Opinion
Docket No. 22509.
Decided March 8, 1976.
Appeal from Washtenaw, Patrick J. Conlin, J. Submitted January 14, 1976, at Lansing. (Docket No. 22509.) Decided March 8, 1976.
Terry Word was convicted of assault with intent to commit rape. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John J. Hensel, Assistant Prosecuting Attorney, for the people.
John B. Phelps, Assistant State Appellate Defender, for defendant.
Before: N.J. KAUFMAN, P.J., and T.M. BURNS and M.F. CAVANAGH, JJ.
Defendant Terry Word, a minor, was charged with assault with the intent to commit rape, MCLA 750.85; MSA 28.280. The probate court waived jurisdiction and he was bound over for trial as an adult. After a nonjury trial, he was found guilty as charged and sentenced to the Michigan Corrections Commission for a term of five to ten years. A motion for new trial was filed based upon defendant's insanity but this was denied. Defendant is before this Court as a matter of right.
The threshold issue raised by defendant is that the waiver of jury trial failed to comply with MCLA 763.3; MSA 28.856, and therefore was invalid and requires a new trial.
In the absence of statute one charged with a serious crime cannot waive a right to a jury trial except by pleading guilty. People v Henderson, 246 Mich. 481; 224 N.W. 628 (1929). In Henderson the Michigan Supreme Court upheld the validity of the forerunner to MCLA 763.3; MSA 28.856 (CL 1929, § 17131) which granted the accused the right to waive trial by jury. MCLA 763.3; MSA 28.856 provides, inter alia:
"In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof * * *.
"Such waiver of trial by jury must be made in open court after said defendant has been arraigned and has had opportunity to consult with counsel."
The people do not dispute defendant's contention that while it does appear the defendant executed a written waiver of jury trial, nowhere in the record does any transcript of an oral waiver in open court appear.
The cases of People v Brown, 57 Mich. App. 568; 226 N.W.2d 563 (1975), and People v Polhamus, 59 Mich. App. 609; 230 N.W.2d 171 (1975), each dealt with a noncompliance with the requirements of the waiver statute and each resulted in a reversal.
In a companion case, People v Rimmer, 59 Mich. App. 645; 230 N.W.2d 170 (1975), this Court, utilizing the same rationale of Brown, supra, and People v Edwards, 51 Mich. App. 403; 214 N.W.2d 909 (1974), reversed defendant's conviction when it appeared that his waiver of a jury was not made in open court. In that case, as here, a written waiver had been filed and was present in the lower court's record. The panel stated:
"Since there is no evidence that defendant waived his right to trial by jury in open court, we are constrained to hold that the statute was not complied with and that the defendant, therefore, did not effectively waive his right of trial by jury." Rimmer, supra, 647-648.
Thus strict compliance with the statute is necessary and requires both a written waiver and an acknowledgment in open court of the waiver of a jury. There being no open court acknowledgment of the waiver of jury trial, this Court's prior ruling in Rimmer, supra, requires a retrial.
Because of the foregoing disposition we find a lengthy discourse on the other issues raised to be unnecessary. Some comment, however, is appropriate as they may arise again on retrial.
Defendant contends the trial court misapplied the standard for legal responsibility as set forth in People v Martin, 386 Mich. 407; 192 N.W.2d 215 (1971). A review of the trial court's holding in this regard does create some question as to whether the broader standard enunciated in Martin, supra, was applied or whether the court continued to measure defendant's conduct with that of the irresistible impulse test. After reviewing the testimony of the witnesses that it considered controlling, the court more than once utilized the phrase "irresistible impulse".
Martin, supra, 418, stated:
"The salient elements of the Michigan test are: 1) whether defendant knew what he was doing was right or wrong; and 2) if he did, did he have the power, the will power, to resist doing the wrongful act? The Michigan test encompasses not only a sudden overpowering, irresistible impulse but any situtation or condition in which the power, `the will power' to resist, is insufficient to restrain commission of the wrongful act." (Footnote omitted.)
In view of the psychiatric testimony presented as to defendant's history and condition, the distinction in standards was an extremely critical one. However, while the court's choice of words may have created some confusion, our reading of the record persuades us that the court knew the correct standard and at one point enunciated it. We will not presume on this record that it was not utilized.
Defendant lastly claims error in the trial court's exclusion of a social worker's lay testimony concerning defendant's sanity.
The rule is that lay testimony, where the defense of insanity is before the court, is relevant on that issue and the weight of such testimony is for the trier of fact and thus, should be admitted. See People v Alsteens, 49 Mich. App. 467; 212 N.W.2d 243 (1973), People v McBride, 55 Mich. App. 234; 222 N.W.2d 195 (1974), People v Wright, 58 Mich. App. 735; 228 N.W.2d 807 (1975). Considering this witness's testimony on cross-examination and his overall credibility and thus, weight, the exclusion of this testimony was harmless.
Reversed and remanded for a new trial.