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Docket Number

Docket No. 53277.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and John W. Stanowski, Assistant Prosecuting Attorney, for the people. Don Ferris, for defendant.

Judges

PER CURIAM.

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Smart Summary

Case Summary: PEOPLE v BRADLEY, Docket No. 53277 (Mich. Ct. App. Dec. 13, 1982)

Factual and Procedural Background

Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, in violation of MCL 750.84; MSA 28.279, and sentenced to five to ten years' imprisonment. He later pleaded guilty to being a second-time felony offender pursuant to MCL 769.10; MSA 28.1082 and MCL 769.13; MSA 28.1085. The prior sentence was vacated and a sentence of six to fifteen years was imposed on the second-time felony offender conviction. Defendant appealed both convictions as of right.

The underlying assault occurred August 29, 1979. After drinking beer and taking Valium, defendant suggested dancing with Michael Casey and Ava Klebba. After several dances Casey sat next to defendant; Klebba went to the kitchen. Defendant suddenly struck Casey in the face with his fist and stabbed him in the neck with a knife. Casey bled profusely but remained in the apartment overnight and was taken to the hospital the next morning. Defendant denied stabbing Casey.

Legal Issues Presented

Whether the trial court abused its discretion in denying defendant's motion for a mistrial after a witness made a statement that defendant contended improperly exposed the jury to his pending habitual offender charge.
Whether prosecutorial misconduct deprived defendant of a fair trial.
Whether defendant's plea-based conviction as a second-time felony offender was invalid because the prior Indiana convictions (February 15, 1960) were constitutionally infirm—specifically (a) for lack of counsel at a juvenile waiver hearing, and (b) because the pleas were not knowingly and voluntarily entered.

Arguments of the Parties

Defendant's Arguments

He moved for a mistrial after, during direct examination of Casey, the witness stated he believed the defendant "was going up for, he would be tried for habitual criminal," and defendant argued the jury had been improperly exposed to a pending habitual offender charge.
He contended that prosecutorial misconduct during trial denied him a fair trial.
He challenged the validity of the Indiana prior convictions underlying the second-time felony offender charge, arguing (i) he lacked counsel at the juvenile waiver hearing and (ii) his guilty pleas were not knowingly and voluntarily entered.

