On Fеbruary 11, 1981, a Detroit Recorder’s Court jury convicted defendant, by a vote of 11 to 1, of possession of a controlled substance in violation of MCL 333.7403(2)(a); MSA 14.15(7403)(2)(a). Sentenced to a prison term of from one to four years, defendant appeals as of right.
After the jury deliberated for less than two *694 hours, the bailiff informed the court that the jury-had indicated it was hopelessly deadloсked. The vote was 11 to 1; whether the 11 had voted for conviction or acquittal was not revealed. The trial judge told defendant he had the option of either having the jury sent back and asked to continue deliberating until a unanimous verdict was reached or accepting the verdict of the majority of 11. Defense counsel indicatеd that while he was not inclined to recommend defendant accept the majority vote, he would leave the decision to defendant. Defendant stated he understood the options and chose to take the verdict of the ll. 1 The jury was polled; 11 jurors found defendant guilty, 1 voted for acquittal.
The primary issue we address in this case is onе not before addressed in Michigan: Whether, consistent with the right to trial guaranteed by the United States and Michigan Constitutions, 2 a crim *695 inal defendant in a Michigan state court may waive his right to a unanimous jury verdict and, if so, whether the defendant’s consent to the non-unanimous verdict in this case meets applicable standards for waiver of a constitutional right.
Until
Williams v Florida,
In Patton, supra, p 298, the Court decided that a jury trial was a right which the accused might "forego at his election”. In Williams, supra, pp 92-93, the Court observed that "the relevant constitutional history casts considerable doubt on the easy assumption * * * that if a given feature existed * * * at common law in 1789, then it was necessarily preserved in the Constitution”, and the Court thereafter held that the Sixth Amendment, as applied to the states through the Fourteenth Amendment, was not violated by a state law providing for a six-man jury in non capital cases.
The Court in
Williams
expressly left unanswered the question of whether unanimity "is an
*696
indispensable element of the Sixth Amendment jury trial”.
In
Johnson v Louisiana,
*697 "[Disagreement of three jurors does not alone establish reasonable doubt, particularly whеn such a heavy majority of the jury, after having considered the dissenters’ views, remains convinced of guilt. That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard.”406 US 362 .
In
Ballew v Georgia,
The United States Supreme Court has not decided the specific question, present here, of whether, under the federal constitution, a defеndant may consent to a less-than-unanimous verdict in a state criminal trial. We conclude, as have the courts in two other states, 4 that since Johnson and Apodaca hold the federal constitution is not offended by a state constitutional provision imposing less-than-unanimous verdicts in all but capital cases, despite the defendant’s refusal to consent, the federal сonstitutional right to jury trial is not violated when, in a state criminal trial, a defendant does give his consent.
Two provisions in the Michigan Constitution pertain to a criminal defendant’s right to a jury trial. Const 1963, art 1, § 14 provides:
"The right of trial by jury shall remain, but shall be *698 waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall bе received when 10 jurors agree.”
In Michigan the right of trial by jury means the right as it existed at common law when the state constitution was adopted, which was a trial by a jury of 12, whose determination must be unanimous.
McRae v Grand Rapids, L & D R Co,
Const 1963, art 1, § 20 provides, in part, that an accused in a criminal prosecution "shall have the right to a speedy and public trial by an impartial jury, whiсh may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year”.
There is no legislative or constitutional authorization for conviction by a jury of less than 12 in a felony trial or by a less-than-unanimous jury. Rule 512.1 of the General Court Rules of 1963, promulgated by the Supreme Court pursuant to Const 1963, art 6, § 5, does suggest the right to a 12-member unanimous jury may be waived:
"Juries of Less than Full Complement; Majority Verdict. The parties may stipulate in writing or on the record that the jury shall consist of any number less than 12 or 6 as the case may be, or that a verdict of a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. In the absence, of such stipulation, a verdict in criminal cases shall be unanimous; and in civil cases tried by 6 jurors, a verdict shall be received when 5 jurors agree.”
Defendant argues, however, that in Michigan, in the absence of a legislative provision authorizing waiver of the constitutional (and common law) *699 right to a unanimous jury, such waiver is a nullity.
In
Hill v People,
"[W]e think there would be great danger in holding it competent for a defendant in a criminal case, by waiver or stipulation, to give authority which it could not otherwise possess, to a jury of less than twelve men, for his trial and conviction; or to deprive himself in any way оf the safeguards which the constitution has provided him, in the unanimous agreement of twelve men qualified to serve as jurors by the general laws of the land.
