*1 7 PEOPLE v. PARSHAY.
Decision of the Court.
1. Criminal Law —Assistance of Counsel —Waiver. involving
Case robbery oonviotion of npon armed acceptance of of is remanded to trial trial, court for new for opportunity laek of to obtain being counsel after advised of right counsel, per assistance of J.,C. Dethmers, M. T. Kavanagh, Souris, JJ.; remanded testimonial hearing and by determination trial court on issue of waiver right of postconvietion counsel and such proceed- further ings necessary, be deemed per Adams, J.; dissent Kelly, Black, JJ., ground O’Hara, that defendant had been afforded to have assistance of counsel (CLS 750.529). 1961, §
Separate Opinion. Kavanagh J., C. Dethmers, and T. M. JJ. Souris, 2. Constitutional Law —Due Process —Criminal Law —Assist- ance of Counsel. rights guarantee
The bill the assistance all of of of right criminal is a cases so and essential to a fundamental process law, applicable trial and to due it is fair of process the States virtue due clause the Con- of of (US Const, 6, 14). stitution United States Ams of References Points in Hbadnotes 2d, [1, 21 Am Jur Criminal Law 317. 6-12] §§ Duty to advise accused as to of to assistance counsel. ALR2d 1003. Accused’s Federal Constitution— counsel under Supreme 137; L 383; 84 L 2 L ed 2d Court cases. ed ed 1644; 9 L ed 2d 1260. seq. 2d, 21 Am Jur Criminal 318 et Law [2-5] § .[Mar. Mich op Appointment Counsel —-Criminal Process — Law. 3. Same —Due rights guarantee application the bill The prosecutions im criminal to the States all virtue process provided that counsel clause means must be *2 the due of charged defendant, felony, at least one with a who wants a employ (US unable who is to assistance but counsel such 6, 14). Const, Ams Bight Dependant— Counsel-ttIndigbnt to Criminal Law — (cid:127) Bobbery Armed. robbery held, im who was convicted armed of Defendant represented arraignment been entitled to be at his to have by .attorney, employed by or, either one an him he was attorney financially choosing, an his own unable of attorney by (US appointed Const, 6, the court an Ams 1963, 785.3). 14; [1946]; 36a GCB Court Buie No op Guilty Improperly Bight Judgment—Plea — Taken — 5. Same — to Counsel. guilty Acceptance by trial court defendant’s of of sentencing robbery charge armed and 12-1/2 defendant of error, years imprisonment held, where shows that record jury his to a and was informed of given op- counsel, that he was not an but the assistance of ' rights (US Const, 6, 14; portunity Ams CDS to assert those 1963, 1961, §750.529; [1945]; No 35a GCB Court Buie 785.3). Bights Waiver—Bight to Counsel. — 6. Same —Constitutional robbery prosecution criminal for Defendant’s failure regarded may request not be counsel armed of thereto, right where his constitutional as a waiver of against plead required to was record shows he given having to- demand him without been choosing, his own trial, with an to consult of Const, (US Ams request him one be ór to 785.3). 750.529; 6, 14; GCB CLS § Bights —Waiver. 7. Same- —-Constitutional right not be to counsel his Waiver defendant of show, record, must the record presumed and a silent from show, that allegation which evidence must be or there intelligently under- but an accused was offered (US offer, waiver standmgly rejected is no or there 785.3). 6, 14; Const, Ams GCB Dissenting Opinion.
Kelly, Black, O’Hara, JJ. Bobbery Acceptance op 8. Criminal Law —Armed of — Plea op Guilty Jury —Assistance Counsel — Trial. Record, prosecution robbery held, armed to disclose de- clearly right advised his to the assistance fendant of jury trial, accepting plea counsel and to a when of of (CLS 1981, §750.529). Separate Opinion.
Adams, J.
'
Bight
op
9. Criminal Law —
to Assistance
Counsel —Waiver—
op Pact.
Question
Waiver
one accused
crime
to the assistance
of
question
counsel is a
of fact.
Bight
op
10. Same —
to Assistance
Counsel —Waiver.
represented by
The constitutional
an accused to be
imposes
responsibility upon
the trial
determining
intelligent
competent
there is
*3
right
waiver
the accused
his
to the assistance
of
of*
counsel.
