People v. Braxton , 91 Mich. App. 689 ( 1979 )

91 Mich. App. 689 (1979) 283 N.W.2d 829

PEOPLE
v.
BRAXTON

Docket No. 77-2343.

Michigan Court of Appeals.

Decided August 20, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Victor M. Norris, Assistant Prosecuting Attorney, for the people.

John C. Mouradian, for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and T.M. BURNS and BASHARA, JJ.

BASHARA, J.

The majority of this panel adopts the factual determination set forth by Judge BURNS. However, we reach a different conclusion and would affirm the conviction.

MCL 763.3; MSA 28.856 provides that the "waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel".

A review of the record reveals that defendant was accompanied by counsel when he signed the proper waiver form in open court before a clerk of the court.

Immediately prior to trial, the judge indicated on the record that the defendant had executed the waiver. At the time of that pronouncement, defendant and his attorney were in the courtroom.

The cases cited by the dissent can be distinguished. In People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974), and People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975), no written waiver was made a part of the record. In People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), and People v Word, 67 Mich App 663; 242 NW2d 471 (1976), no oral acknowledgment was made in open court.

Rather, we rely on our majority opinion in People v McKaig, 89 Mich App 746; 282 NW2d 209 (1979), People v Little, 87 Mich App 50; 273 NW2d 583 (1978), and People v Slappy, 59 Mich App 525; 230 NW2d 4 (1975).

Affirmed.

N.J. KAUFMAN, P.J., concurred.

T.M. BURNS, J. (dissenting).

Defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f), in a bench trial. The only question on appeal is whether defendant properly waived his constitutional right to be tried by a jury.

On January 26, 1977, defendant and his attorney executed before a court clerk a document waiving a jury trial. The form signed is that required by the statute. MCL 763.3; MSA 28.856. Trial began over a month later, March 8, 1977. At that time, the trial court stated: "Let the record show the defendant has executed a written waiver of trial by jury." There was no questioning of the defendant by the court and defendant said nothing.

In my view, there was not sufficient compliance with the statute. Defendant did not properly waive his right to a jury trial and the conviction should be reversed.

The rules surrounding waiver of a jury in criminal cases are collected and discussed in 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 558, p 52. Recognizing the importance of a jury trial in our scheme of criminal procedure, and its exclusivity at the common law, our courts have required strict compliance with the statute before an effective waiver will be found. People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974), People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975). Where the written waiver is executed well before trial, it is necessary that there be proof, other than the document itself, that the waiver occurred in open court. An oral waiver before taking evidence is sufficient proof of this fact and is a necessary step in situations such as presented here. People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), People v Word, 67 Mich App 663; 242 NW2d 471 (1976).^[1] See also my dissenting opinion in People v McKaig, 89 Mich App 746, 751; 282 NW2d 209 (1979), also submitted to this panel.

In this case there is no indication that defendant waived his right to a jury in open court as required by the statute. The trial court's statement refers only to a written waiver in the file. It has no bearing on where or when or under what circumstances that waiver was executed. The record does not show that the provisions of the statute were followed and defendant is entitled to a new trial.

I would reverse and remand.

NOTES

[1] Compare People v Slappy, 59 Mich App 525; 230 NW2d 4 (1975), and People v Little, 87 Mich App 50; 273 NW2d 583 (1978), where an effective waiver was found with the facts of this case.