"It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatiсally, that consent should not be allowed to give jurisdiction.”
In
People v Henderson,
*700 "The statute takes nothing from the right. It remains. Passed to expedite trials, the statute gives the accused the additional right to be tried without a jury if he so elects. A statute is necessary to waiver of the right of trial by jury in a criminal case because at common law trial by jury prevailed exclusively. ” People v Henderson, supra, p 482. (Emphasis added.)
In holding that the waiver of the right to a jury trial itself must be made in strict cоmpliance with the statute to be effective, this Court has on several occasions stated that the right to waive a trial by jury arises only by statute, citing
Henderson.
See
People v Henry Brown,
We do not question the principle that, where a statute sets forth the procеdure by which the right to a jury trial may be waived, the procedure must be strictly complied with if the waiver is to be valid. We disagree, however, that the broad statement in Henderson, that a statute permitting waiver of the right tó jury trial or, logically, of any of its components, is a necessary prerequisite to any valid waiver, continues to be a correct statement of the law._
*701
Subsequent to
Henderson,
in
Attorney General v Montgomery,
Justice Potter, writing for the Court in
Montgomery,
determined that
Henderson
and like cases involving waiver of a jury trial where authorized by statute "do not decide the question here at issue”.
Montgomery, supra,
p 527. Turning to the decision in
Hill v People,
Justice Pоtter quoted extensively from decisions in other jurisdictions disapproving the rule followed in
Hill.
Representative is the following statement from
State v Sackett,
39 Minn 69;
" 'The wise and beneficent provisions found in the Constitution and statutes, designed for the welfare and protection of the accused, may be waived, in matters of form and substance, when jurisdiction has been acquired, and within such limits as the trial court, exercising а sound discretion in behalf of those before it, may permit. The defendants, having formally waived a juror, and stipulated to try their case with 11, cannot now claim that there was a fatal irregularity in their talk.’ ” Montgomery, supra, p 536.
The "truth rule”, declared Justice Potter,
"is that the right of trial by jury is what Blackstone said of it: 'The most transcendent privilege which any subject can enjoy,’ 3 Blackstone’s Commentaries (Hammond’s еd), p 379, and, being a privilege, it may be waived by the voluntary act of defendant.” Montgomery, supra, p 536. (Emphasis deleted.)
*702 Justice Potter concluded, as had courts in other jurisdictions, that, other constitutional rights being susceptible of waiver by a criminal defendant, there was no impediment to waiver of the right to trial by 12 jurors:
"Where all these safeguards are thrown around a defendant charged with crime, where he may voluntarily confess his guilt and such confession may be proved against him on the trial; where he may waive a jury trial and enter a plea of guilty and such plea of guilty is made the basis of a judgment or sentence; where the legislature is specifically authorized to provide for a jury of less than 12 persons; where he may waive, in a court of record, upon complying with the statute, the right of trial by jury in a criminal case; and can waive the right of trial by jury, in a court of record, by his own voluntary act, regardless of the statute, there is no danger in permitting defendant in a criminal case to waive the privilege of trial by a jury of 12 persons and consent to be tried by a jury of 11 persons. He need not enjoy the right of a speedy and public trial by an impartial jury if he does not want to. He may consent to be tried by the court, or he may consent to be tried by a jury of less than 12. Under circumstances such as arose in this case, the defendant may be better satisfied to proceed with a jury consisting of 11 jurors аlready sworn than to take his chances upon the discharge of that jury and the impaneling of another.” Montgomery, supra, 539.
Since, like a multitude of other privileges guaranteed by the constitution to an accused, defendant’s right to a 12-member jury is susceptible of waiver in the absence of statutory authorization,
6
*703
we see no reason why the right to an unanimous jury verdict cannot also be waived. This conclusion is in accord with that reached in
Taylor v State
and
State v McKay,
see fn 4
supra,
and by the Kentucky Court of Appeals in
Ashton v Commonwealth,
Having concluded that defendant may waive his right to jury unanimity, we must determine whether the waiver in this case met applicable constitutional standards.
8
Waiver of a fundamental
*704
constitutional right guaranteed an accused requires 1) a specific knowledge of the constitutional right and 2) an intentional decision to abandon the protection of the constitutional right.
