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Michigan Supreme Court 

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 28, 2003
 

PEOPLE OF THE STATE OF MICHIGAN, 


Plaintiff-Appellee,
 

v No. 120036 


PRENTICE DEVELL WATKINS,
 

Defendant-Appellant.
 

PER CURIAM
 

We granted leave to appeal in this case to consider
 

whether the trial court erred in questioning the defendant at
 

the degree hearing.1 The defendant pleaded guilty to charges
 

of open murder and possession of a firearm during the
 

commission of a felony, MCL 750.227b. At the plea hearing,
 

the trial court accepted the defendant’s plea after the court,
 

pursuant to MCR 6.302(B)(3)2

, advised the defendant that he
 

1 467 Mich 868 (2002).
 

2
 

(B) An Understanding Plea. Speaking directly
 
was waiving his trial rights, including the right to remain
 

silent. Pursuant to MCR 6.302(D)(1), the court also
 

established support for the finding that the defendant was
 

guilty of these offenses. 


At the subsequent degree hearing held pursuant to MCL
 

750.318, the court heard from other witnesses and, without
 

objection, questioned the defendant to determine the
 

appropriate degree of the murder. The court ultimately found
 

defendant guilty of first-degree felony murder. The Court of
 

Appeals concluded that, although the trial court violated
 

defendant’s right against compelled self-incrimination, US
 

Const, Am V; Const 1963, art 1, § 17, by calling him as a
 

witness at the degree hearing, the error was harmless. Thus,
 

the Court of Appeals affirmed the first-degree felony-murder
 

to the defendant, the court must advise the
 

defendant and determine that the defendant
 

understands:
 

* * *
 

(3) if the plea is accepted, the defendant


will not have a trial of any kind, and so gives up


the rights the defendant would have at a trial,


including the right:
 

* * *
 

(h) to remain silent during the trial. [MCR


6.302.]
 

2
 
conviction.3 247 Mich App 14; 634 NW2d 370 (2001).
 

Although we too affirm the first-degree felony-murder
 

conviction, we reject the Court of Appeals conclusion that the
 

trial court erred by calling defendant to testify at the
 

degree hearing. A defendant may invoke the privilege against
 

compelled self-incrimination at any point during a plea
 

proceeding, but the privilege is waived if not asserted. By
 

invoking the privilege, the defendant risks losing the benefit
 

of any plea bargain if the judge refuses to accept the plea.
 

Because defendant simply complied with the judge’s request to
 

testify and never asserted his right to remain free from
 

compelled self-incrimination, he may not now claim error.
 

I
 

The opinion of the Court of Appeals provides this factual
 

summary: 


On January 18, 1998, Allen Russell Stewart was


shot in the back in his mother’s front yard and


died the same day from his gunshot wound. There
 

were no eyewitnesses to the shooting, although the


next-door neighbor recalled seeing two men standing


by a tree shortly before Allen was shot, and stated


that she heard the gunshot. Allen’s mother,


Charlene Stewart, also heard a loud noise at the


time of the shooting and observed Allen staggering


into her kitchen with blood on his head. Charlene
 

said that after Allen was shot, she was unable to


locate his wallet or several pieces of jewelry that


he normally wore. A police officer who responded


to Charlene’s 911 call noticed that Allen had duct
 

3 Defendant did not challenge his felony-firearm


conviction.
 

3
 
tape on his wrists. After a search of Allen’s room
 

at his mother’s house, the officer found what


appeared to be drug-trafficking paraphernalia and


10.98 grams of crack cocaine with an estimated


value of $1,000.
 

The police subsequently received information
 

that defendant may have been involved in the


shooting. A police detective traveled to Kentucky,


where defendant was in jail on an unrelated charge,


and interviewed defendant after he waived his
 

Miranda2 rights. According to the detective,


defendant initially denied any involvement in the


shooting or that he had ever been to Michigan.


During a third interview, defendant allegedly


admitted that he and a friend, Ardell Robinson,


went to the neighborhood to attend a party and sat


on the hood of Allen’s car waiting for the party to


begin. Defendant claimed that Allen pushed him and


his gun went off as he slipped and fell. In a
 

fifth interview, defendant allegedly told the
 

detective that Robinson gave him a gun before they


arrived in Allen’s neighborhood. Defendant said
 

that Robinson grabbed Allen, and when Allen broke


away and approached defendant, he pulled his gun


and it went off. The detective claimed that
 

defendant further admitted that he and Robinson
 

discussed robbing someone. 


The prosecution charged defendant with open


murder and felony-firearm. At a hearing on
 

November 4, 1999, defendant pleaded guilty to both


charges and claimed that he shot Allen after the


two fought. During the course of the plea hearing,
 

the court informed defendant that by pleading


guilty he was waiving his right to a jury trial and


the right to remain silent at that trial.
 

Defendant indicated his understanding of his rights


and the consequences of his plea and waived his


rights on the record.
 

On November 8, 1999, the court held a degree


hearing pursuant to MCL 750.318.3 At the hearing,


the prosecution presented several witnesses,


including Charlene Stewart, the police officer who


responded to the scene following the shooting, and


the detective who interviewed defendant. The
 

prosecution also called a forensic pathologist who
 

4
 
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testified that Allen had scrapes on his forehead


and face and died as a result of the gunshot wound.


