Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

July 7, 2009 

137373 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v SC: 137373 

 COA: 275911 

Oakland CC: 2006-209376-FH 

JERMAINE CURTIS BRANNER, 

Defendant-Appellant. 

_________________________________________/ 

 On order of the Court, the application for leave to appeal the June 17, 2008 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

 KELLY, C.J. (dissenting). 

 I dissent from the order denying defendant’s application for leave to appeal. The 

Court of Appeals concluded that the record was sufficient to establish that defendant 

waived his right to a jury trial. However, it never addressed that, in the brief colloquy 

regarding the parties’ stipulation to a trial on the paper record, the court never advised 

defendant of his other trial rights. Rather, the court employed a perfunctory process, 

concluding that defendant voluntarily waived all those rights. The dissenting Court of 

Appeal judge reasonably questioned whether virtually all the rights associated with a trial 

could properly be waived in such a manner. 

 I agree with the dissent that the absence of procedural safeguards in this case 

spawns a fundamental concern about how the justice system should operate. The issue 

stretches beyond defendant’s case and is jurisprudentially significant, especially if other 

trial courts employ the procedure used here. It is significant also given the distressed 

condition of criminal defense for the indigent in this state.1

 

1

 See National Legal Aid & Defender’s Association, Evaluation of Trial-Level Indigent 

Defense Systems in Michigan, <http://www.michbar.org/publicpolicy/pdfs/ 

indigentdefense_report.pdf> (accessed June 23, 2009). 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

July 7, 2009 

d0630 

 

2

 Therefore, I would grant leave to appeal to determine whether the procedure 

employed to determine defendant’s guilt was adequate and whether the trial court 

fulfilled its obligation to safeguard defendant’s fundamental rights. 

 In addition, defense counsel’s performance may have been so deficient that it 

constituted ineffective assistance. Counsel stipulated to allow the trial court to decide the 

case using only the preliminary examination record, the police report, and the toxicology 

report. This decision seemingly provided no defense to the charges against defendant. 

 At a minimum, had defense counsel chosen to proceed with a bench trial, the court 

would have had an opportunity to observe witnesses and evaluate their credibility. Given 

that failure, it is premature to assume that there is no probability of a different result had 

defendant received a full trial. 

 Therefore, I dissent from the denial order and would grant defendant’s application 

for leave to appeal. 

 CAVANAGH, J., joins the statement of KELLY, C.J.