People v. Byrd
| Citation | 162 N.W.2d 777,12 Mich.App. 186 |
| Decision Date | 28 June 1968 |
| Docket Number | No. 1,Docket No. 1449,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard BYRD, alias James Leonard Bryd, Defendant-Appellant |
| Court | Court of Appeal of Michigan (US) |
McWilliams & McWilliams, Dearborn, for defendant appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Richard J. Padzieski Asst. Pros. Atty., Detroit, for plaintiff appellee.
Before LESINSKI, C.J., and BURNS and LEVIN, JJ.
The defendant was charged on a 2-count information with carnal knowledge of a female under 16 (statutory rape) 1 and indecent liberties with a female under 16 2, on January 6, 1965. Complaint was filed and warrant issued on May 7, 1965. The defendant, represented by counsel whom he had retained, waived preliminary examination. He stood mute at the arraignment on the information again with counsel present. The record further shows an adjournment of trial and the filing of a consent of substitution of attorney. Trial was held by the court on Auguat 24, 1965, upon defendant's waiver of a jury trial. The court heard the testimony of a policewoman who briefly related the complainant's version of the events which led to this action. The court then called on the defendant and said:
'THE COURT: Your attorney informs me at this time you wish to withdraw your plea of not guilty to the two counts in the information.
'The first count is carnal knowledge of a female minor under sixteen, which carries a possible sentence of any number of years up to and including life.
'The second count is indecent liberties with a child under sixteen, which carries a possible maximum of 10 years.
'You wish to plead guilty to the second count, is that right?
'THE DEFENDANT: Yes, sir.'
The court then questioned the defendant pursuant to the requirements of GCR 1963, 785.3(2), accepted the plea, and set September 8 for sentencing, when sentence was imposed.
Almost 2 months later, on November 4, 19658 defendant sought by motion, supported by his own affidavit, to withdraw his plea of guilty on the ground that the plea was made in reliance upon his counsel's representations and assurances that if he agreed to the entry of the plea he would be placed on probation. A hearing was granted the next day and the motion denied.
Defendant then appealed to this Court. Two additional affidavits were submitted 1965, defendant sought by motion, supported the matter for further post-conviction proceedings to inquire into the voluntariness of defendant's plea of guilty. This was objected to by defendant. The proceedings were had on May 16, 1966. Defendant pursues his appeal.
Defendant raises several issues on appeal which we rephrase and consider. The first such issue is whether a trial judge is required to advise the defendant of his constitutional right to remain silent after a plea of guilty is offered by the defendant in open court.
Defendant cites Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, in his argument on this point. Escobedo dealt with the time during the investigatory process, prior to trial, at which right to counsel attaches, and held in essence that once the investigation had focused upon a suspect, if the suspect had requested and had been denied counsel, and had not been effectively warned by the police of his right to remain silent, then he had been denied the assistance of counsel and no statement thus elicited could be used against him at a criminal trial. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which is not applicable to the case at bar since it is not applied retroactively, 3 further clarified the procedural safeguards which must surround in-custody interrogation. In neither Escobedo, nor in Miranda did the United States Supreme Court consider the problem presented to this Court by the case at bar.
Here the defendant is not alone in a hostile atmosphere surrounded by persons charged with the duty of ferreting out crime. Rather, he is a man duly accused of a criminal offense who has been afforded the protection of counsel in the proceedings which proceded this trial, who now stands, with his attorney at his side, at the bar of justice, and tenders a plea of guilty. By so doing, he admits generally to the specific charge to which the plea is directed. At this point there is no necessity for proving the defendant guilty; this is admitted by the plea. The inquiries by the court which follow this tender by the defendant are not posed to establish his guilt by the trial process, but rather to enable the court to determine whether the plea was 'freely, understandingly, and voluntarily made.' GCR 1963, 785.3(2). 4 This Court rule and its predecessor, Michigan Court Rule No. 35A (1945), 5 and the statutory provisions of C.L. 1948, § 768.35 (Stat.Ann.1954 Rev. § 28.1058), were specifically intended, and here properly employed, to protect the defendant under circumstances such as those presented in the case before us.
