People v. McKaig

89 Mich. App. 746 (1979) 282 N.W.2d 209

PEOPLE
v.
McKAIG
PEOPLE
v.
LOEWE

Docket Nos. 77-4678, 78-303.

Michigan Court of Appeals.

Decided May 1, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Rita Chastang and Anne B. Wetherholt, Assistant Prosecuting Attorneys, for the people.

Riley & Roumell (by Robert J. Colombo, Jr.), for defendant McKaig.

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

N.J. KAUFMAN, P.J.

On July 26, 1977, defendants Michael McKaig and William Loewe were found guilty in a bench trial of unarmed robbery, MCL 750.530; MSA 28.798. They were sentenced on August 9, 1977, and appeal as of right.

Michigan law requires that in order for a defendant to effectively waive his right to a jury trial, he must make a written waiver in open court. MCL 763.3; MSA 28.856:

"In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. It shall be entitled in such cause and made a part of the record thereof. It shall be entitled in the court and cause and in substance as follows: `I,_______________, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.'

__________________________ Signature of defendant.

"Such 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."

The file shows defendants signed the "Waiver of Jury Trial Circuit Court" form on July 26, 1977. The waiver was acknowledged by Judge Spivak's court clerk the same date.

Defendant McKaig alleges correctly that the transcript of the hearing does not reveal that he orally acknowledged the waiver of jury trial. Defendant Loewe does not allege this to be a ground for reversal. However, in the interest of justice we will consider the legal question as to both appellants.

In People v Rimmer, 59 Mich. App. 645, 647; 230 NW2d 170 (1975), a panel of this Court reversed the defendant's conviction and stated:

"While the record does contain a written waiver executed by defendant on November 9, 1973,[2] nowhere in the record does any transcript of an oral waiver before or at trial appear."

"[2] This waiver was executed more than three months prior to defendant's trial."

I agree with the Rimmer result because footnote 2 reveals that the written waiver was executed more than three months prior to defendant's trial and there is no indication that the waiver was made in open court. In our case, however, the waiver was stamped filed on the same date as the commencement of trial and defendant McKaig makes no claim that the waiver was not made in open court.

In People v Word, 67 Mich. App. 663, 665-666; 242 NW2d 471 (1976), a panel of this Court, in which I was one of the panelists, stated:

"* * * Thus strict compliance with the statute is necessary and requires both a written waiver and an acknowledgment in open court of the waiver of a jury. There being no open court acknowledgment of the waiver of jury trial, this Court's prior ruling in Rimmer, supra, requires a retrial."

Since concurring in the Word opinion, supra, I have come to the conclusion that there cannot be a hard and fast rule for every case. A valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. In cases such as the present, where the waiver is signed and filed the same day as the commencement of trial, the defendant is represented by an attorney, and the defendant does not claim that he did not sign the waiver in open court after having the opportunity to consult with his attorney, the statute is strictly complied with. See People v Woody, 25 Mich. App. 627, 629; 181 NW2d 621 (1970), lv den 384 Mich. 822 (1971).

We encourage trial judges to supplement the written waiver with an oral acknowledgment by the defendant. This practice eliminates any doubt as to whether or not the waiver was made in open court. However, the statute does not require an oral waiver and we decline to impose that requirement on trial judges.

We have carefully reviewed the records and briefs and find the remaining allegations of error to be without merit.

Affirmed.

BASHARA, J., concurred.

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

The rules which should have governed this case are well stated in 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 558, pp 53-54:

"The statute is in derogation of the common law and therefore must be strictly construed. Since the right to waive trial by jury arises only by statute, it follows that no effective waiver may result except through strict compliance with the mandates contained therein. The right to a trial by a jury is a personal and constitutionally guaranteed right which cannot be waived by defense counsel and cannot be presumed to have been waived where the record is silent. Therefore, even though the defendant, in open court, orally waives his right to a jury trial, if he refuses or fails to sign a written waiver, there is no effective waiver. Likewise, even though the defendant has signed a written waiver, if the record does not disclose an oral waiver in open court, then there is no effective waiver." (Footnotes omitted.)

The majority rejects any "hard and fast rule for every case". In doing so, I believe they are setting a dangerous precedent. The right to a jury trial is too important in our system and the possibilities for abuse too great, compared with the ease of insuring that a waiver is an informed waiver, to apply anything other than a broad prophylactic rule.^[1]People v Polhamus, 59 Mich. App. 609; 230 NW2d 171 (1975), lv den 394 Mich. 819 (1975).

Although the statute does not per se require an oral waiver, that is the best method of proving the waiver was made in open court as required by the statute. The mere fact that the written waiver is dated the same as the first day of trial does little to insure that it was acknowledged in open court.

I would reverse these convictions because of the trial court's failure to elicit an acknowledgment of the waiver in open court. People v Word, 67 Mich. App. 663; 242 NW2d 471 (1976), People v Rimmer, 59 Mich. App. 645; 230 NW2d 170 (1975).

NOTES

[1] To the extent that People v Woody, 25 Mich. App. 627; 181 NW2d 621 (1970), lv den 384 Mich. 822 (1971), is inconsistent with this position, I would no longer follow it.