People v. Brown

T. G. Kavanagh, J.

On March 12, 1971, the defendant, Lewis Calvin Brown was convicted of the offense of assault with intent to do great bodily harm.¹ On the same day after defendant had requested an immediate sentence, the trial judge, without obtaining a presentence report, sentenced the defendant to five to ten years in prison.

On appeal two issues are raised: (1) was there improper conduct by the trial court during voir dire, and (2) can defendant waive his right to a presentence report?

The conduct complained of in the first issue is that the court precluded defense counsel from examining fully the venire in the following particulars: (1) Defense counsel inquired of one venireperson what verdict he had reached in two previous trials. The court refused to allow the question. (2) Counsel asked another venireperson if she, while deliberating, would consider the fact that the defendant had not testified. Upon objection by the prosecutor the judge set forth the defendant’s right to silence in the form of a hypothetical instruction. This was done in the jury’s presence. (3) Counsel asked the assembled venirepersons if they believed a crime was committed because the defendant was charged with its commission. The court interrupted and instructed on the presumption of innocence.

According to defendant, separately or all together these actions on the part of the court amounted to reversible error.

With regard to the court’s refusal to permit the juror to be questioned about the verdicts reached in other trials, defense counsel made no objection to the court’s ruling but appeared to acquiesce in it. We regard counsel’s statement, "Very well, I’m sorry”, and his immediate pursuit of another line of inquiry as indicative of acceptance of the ruling. In any event, we are not persuaded that it was error to prevent questioning about prior verdicts under the circumstances of this case.

Counsel elected to withdraw the question about the jurors’ attitude on the election of a defendant not to take the stand, and consequently there was no ruling on it by the trial court which a reviewing court could consider.

Defense counsel’s specific expression of satisfaction with the way the court treated the question put generally to all of the jurors, whether the fact that the defendant was charged with a crime caused them to believe that a crime was in fact committed, obviates this issue, too.

We are persuaded from a careful reading of the transcript of the voir dire examination that defense counsel was ultimately permitted to ask such questions as he deemed necessary to determine how best to exercise his challenges, and that he must be considered to have waived any defects in the process of their selection.

The Court of Appeals reached the same result on this issue, but because it is not clear that they did so for this reason, we think it in order to point out that our affirmance of their decision on this issue should not be read as concurrence in their reasoning.

On the first issue we find no error and affirm the Court of Appeals.

The record shows clearly that after spending 11 months in the Wayne County Jail the defendant was anxious to be someplace else. He expressed the desire to be sentenced without the delay attendant upon preparation of a presentence report and expressly waived his right to have such report prepared.

The people maintain that since the defendant can waive his constitutional rights he surely has the power to waive his statutory rights such as this one.

Without debating the accuracy of that proposition as a matter of abstract law, we hold that public policy precludes recognition of such waiver.

Judge Thomas M. Burns wrote in People v Amos, 42 Mich App 629; 202 NW2d 486 (1972), that it is error to sentence a defendant for conviction of a felony without the assistance of a presentence report and that a defendant may not waive the presentence report.

On rehearing of that case, 44 Mich App 484; 205 NW2d 274 (1973), Judges John H. Gillis and Victor Targonski withdrew their concurrence with Judge Burns and concluded that the presentence report could be waived. Judge Burns in dissent reiterated his conviction that the presentence report could not be waived.

We are satisfied that the reasoning of Judge Burns in his opinion for the panel at 42 Mich App 629 beginning at 632 and in his dissent in 44 Mich App 484, at 486-487, correctly and comprehensively sets forth the correct rule and the reasons supporting it.

We are not unaware that a practice has been developing whereby a judge, knowing he is going to order probation, asks the defendant if he wishes to waive the presentence report so that he may be sentenced immediately. The defendant, usually on the advice of counsel, knowing that probation will ensue and that he will not be incarcerated, waives the report.

We cannot square this practice with what we perceive to be the intent of the Legislature in mandating presentence reports.

As noted by Judge Burns, the 1927 statute² which inaugurated the practice of presentence reports, provided that the trial court had discretion as to whether or not to order presentence report. Our present statute³ provides that before sentencing of any person charged with a felony, a probation report shall be made, and if a sentence of imprisonment be imposed a copy of the report shall accompany the commitment papers, or if imprisonment or fine or probation or "other disposition” (presumably a suspended sentence) is ordered, two copies of the report shall be filed with the Department of Corrections. We have underscored the word "shall” to illustrate why we regard this as a mandate.

We are satisfied that the statute bespeaks a conviction that our criminal justice system is better served by requiring that a judge who is about to sentence a person have the information contained in a presentence report before making the decision whether to put that person on probation, fine or imprison him. It would militate against this conviction to recognize a right to waive the requirement even if the prosecutor, judge and defendant deemed it expedient in a particular case, for the Legislature, speaking for all the people, has ordained otherwise.

This is not to say that in a case where probation seems likely a person need be kept in jail while the report is prepared. Release on personal recognizance pending the preparation of the report is available to the court and would avoid incarceration, at least temporarily, and would permit the submission of the information to the sentencing judge before sentence is ultimately imposed as the Legislature intended.

Accordingly, we hold that it was error to sentence defendant in this case without first obtaining a presentence report.

The defendant’s conviction is affirmed, but the sentence is set aside and the matter remanded for resentencing.

We will apply the rule articulated in this case only to those cases now pending on appeal in which this issue has been preserved and to those cases, resulting from charges made on and after the date of this opinion.

Swainson, Williams, Levin, and M. S. Coleman, JJ., concurred with T. G. Kavanagh, J.

1 MCLA 750.84; MSA 28.279.

2 1927 PA 175, ch XI, § 14.

3 MCLA 771.14; MSA 28.1144.