According to the pathologist, the bullet entered


Allen’s back, traveled down through his body,


perforating his aorta, and stopped in his thigh.


After the prosecution and defense rested, the court


called defendant as a witness, and he was
 

questioned both by the court and the prosecution.


Defense counsel did not object to the court calling


defendant as a witness or to defendant’s testimony.


During his testimony, defendant denied robbing


Allen and continued to insist that the shooting


occurred as the two fought.
 

In an oral decision following the degree


hearing, the trial court found that defendant
 

planned to rob Allen and that the shooting could


not have happened in the manner described by


defendant. The court then concluded that the
 

killing constituted felony murder because it
 

occurred during the course of a robbery.
 

2 Miranda v Arizona, 384 US 436; 86 S Ct 1602;


16 L Ed 2d 694 (1966).
 

3 MCL 750.318 provides in pertinent part:
 

The jury before whom any person indicted for


murder shall be tried shall, if they find such


person guilty thereof, ascertain in their verdict,


whether it be murder of the first or second degree;


but, if such person shall be convicted by


confession, the court shall proceed by examination


of witnesses to determine the degree of the crime,


and shall render judgment accordingly.
 

[247 Mich App 14-19.]
 

II
 

A trial court’s authority to examine a defendant at a
 

degree hearing following the hearing at which a guilty plea
 

for open murder was accepted is a question of law, which we
 

review de novo. People v Riddle, 467 Mich 116; 649 NW2d 30
 

5
 
(2002). 


III
 

Before accepting a guilty plea, a trial court must
 

question the defendant to ascertain whether there is support
 

for a finding that the defendant is guilty of the offense to
 

which he is pleading guilty. To facilitate compliance with a
 

defendant’s procedural rights, this Court adopted MCR
 

6.302(D)(1), which provides:
 

If the defendant pleads guilty, the court, by


questioning the defendant, must establish support


for a finding that the defendant is guilty of the


offense charged or the offense to which the
 

defendant is pleading.
 

The court must also ascertain the degree of the offense
 

after a defendant pleads guilty of open murder. MCL 750.318
 

provides that if a defendant “shall be convicted by
 

confession, the court shall proceed by examination of
 

witnesses to determine the degree of the crime, and shall
 

render judgment accordingly.” Hence, on defendant entering a
 

plea of guilty of open murder, a court must determine whether
 

the defendant is guilty of either first- or second-degree
 

murder as defined in MCL 750.316, 750.317. 


The scope of inquiry at a plea colloquy is a function of
 

the questions posed by the court and the information offered
 

by a defendant. 


[A court may] make whatever inquiry it deems


necessary in its sound discretion to assure itself
 

6
 
the defendant is not being pressured to offer a


plea for which there is no factual basis. A
 

defendant who withholds information by invoking the


privilege against self-incrimination at a plea


colloquy runs the risk the . . . court will find


the factual basis inadequate. [Mitchell v United
 

States, 526 US 314, 324; 119 S Ct 1307; 143 L Ed 2d


424 (1999).]
 

The degree hearing is simply an extension of the plea
 

hearing. At the plea hearing, the court questioned the
 

defendant to determine whether there was a sufficient factual
 

basis to support the guilty plea of open murder, and, at the
 

degree hearing, the court questioned the defendant in order to
 

fulfill its duty under MCL 750.318 to determine whether there
 

was a factual basis to support a finding that defendant was
 

guilty of first-degree murder or only second-degree murder. 


The Court of Appeals erred in its application of
 

Mitchell, in which the United States Supreme Court concluded
 

that an accused’s waiver of the right against compelled selfincrimination did not waive the right to invoke the privilege
 

at a sentencing proceeding. The Court of Appeals relied on
 

Mitchell and concluded that defendant did not, by waiving his
 

right to be free from compelled self-incrimination at the plea
 

hearing, waive that right for the purposes of the degree
 

hearing, and that the trial court, therefore, erred in
 

compelling defendant to testify at that hearing. Mitchell is
 

inapposite not only because a degree hearing is not akin to a
 

sentencing proceeding, but also because the defendant in
 

7
 
 

Mitchell expressly invoked the Fifth Amendment privilege at
 

the sentencing hearing, whereas defendant voluntarily answered
 

the trial court’s questions in the case at bar. The right to
 

be free from compelled self-incrimination is not selfexecuting,4 and the Court of Appeals erred in suggesting that
 

the trial court compelled defendant to incriminate himself.
 

Because defendant never invoked his privilege against selfincrimination, the right must be considered waived. 


IV
 

We have reviewed defendant’s remaining claims and find no
 

basis upon which to grant the defendant relief. Therefore,
 

although we reject the Court of Appeals conclusion that the
 

trial court erred by calling the defendant to testify at the
 

degree hearing, we affirm defendant’s first-degree felonymurder conviction.
 

Maura D. Corrigan


Michael F. Cavanagh


Elizabeth A. Weaver
 

Marilyn Kelly


Clifford W. Taylor


Robert P. Young, Jr.


Stephen J. Markman
 

4
 See People v Smith, 257 Mich 319; 241 NW 186 (1932)


("In all cases where a personal privilege exists for a witness


to testify or not, if such witness does testify without


objection he will be deemed to have done so voluntarily."). 


8