Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# 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 consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

K ELLY , 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 esta blish that defendant waived his right to a jury trial. However, it never addressed that, in the brief colloquy regarding the parties’ stipulation to a tria l on the paper record, the court never advised defendant of his other trial rights. Rather , the court employed a perfunctory process, concluding that defendant volun tarily waived all those right s. 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 absenc e of procedural safeguards in this case spawns a fundamental concern about how the justi ce system should operate. The issue stretches beyond defendant’s case and is juri sprudentially significant, especially if other trial courts employ the procedure used here. It is significant also given the distressed

condition of criminal defense fo r 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 Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk July 7, 2009

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Therefore, I would grant leave to appe al to determine whether the procedure employed to determin e 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 re cord, 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 evalua te 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 or der and would grant defendant’s application for leave to appeal.

C AVANAGH , J., joins the statement of K ELLY , C.J.