Opinion
358093
09-16-2021
People of Michigan v. Brian Dankovcik
LC No. 18-006679-01-AR
Kirsten Frank Kelly, Christopher M. Murray JudgesORDER
Thomas C. Cameron Presiding Judge
Pursuant to MCR 7.205(E)(2), in lieu of granting the delayed application, the circuit court's February 10, 2021 order is REVERSED, and the matter REMANDED for further proceedings consistent with this order. While defendant has claimed some confusion regarding the jury's verdict, defendant failed to support his claims with any affidavits or other evidence. Further, any confusion regarding the outcome was resolved by the transcript of defendant's trial, the district court's comments after trial, the lack of any objection by defendant after he was directed to the probation department, the district court's own memory, and also by the sworn testimony of the jury foreperson, who confirmed that the jury's verdict was guilty. To the extent defendant claimed that the failure to execute a jury verdict form the same day trial concluded amounts to plain error, defendant has failed to demonstrate any prejudice arising from that error, and thus, is not entitled to relief. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). And, as the record reflects that defense counsel was advised that the jury foreperson would be brought in to testify and that counsel agreed that the proceedings could go forward without his presence, any claim of a due-process violation arising from those circumstances was waived. See People v Carter, 462 Mich. 206, 219; 612 N.W.2d 144 (2000) (if counsel agrees to the trial court's course of conduct, that amounts to waiver of the issue, and there is no error to review). Thus, the circuit court erred by ordering a new trial in this matter. On remand, the circuit court shall address defendant's claim that the evidence presented at trial was insufficient to support his conviction, as this issue was raised but not addressed by the circuit court.
This order shall have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.