PEOPLE
v.
RUFUS WILLIAMS
Docket No. 5,599.
Michigan Court of Appeals.
Decided April 29, 1970. Leave to appeal granted July 16, 1970.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
George L. Baer, for defendant on appeal.
*462 Before: LEVIN, P.J., and T.M. BURNS and DANHOF, JJ.
LEVIN, J.
The defendant, Rufus Williams, pled guilty to second-degree murder. The plea was accepted and on October 19, 1959 he was sentenced to life in prison.
The questions presented concern the sufficiency of the judge's interrogation of Williams before his plea of guilty was accepted.
This appeal follows the trial court's denial of Williams' petition, filed June 13, 1966, to withdraw his guilty plea. In his petition Williams alleged that he was intoxicated at the time the crime was committed and that the elements of the charged offense, first-degree murder, and the distinction between first- and second-degree murder and his right to be tried by a jury or the court were not explained to him before he pled guilty.
At the time Williams pled guilty, Court Rule No 35A (1945) governed the taking of guilty pleas. The rule required the court to advise an accused person not represented by counsel of his right to a trial by jury. In People v. La Roe (1969), 18 Mich. App. 262, we held that the corresponding requirement in the currently effective court rule, GCR 1963, 785.3(1), does not require a trial judge to give such advice to an accused person who is represented by counsel. Williams was represented by counsel when he pled guilty.
Moreover, we note that at the time Williams pled guilty, he was 49 years of age and had an extensive history of criminal conviction and incarceration going back over 20 years. Also, the attorney who represented Williams when he pled guilty submitted an affidavit stating that he had advised Williams of his right to a trial by jury or by the court, of the *463 nature of the charge against him, of the lesser included offenses and of the penalties for first- and second-degree murder.
Since Williams pled guilty to second-degree murder, Williams could not have been prejudiced by any failure to have explained to him the difference between first- and second-degree murder. And, since the defense now asserted is intoxication, not that Williams killed the victim in the heat of passion produced by adequate provocation or under other circumstances of mitigation,[1] any failure to have explained the difference between second-degree murder and voluntary manslaughter was probably inconsequential and would not now justify setting aside his plea of guilty.[2]
Even if, as Williams claims, he was so deeply intoxicated that he was not aware of what he was doing, it is doubtful whether intoxication is a defense to second-degree murder in Michigan.[3] The intoxication defense is discussed at length in People v. Kelley (1969), 21 Mich. App. 612, n 14, citing Michigan precedent that intoxication is not a defense even to first-degree murder.[4]
Witnesses testified at the preliminary examination that Williams came armed with a revolver to the apartment of the victim, a former girl friend, and that he shot her without provocation. It thus *464 appears that if intoxication is not a defense to first-degree murder or Williams could not have factually established an intoxication defense,[5] he might have been convicted of first-degree murder had he stood trial. It is, therefore, understandable that he might have decided to forego a possibly legally or factually insufficient intoxication defense and offered to plead guilty to second-degree murder. There was a factual and legal basis for his guilty plea.[6]
When Williams pled guilty, he was not directly questioned by the judge for the purpose of establishing that a crime was committed and that he participated in its commission, as required by People v. Barrows (1959), 358 Mich. 267, 277. Barrows held that such questioning was required by rule 35A and CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058). While this requirement has precedential support in *465 early Michigan cases,[7]Barrows was the first modern case clearly reiterating and reaffirming this requirement.[8]
Williams' plea of guilty was accepted before the date (November 25, 1959) on which Barrows was decided. In People v. Combs (1968), 15 Mich. App. 450, another case concerning pre-Barrows guilty pleas, the defendant pled guilty on November 6, 1958 to separate charges of taking indecent liberties[9] and to possession of burglary tools.[10] The trial judge had failed to examine Combs regarding his participation in the commission of either offense before he accepted the guilty pleas. There was a preliminary examination on the indecent liberties charge, but Combs had waived examination on the burglary tools charge. We held that, under the circumstance that the preliminary examination on the indecent liberties charge established the crime and Combs' participation in it, the judge did not abuse his discretion in denying Combs' post-conviction *466 motion to withdraw his plea; however, the possession of burglary tools conviction was set aside because of the judge's failure to conduct the examination required by Barrows. See, also, People v. Bartlett (1969), 17 Mich. App. 205, discussed in footnote 6.