11. Same —Waiver—Becord.
arraignment
plea
guilty
Record
to
of
of
of defendant
robbery
crime
affirmatively
armed
not
to show
held,
of
intelligent
competent
right
waiver
his
defendant of
(CLS 1981, §750.529).
to assistance
of
Bobbery
Guilty
op
12. Same —
Armed —
Plea —Bemand—Waiver
Bight
op
to Assistance
Counsel.
prosecution
robbery
Remand
armed is
be
ordered to
of
for
provide
hearing
made to trial court
a testimonial
judge
determination
the trial
on
de-
issue
of
right
pleaded
who
had
his
waived
fendant
postconviction
such
counsel and
for
further
proceedings
necessary (CLS 1961,
be deemed
750-
§
.529).
from
of Grand
Appeal
Superior
Rapids;
Court
Yander
June
1966.
Ploeg
J. Submitted
(Claude),
No,
(Calendar No. 9, Docket
51,225.) Decided
March
Fred was convicted of armed. Remanded. Kelley, Attorney
Frank General, J. Robert A. Derengoski, K. General, Miller, James Solicitor Prosecuting Attorney, Kravits, Norman K. Assist- Prosecuting Attorney, people. ant for tbe propria persona. Parshay, Fred (for trial). reversal and remand new Souris, In March of 1963, on his convicted, plea robbery guilty, of armed and was sentenced imprisonment years. years to Two 12-1/2 granted application later we defendant’s for leave appeal appeal his conviction and ordered that the presented directly be to this Court. arraignment
The record of defendant’s on the judge information discloses that the trial advised defendant of to a his trial and of his represented by attorney to be of his own choice upon request, by attorney appointed by or, money court if defendant no had one. Unfortunately, judge the trial did ask not the de- fendant whether he wanted an to retain attorney indigent, his own if or, that an for him. Instead, the trial asked plead, interrogated briefly defendant him plea accepted guilty, pronounced judgment guilt thereon. proof
Absent record
of offer and waiver of coun-
*4
sel, we must reverse and remand for new trial,
having
right
defendant
been denied his
to the
Reporter.
[1]
CLS
1961,
§
750.529
(Stat
Am 1965
Cum
Supp
§
28.797)^.
11
v.
by Sotjkis,
Sixth
in Ms defense.
assistance
States Con-
the United
Amendments
Fourteenth
of 1908
§ 19, Constitution
2,
and article
stitution
1963).
§
(currently
20, Constitution
1,
article
very day
before
stood
theOn
superior
Rapids
court,
justice in the Grand
bar of
Supreme Court
States
the United
18, 1963,
March
(83
Wainwright,
CtS
that counsel must charged felony, with a who fendant, at one least but is unable to assistance who wants such belief that defendant it is our While counsel. Parshay to invoke Gideon on this entitled would be only given pro- appeal were to be even Gideon having spective oc- conviction defendant’s effect, day Gideon, decision in as the curred on same of the declared Gideon is date the effective no apply longer having been held issue, Gideon Wainwright retroactively. (1963), Pickelsimer 41); Doughty (84 11 L 2d 80, 2 Ct ed 375 S US (84 (1964), 702, 202 11 L US S Ct ed Maxwell 2d 376 (85 (1965), 650); 250 Arthur v. Colorado US 818); L and Linkletter v. Walker 13 ed 2d 943, Ct S (85 L ed S Ct US 601). Parshay whether defendant Thus, 2d felony denied the conviction is an of Federal constitutional issue magnitude assert in this which he is entitled to appeal. required, Gideon, this even before Court
However, every prose- adopted rule felony *5 7. Mich Opinion J. Souris, of Ms cntion tbe accused be advised to have the financially and, if of counsel unable to assistance employ counsel, that counsel be for him request. his See Court No 35a Rules currently, and, GCR 785.3. Whatever right, nature of the rule, constitutional defendant Parshay, felony, rep- accused was entitled arraignment by attorney, resented his either employed by. financially him if was or, one he unable choosing, by of his own attorney appointed by the court. This the trial judge clearly recognized and advised defendant possessed.
