Summary
In People v Edwards, 51 Mich. App. 403; 214 N.W.2d 909 (1974), and People v Polhamus, 59 Mich. App. 609; 230 N.W.2d 171 (1975), lv den 394 Mich. 819 (1975), no written waiver was made a part of the record.
Summary of this case from People v. BraxtonOpinion
Docket No. 15872.
Decided January 22, 1974.
Appeal from Oakland, Farrell E. Roberts, J. Submitted Division 2 November 13, 1973, at Lansing. (Docket No. 15872.) Decided January 22, 1974.
Robert Lee Edwards was convicted of larceny from the person. Defendant appeals. Reversed and remanded for new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Robert C. Williams, Appellate Counsel, for the people.
Lynn V. Hooe, Jr., for defendant.
In September 1972 defendant was tried without a jury and found guilty of larceny from the person. MCLA 750.357; MSA 28.589. On October 16, 1972, defendant was sentenced to serve five to ten years in state prison.
On appeal defendant asserts that he did not waive his right to jury trial as required by statute which mandates the ordering of a new trial.
The statute provides that defendant has the right to a nonjury trial. MCLA 763.3; MSA 28.856. The statute is explicit and mandatory.
"Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof."
Nowhere in the record does any written waiver appear, or any transcript of an oral waiver before or at trial. The nonjury trial proceeded without mention of waiver or objection by defendant.
In the absence of statute one charged with a serious crime cannot waive a right to jury trial except by pleading guilty. People v Henderson, 246 Mich. 481; 224 N.W. 628 (1929). Such statutes allowing waiver are valid. Henderson, supra.
The only decisions allowing an implied waiver of jury trial when pleading not guilty are cases involving crimes "cognizable by a justice of the peace". People v Weeks, 99 Mich. 86; 57 N.W. 1091 (1894); People v Redman, 250 Mich. 334; 230 N.W. 196 (1930); People v DeVine, 271 Mich. 635; 261 N.W. 101 (1935); People v Ulbrick, 24 Mich. App. 437; 180 N.W.2d 287 (1970). Contra, Ward v People, 30 Mich. 116 (1874). Challenges to the validity of jury waivers have been denied where written waivers have appeared in the record. People v Amos, 10 Mich. App. 533; 159 N.W.2d 855 (1968); People v Thompson, 34 Mich. App. 665; 192 N.W.2d 8 (1971). We have failed to find a case where a jury waiver was absent from the record and defendant was convicted at a nonjury trial. Thus, this issue is one of first impression in this state.
Defendant's failure to object to the nonjury trial, while indicating assent to jury waiver, does not preclude review. Failure to object does not foreclose review where a constitutional right is likely to have been infringed. People v Thomas, 44 Mich. App. 649; 205 N.W.2d 604 (1973); People v Degraffenreid, 19 Mich. App. 702; 173 N.W.2d 317 (1969).
A waiver of the right to jury trial will not be presumed from a silent record. Boykin v Alabama, 395 U.S. 238, 242-243; 89 S Ct 1709, 1712; 23 L Ed 2d 274, 279 (1969); People v Jaworski, 387 Mich. 21, 28; 194 N.W.2d 868, 871 (1972). This rule of constitutional law together with the clear mandatory wording of the waiver of jury statute compels reversal in the instant case.
Reversed and remanded for new trial.