As previously mentioned, the testimony at Williams' preliminary examination demonstrates that there was a factual basis for his plea of guilty to second-degree murder. The defense now asserted is intoxication, not that Williams did not kill the victim. And, as we have already observed, intoxication may not be a legally sufficient defense. Moreover, before accepting Williams' plea, the trial judge inquired regarding the facts, and they were adequately summarized in open court by the prosecutor; it has not been claimed then or now that the facts were inaccurately stated.
We hold that where an accused person pled guilty before Barrows was decided, and the defense advanced in post-conviction proceedings is lack of criminal responsibility, not that the defendant did not commit the crime, and the preliminary examination record tends to show that the defendant committed the crime, and facts were related (albeit not by the defendant himself) in open court in the defendant's presence shortly before his plea of guilty was accepted which, if true, are sufficient to support a conviction, the failure of the trial judge to question the defendant regarding his participation in the commission of the crime does not require that his plea of guilty be set aside.
Defendant also complains because he was not represented at the preliminary examination by counsel. However, just as a defendant can waive preliminary examination, so, too, by pleading guilty he is deemed to have waived any defect in the conduct *467 of the examination,[11] including a failure to appoint counsel.[12]
Affirmed.
T.M. BURNS, J., concurred.
DANHOF, J., concurred separately.
DANHOF, J. (concurring).
I concur with the majority, except I cannot accept that People v. Barrows (1959), 358 Mich. 267, 277 requires what the majority has herein stated.
*468 An examination of this record discloses that the trial court did not abuse its discretion in failing to set aside the guilty plea conviction. At the time of defendant's arraignment on September 22, 1959, the defendant with the advice and assistance of counsel entered a plea of guilty to second-degree murder. The court ascertained the facts of the crime and was satisfied that the plea was voluntarily and intelligently made as required by Court Rule 35A, now GCR 1963, 785.3(1) and the statute MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). There was no miscarriage of justice. People v. Dunn (1968), 380 Mich. 693; People v. Winegar (1968), 380 Mich. 719; People v. Stearns (1968), 380 Mich. 704.
Conviction affirmed.
NOTES
[1] See Perkins, Criminal Law (2d ed), pp 52, 59, 70.
[2] See, however, footnote 4.
[3] See People v. Guillett (1955), 342 Mich. 1, 6.
[4] See People v. Garbutt (1868), 17 Mich. 9.
Garbutt can, indeed, be distinguished (see People v. Kelley, supra, p 629, fn 28). In some jurisdictions intoxication may be shown to negative the premeditation and deliberation required to prove first-degree murder; in many of these jurisdictions it is not a defense to second-degree murder. In still other jurisdictions the defense is allowed to negative murder and to reduce the killing to voluntary manslaughter. See Anno: Voluntary Intoxication as a Defense to Homicide, 12 A.L.R. 861, 79 A.L.R. 897; Note, Intoxication as a Criminal Defense, 55 Colum L Rev 1210 (1955); Perkins on Criminal Law (2d ed), pp 91, 92.
[5] Cf. People v. Paul (1968), 13 Mich. App. 175, 177.
[6] We recognize that the "frequently one-sided examination testimony" may not be considered as a factor in granting or denying a motion to withdraw a guilty plea (People v. Zaleski [1965], 375 Mich. 71, 81) but, as we have said before People v. Bartlett [1969], 17 Mich. App. 205, 210), preliminary examination testimony may be considered in deciding whether there is a factual basis for a guilty plea.
The holding of Williams' preliminary examination without the presence of counsel representing him makes that record even more one-sided. We acknowledge this deficiency and that there may be cases where we will not feel justified in placing any reliance upon such a record even to establish a factual basis for a guilty plea. Here, however, witnesses testified in detail as to the commission of the offense. Furthermore, the defense now advanced is lack of criminal responsibility, not that the defendant did not kill the victim.
