People v. Williams

Citation179 N.W.2d 48,23 Mich.App. 459
Decision Date29 April 1970
Docket NumberNo. 2,Docket No. 5599,2
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rufus WILLIAMS, Defendant-Appellant
CourtCourt of Appeal of Michigan (US)

George L. Baer, Flint, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for appellee.

Before LEVIN, P.J., and T. M. BURNS and DANHOF, JJ.

LEVIN, Judge.

The defendant, Rufus Williams, pled guilty to second degree murder. The plea was accepted and on October 19, 1959 he was sentenced to life in prison.

The questions presented concern the sufficiency of the judge's interrogation of Williams before his plea of guilty was accepted.

This appeal follows the trial court's denial of Williams' petition, filed June 13, 1966, to withdraw his guilty plea. In his petition Williams alleged that he was intoxicated at the time he crime was committed and that the elements of the charged offense, first degree murder and the distinction between first and second degree murder and his right to be tried by a jury or the court were not explained to him before he pled guilty.

At the time Williams pled guilty, Court Rule No. 35A [1945] governed the taking of guilty pleas. The rule required the court to advise an accused person not represented by counsel of his right to a trial by jury. In People v. LaRoe (1969), 18 Mich.App. 262, 170 N.W.2d 902, we held that the corresponding requirement in the currently effective court rule, GCR 1963, 785.3(1), does not require a trial judge to give such advice to an accused person who is represented by counsel. Williams was represented by counsel when he pled guilty.

Moreover, we note that at the time Williams pled guilty he was 49 years of age and had an extensive history of criminal conviction and incarceration going back over 20 years. Also, the attorney who represented Williams when he pled guilty submitted an affidavit stating that he had advised Williams of his right to a trial by jury or by the court, of the nature of the charge against him, of the lesser included offenses and of the penalties for first and second degree murder.

Since Williams pled guilty to second degree murder, Williams could not have been prejudiced by any failure to have explained to him the difference between first and second degree murder. And, since the defense now asserted is intoxication, not that Williams killed the victim in the heat of passion produced by adequate provocation or under other circumstances of mitigation, 1 any failure to have explained the difference between second degree murder and voluntary manslaughter was probably inconsequential and would not now justify setting aside his plea of guilty. 2

Even if, as Williams claims, he was so deeply intoxicated that he was not aware of what he was doing, it is doubtful whether intoxication is a defense to second degree murder in Michigan. 3 The intoxication defense is discussed at length in People v. Kelley (1969), 21 Mich.App. 612, n. 14, 176 N.W.2d 435, citing Michigan precedent that intoxication is not a defense even to first degree murder. 4

Witnesses testified at the preliminary examination that Williams came armed with a revolver to the apartment of the victim, a former girl friend, and that he shot her without provocation. It thus appears that if intoxication is not a defense to first degree murder or Williams could not have factually established an intoxication defense 5 he might have been convicted of first degree murder had he stood trial. It is, therefore, understandable that he might have decided to forego a possibly legally or factually insufficient intoxication defense and offered to plead guilty to second degree murder. There was a factual and legal basis for his guilty plea. 6

When Williams pled guilty, he was not directly questioned by the judge for the purpose of establishing that a crime was committed and that he participated in its commission, as required by People v. Barrows (1959), 358 Mich. 267, 277, 99 N.W.2d 347. Barrows held that such questioning was required by rule 35A and C.L. 1948, § 768.35 (Stat.Ann.1954 Rev. § 28.1058). While this requirement has precedential support in early Michigan cases, 7 Barrows was the first modern case clearly reiterating and reaffirming this requirement. 8

Williams' plea of guilty was accepted before the date (November 25, 1959) on which Barrows was decided. In People v. Combs (1968), 15 Mich.App. 450, 166 N.W.2d 509, another case concerning Pre-Barrows guilty pleas, the defendant pled guilty on November 6, 1958 to separate charges of taking indecent liberties 9 and to possession of burglary tools. 10 The trial judge had failed to examine Combs regarding his participation in the commission of either offense before he accepted the guilty pleas. There was a preliminary examination on the indecent liberties charge, but Combs had waived examination on the burglary tools charge. We held that, under the circumstance that the preliminary examination on the indecent liberties charge established the crime and Combs' participation in it, the judge did not abuse his discretion in denying Combs' post-conviction motion to withdraw his plea; however, the possession of burglary tools conviction was set aside because of the judge's failure to conduct the examination required by Barrows. See, also, People v. Bartlett (1969), 17 Mich.App. 205, 169 N.W.2d 337, discussed in footnote 6.