People's (Prosecution's) Position as Reflected in the Record

The trial court found the witness's statement did not inform the jury that a supplemental information had been filed and therefore denied the mistrial motion and gave a curative instruction instructing jurors to disregard the answer and assuring them defendant was not being charged as a habitual offender.
With respect to alleged prosecutorial misconduct, the record reflects the court noted that none of the complained-of questions or comments were objected to by defendant and, although some were improper, there was no manifest injustice.
Regarding the challenge to the juvenile waiver, the court (citing authority) treated the Kent rule as not retroactive and thus not a basis for invalidating the Indiana convictions; however, on the separate ground of whether the prior pleas constituted an express and intelligent waiver of jury trial, the court found they did not and therefore invalidated the use of those priors for enhancement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Jackson, 100 Mich. App. 146, 159; 298 N.W.2d 694 (1980).	Denial of a motion for mistrial will not be reversed in absence of an affirmative showing of prejudice.	Used to support the conclusion that defendant's motion for mistrial was not reversible without affirmative showing of prejudice.
People v Kramer, 103 Mich. App. 747, 757; 303 N.W.2d 880 (1981).	Declaration of a mistrial rests within the sound discretion of the trial judge; reversal only for abuse of discretion.	Applied to uphold trial judge's denial of mistrial absent an abuse of discretion.
People v Hatt, 384 Mich. 302, 307-309; 181 N.W.2d 912 (1970).	A defendant is prejudiced when the jury is advised he is also being charged as a habitual offender.	Referenced to note that such a disclosure would be prejudicial; court found no such disclosure occurred here.
People v Yarbrough (On Remand) (On Rehearing), 86 Mich. App. 105; 272 N.W.2d 345 (1978).	Authority cited regarding curative instruction and trial court discretion in similar contexts.	cited to support the trial court's exercise of discretion in denying mistrial and giving curative instruction.
Eisbrenner v Stanley, 106 Mich. App. 357, 370-371; 308 N.W.2d 209 (1981).	Standard for prosecutorial misconduct review — presence of manifest injustice required to reverse when no contemporaneous objection.	Relied on to conclude that although some conduct might have been improper, no manifest injustice appeared to warrant reversal.
People v Moore, 391 Mich. 426, 441-442; 216 N.W.2d 770 (1974).	Procedural rule that challenges to prior convictions used in habitual offender proceedings may be raised by motion to quash the supplemental information.	Applied to hold the challenge to the Indiana convictions was properly before the court.
People v Sanders, 91 Mich. App. 737, 742; 283 N.W.2d 841 (1979).	Procedural precedent concerning challenges to prior convictions in habitual offender cases.	Used to support that the issue was properly before the appellate court.
People v Jones, 83 Mich. App. 559, 568; 269 N.W.2d 224 (1978).	Procedural precedent regarding review of challenges to prior convictions in enhancement proceedings.	Applied to confirm the appellate court's jurisdiction to consider the challenge to the priors.
Kent v United States, 383 U.S. 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966).	Announced the right to counsel at juvenile waiver/transfer proceedings.	Cited to identify the right at issue; the court then treated the Kent rule as not retroactive for the defendant's 1960 proceedings.
People v McGilmer, 95 Mich. App. 577, 579-580; 291 N.W.2d 128 (1980).	Holds that the Kent right to counsel at juvenile waiver hearings does not apply retroactively.	Applied to reject defendant's claim that lack of counsel at his 1960 juvenile waiver rendered the priors invalid.
People v Stratton, 13 Mich. App. 350, 359; 164 N.W.2d 555 (1968).	Prior convictions used for habitual criminal charges can be challenged if obtained in violation of constitutional rights.	Relied upon to acknowledge that defendant could challenge the priors on constitutional grounds.
People v McIntire, 7 Mich. App. 133, 138-139; 151 N.W.2d 187 (1967).	Same principle: prior convictions may be attacked if constitutionally infirm.	Used to support defendant's ability to challenge his prior convictions.
Brady v United States, 397 U.S. 742, 747; 90 S Ct 1463; 25 L Ed 2d 747 (1970).	Federal constitutional principle that a guilty plea must be intelligent and voluntary.	Applied as foundational authority for requiring that prior guilty pleas be knowing and voluntary to be used for enhancement.
Adams v United States ex rel McCann, 317 U.S. 269, 275; 63 S Ct 236; 87 L Ed 268 (1942).	Waiver of trial by jury must be free and intelligent.	Cited to underscore the necessity of a free and intelligent waiver of jury trial as part of plea validity.
Waley v Johnston, 316 U.S. 101, 104; 62 S Ct 964; 86 L Ed 1302 (1942).	Plea must be voluntary and free of coercion.	Used to support the court's analysis of voluntariness of the Indiana pleas.
Chambers v Florida, 309 U.S. 227, 228; 60 S Ct 472; 84 L Ed 716 (1940).	Use of an improperly obtained confession constitutes a denial of due process.	Cited among authorities on due process and voluntariness in plea and confession contexts.
Patton v United States, 281 U.S. 276, 312; 50 S Ct 253; 74 L Ed 854 (1930).	Waiver of trial by jury must be express and intelligent.	Applied to the question whether defendant had expressly and intelligently waived trial by jury in the Indiana proceedings.
Kercherval v United States, 274 U.S. 220, 223; 47 S Ct 582; 71 L Ed 1009 (1927).	To be voluntary, a plea must be made after proper advice and with full understanding of the consequences.	Cited to support the requirement that pleas be made knowingly after proper advice.
People v Kedo, 108 Mich. App. 310, 316; 310 N.W.2d 224 (1981).	The defendant must substantially admit his guilt and the plea must be voluntary and intelligent.	Used to frame the standard for determining the validity of plea-based prior convictions.

Court's Reasoning and Analysis

On the mistrial claim, the court reviewed the exchange during Casey's direct examination in which Casey, when asked what he thought defendant meant by a statement, said he "had the impression that he was going up for, he would be tried for habitual criminal." The trial court denied the mistrial motion, finding that the witness's answer did not inform the jury that a supplemental information had been filed, and the trial court gave a curative instruction. The appellate court applied the rule that denial of a mistrial will not be reversed without an affirmative showing of prejudice and that a mistrial decision rests within the trial judge's discretion. Because the witness did not state that defendant was being or had been tried as a habitual offender, and because a cautionary instruction told jurors to disregard the answer and assured them defendant was not being charged as a habitual offender, the court found no affirmative showing of prejudice and no abuse of discretion.

On prosecutorial misconduct, the court observed that defendant failed to object to the specific questions or comments now complained of. While the court acknowledged that some of the questioned conduct may have been improper, it found no manifest injustice warranting reversal under the applicable standard.

On the habitual-offender challenge to defendant's Indiana priors, the court considered two arguments raised by defendant. First, defendant argued the priors were infirm because he lacked counsel at the juvenile waiver hearing. The court cited Kent for the right to counsel at juvenile waiver proceedings but relied on People v McGilmer for the proposition that Kent does not apply retroactively; thus the lack of counsel at the 1960 juvenile waiver was not a basis for invalidating the priors.

