People v. Kirby
| Decision Date | 01 May 1992 |
| Docket Number | Nos. 2-3,91959,Docket Nos. 91803,s. 2-3 |
| Citation | 487 N.W.2d 404,440 Mich. 485 |
| Parties | , 61 USLW 2159 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darryl Jerome KIRBY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arnold McKINNEY, Sr., Defendant-Appellant. Calender, |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, Detroit, for the People.
Patricia S. Slomski, Jack Van Coevering, Detroit, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty. by Michael J. Modelski, Chief, Appellate Div., for Oakland County Prosecutor, Pontiac, amici curiae.
Elizabeth L. Jacobs, Criminal Defense Attorneys of Michigan, Detroit, for amicus.
In these cases we are asked to decide whether M.C.L. Sec. 763.3; M.S.A. Sec. 28.856 and MCR 6.401, 1 requiring the consent
of the prosecution and approval by the court before a defendant may waive a criminal jury trial, are constitutional. While conceding that these rules are constitutional under federal constitutional analysis, see Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), defendants contend that these rules violate the Michigan Constitution because they preempt defendants' exclusive constitutional right to select the factfinder in a criminal case. They further maintain that the Michigan constitutional right to a jury trial encompasses the corresponding right of the defendant to waive a jury trial. We disagree. A review of Michigan constitutional provisions and corresponding Michigan case law illustrates that while a criminal defendant's right to trial by jury is guaranteed by the Michigan and federal constitutions, there is no corresponding constitutional right to waive a jury, and any rights a defendant may have to waive a jury are solely those granted to him by the Legislature.
Defendant Darryl Kirby was charged with breaking and entering, felonious assault, first-degree criminal sexual conduct, and obstruction of justice. 2 Defendant requested that his case be tried by the court without a jury, and signed a written form for waiver of trial by jury. The prosecutor objected to the waiver, pursuant to M.C.L. Sec. 763.3; M.S.A. Sec. 28.856 and MCR 6.401, and demanded a jury trial. Over the objection of the prosecution, the trial judge accepted defendant's waiver after finding %2990,0000,440 Mich. [PG488]M.C.L. Sec. 763.3; M.S.A. Sec. 28.856, and by implication MCR 6.401, unconstitutional. The Court of Appeals granted the prosecutor's motion for immediate consideration and, in lieu of granting leave to appeal, reversed the trial court's order granting defendant a waiver of jury trial, and remanded the case to the trial court. 3 We granted defendant's application for leave to appeal, and ordered that this case be argued and submitted with People v. McKinney. 439 Mich. 928 (1992).
Defendant Arnold McKinney was charged with felonious assault and possession of a firearm during the commission of a felony. 4 Defendant appeared before the same trial judge as defendant Kirby, and requested to waive a jury trial. Defendant signed a written jury waiver form. Again over the objection of the prosecution, and the prosecutor's written demand for a jury trial, the trial judge accepted defendant's waiver, holding M.C.L. Sec. 763.3; M.S.A. Sec. 28.856, and by implication MCR 6.401, unconstitutional. A different panel of the Court of Appeals granted the motion by the prosecutor for immediate consideration, and in a peremptory order reversed the trial court's order granting defendant a waiver of jury trial and remanded the case to the trial court. 5 We granted defendant's application for leave to appeal. 439 Mich. 928 (1992).
Michigan's first constitution provided, "[t]he right of trial by jury shall remain inviolate." Const. 1835, art. 1, Sec. 9. In 1850, this provision was amended:
While the 1988 amendment of M.C.L. Sec. 763.3; M.S.A. Sec. 28.856 is the first time in Michigan jurisprudence that consent of the prosecutor and approval by the judge are required before a defendant may waive a jury trial, it is instructive to identify the rights of a defendant regarding waiver of jury trials under prior Michigan law.
Early cases under the 1850 constitution articulate the basic tenet that a jury trial was essential and could not be waived.
"Again, by the provisions of the constitution and of the common law, persons charged with crime must be tried by a jury, and the law is well settled that this is imperative, and not a right to be waived...." People v. Jackson, 8 Mich. 110, 111 (1860).
Some of the early decisions showed a remarkable antipathy towards the option to waive a jury trial.
"Let it once be settled that a defendant may thus waive this constitutional right, and no one can foresee the extent of the evils which might follow...." Hill v. People, 16 Mich. 351, 358 (1868). 8
In contrast to waiver trials, this Court also noted that the right to a jury trial was closely guarded.
"The constitutional principle which underlies the right [to a jury trial] is one to which the people governed by the Common law have clung with, perhaps, more tenacity than to any other, and they have justly regarded it as not preserving simply one form of investigating the facts in preference to another, where both would have attained the same result, but as securing the mode of trial which was best calculated to ensure a just result and to secure the citizens against the usurpation of authority and against arbitrary or prejudiced action on the part of single individuals, who chanced to be possessed of judicial power." Van Sickle v. Kellogg, 19 Mich. 48, 52 (1869).
While it was acknowledged that possibly with proper legislative authority, a defendant could waive his right to trial by jury, People v. Smith, 9 Mich. 193 (1861), waiver of a jury was recognized at this time as a substantial right only if allowed by the Legislature. See Ward v. People, 30 Mich. 116 (1874). Moreover, where the statute allowed unconditional waiver, upon election solely by the defendant, the defendant alone had the right to waive a jury. People v. Steele, 94 Mich. 437, 438, 54 N.W. 171 (1892). However, where no statute allowed unconditional waiver by the defendant, and the defendant wished to waive a jury, no error was found in the judge's insistence on having the facts determined by a jury. Grand Rapids v. Bateman, 93 Mich. 135, 138, 53 N.W. 6 (1892).
Under the 1908 constitution, similar constructions of the right to waiver were reflected in the case law.
People v. Henderson, 246 Mich. 481, 482-483, 224 N.W. 628 (1929).
We are persuaded that
" '[w]here a constitutional provision has received a settled judicial construction, and is afterward incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it.' " Richardson v. Secretary of State, 381 Mich. 304, 311, 160 N.W.2d 883 (1968).
We so conclude because we believe that it must be presumed that a constitutional provision has been framed and adopted mindful of prior and existing law and with reference to them. Saginaw City Council v. Saginaw Policemen & Firemen Retirement System Trustees, 321 Mich. 641, 647, 32 N.W.2d 899 (1948); People v. Cash, 419 Mich. 230, 241, 351 N.W.2d 822 (1984). Because the language of the 1963 constitutional provision regarding waiver mirrors the language of the 1850 and 1908 constitutions, we believe that the correct interpretation of defendants' current right of waiver is that it is exclusively a statutory right defined by the Legislature.
The Court of Appeals has consistently held that there is no constitutional right to waive a jury trial, and any right of waiver arises only by statute. See People v. Piffer, 40 Mich.App. 419, 198 N.W.2d 907 (1972); People v. Brown, 57 Mich.App. 568, 571, 226 N.W.2d 563 (1975); People v. Miller, 121 Mich.App. 691, 700, 329 N.W.2d 460 (1982). The Court of Appeals has also held that the right of waiver is statutory and that the 1988 amendment requiring prosecutorial consent is procedural and within the authority of the Legislature....
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