defense counsel cross-examined only one of the prosecution’s witnesses. Any counsel that
would stipulate to the examination transcripts and a police report (a generally inadmissible
document, see, e.g., People v McDaniel, 469 Mich 409, 413-414; 670 NW2d 659 (2003)) to
serve as a substitute for his client’s trial, where the trial court has no opportunity to personally
observe and thus evaluate the credibility of witnesses, is, in my view, ineffective.
More importantly, in People v Ramsey, 385 Mich 221, 225; 187 NW2d 887 (1971), our
Supreme Court announced that “as an absolute rule, it is reversible error for the trial court sitting
without a jury to refer to the transcript of testimony taken at the preliminary examination except
under exceptions provided by statute.” According to the Ramsey court, “[a] jury, if impanelled,
would not be aware of the testimony taken at a preliminary examination except under the
provisions of the statute. A trial judge, sitting as the trier of the facts, can assume no greater
prerogatives than a jury if a jury were impanelled to determine the facts.” Id.
The exceptions provided by statute referenced in Ramsey, supra, can be found at MCL
768.26, which provides:
Testimony taken at an examination, preliminary hearing, or at a former trial of the
case, or taken by deposition at the instance of the defendant, may be used by the
prosecution whenever the witness giving such testimony can not, for any reason,
be produced at the trial, or whenever the witness has, since giving such testimony
become insane or otherwise mentally incapacitated to testify.
There is no assertion that the witnesses testifying at the preliminary examination in this matter
were unavailable to testify at a trial.
True, examination of the preliminary examination transcript by the judge sitting as trier
of fact has been upheld where the examination was limited to impeachment purposes and the
parties had stipulated that such examination be made. See, e.g., People v Dorsey, 45 Mich App
230; 206 NW2d 459 (1973). Here, in contrast, however, the preliminary examination record was
allowed to substitute for the entire trial. Further, while MCR 6.110(D) allows for an evidentiary
issue to be determined by the trial court on the basis of the preliminary examination transcript
alone, we have been directed to no court rule or statute that would allow a similar application to
the ultimate determination of guilt or innocence in lieu of a trial.
Because I believe that to allow a criminal case to be decided on a preliminary
examination transcript is not in accordance with MCL 768.26 and Ramsey, supra, and is, in fact,
violative of the protections afforded through our judicial process, I would find that counsel was
ineffective for advising/allowing the determination of defendant’s guilt or innocence to proceed
in such a manner. I would further find that defendant was prejudiced by the ineffective
assistance of counsel and would therefore reverse.
/s/ Deborah A. Servitto
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