Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
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
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 self
incrimination 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
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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 self
executing,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 self
incrimination, 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 felony
murder 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