People v. Miller

• Decision Date: 16 February 1983
• Docket Number: Docket No. 57984
• Citation: 329 N.W.2d 460,121 Mich.App. 691
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry MILLER, Defendant-Appellant. 121 Mich.App. 691, 329 N.W.2d 460
• Court: Court of Appeal of Michigan — District of US

Page 460

329 N.W.2d 460

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry MILLER, Defendant-Appellant.

Docket No. 57984.

121 Mich.App. 691, 329 N.W.2d 460

Court of Appeals of Michigan.

Submitted May 4, 1982.

Decided Dec. 6, 1982.

Released for Publication Feb. 16, 1983.

[121 MICHAPP 693] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Janice M. Joyce, Asst. Pros. Atty., for the People.

Warren H. Siegel, Southfield, for defendant-appellant on appeal.

Before WALSH, P.J., WAHLS and McDONALD, ^* JJ.

WAHLS, Judge.

On February 11, 1981, a Detroit Recorder's Court jury convicted defendant, by a vote of 11 to 1, of possession of a controlled substance in violation of M.C.L. Sec. 333.7403(2)(a); M.S.A. Sec. 14.15(7403)(2)(a). Sentenced to a prison term of from one to four years, defendant appeals as of right.

After the jury deliberated for less than two [121 MICHAPP 694] hours, the bailiff informed the court that the jury had indicated it was hopelessly deadlocked. The vote was 11 to 1; whether the 11 had voted for conviction or acquittal was not revealed. The trial judge told defendant he had the option of either having the jury sent back and asked to continue deliberating until a unanimous verdict was reached or accepting the verdict of the majority of 11. Defense counsel indicated that while he was not inclined to recommend defendant accept the majority vote, he would leave the decision to defendant. Defendant stated he understood the options and chose to take the verdict of the 11. ¹ The jury was polled; 11 jurors found defendant guilty, 1 voted for acquittal.

The primary issue we address in this case is one not before addressed in Michigan: Whether, consistent with the right to trial guaranteed by the United States and Michigan Constitutions, ² a criminal[121 MICHAPP 695] defendant in a Michigan State court may waive his right to a unanimous jury verdict and, if so, whether the defendant's consent to the non-unanimous verdict in this case meets applicable standards for waiver of a constitutional right.

Until Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the decisions of the Supreme Court assumed that the trial by jury established by the federal constitution meant a jury trial as it existed at common law. See Patton v. United States, 281 U.S. 276, 288-290, 50 S.Ct. 253, 254-255, 74 L.Ed. 854 (1930). The elements of the common-law jury trial were the 12-man jury, the presence and superintendence of a judge having the power to instruct the jury on the law and to advise them upon the facts, and the unanimous verdict. Patton, supra, 281 U.S. at 288, 50 S.Ct. at 254. And, until Patton, supra, jury trials could not be waived by consenting defendants at common law, Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).

In Patton, supra, 281 U.S. at p. 298, 50 S.Ct. at p. 258, the Court decided that a jury trial was right which the accused might "forego at his election". In Williams, supra, 399 U.S. at pp. 92-93, 90 S.Ct. at pp. 1901-1902, the Court observed that "the relevant constitutional history casts considerable doubt on the easy assumption * * * that if a given feature existed * * * at common law in 1789, then it was necessarily preserved in the Constitution", and the Court thereafter held that the Sixth Amendment, as applied to the states through the Fourteenth Amendment, was not violated by a state law providing for a six-man jury in non-capital cases.

The Court in Williams expressly left unanswered the question of whether unanimity "is an [121 MICHAPP 696] indispensable element of the Sixth Amendment jury trial". 399 U.S. at 100, fn. 46, 90 S.Ct. at 1906, fn. 46. In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the Court held that a state constitutional provision imposing less-than-unanimous verdicts in state criminal prosecutions does not violate the Sixth Amendment, although a unanimous verdict is constitutionally required in a federal criminal trial. ³

In Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), decided the same day as Apodaca, a plurality of the Court rejected defendant's contention that the reasonable doubt standard, implicit in the due process clause of the Fourteenth Amendment, required a unanimous verdict and was violated by defendant's conviction under the Louisiana constitution which required merely nine votes to convict. The Court observed that nine jurors--a "substantial majority" of the 12-member jury--were convinced by the evidence:

[121 MICHAPP 697] "[D]isagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters' views, remains convinced of guilt. That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard." 406 U.S. at 362, 92 S.Ct. at 1625.