Second, defendant argued his guilty pleas in Indiana were not knowingly and voluntarily entered. The court reviewed the Indiana arraignment transcript: the attorney said he had discussed the matter and advised defendant of constitutional rights (defendant said the attorney had spoken to him); the complaints, statutes and penalties were read; defendant said he understood the charges and penalties and pleaded "guilty" to each charge; defendant denied any threats or promises. The court concluded that although the pleas may have been voluntary, they did not reflect an express and intelligent waiver of the constitutional right to a trial by jury. Because the prior pleas lacked an express and intelligent waiver of jury trial, the court found the pleas invalid for purposes of enhancing defendant's present sentence.

The court emphasized that it could not reverse the Indiana convictions themselves, but it would not permit those prior convictions to be used to lengthen defendant's imprisonment for the present felony conviction because doing so would violate due process.

Holding and Implications

Holding: The court affirmed the assault conviction but set aside the plea-based second-time felony offender conviction. Specifically, the second-time felony offender conviction was set aside and the original sentence of five to ten years for assault with intent to do great bodily harm less than murder was reinstated. The opinion concludes: "Reversed in part and affirmed in part."

Implications: The direct effect is that defendant's habitual-offender enhancement was vacated and the original five-to-ten-year sentence for the assault conviction was reinstated. The court relied on due process and plea-voluntariness principles to prevent the use of the challenged prior guilty pleas for enhancement. The opinion does not announce a broader new rule beyond applying established precedents concerning mistrial discretion, prosecutorial-misconduct review, retroactivity of Kent, and the requirement that guilty pleas be knowing and voluntary.

Panel: M.F. Cavanagh, P.J., and R.M. Maher and K.B. Glaser, JJ. (one circuit judge sitting by assignment).

Decision Date: Decided July 13, 1982.

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PEOPLE v BRADLEY

PER CURIAM.

Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, contrary to MCL 750.84; MSA 28.279. He was sentenced to from five to ten years in prison. Subsequently, defendant pled guilty to being a second-time felony offender, pursuant to MCL 769.10; MSA 28.1082 and MCL 769.13; MSA 28.1085. His prior sentence was vacated and a sentence of from 6 to 15 years in prison was imposed for the second-time felony offender conviction. Defendant appeals both convictions as of right.

Defendant's convictions arise from the stabbing of Michael Casey. The incident occurred on August 29, 1979, at an apartment shared by defendant and Ava Klebba. After consumption of beer and Valium tablets by defendant, Casey, and Klebba, defendant suggested that the latter two dance. After several dances, Casey sat on the couch next to defendant, and Klebba went to the kitchen. Defendant suddenly struck Casey in the face with his fist and stabbed him in the neck with a knife. Despite profuse bleeding, Casey remained in the apartment overnight. In the morning, Klebba's mother took Casey to the hospital for medical treatment. Defendant denied that he stabbed Casey.

Defendant first claims that the trial court abused its discretion by denying his motion for a mistrial made after the following exchange took place during Casey's direct examination:

" Q. [by Mr. Stanowski]: Now when she had interceded and made the statements let, let you alone, what if anything did you say either to Bradley or Ava?

" A. Well, I told him, I said, I am bleeding, Miles. I says let me go to the hospital, man. He says no, I am going down, so he says you are going with me.

* * *

" The Court: Ask what this witness thought he meant by this statement.

" Mr. Stanowski: All right.

" Q. [by Mr. Stanowski, continuing]: What was in your mind when he made that statement, if any?

" A. Well, I knew Miles was out on bond, and I thought, I had the impression that he was going up for, he would be tried for habitual criminal so —

" Mr. Ferris: Objection, your Honor."

Defendant claimed that the jury had been improperly exposed to his pending habitual offender charge. However, the trial court denied the motion finding that Casey's answer did not inform the jury that a supplemental information had been filed. Also, a curative instruction was given.

In the absence of an affirmative showing of prejudice, a denial of a motion for mistrial will not be reversed. People v Jackson, 100 Mich. App. 146, 159; 298 N.W.2d 694 (1980). The declaration of a mistrial in a criminal case rests within the sound discretion of the trial judge, and his determination will not be reversed absent an abuse of that discretion. People v Kramer, 103 Mich. App. 747, 757; 303 N.W.2d 880 (1981). While a defendant is prejudiced when the jury is advised that he is also being charged as a habitual offender, People v Hatt, 384 Mich. 302, 307-309; 181 N.W.2d 912 (1970), such a disclosure was not made in the present case. The witness did not state that defendant was being, or had been, tried as a habitual offender. Rather, the remark regarding a possible habitual offender prosecution was a responsive answer to a legitimate question, i.e., Casey stated his belief as to what defendant's statement meant. In any event, the cautionary instruction informed the jurors to disregard the answer and assured them that defendant was not being charged as a habitual offender. It should be noted that the jurors were aware that defendant had been imprisoned, as such was disclosed in defense counsel's opening argument. Thus, defendant has not made an affirmative showing of prejudice and there is no indication that the trial judge abused his discretion by denying the mistrial motion and giving the curative instruction. See People v Yarbrough (On Remand) (On Rehearing), 86 Mich. App. 105; 272 N.W.2d 345 (1978).