The arraignment entire record of defendant’s on margin. the information is set forth in the It2 clearly appears from that t,rial that the record (cid:127) 2 “Cleric Honor,- Fred., Court. In file No. Your Parshay gives his Ferry address as 1748 street, Park that is in Detroit, Michigan. gives age He custody. 29. as He is Parshay, Mr. Honor, presently parole. Your parole is His Gagh officer is Mr. in Detroit. He was sentenced Recorder’s court, Detroit, Michigan, in robbery 1953 on a conviction of while paroled armed. He was “The Court. Parshay? Your name Fred Respondent “The “The Fred [defendant] *. time, Court. At this the first eount in the information against you which has been filed to-you. will be read Respondent. “The I understand what the information contained that have read it about three times. I know it what con- - reading tains and plead guilty. waive the “The just Court. The information has been filed, you -I think copy have be no complaint seen warrant, so that there will it, cpunt about we will have the first in the infor- question^ document, mation which is a you. different read to Respondent. “The Yes. you “The “(Mr. just Court. So will know what it is. thereupon Miller read the first eount of the information * * respondent *.) “The Court. charge placed against Do understand you? that Respondent. “The Yes. Court. And understand is a' serious you plead gu.ilty to this or if. are found that it * (Stat 27.653), CL Ann 1963, 201.1, and GCR §612.1 § specifically provided years have who upwards of 50 that the.party designated commences an action plaintiff shall be and the party designation adverse as defendant. Such appli is now made 785,1. Reporter. erimipal actions GCR cable — Paeshay. Souris, advised of Ms to a trial and to Parshay of counsel. the record also dis- But, closes unequivocally given not mandatory prison be sentenced this offense. Do *6 you understand that? “(The Respondent “The Court. Your up. down.) nods''head yes? is answer Respondent. “The Yes. “The you you Court. I want to advise that are entitled to a you to have guilty it determined whether are or not guilty, you do understand that? up “(Respondent nods down.) head “The Court. You understand'? Respondent. yeah. “The Yeah, you “The Court. And also represented that are entitled to be attorney matter, an in have no is, attorney this your that own you- money you If attorney, choice. to so request, appoint represent I will you. you to Do that? understand “(Respondent up and down.) nods head yes? “The Court. Your is answer Respondent. “The Yes. Knowing , “The Court. what the the first count in information, your knowing explained what are as I them you, you prepared guilty are to enter a guilty? or not Respondent. Guilty. “The any you “The any promises? Court. Has Respondent. one made “The “The No. any you? Court. Has one threatened “(The Respondent side.) head from shakes side any get “The Court. one you you Has abused plead guilty? Respondent. “The No. Detroit, “The Court. You do “The “The from come is that correct? Respondent. Yes. you Court. Did know person this of Earl name Hatten? Respondent. No, “The I didn’t. you “The Court. Where did meet him? Respondent. “The “The Court. “The I didn’t know him. Well, you was where it that did commit act? this Respondent. place took This at the Y.M.C.A. Oh, “The Court. I see. Respondent. “The attempting I rob depart- was the cashier n ment. Oh, “The employee Court. I think —is this where the of the -, Y.M.C.A.— Respondent. Yes, “The he works there. Court;, , put something “The Was eloset or such as that and up? beat Respondent. “The Yeah. you “The, gun Court. Did have a you at with time? Respondent. “The Yes, I did. 379 Mich Sornas, perti- assert those rights. The an of the record follows: part nent you “The Court. Did strike Earl this Hatten? Respondent. Yes, “The “The I did. you gun? with Court. Did strike him Respondent. Yeah, plead charge. “The I you mean, that, “The Court. I did do correct? Respondent. “The Yeah. “The “The $2 Court. Did take the from him? Respondent. yeah. Yeah, “The -Court. Did later other take merchandise from the Y.M.C.A.? Respondent. “The Yeah. Yeah. you staying “The Court. Were the Y.M.C.A.? Respondent. Ño, supposed living “The I was not. to be in Detroit. ' any “The Court. Was there one else involved with ? matter Respondent. job, “The on this Not no. charge? “The Court. On some other Respondent. “The “The Court. One of them. that? What was Respondent. robbery. Armed ' place up? “The’Court. What “The did hold Respondent. place Some out on Hall. don’t know what name of it was. Some market. *7 you “The Court. And who with at that time? Respondent. “The here, I don’t that believe is an it? issue is No, you “The Court. if don’t desire to talk at about it this I I was, think know who it' was. We both time. that correct? Now, know who it is Alright, go you. I won’t into that other matter with any promises no one has made threats or you, or abused is that correct? Respondent. “The No. guilty “The accepted. Court. Plea be will Same will be The respondent county jail recorded. is remanded to the Kent presentenee report. The for for- sentence. court asks a Respondent. “The “The Court. Sure. “The May request? I make one Respondent. They have lawa under which man if a is years confined a number of sexual and abbreviations [aberra- tions, a crime, request seem to be connected with he can sic?] hearing psychopath, as a sexual request and X would like to a hearing at this time. , presentence “The I get report, Court. will are and I don’t know you talking all what at concerning this time any about matters. sexual Respondent. Well, “The this is to determine whether a man goes prison asylum. to or to the insame [sic] “The request Court. Your is on the record and the court is asking presentence report. for a Respondent. you “The “Cleric very kindly. Thank Parshay, the Court. step Mr. over see one of the my gentlemen on left.” by Souris, you you are en- that I advise want to Court. “The jury it determined trial have to to a titled you guilty, that? understand you guilty do or not are up down.) “(Respondent head nods understand? You “The Court. “The “The yeah. Respondent. Yeah, you to he entitled that are Court. And also attorney is, represented matter, an your have no attorney choice. If own an money request, attorney, will so an to you. represent under- appoint stand Do to that? up down.) “(Respondent head nods yes? is Court. Your answer
“The
“The
Respondent. Yes.