In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), the Court held that a jury of less than six members deprived a defendant in a criminal case of his constitutional right to a jury trial. And in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), a unanimous Court struck down a provision that misdemeanors punishable by more than six months "shall be tried before a jury of six persons, five of whom must concur to render a verdict".

The United States Supreme Court has not decided the specific question, present here, of whether, under the Federal Constitution, a defendant may consent to a less-than-unanimous verdict in a state criminal trial. We conclude, as have the courts in two other states, ⁴ that since Johnson and Apodaca hold the federal constitution is not offended by a state constitutional provision imposing less-than-unanimous verdicts in all but capital cases, despite the defendant's refusal to consent, the federal constitutional right to jury trial is not violated when, in a state criminal trial, a defendant does give his consent.

Two provisions in the Michigan Constitution pertain to a criminal defendant's right to a jury trial. Const.1963, art. 1, Sec. 14 provides:

"The right of trial by jury shall remain, but shall be [121 MICHAPP 698] waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree."

In Michigan the right of trial by jury means the right as it existed at common law when the state constitution was adopted, which was a trial by a jury of twelve, whose determination must be unanimous. McRae v. Grand Rapids, L. & D.R. Co., 93 Mich. 399, 53 N.W. 561 (1892).

Const.1963, art. 1, Sec. 20 provides, in part, that an accused in a criminal prosecution "shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year."

There is no legislative or constitutional authorization for conviction by a jury of less than 12 in a felony trial or by a less-than-unanimous jury. Rule 512.1 of the General Court Rules of 1963, promulgated by the Supreme Court pursuant to Const.1963, art. 6, Sec. 5, does suggest the right to a 12-member unanimous jury may be waived:

"Juries of Less than Full Complement; Majority Verdict. The parties may stipulate in writing or on the record that the jury shall consist of any number less than 12 or 6 as the case may be, or that a verdict of a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. In the absence, of such stipulation, a verdict in criminal cases shall be unanimous; and in civil cases tried by 6 jurors, a verdict shall be received when 5 jurors agree."

Defendant argues, however, that in Michigan, in the absence of a legislative provision authorizing waiver of the constitutional (and common law) [121 MICHAPP 699] right to a unanimous jury, such waiver is a nullity.

In Hill v. People, 16 Mich. 351, 358 (1868), the Court determined that an accused was not permitted to waive rights guaranteed by the constitution and the common law to attend a criminal trial:

"[W]e think there would be great danger in holding it competent for a defendant in a criminal case, by waiver or stipulation, to give authority which it could not otherwise possess, to a jury of less than twelve men, for his trial and conviction; or to deprive himself in any way of the safeguards which the constitution has provided him, in the unanimous agreement of twelve men qualified to serve as jurors by the general laws of the land.

* * *

"It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction."

In People v. Henderson, 246 Mich. 481, 224 N.W. 628 (1929), however, the Court upheld the validity of the forerunner to M.C.L. Sec. 763.3; M.S.A. Sec. 28.856 (1929 C.L. Sec. 17131), which granted the accused the right to waive trial by jury, and be tried by a court, upon compliance with the specified requirements. ⁵ The constitution, stated the Court, "merely declares that the right of trial by jury shall remain".

[121 MICHAPP 700] "The statute takes nothing from the right. It remains. Passed to expedite trials, the statute gives the accused the additional right to be tried without a jury if he so elects. A statute is necessary to waiver of the right of trial by jury in a criminal case because at common law trial by jury prevailed exclusively." People v. Henderson, supra, 246 Mich. at p. 482, 224 N.W. 628. (Emphasis added.)

In holding that the waiver of the right to a jury trial itself must be...