Defendant's second assignment of error evolved from circumstances described herein. As previously noted, the information filed in this cause alleged that the criminal acts in question were perpetrated on or about January 6, 1965. The only witness who testified at the trial, prior to the tender of the plea--the acceptance of which terminated the trial proceedings--was Detroit policewoman Fanny Jane Hendrick. She was permitted to testify, without any objection by defendant, that the complaint was that the overt act in question occurred on or about the 6th day of January, 1965. After the plea of guilty was tendered, the trial court undertook to examine the defendant. In the course of the examination, the judge said, 'You understand the second count charges that on or about the 6th day of June of this year (1965)'. The second error alluded to above thus emerges. The defendant asserts error in this misstatement of the date of the offense by the court. We find from a reading of the complete record of the proceedings that the statement by the trial judge was erroneous. However, reversal cannot be predicated thereon. The error in no way prejudiced the defendant concerning the testimony of policewoman Hendrick, the information which was filed, and the purposes for which the question was asked. No objection was made to this misstatement at the time, which adds weight to our finding that it was without prejudice. We might fairly assume from this that it was an inadvertent slip of the tongue which went unnoticed by all parties.
The assignment of error that attempts to raise an issue from the use of leading questions by the trial court in an examination which is in accord with GCR 1963, 785.3(2), is devoid of merit and necessitates no further amplification here.
The defendant further assigns error in the failure of the trial court to grant his motion of November 4, 1965, whereby he sought to withdraw his plea of guilty upon which sentence had been pronounced on September 8, 1965. A hearing was held on this motion which resulted in its denial. The defendant does not have an absolute right to withdraw a plea of guilty. See People v. Case (1954), 340 Mich. 526, 65 N.W.2d 803; and People v. Davis (1964), 372 Mich. 402, 126 N.W.2d 725, and cases cited therein. The granting of a motion for a new trial rests within the sound discretion of the trial court. See People v. Lowenstein (1944), 309 Mich. 94, 14 N.W.2d 794; People v. Barrows (1959), 358 Mich. 267, 99 N.W.2d 347; and People v. Zaleski (1965), 375 Mich. 71, 133 N.W.2d 175. It is particularly relevant to our finding of no abuse of discretion in the instant case to note again that this motion to withdraw the plea of guilty was not made Prior to sentencing, but rather the relief was sought almost 2 months thereafter. See People v. Walls (1966), 3 Mich.App. 279, 142 N.W.2d 38. We will not allow the judicial process to be abused merely because the defendant is dissatisfied with the sentence imposed.
As we noted in our review of the facts which culminated in the instant appeal, this case has been before our Court once before. At that time the defendant claimed that the plea of guilty was not voluntarily made and we remanded for an evidentiary hearing on that point. The transcript of the hearing so ordered is a part of the record before us at this time. A review of the proceedings and the trial judge's determination that the plea was voluntary discloses no reversible error. The trial court heard the witnesses, observed their demeanor, and was apprised of the respective interests of the parties. The defendant was allowed to take the stand and to testify as to the issue of voluntariness. The trial judge chose to believe the counsel who represented the defendant at the time of the filing of the plea of guilty. We find neither error in the judgment of the trial court nor reason to substitute our judgment for his. See People v. Geddes (1942), 301 Mich. 258, 3 N.W.2d 266; People v. Martino (1944), 308 Mich. 381, 13 N.W.2d 857; and People v. Martin (1965), 1 Mich.App. 265, 135 N.W.2d 560.
The remaining assignments of error are wholly without merit.
Affirmed.
The trial judge's finding that the alleged promise of probation was not in fact made is not clearly erroneous and, so, we must affirm.
I write separately to speak about plea bargaining, and, more particularly, about charge reduction in return for a plea of guilty. 1 While neither the Supreme Court of the United States nor of this State has expressly approved of plea bargaining, plea bargaining is so universally practiced that one must assume, until they speak otherwise, that they do not object. This is why I concur, rather than dissent, in the decision here, even though, for reasons about to...
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