People v Grimmett,
On the particular facts of this case, we conclude defendant’s consent did not amount to an intelligent and competent waiver of a constitutional right. Defendant was given a choice between a majority verdict and having the jury, which had declared itself "hopelessly deadlocked”, asked to deliberate further. There was no explanation to defendant on the record by counsel or the court of the consequences if the jury failed to reach a unanimous verdict after further deliberation, i.e., that a mistrial would be declared, and that defendant would suffer no penalty as a consequence of opting for such declaration. In the absence of such an explanation, we do not believe defendant’s waiver can be presumed to have been voluntarily and intelligently made.
Defendant also argues improper remarks by the prosecutor, in which reference was made to "Young Boys, Incorporated”, denied him a fair trial. We agree the remarks were unsupported by any testimony at trial and improper. However, defense counsel’s failure to object precludes appellate review of the error, as we find no manifest injustice here. See
People v Duncan,
Reversed and remanded for a new trial._
Notes
The colloquy between the court, defense counsel, and defendant is as follows:
"The Court: All right. Mr. Hamilton, what’s your position?
"Mr. Hamilton: Your Honor, I’ve asked my client to think about it. Myself, I’m not inclined to recommend that he take the majority, but I’ve asked him to think about it and I’ll go with whatever he feels comfortable with.
"The Court: What does your client—
"Mr Hamilton: He said he’d rather have it over with. Are you saying that you’d rather go with the majority?
"The Court: Mr. Miller, we can do a couple things here. I can send the jury back and ask them to continue deliberating till they’ve reached a unanimous verdict, or if you agree to it, we can take the verdict of the 11 who have made up their minds. I mean we can take the verdict of the majority, I should say.
"Mr. Hamilton: Do you understand the options that he indicated he has?
"The Defendant: Uh-huh.
"The Court: Do you wish to take the verdict of the 11—
"Mr. Hamilton: Or do you want them to go back and deliberate some more?
"The Court: Do you understand?
"The Defendant: Yes, I understand. I’ll take the verdict of 11.”
US Const, Am VI (held applicable to the states through the Due
*695
Process Clause of the Fourteenth Amendment in
Duncan v Louisiana,
This result was the product of a "curious” split in the Court, succinctly explained in United States v Gipson, 553 F2d 453, 456, fn 3 (CA 5, 1977):
"The four Justices joining the Court’s plurality opinion found that unanimity is not an indispensable ingredient of the sixth amendment jury-trial right. The four dissenting Justices, on the other hand, found that it is, making no distinction between federal and state trials on the theory that Duncan [supra] made the entire panoply of sixth amendment rights applicable to the states. The swing vote of Justice Powell joined the plurality to the extent he believed that unanimity is not required in state trials and the dissenters to the extent that he believed it is still a necessary element in federal trials. Justice Powell’s split vote was due to his rejection of the notion that Duncan incorporated all sixth amendment guarantees 'jot for jot’ into the fourteenth amendment’s due process clause. He concluded that jury unanimity is not 'in fact so fundamental to the essentials of jury trial that this particular requirement of the Sixth Amendment is necessarily binding on the States under the Due Process Clause of the Fourteenth Amendment.’406 US 373 .”
This requirement has been codified in Rule 31(a) of the Federal Rules of Criminal Procedure which requires that a jury verdict in a federal criminal trial be unanimous.
State v McKay,
280 Md 558;
MCL 763.3; MSA 28.856 provides:
"(1) In all criminal cases arising in the courts of this state, the defendant shall have the right to waive a determination of the facts by a jury and may, if he or she elects, be tried before the court without a jury. Except in cases of minor offenses, the waiver and election by a defendant shall be in writing signed by the defendant and filed in the case and made a part of the record. The waiver and election shall be entitled in the court and case, and in substance as follows: T,-, defendant in the above case, hereby vоluntarily waive and relinquish my right to a trial by jury and elect to be tried *700 by a judge of the court in which the case may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’
Signature of Defendant.
"(2) Except in cases of minor offenses, the waiver of trial by jury shall be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel.”
Among the rights which an accused may waive are: right to confront witnesses,
People v Murray,
The Wisconsin Court of Appeals, in
Holland v State
Although defendant argues that waiver should comport with the requirements of MCL 763.3; MSA 28.856, that statute applies, by its own terms and according to judicial interpretation, only where the
*704
right to jury trial itself is being waived. See
People v Rabin,