Order Michigan Supreme Court
Lansing, Michigan
July 7, 2009 Marilyn Kelly,
Chief Justice
137373 Michael F. Cavanagh
Elizabeth A. Weaver
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman
Diane M. Hathaway,
v SC: 137373 Justices
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, (accessed June 23, 2009).
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.
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.
July 7, 2009 _________________________________________
d0630 Clerk