There are, indeed, other distinctions between this and the Bartlett case. The defect noted in Bartlett was the failure of the trial judge to establish an element of the offense through the defendant's own statements; upon review of the examination testimony we were satisfied that the necessary element would have been established at the trial and that there was a factual basis for his plea.
The differences between this and the Bartlett case have been carefully considered. They do not alter our impression, upon reading the entire preliminary examination transcript and the entire record in this case, that Williams' plea of guilty should not be set aside because of the failure of the trial judge directly to question him before accepting his pre-Barrows guilty plea.
[7] See, e.g., Edwards v. People (1878), 39 Mich. 760; Henning v. People (1879), 40 Mich. 733.
[8] Pre-Barrows cases where it was held that the defendant's conviction upon a plea of guilty would not be upset although his participation in the commission of the crime had not been established on the record include People v. Harris (1934), 266 Mich. 317; People v. Funk (1948), 321 Mich. 617; People v. Crane (1949), 323 Mich. 646.
In People v. Merhige (1920), 212 Mich. 601, the guilty plea was set aside, not because of the inadequacy of the examination of the defendant by the trial judge, but rather because the examination supported the defendant's claim that his plea was not well advised and voluntary.
With the exception of People v. Combs (1968), 15 Mich. App. 450, in the cases where our Court has reversed convictions upon pleas of guilty because of noncompliance with Barrows, the plea was accepted after the announcement of the Barrows decision; see, e.g., People v. Perine (1967), 7 Mich. App. 292; People v. Richard E. Johnson (1967), 8 Mich. App. 204; People v. Mason (1968) 13 Mich. App. 277. Cf. People v. Creger (1969), 16 Mich. App. 59. See, also, People v. Seifert (1959), 17 Mich. App. 187, where a pre-Barrows plea was not set aside.
[9] MCLA § 750.336 (Stat Ann 1954 Rev § 28.568).
[10] MCLA § 750.116 (Stat Ann 1962 Rev § 28.311).
[11] A guilty plea waives a failure to conduct a preliminary examination (People v. Losinger [1951], 331 Mich. 490; In re Reno [1948], 321 Mich. 497; People v. Sanford [1925], 233 Mich. 112; People v. Harris [1906], 144 Mich. 12; People v. Williams [1892], 93 Mich. 623; People v. Jones [1871], 24 Mich. 215; Washburn v. People [1862], 10 Mich. App. 372) and any defect in the examination (People v. Tate [1946], 315 Mich. 76; People v. Harris [1934], 266 Mich. 317; People v. Gleason [1886], 63 Mich. 626; People v. Doran [1967], 6 Mich. App. 86; People v. Catterson [1967], 5 Mich. App. 488).
[12] Compare People v. Dobine (1963), 371 Mich. 593; People v. Robbins (1967), 6 Mich. App. 633; People v. Sharp (1967), 9 Mich. App. 34.
The issue whether an indigent defendant is entitled to the appointment of counsel at preliminary examination and the consequence of any failure to advise a defendant of such a right and to appoint counsel has not been squarely decided in this State. In Sharp there was, as here, a delayed appeal from an old conviction. Sharp had been convicted in 1951; our Court observed that when Sharp's (p 40) "preliminary examination was conducted, representation of a defendant by an attorney was permissible but not mandatory. People v. Podolski (1952), 332 Mich. 508." In both Dobine and Sharp the defendant was represented at trial by assigned counsel who, it seems, did not complain of the failure of the defendant to have been represented by counsel at the preliminary examination. In both cases the court carefully noted that that the defendant had failed to show any prejudice resulting from his lack of counsel at the preliminary examination. See, also, People v. Douglas (1966), 4 Mich. App. 208; Hunvold, The Right to Counsel at Preliminary Examination, 31 Mo L Rev 109 (1966).
See, also, Hamilton v. Alabama (1961), 368 U.S. 52 (82 S. Ct. 157, 7 L. Ed. 2d 114), where it was held that the failure to appoint counsel at arraignment deprived the petitioner of due process, notwithstanding the fact that he simply pled not guilty at that time, because under Alabama law certain defenses had to be raised then or abandoned.