As previously mentioned, the testimony at Williams' preliminary examination demonstrates that there was a factual basis for his plea of guilty to second degree murder. The defense now asserted is intoxication, not that Williams did not kill the victim. And, as we have already observed, intoxication may not be a legally sufficient defense. Moreover, before accepting Williams' plea, the trial judge injuried regarding the facts and they were adequately summarized in open court by the prosecutor; it has not been claimed then or now that the facts were inaccurately stated.

We hold that where an accused person pled guilty before Barrows was decided, and the defense advanced in postconviction preceedings is lack of criminal responsibility, not that the defendant did not commit the crime, and the preliminary examination record tends to show that the defendant committed the crime, and facts were related (albeit not by the defendant himself) in open court in the defendant's presence shortly before his plea of guilty was accepted which, if true, are sufficient to support a conviction, the failure of the trial judge to question the defendant regarding his participation in the commission of the crime does not require that his plea of guilty be set aside.

Defendant also complains because he was not represented at the preliminary examination by counsel. However, just as a defendant can waive preliminary examination, so too, by pleading guilty he is deemed to have waived any defect in the conduct of the examination, 11 including a failure to appoint counsel. 12

Affirmed.

DANHOF, Judge (concurring).

I concur with the majority, except I cannot accept that People v. Barrows (1959), 358 Mich. 267, 277, 99 N.W.2d 347 requires what the majority has herein stated.

An examination of this record discloses that the trial court did not abuse its discretion in failing to set aside the guilty plea conviction. At the time of defendant's arraignment on September 22, 1959 the defendant with the advice and assistance of counsel entered a plea of guilty to second degree murder. The court ascertained the facts of the crime and was satisfied that the plea was voluntarily and intelligently made as required by Court Rule 35A, now GCR 1963, 785.3(1) and the statute M.C.L.A. § 768.35 (Stat.Ann.1954 Rev. § 28.1058). There was no miscarriage of justice. People v. Dunn (1968), 380 Mich. 693, 158 N.W.2d 404; People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395; People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409.

Conviction affirmed.

2 See, however, footnote 4.

4 See People v. Garbutt (1868), 17 Mich. 9.

Garbutt can, indeed, be distinguished (see People v. Kelley, Supra, 176 N.W.2d p. 444, n. 28). In some jurisdictions intoxication may be shown to negative the premeditation and deliberation required to prove first degree murder; in many of these jurisdictions it is not a defense to second degree murder. In still other jurisdictions the defense is allowed to negative murder and to reduce the killing to voluntary manslaughter. See Anno.: Voluntary Intoxication as a Defense to Homicide, 12 A.L.R. 861, 79 A.L.R. 897; Note, Intoxication as a Criminal Defense, 55 Colum.L.Rev. 1210 (1955); Perkins on Criminal Law (2d ed.), pp. 91, 92.

6 We recognize that the 'frequently onesided examination testimony' may not be considered as a factor in granting or denying a motion to withdraw a guilty plea (People v. Zaleski (1965), 375 Mich. 71, 81, 133 N.W.2d 175) but, as we have said before (People v. Bartlett (1969), 17 Mich.App. 205, 210, 169 N.W.2d 337), preliminary examination testimony may be considered in deciding whether there is a factual basis for a guilty plea.

The holding of Williams' preliminary examination without the presence of counsel representing him makes that record even more one-sided. We acknowledge this deficiency and that there may be cases where we will not feel justified in placing any reliance upon such a record even to establish a factual basis for a guilty plea. Here, however, witnesses testified in detail as to the commission of the offense. Furthermore, the defense now advanced is lack of criminal responsibility, not that the defendant did not kill the victim.

There are, indeed, other distinctions between...

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