People v. Reddick

• Decision Date: 20 February 1991
• Docket Number: Docket No. 122363
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Lawrence REDDICK, Jr., Defendant-Appellant. 187 Mich.App. 547, 468 N.W.2d 278
• Court: Court of Appeal of Michigan — District of US

Page 278

468 N.W.2d 278

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Lawrence REDDICK, Jr., Defendant-Appellant.

Docket No. 122363.

187 Mich.App. 547, 468 N.W.2d 278

Court of Appeals of Michigan.

Submitted Nov. 6, 1990, at Lansing.

Decided Feb. 20, 1991, at 9:05 a.m.

Released for Publication May 6, 1991.

[187 MICHAPP 547] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate

Div., and Kathryn G. Barnes, Asst. Pros. Atty., for People.

Law Offices of Louis Demas, P.C. by Randy E. Davidson, Southfield, for defendant-appellant.

Before CYNAR, P.J., and GILLIS and WEAVER, JJ.

PER CURIAM.

Following a bench trial, defendant Charles Lawrence Reddick, Jr., was convicted on October 13, 1989, of first-degree retail fraud, M.C.L. Sec. 750.356c; M.S.A. Sec. 28.588(3). On that same date, defendant pled guilty of being an habitual offender, fourth offense, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. The trial court sentenced defendant to one to two years' imprisonment for the retail fraud conviction, then vacated that sentence and sentenced him to three to fifteen years' imprisonment as a fourth-felony offender. Defendant appeals as of right. We affirm.

On the morning of April 15, 1989, in a Foodland store in Ferndale, Michigan, defendant was observed by acting store manager Willie Harrington placing groceries into paper bags in his shopping cart. Several minutes later defendant by-passed several open cash registers, pushed his cart past a closed register, and headed toward the front door. Harrington stopped defendant and asked him if he had a receipt for the merchandise in his cart. According to Harrington, defendant became nervous and replied that he did not have a receipt, but that he was going to pay for the goods. Defendant then ran out of the store and into the parking lot before being apprehended by Harrington and another Foodland employee. Defendant was taken to the Foodland security office, and the police were called. An inventory of the items in defendant's two bags revealed merchandise valued at $149.35.

Defendant argues first that he is entitled to a new trial because the trial court did not secure a proper waiver of his right to a jury trial. We disagree.

MCR 6.402(B), which became effective on October 1, 1989, twelve days before the commencement of trial in this case, provides:

[187 MICHAPP 549] Waiver and Record Requirements. Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personally, that the defendant understands the right and that the defendant voluntarily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding.

The Supreme Court staff note to the rule states:

MCR 6.402 is a new rule. It sets forth a procedure for waiver of jury trail that differs substantially from the requirements set forth in MCL 763.3; MSA 28.856 and the procedure implementing those requirements adopted in People v. Pasley, 419 Mich 297 (1984).

* * * * * *

The waiver procedure set forth in subrule (B) differs from the statute and the procedure adopted in Pasley because it eliminates the written waiver requirement and replaces it with an oral waiver procedure consistent with the waiver procedure applicable at plea proceedings. See 6.302(B)(3). The statutory procedure is superseded by the court rule procedure. See 6.001(E).

On October 12, 1989, the scheduled date for trial, the following exchange occurred on the record:

Mr. Secrest: Ready, your Honor, John Secrest on behalf of Mr. Reddick.... I've talked to Mr. Reddick and he's conveyed to me that he wishes to have a nonjury bench trial in this matter.

Is that correct, Mr. Reddick?

Mr. Reddick: This is correct, sir.

The matter was adjourned until the next day, at which time the following discussion took place:

[187 MICHAPP 550] Mr. Rumley [assistant prosecutor]: Your Honor, we were last here on, I believe it was yesterday, yesterday afternoon, and at that time there was a decision to be made in terms of waiving a jury. I don't know if that decision has been made or not. Mr. Secrest ...

Mr. Secrest: I'd just ask your Honor to inquire of the defendant what's his choice in this matter.

The Court: Mr. Reddick, do you wish to proceed with a jury or without a jury?

Mr. Reddick: I would like a bench trial, sir. I was informed right in front of you that I was going to trial, sir. I was not informed that I had to--that it was a choice to be made at that time or I would have made the choice then, sir.

The Court: Well, if you're making a choice to go to trial now, we're going to trial right now.

Following a fifteen-minute recess to allow defendant time to read the transcript of the preliminary examination and sign the jury waiver form, the following exchange occurred:

Mr. Rumley:...