charge
Knowing
in the
what
is
“The Court.
your
knowing what
the information,
first count
pre-
you,
explained
rights
pared
to
are
them
are as
guilty?
not
or
enter
to
Guilty.”
Respondent.
actual
have been defendant’s
Whatever
comprehension
the trial
of the
stated
required
plead
judge
his,
he was
having
given
against
him without
been
consult with
trial,
to demand
request
choosing,
attorney of his
own
being
him,
before
called
one be
plea.
by to enter arraigned,
March of In
when defendant was
785.3(1)
GCR
read
follows:
Arraignment.
repre-
“(1)
If
not
the accused is
upon arraignment,
sented
before he
plead,
required the court shall advise the accused
by jury
to have
that he
entitled to a
*8
financially
counsel, in case he is
unable
provide
requests,
court
if
counsel the
accused so
will,
appoint
ho
him.
If the
states
accused
requests,
procure
that counsel be
will
appointed, a reasonable time thereafter shall be for counsel to consult with allowed the accused plea taken.” his shall be before express language The rule did not in direct the judge to ask the accused whether he wanted a trial and whether he wanted to hire his own indigent, appointed or, if to have counsel for him. implicit language is However, it in the of the first quoted sentence of the rule above that the accused, required plead, given opportu before he is nity rights required to invoke the which the possesses. People he advise him See Hilko App People Winegar (1966), Mich 166; App People 4 Mich 547; Lee v. Curtis Williams (1966), (1966), App 2 Mich 232; and v. Atkins App any
2 Mich If there be doubt quoted about that, second sentence rule surely it, at removes least as to the to counsel’s By express language requires assistance. its it a reasonable time be after the allowed, accused states procure requests he will counsel or that counsel be appointed, before taken, for such counsel to consult with the It accused. is clear beyond dispute quoted that the rule means some thing ing given more than that regard certain advice be rights
some rather fundamental of an accused, given opportunity but’that he need not be invoke rights. th ose my opinion,
I As understand Brother O’Hara’s Parshay believes that defendant was accorded such opportunity.' judge, I do not. Had the after ad- vising rights taking defendant of his and before plea, asked him whether he wanted an to hire counsel and to consult with counsel or, indigent, him, have counsel then agree given that defendant had been .would .'opportunity to invoke his stated which read n the-rule, require. That was not done here, as the *9 Yt v. Soukis, by J. Opinion margin and arraignment forth in thé set record clearly partially quoted for that discloses, and above required my judgment in we are alone, reason n proceedings. further and remand for reverse to the facts dis- there is another dimension But above, denied noted the this record. As closed counsel defendant was since him, claims Wainwright, supra, right guaranteed a Gideon v. is by the Amendment of the Federal Constitution Sixth applicable is made to the States the Four- that teenth federally guaranteed Amendment. How that light may has to counsel be waived been determined Supreme judicial Court, the States .our United superior affecting in matters Federal constitutional' longer open say, rights. It no is this Court as opinion I read that an mean, Justice O’Hara’s request failure to the assistance of counsel accused’s may right precisely regarded as waiver of his constitutional Supreme
thereto. The has said, instead, Court contrary, that waiver of counsel presumed request not be from failure to such assist- something ance; that than mere more silence is necessary to waiver. constitute Carnley in
Thus,
Cochran
“Presuming waiver from a silent im- record is permissible. The record must there show, allegation show, and evidence which must be intelligently offered counsel but an accused was rejected Anything understandingly the offer. less not waiver.” early Zerbst, 304 as Johnson
Even 357), (58 ALR L 82 ed US the S Ct up duty imposed Supreme considered Court judge, exercise, the manner of its on the trial determining adequate
whether an
waiver of counsel
Mich by Souris,
which,
then
even
before
in circumstances
made,
federally guaranteed right
gave
Gideon,
rise to
(p 465):
right of an accused to be
constitutional
pro-
represented by
itself,
invokes,
the accused—whose
court,
of a trial
which
tection
life or
liberty
without counsel. This
stake—is
*10
imposes
weighty
protecting duty
the serious and
determining
responsibility upon
trial
the
competent
intelligent
waiver
there is an
and
whether
by
may waive the
an accused
the accused. While
proper
waiver
counsel, whether there is
by
clearly
court,
and
determined
should be
the
appropriate
fitting
for that determi-
it would
nation to
and
appear upon
the record.”
