PEOPLE OF MI V DWAYNE EDWARD JUDE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 13, 2009
Plaintiff-Appellee,
v
No. 286664
Genesee Circuit Court
LC No. 07-020780-FH
DWAYNE EDWARD JUDE,
Defendant-Appellant.
Before: Murphy, P.J., and Meter and Beckering, JJ.
BECKERING, J. (dissenting).
I respectfully dissent.
At issue in this case is whether the trial court obtained a constitutionally valid waiver of
defendant’s Sixth Amendment right to a jury trial before conducting a bench trial. While I agree
with my colleagues that the law does not require strict compliance with MCR 6.402(B), I
respectfully disagree with the proposition that post-trial discussions with a defendant can
rehabilitate an otherwise constitutionally invalid waiver.
Both the United States and Michigan constitutions guarantee a criminal defendant the
right to a jury trial to determine whether he or she is guilty of the crime charged beyond a
reasonable doubt. US Const, Am VI; Const 1963, art 1, § 20; People v Bearss, 463 Mich 623,
629; 625 NW2d 10 (2001). With the consent of the prosecutor and the approval of the trial
court, a defendant may waive his or her right to a jury trial and proceed with a bench trial. MCR
6.401; People v Leonard, 224 Mich App 569, 595; 569 NW2d 663 (1997). In order for a waiver
to be constitutionally valid, it must be made knowingly and voluntarily. People v Cook, ___
Mich App ___; ___ NW2d ___; 2009 WL 2707120, p 1, citing MCR 6.402(B).
As the majority indicated, MCR 6.402(B) sets forth the procedural requirements for
acceptance of a criminal defendant’s decision to waive a jury trial:1
1
Defendant cites the trial court’s failure to obtain a written waiver signed by defendant in
accordance with MCL § 763.3; however, the procedure for securing a jury waiver is now
governed by MCR 6.402(B). People v Mosly, 259 Mich App 90, 95; 672 NW2d 897 (2003). See
(continued…)
-1-
Before accepting a waiver, the court must advise the defendant in open court of
the constitutional right to trial by jury. The court must also ascertain, by
addressing the defendant personally, that the defendant understands the right and
that the defendant voluntarily chooses to give up that right and to be tried by the
court. A verbatim record must be made of the waiver proceeding. [Emphasis
added.]
By complying with the requirements of MCR 6.402(B), a trial court ensures that a
defendant’s waiver is knowing and voluntary. People v Mosly, 259 Mich App 90, 96; 672 NW2d
897 (2003). A trial court’s “failure to follow the mandated procedural requirements pursuant to
MCR 6.402(B) could be harmless if ‘the record establishes that [the] defendant nonetheless
understood that he had a right to a trial by jury and voluntarily chose to waive that right.’” Cook,
supra at 2-3, quoting Mosly, supra.
“A knowing, understanding, and voluntary waiver requires the right to be unequivocally
explained.” People v Eagan, 46 Mich App 377, 378; 208 NW2d 219 (1973). As this Court
recently held in Cook, supra at 2, “an attorney cannot waive the right to a jury trial ‘without the
fully informed and publicly acknowledged consent of the client’” (citations omitted). Statements
made by a defendant’s trial counsel indicating that the defendant agrees to waive his jury trial
right, along with a written waiver signed only by counsel, “does not rise to the level of a valid
waiver.” Id. “[T]here is no presumption of waiver from a silent record.” Mosly, supra at 97.
“Without any evidence on the record that [the] defendant was fully informed about his right to a
jury trial and voluntarily waived that right, we must conclude that [the] defendant did not validly
waive his right to a jury trial,” and the trial court is “without the authority to proceed with a
bench trial.” Cook, supra at 2.
In this case, the trial court failed to comply with MCR 6.402(B) in every respect. The
court did not advise defendant in open court of his constitutional right to a jury trial. It did not
ascertain, by addressing defendant personally, whether defendant understood that right and
whether he was voluntarily choosing to give up that right. In fact, the court did not directly
address defendant at all regarding waiver of the jury trial. Moreover, defendant did not utter
anything on the record before trial that could be interpreted as a knowing and voluntary waiver.
Furthermore, defendant did not sign a written waiver that might serve as evidence that he
knowingly and voluntarily waived his right to a jury trial before proceeding with a bench trial.
The majority states that if the pretrial record were all we had and there was a complete
lack of any personal acknowledgment by defendant that he was waiving his right to a jury trial,
this Court’s ruling in Cook would require reversal due to a structural error. I agree. Where I
respectfully part with the majority is on the issue whether post-trial conversations with defendant
served to essentially rehabilitate an otherwise constitutionally invalid waiver. The majority
bases its decision to affirm on defendant’s answers to the trial court’s inquiries at sentencing,
wherein the court solicited defendant’s agreement that he knew before trial he had a right to a
jury trial and did not want one. First, I disagree with the majority’s statement that defendant
“would have been highly motivated” to disagree with the trial judge regarding the jury waiver
(…continued)
also MCR 6.001(E).
-2-
issue in the moments before the same judge determined defendant’s future by dispensing his
sentence.2 More importantly, while I do not contend that defendant was coerced to agree to
something that was not true, I disagree with the proposition that a trial court can rehabilitate,
after-the-fact, an otherwise constitutionally invalid waiver. Valid waivers are to be obtained
before trial. Trial courts are required to ascertain whether a defendant’s waiver of a jury trial is
knowing and voluntary before accepting it. Without a constitutionally valid waiver, a trial court
is “without the authority to proceed with a bench trial.” Cook, supra at 2. If there were any
evidence on the record establishing that defendant personally acknowledged his right to a jury
trial and waived that right before trial, it might be reasonable to consider post-trial evidence as
further indication that the waiver was knowing and voluntary. However, if this Court embarks
on a course of affirming jury waivers based on after-the-fact evidence in the face of a totally
silent pre-trial record, we travel down a slippery slope of what constitutes a constitutionally valid
waiver. Aside from being “sloppy” as described by the majority, we risk weakening the process
designed to ensure, before trial, that a defendant’s constitutional rights are protected and
preserved. Therefore, I would vacate defendant’s convictions and sentences and remand for a
jury trial or a bench trial after a valid jury waiver.
/s/ Jane M. Beckering
2
Majority opinion, footnote 1.
-3-
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