Defendant's next claim, that he was denied a fair trial as a result of prosecutorial misconduct, is unpersuasive. None of the questions or comments complained of were objected to by defendant and, although some were improper, we fail to find manifest injustice. Eisbrenner v Stanley, 106 Mich. App. 357, 370-371; 308 N.W.2d 209 (1981).

Defendant's final claim of error concerns his plea-based conviction as a second-time felony offender. Defendant's prosecution as a habitual offender was grounded on February 15, 1960, convictions in the State of Indiana for burglary, robbery, and vehicle taking. At that time, he was 16 years old, waived jurisdiction to circuit court without counsel, and pled guilty to the three offenses while represented by counsel. Defendant attacks the validity of his plea-based second-time felony offender conviction by challenging the three prior convictions. Since defendant challenged the validity of the Indiana convictions in a motion to quash the supplemental information, the issue is properly before this Court. People v Moore, 391 Mich. 426, 441-442; 216 N.W.2d 770 (1974); People v Sanders, 91 Mich. App. 737, 742; 283 N.W.2d 841 (1979); People v Jones, 83 Mich. App. 559, 568; 269 N.W.2d 224 (1978).

Defendant first contends that his prior convictions are constitutionally infirm because he was not represented by counsel at his juvenile waiver hearing. However, the right to counsel at a juvenile waiver or transfer proceeding was announced by the United States Supreme Court in Kent v United States, 383 U.S. 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966), and that right does not apply retroactively. People v McGilmer, 95 Mich. App. 577, 579-580; 291 N.W.2d 128 (1980). Thus, this is not a basis of error.

In addition, defendant claims that his Indiana convictions are invalid because he did not plead knowingly and voluntarily. It is clear that prior convictions, upon which a habitual criminal charge is based, can be challenged on the ground that they were obtained in violation of the defendant's constitutional rights. People v Stratton, 13 Mich. App. 350, 359, fn 8; 164 N.W.2d 555 (1968); People v McIntire, 7 Mich. App. 133, 138-139; 151 N.W.2d 187 (1967). As a matter of federal constitutional law, "[t]he requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized". Brady v United States, 397 U.S. 742, 747, fn 4; 90 S Ct 1463; 25 L Ed 2d 747 (1970).

"Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so — hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." (Footnotes omitted.) Id., 748.

Also, Adams v United States ex rel McCann, 317 U.S. 269, 275; 63 S Ct 236; 87 L Ed 268 (1942) (waiver of trial by jury must be free and intelligent); Waley v Johnston, 316 U.S. 101, 104; 62 S Ct 964; 86 L Ed 1302 (1942) (plea must be voluntary and free of coercion); Chambers v Florida, 309 U.S. 227, 228; 60 S Ct 472; 84 L Ed 716 (1940) (use of an improperly obtained confession constitutes a denial of due process of law); Patton v United States, 281 U.S. 276, 312; 50 S Ct 253; 74 L Ed 854 (1930) (waiver of trial by jury must be express and intelligent); Kercherval v United States, 274 U.S. 220, 223; 47 S Ct 582; 71 L Ed 1009 (1927) (to be voluntary, plea must be made after proper advice and with full understanding of the consequences); People v Kedo, 108 Mich. App. 310, 316; 310 N.W.2d 224 (1981) (the defendant must substantially admit his guilt and the plea must be voluntary and intelligent).

In this case, the arraignment transcript of defendant's plea-based convictions in Indiana indicates that his attorney claimed to have discussed the matter with defendant and advised him of his constitutional rights, although defendant stated only that his attorney had spoken to him. Next, the complaints charging defendant with burglary, robbery, and vehicle taking were read along with the applicable statutes and penalties. Then, defendant was asked if he understood the charges and penalties and he responded "yes". Finally, defendant was asked for his plea to each charge and he responded "guilty". Also, when asked whether he had been threatened or promised anything to plead guilty, defendant responded "no". Thus, although defendant's pleas may have been voluntary, he did not expressly and intelligently waive his constitutional right to a trial by jury. As a result, the pleas were invalid.

While we certainly cannot reverse the Indiana convictions, we will not permit the prior convictions to lengthen defendant's imprisonment for his present felony conviction. To hold otherwise would amount to a violation of due process of law. Accordingly, defendant's second-time felony offender conviction is set aside. The original sentence of five to ten years for assault with intent to do great bodily harm less than murder is reinstated.

Reversed in part and affirmed in part.

PEOPLE v. BRADLEY