Opinion
Docket Nos. 78-3088, 43377.
Decided August 25, 1980.
P.E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
Defendant's guilty plea in this case fails to exhibit the understanding and voluntary nature required of guilty pleas as set forth in People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972).
In the present case the issue is not whether the trial judge's original statement informing the defendant of his right to confront witnesses was adequate, but whether the judge was required to make some further effort to explain that right after the defendant stated that he did not understand the original explanation. The failure of the trial judge to explain the confrontation right further mandates reversal.
In People v Dukes, 48 Mich. App. 268, 270; 210 N.W.2d 266 (1973), lv den 392 Mich. 814 (1974), while refusing to reverse a guilty plea under the facts there present, this Court stated:
"The defendant also argues that although the trial court did inform him of his privilege against self-incrimination, his right to trial by jury, and right to confrontation as required by People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972), nevertheless his plea should be set aside because a `fleeting reference' to those rights should be deemed inadequate. While defense counsel expressly disavows a requirement that trial judges give each defendant a brief course in constitutional law, he does feel that a trial judge should `take a minute or two * * * to explain [things] to the defendant'. While a more detailed explanation would certainly be required when a defendant indicates a lack of understanding of these fundamental rights, this tribunal is not prepared to require a detailed explanation of those rights when the defendant affirmatively indicates that he understands the rights he is abandoning." (Emphasis added.)
In People v Matheson, 70 Mich. App. 172, 184; 245 N.W.2d 551 (1976), this Court reversed a guilty plea because the responses of the defendant "manifested a state of confusion which belied the claimed voluntariness of his plea".
The instant record is distinguishable from the record of People v Anderson, People v Harrel, and People v Howell in the Guilty Plea Cases, 395 Mich. 96, 123, 124; 235 N.W.2d 132 (1975). In Anderson, the defendant was advised merely as to his right to confrontation. In Harrel and Howell, the defendants were informed of the right to question witnesses against them. As the explanations made to the defendants used language commonly understood, and the defendants gave no indication that they didn't understand their rights, the record created an inference or supported a conclusion that the defendants understood their rights and intentionally waived them. As the Court said in Guilty Plea Cases, supra, 124:
"In each case the judge informed the defendant of the constitutional and other rights delineated in the rule in such manner as reasonably to warrant the conclusion that the defendant understood what a trial is and that by pleading guilty he was knowingly giving up his right to a trial and the rights and incidents of a trial."
The defendant in the present case never did acknowledge that he understood his right of confrontation. There is nothing in the record to indicate that the defendant's protests that he did not understand his rights were made in bad faith. On earlier occasions, when the defendant initially stated that he did not understand a right, the defendant indicated that he understood after a brief explanation by the judge. The rule that the court shall not accept a guilty plea unless it is convinced it is voluntarily made should require some further inquiry or explanation when a defendant indicates that he does not understand one of the rights he is waiving. The defendant's plea of guilty is hereby vacated and the cause is remanded for trial.
W.A. PORTER, J., concurred.
On October 21, 1974, defendant, Julius T. Porter, Jr., pled guilty to second-degree murder and was sentenced to life in prison.
The plea was made with advice of counsel pursuant to a plea bargain under which a charge of first-degree murder was dismissed. Defendant appealed as of right, and, on December 23, 1975, his conviction was affirmed by this Court, citing the Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975).
Defendant requested appointment of counsel by the Supreme Court on the basis of alleged indigency, and, on February 14, 1977, the Supreme Court ordered the Recorder's Court to appoint counsel for defendant at public expense if he was found indigent. 399 Mich. 1039 (1977). The Recorder's Court so found and appointed counsel for defendant. Defendant then reattacked the plea, which motion was denied except that defendant was given an opportunity for allocution, after which, on May 12, 1978, he was resentenced, this time to not less than 15 nor more than 30 years in prison.
On June 8, 1978, defendant filed a delayed application for leave to appeal with the Supreme Court. On January 8, 1979, the Supreme Court granted defendant's application and reversed this Court's order affirming defendant's conviction and, under what the Supreme Court designates "actions on applications for leave to appeal from the Court of Appeals", entered an order, without opinion, remanding the case to this court for a "formal submission of the first issue stated in the defendant's brief in support of his application for leave to appeal". 404 Mich. 822 (1979).
Presumably, that issue is whether the trial judge failed to establish that defendant understood his right to confront his accusers.
The part of the plea-taking that defendant finds offensive to the court rules is as follows:
"THE COURT: In a trial you would have the right to bring witnesses to court if you had any to testify in your behalf. In other words, you could bring your witnesses to testify the same as the prosecution could bring witnesses, and if you wished the court would issue a court order or subpoena. Have you ever heard of a subpoena?
"THE DEFENDANT: No.
"THE COURT: A subpoena, Mr. Porter, that would require your witnesses to appear and testify in your behalf; do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Mr. Porter, the prosecutor would have to bring any witnesses he had, anybody who said they had any facts in this case would have to be brought in court to testify against you and you could cross-examine those witnesses. Do you understand the right to cross-examine your witnesses in court?
"THE DEFENDANT: No.
"THE COURT: Mr. Porter, did anyone threaten you or tell you what the sentence would be if you plead guilty?
"THE DEFENDANT: People in my cell did."
Careful reading of the foregoing indicates two questions concerning which defendant gave negative answers. They are:
"Have you ever heard of a subpoena?
"THE DEFENDANT: No."
The court then went on and explained to defendant what a subpoena was. We do not find this portion reversible error.
Second, is the question:
"Do you understand the right to cross-examine your witnesses in court?
"THE DEFENDANT: No."
Defendant's answer that he did not understand what was meant by "cross-examine" came immediately following an explanation by the court that the prosecutor would have to bring witnesses into court to testify. Already the trial judge had also advised defendant that he could bring his own witnesses into court with the court's assistance. While it may have been wiser practice for the trial judge to attempt to explain further the technical meaning of cross-examine, I am not prepared to find that upon that one answer defendant did not "understand his right to confront his accusers".
The foregoing matter may only properly be understood and evaluated within the context of the full plea-taking, which I have reviewed in full. Consideration of this full plea-taking indicates that this was not a prefunctory plea-taking, that defendant's rights were carefully described to him, and that he gave a full recital of what occurred. Under these circumstances, I would affirm defendant's conviction under the Guilty Plea Cases, supra.