Supreme
summary application
the
For recent
Carnley’s
case,
criminal
see
in State
Court of
rule
(84
Doughty
(1964),
Ct
202
S
v. Maxwell
US
Doughty
650), reversing, per curiam,
L ed 2d
702,11
727).
(191
(1963),
NE2d
v. Sacks
175 Ohio St
(65
(1945),
S Ct
Rice
rights, generally, Fay v. Noia (83 837). 9 L 2d 822, 372US 391 Ct ed S People Whitsitt This occasion in Court had pro- 359 Mich to examine record ceedings people the intelli- claimed constituted gent understanding an waiver unanimously That which this record, accused. Court factually legally, did not waiver, found constitute requotation opinion Whitsitt, from merits our supra, p comparison of ar- with the record raignment proceedings Parshay: in this case of “ [By Court.] without an ‘Q. You here are attorney. attorney Do to have an desire willing represent you should wc or are matter, go one? ahead with the case without “ ‘A, may, we think that Honor. Your Souris, may”? say “we You “‘Q. sir. Yes, “‘A.
“ now? want an ‘Q. Do up boys, the other 3 it leave rather “‘A. I would they it. wish “ not do desire understand, I3, other ‘Q. The attorney. they not had an attorney, have “ right. ‘A. All " you? right with all Is it ‘Q. “ sir. ‘A. Yes, “ go mean? is that what ahead, ‘Q. To “ ‘A. sir. Yes, ” “ accepted.’ The ‘The Court. directly, asked, the accused was Whitsitt In replied attorney, he and he wanted unanimously yet, in- held such this Court not; did factually response inadequate, quiry intelligent pass legally, and under- muster federally standing assured of the accused’s waiver Michigan (1957), Moore v. See, also, to counsel. 167), (78 2 L ed 2d relied CtS 355 US *11 (1963), 656. In re Palmer 371 Mich in Whitsitt; Parshay, hand, the record discloses In the other right his advised of that while defendant was he never asked counsel, of have the court he to retain or to wanted appoint a record, for him. Prom such supra, Carnley, of record,” in “silent the words People be found. See waiver of counsel cannot Winegar App 547, 4 Mich App Hobdy (1966), 275. 5 Mich represented counsel; he was was not Defendant request opportunity an the assistance not accorded appointed; did he waive counsel, retained or nor consequence,his In snch assistance. must conviction and a vacated trial new ordered. 379 Mich M. Kavanagh, and T. J., J., C. con- Dethmers, J. curred Souris, with (dissenting), am I not accord with O’Hara, specific result. have no
Mr. dis- Justice I Souris’ principles agreement with the broad lawof imposing enunciates, but I fail to short of see, coun- refusing accept sel his guilty, how the trial court could have done apprise constitutionally guaran- to,. more him his rights. teed my colleague quotes portrays
The whole record judge me sincere effort of to bend over complying federally backward with a ordained format advise an accused of his to retained public expense. counsel or counsel at I find the every examination of the. accused fulfilled constitu- requirement, tional State or Federal. specific My point of difference with Mr. Justice is in his statement: Souris ' “Unfortunately, the trial did not ask defendant whether he wanted an ‘to re- attorney indigent,
tain be own if attorney or, that an for him.” quote:
I do not so read the record. you you “The Court. I want to advise are entitled ato trial to have it determined whether you guilty, are or not do understand that? “(Respondent up down.) nods head “The Court. You understand? Respondent. yeah. Yeah, “The Court. And also that are entitled to be represented attorney matter, is, your own choice. no have If money to'.employ attorney, request, so *12 will'appoint represent you. you Do understand thatf
“(Respondent up down.) nods head and O’Hara, Dissenting Opinion by J. yes? answer Your Court. “The Respondent. Yes. “The Knowing in the what the “The Court. your Mowing what information, in count first pre- you, explained are them 1as are guilty? plea guilty or not pared a to enter (Emphasis supplied.) Respondent. Guilty.” super excerpt, saving foregoing some From just exactly trial court did conclude semantics, colleague says did not do. my he' esteemed what Hence, are not opine he has cited cases the Federal controlling. J. JJ.,
