People v. Watkins, Docket No. 225572.

• Citation: 634 N.W.2d 370,247 Mich. App. 14
• Decision Date: 19 October 2001
• Docket Number: Docket No. 225572.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Prentice Devell WATKINS, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

634 N.W.2d 370

247 Mich. App. 14

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Prentice Devell WATKINS, Defendant-Appellant.

Docket No. 225572.

Court of Appeals of Michigan.

Submitted November 9, 2000, at Lansing.

Decided July 24, 2001, at 9:05 a.m.

Released for Publication October 19, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John G. McBain, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Donald R. Cook, Detroit, for the defendant on appeal.

Before DOCTOROFF, P.J., and HOEKSTRA and MARKEY, JJ.

DOCTOROFF, P.J.

Defendant appeals by leave granted his conviction of first-degree felony murder, M.C.L. § 750.316(1)(b),¹ following a plea of guilty of open murder and a degree hearing pursuant to M.C.L. § 750.318. Defendant received a sentence of life imprisonment for the murder conviction and two years' imprisonment for the conviction of possession of a firearm during the commission of a felony. On appeal, defendant raises several assertions of error, including the argument that the trial court erred in compelling him to testify against himself at the degree hearing. We agree with defendant that the trial court should not have called him as a witness at the degree hearing; however, we find that the error was harmless.

I

On January 18, 1998, Allen Russell Stewart was shot in the back in his mother's front yard and died the same day from his gunshot wound. There were no eyewitnesses to the shooting, although the next-door neighbor recalled seeing two men standing by a tree shortly before Allen was shot, and stated that she heard the gunshot. Allen's mother, Charlene Stewart, also heard a loud noise at the time of the shooting and observed Allen staggering into her kitchen with blood on his head. Charlene said that after Allen was shot, she was unable to locate his wallet or several pieces of jewelry that he normally wore. A police officer who responded to Charlene's 911 call noticed that Allen had duct tape on his wrists. After a search of Allen's room at his mother's house, the officer found what appeared to be drug-trafficking paraphernalia and 10.98 grams of crack cocaine with an estimated value of $1,000.

The police subsequently received information that defendant may have been involved in the shooting. A police detective traveled to Kentucky, where defendant was in jail on an unrelated charge, and interviewed defendant after he waived his Miranda² rights. According to the detective, defendant initially denied any involvement in the shooting or that he had ever been to Michigan. During a third interview, defendant allegedly admitted that he and a friend, Ardell Robinson, went to the neighborhood to attend a party and sat on the hood of Allen's car waiting for the party to begin. Defendant claimed that Allen pushed him and his gun went off as he slipped and fell. In a fifth interview, defendant allegedly told the detective that Robinson gave him a gun before they arrived in Allen's neighborhood. Defendant said that Robinson grabbed Allen, and when Allen broke away and approached defendant, he pulled his gun and it went off. The detective claimed that defendant further admitted that he and Robinson discussed robbing someone.

The prosecution charged defendant with open murder and felony-firearm. At a hearing on November 4, 1999, defendant pleaded guilty to both charges and claimed that he shot Allen after the two fought. During the course of the plea hearing, the court informed defendant that by pleading guilty he was waiving his right to a jury trial and the right to remain silent at that trial. Defendant indicated his understanding of his rights and the consequences of his plea and waived his rights on the record.

On November 8, 1999, the court held a degree hearing pursuant to M.C.L. § 750.318.³ At the hearing, the prosecution presented several witnesses, including Charlene Stewart, the police officer who responded to the scene following the shooting, and the detective who interviewed defendant. The prosecution also called a forensic pathologist who testified that Allen had scrapes on his forehead and face and died as a result of the gunshot wound. According to the pathologist, the bullet entered Allen's back, traveled down through his body, perforating his aorta, and stopped in his thigh. After the prosecution and defense rested, the court called defendant as a witness, and he was questioned both by the court and the prosecution. Defense counsel did not object to the court calling defendant as a witness or to defendant's testimony. During his testimony, defendant denied robbing Allen and continued to insist that the shooting occurred as the two fought.

