People v. Smith

• Citation: 300 N.W.2d 470,101 Mich.App. 110
• Decision Date: 23 October 1980
• Docket Number: Docket No. 50193
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith Eugene SMITH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 470

300 N.W.2d 470

101 Mich.App. 110

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith Eugene SMITH, Defendant-Appellant.

Docket No. 50193.

Court of Appeals of Michigan.

Oct. 23, 1980.

Released for Publication Jan. 29, 1981.

Stuart L. Young, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., David W. King, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BRONSON and CYNAR, JJ.

CYNAR, Judge.

Following a bench trial, defendant was found guilty of receiving or concealing stolen property over the value of $100, M.C.L. § 750.535; M.S.A. § 28.803. He was sentenced to a term of from two and a half to five years in prison and appeals as a matter of right.

The lower court record and the transcript of proceedings do not contain any findings of fact or conclusions of law made by the trial judge.

Two issues are raised for our consideration. The first is whether the trial judge erred by not articulating the reasons for his decision in findings of fact. The second is whether defense counsel effectively waived any requirement that the court below state its findings of fact. We address these issues seriatim.

In People v. Robert Jackson, 390 Mich. 621, 627, 212 N.W.2d 918 (1973), Justice Levin, on behalf of a unanimous Court, stated that:

"We are now of the opinion that in criminal cases as well as civil cases a judge who sits without a jury is obliged to articulate the reasons for his decision in findings of fact. Findings of fact in a nonjury case serve a function paralleling the judge's charge in a jury case, that of revealing the law applied by the fact finder. ³

3. A judge's failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result as, for example, where the only factual issue is identification. See People v. Green, 32 Mich.App. 482, 189 N.W.2d 122 (1971). See, also, People v. George Scott, 21 Mich.App. 217-218, 175 N.W.2d 312 (1970)."

Seizing on the dictum found in footnote 3 of the Court's opinion in Robert Jackson, the prosecution now contends that the case at bar falls within the quoted exception to the otherwise absolute duty which devolves upon the trial court under GCR 1963, 517.1. In addition, the people cite People v. Theron Jackson, 81 Mich.App. 18, 264 N.W.2d 101 (1978), in support of their position, claiming that the circumstances in that case are analogous to those in the case sub judice. We disagree.

In Theron Jackson, supra, the "only" issues for the trial judge to determine were whether the defendant acted in self-defense and whether he assaulted the complainant with an intent to murder. Under the circumstances, this Court concluded that a remand for fact finding by the trial court was unnecessary, citing to the exception found in footnote 3 of the Supreme Court's opinion in Robert Jackson, supra.

The facts involved in Theron Jackson appear to be substantially more complicated than those in either of the cases mentioned in the footnote which states the exception. One involved an unarmed robbery in which the only point of contention was identification. Manifestly, the finding of guilt indicated a resolution of identification issue contrary to the defendant's position. People v. Green, 32 Mich.App. 482, 189 N.W.2d 122 (1971). The other involved a conviction for statutory rape in which the age of the victim was not in dispute and where the trial court, on the record, reviewed the testimony disclosing penetration, the only other element upon which proof was required. This Court found substantial compliance with the mandate of GCR 517.1, on those facts. People v. George Scott, 21 Mich.App. 217, 175 N.W.2d 312 (1970).

We question the wisdom of this Court in Theron Jackson in applying the previously noted exception to the fact finding requirement in a case which seems to us an inappropriate one in which to employ it. Moreover, it is not entirely clear that the Supreme Court intended its footnote to set forth an exception. Its language may have evinced only an intent not to require remand in cases decided prior to its opinion in Robert Jackson.

Notwithstanding our reservations regarding this Court's decision in Theron Jackson, we find the case at bar readily distinguishable from it. Upon the court's request therefor, the prosecution in this case submitted proposed findings of fact and conclusions of law which contained 40 points of fact and 8 points of law. Additionally, while the defendant herein did not contest the value of the property alleged to have been stolen, he did contest his possession thereof, his guilty knowledge, and the legal status of the goods. The testimony of prosecution witnesses, taken alone, creates issues of fact on each of these elements. By rendering a general verdict of guilty, the trial judge failed to disclose either the facts he found or the law he purported to apply. We conclude that this case required findings of fact and conclusions of law thereon under the rule announced in Robert Jackson. The failure to do so cannot be excused under the perceived exception to such obligation. See People v. Stanford, 68 Mich.App. 168, 173-175, 242 N.W.2d 56 (1976).

However, we must yet decide whether this failure may be excused on account of a waiver of the fact finding requirement by defense counsel.

On the day set for sentencing (December 20, 1978), the prosecutor stated that it was his understanding that the court would state on the record its findings of fact before sentencing. The judge did not respond on the record. The court adjourned sentencing for a week, and the prosecutor asked if the court would then state its findings. The judge said he would. On December 27, 1978, the court delayed final sentencing for one year. The following exchange took place:

(Mr. Fenton, the prosecutor, speaking) "I respectfully request the Court asked this same Prosecutor to remind you to read the Court's findings from the non-jury trial that was conducted November 6, 7, 15 and 17 into the record.

"MR. FINN: Good morning, your Honor. For the Record, Michael D. Finn present in court with my two clients.

"THE COURT: Do you waive the reading of the findings?

"MR. FINN: Your Honor, I don't think excuse me. I don't object to the waiver. I think the Record probably should reflect the Court's findings of fact in the absence of a jury trial. I don't know what specific findings the Court is referring to.

"THE COURT: All right. I'll do that later this morning. Thank you. About eleven o'clock.

"MR. FENTON: Fine your Honor.

"THE COURT: Could I see both counsel at the bench?

"(Discussion was held off the Record between the Court and both counsel.)

"THE COURT: Well, we may as well dispose of this matter now. Didn't you wish me to pass sentence at this time?

"MR. FINN: Your Honor, it's my request I was confused as to the Court's initial communication. It is my desire to waive the findings of fact and have the Court pass sentence at this time."

These facts arguably fail to establish a knowing waiver by defense counsel. It is unclear from the brief, on-the-record discussion whether defendant's counsel intended to waive the reading of the findings at that time only, intended to waive the reading of the findings in open court, or intended to waive any submission of findings of fact by the trial court. It is clear that the prosecution did not, at that time, intend to waive the submission of findings of fact. Absent an unequivocal attempted waiver, one should not be presumed.

However, even assuming, arguendo, that an adequate waiver is established in form, the question remains whether such waiver is of any legal effect. Robert Jackson, supra, is silent on the question of waiver of the fact-finding mandate.

The requirement of specific findings of fact in a bench trial has as its major purpose facilitation of appellate review. People v. Matthews, 53 Mich.App. 232, 240, 218 N.W.2d 838 (1974). GCR 517.1 is most important, therefore, to a reviewing court. Decisions of this Court strongly intimate that GCR 517.1 is not a right of the parties, but a requirement for the effective administration of justice. Mathews, supra, Stanford, supra, People v. Ramsey, 89 Mich.App. 468, 280 N.W.2d 565 (1979); People v. Cook, 89 Mich.App. 72, 279...