Kelly O’Hara, with concurred Black, remand). agree I am unable to {for Adams, The crucial or Justice with issue is Justice O’Hara. Souris one counsel—no not defendant’s right, questions both as seriously of this the existence defendant and State Federal —but right. such waived upon arraignment place has been set took What opinions and O’Hara in the of Justices Souris forth pertinent repeated. Possibly need not arraignment was his defendant’s behavior eight days taken before before he was detention magistrate. extent, some us, The record before gives support he was contention that defendant’s period.1 eight-day incommunicado for an hold indicate the institution Police A of Kent from the bureau 15- and bound over to “In “The dates show bond In was entered reply to County, letter Feb. $5,000 were dated your 8, 1963, wrote placed was set superior court pardons letter April were taken to superior at 4 pleased were plus 22, 1965, semi-solitary p.m. court also on Peb. as. brought a detainer paroles . be advised that follows: charged police Arnold O. signed by on the lower court' with armed dated Feb. Pigorsh, on Feb. Grand 18th a a Mr. Faber. your 8, 1963, floor of robbery. records Rapids 11-14- sheriff
22 379 Mich Opinion by Adams, X. without the assistance 1964, of coun- 25, May
On filed in the trial court pleadings en- sel, defendant in the appeal super- for leave titled “Application in of a Rapids ior of the nature general court Grand have which he his conviction sought appeal,” by granted. and a new trial later, set aside One day 1964, 26, Ploeg Yander rendered an May Judge Parshay’s in which he reviewed opinion application and no error. The appeal for leave to found opinion a more than statement of nothing Parshay’s in information, of the claims, and of of the stenographic report arraignment proceedings. Judge No made with finding regard to detention. eight-day No is made Parshays’ finding regard with to defendant’s mental condition.2 No is made as to whether finding waived his Parshay to counsel at the time of arraignment. upon Based the record which is us, before I am unpersuaded defendant waived to coun ais question sel. "Waiver of fact. Johnson v. Zerbst (58 304 464 S Ct 458, 1019, US 82 L 1461, 146 ed ALR v. 357); Olson, Rice 324 786, 788, (65 US 789 S Ct 18, 1963, you superior “On March taken were court and the years sentence indicates to 25 in Jaekson. 12-1/2 p.m. “On March at 10:15 were taken to the hospital p.m. for slashed wrists and returned at 11 jail in days “You were this a total of 43 no record indicates any your right of inmate, only denial as kept were semi-solitary. petition “Also our I files do have the of prosecuting jail where were regarding returned to this a case Further, any which were be a witness. I do not have lawyers visiting you.” records on relatives day guilty, On the defendant entered his said: he “They have a law under which if man a is confined for a num years ber sexual abreviations seem to be [aberrations sic?] crime, connected request hearing with the can sexual psychopath, request I like hearing and would this time.” day sentencing, On the “Well, defendant said: appeared court, I the last time before this this asked hearing court for a as an psychopath, habitual criminal and why request would like to know this was denied?” days Two later defendant was treated for slashed wrists. People Pabshay. v. by Adams, 1367); Carnley Cochran, 369 US L ed 989, 89 70). (82 L ed 884, 2d Ct S ns, the record before members Based contrary completely come to conclusions have Court on the issue * * * “the as to whether accused did understandingly intelligently waive his constitu supra. right.” Carnley Cochran, tional *14 In Whitsitt, Palmer, 366 Mich re 371 Mich 609; 656. of an constitutional accused to he
represented by protec- of itself, the invokes, court, tion a trial which accused—whose liberty life stake—is without counsel. This protecting duty imposes weighty the serious and responsibility upon judge determining trial intelligent competent whether there is an waiver supra, p Zerbst, accused.” Johnson v. I would remand to the circuit court for Kent county by hearing for a testimonial and a determination on the issue of waiver and such postconviction proceedings further necessary. deemed part took no J., the decision of this Brennan,
case.