In an oral decision following the degree hearing, the trial court found that defendant planned to rob Allen and that the shooting could not have happened in the manner described by defendant. The court then concluded that the killing constituted felony murder because it occurred during the course of a robbery.

II

Defendant argues on appeal that the trial court's decision to call him as a witness at the degree hearing and allow the prosecution to cross-examine him violated his Fifth Amendment right against compelled self-incrimination. Although this Court has addressed matters involving the degree hearing procedure embodied in M.C.L. § 750.318, the argument raised by defendant appears to be an issue of first impression.

It is unquestioned that both the United States and Michigan Constitutions prohibit the government from compelling a criminal defendant to testify against himself. U.S. Const., Am. V; Const. 1963, art. 1, § 17; People v. Cheatham, 453 Mich. 1, 9, 551 N.W.2d 355 (1996). This right has been found to extend beyond the defendant's conviction and affords protection against compelled self-incrimination in the sentencing phase of a criminal proceeding. Estelle v. Smith, 451 U.S. 454, 462-463, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); People v. Wright, 431 Mich. 282, 295, 430 N.W.2d 133 (1988). "[T]he availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." Estelle, supraat 462, 101 S.Ct. 1866, quoting In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

However, when a defendant pleads guilty of a crime, he generally waives the right against compelled self-incrimination for the purpose of the pleataking procedure. People v. Banks, 51 Mich.App. 406, 407, 214 N.W.2d 890 (1974); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In addition, a trial court is required to inform a defendant that by pleading guilty he is waiving several critical constitutional rights, including the right to remain silent and the right to have the court ascertain that the defendant understands the waiver. MCR 6.302(B)(3); People v. Jaworski, 387 Mich. 21, 30, 194 N.W.2d 868 (1972). The question before this Court here is whether a criminal defendant who waives his right to remain silent in connection with a plea of guilty of open murder also waives that right for the purpose of the degree hearing conducted pursuant to M.C.L. § 750.318.

The "open murder" statute, M.C.L. § 750.318 establishes a procedure for determining the degree of murder when the information does not charge the defendant with a specific degree of murder. When a person charged with murder is convicted by a jury, M.C.L. § 750.318 requires the jury to "ascertain in their verdict, whether it be murder of the first or second degree." However, when a defendant is "convicted by confession," the court must "proceed by examination of witnesses to determine the degree of the crime" and "render judgment accordingly." Id.; People v. Martin, 316 Mich. 669, 671-672, 26 N.W.2d 558 (1947). The statute does not specify whether the defendant retains any constitutional rights regarding the hearing, but we have held that the degree hearing following a guilty plea is not a trial, and a defendant who pleads guilty of open murder is no longer entitled to have a jury determine the degree of murder. People v. Case, 7 Mich.App. 217, 225, 151 N.W.2d 375 (1967); People v. Roberts, 211 Mich. 187, 194-195, 178 N.W. 690 (1920), overruled on other grounds in People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714 (1994). It is apparent that certain constitutional rights, such as the right to be tried by a jury, are waived by pleading guilty of open murder.

Although there is no authority directly addressing the issue raised in this case, this Court has considered similar issues involving the open murder statute. In People v. Pearson, 24 Mich.App. 270, 180 N.W.2d 53 (1970), the defendant pleaded guilty of open murder, and the trial court conducted a degree hearing during which the court apparently questioned the defendant. Relying on Case, supra, this Court held that a degree hearing is not the equivalent of a trial and that the trial court did not err in eliciting information from the defendant. Id. at 272, 180 N.W.2d 53. However, the apparent issue in Pearson was whether the trial court exceeded its authority by questioning the defendant instead of deferring to the prosecutor, not whether the questioning itself was permissible. Id. Further, the Pearson opinion does not indicate whether the defendant waived his Fifth Amendment right against self-incrimination during or sometime before the hearing, nor does it indicate if the defendant objected to his compelled testimony.⁴

This Court further explored the degree hearing procedure in People v. Berry (On Remand), 198 Mich.App. 123, 497 N.W.2d 202 (1993). In Berry, defense counsel entered a plea of guilty of open murder on behalf of the defendant. The defendant challenged the trial court's acceptance of the plea because the court did not directly question him to establish the existence of the crime and...