37 Mich. App. 175 | Mich. Ct. App. | 1971
The defendant was convicted by a judge sitting without a jury of committing an act of gross indecency with each of two other male persons. MOLA 750.338; MSA 28.570.
During the trial a Walker
On appeal the defendant contends that he was deprived of a fair trial because during the course of the Walker hearing there was brought to the attention of the judge, who sat as trier of fact, evidence— the admission attributed to the defendant — which
We recognize that it would be desirable if a judge conducting a Walker hearing concerning the admissibility of a statement did not learn the nature of the statement until after he had made his decision on the issues of voluntariness and admissibility, so that his decision on those issues is not subconsciously influenced by knowledge of admissions made in the statement. However, we can visualize situations where, because of the defendant’s testimony or other evidence at the Walker hearing, it may become necessary for the people to introduce inculpatory aspects of the statement in rebuttal.
Focusing more closely on the facts of this case, we do not think we would be justified in laying down an absolute rule that when a trial judge, sitting as trier of fact, becomes aware of evidence inadmissible against the defendant he must disqualify himself and the case must be tried by some other judge.
Where another judge is available, it might be desirable to have him try the case. But the circuit judge who sat in this case sits in a one-judge circuit. If an absolute rule is to be laid down prohibiting a judge who hears an admission from trying the case, the Supreme Court will have to declare that rule as
In this case a new trial is not justified. We are satisfied from the judge’s remarks stating his findings following the conclusion of the trial that he would have reached the same result even if he had not learned of the admission. The two hoys, one 10 and the other 12 years of age, for whom the defendant had been acting as a babysitter, testified that over a period of time ending on June 18 the defendant played with and sucked their penises. The father of the boys testified that the defendant later apologized for what he had done. The defendant did not take the stand in his own behalf. The judge stated he believed the testimony of the witnesses for the people. We have no reason to conclude that the defendant’s conviction is traceable to the judge’s knowledge of the admission attributed to the defendant.
Nor is the defendant entitled to a new trial because the information charged that the prohibited acts occurred during the period May 25 through June 6 and it was brought out at the trial (without objection) that the last act occurred on June 18. It appeared from the people’s evidence that similar acts had occurred eight to ten times before in the case of each boy. See People v. Heiss, 30 Mich App 126, 131 (1971). No limiting instructions were required in this case as the judge sat without a jury.
Affirmed.
People v Walker, 374 Mich 331 (on rehearing, 1965).
See McCormick, Evidence, § 60, p 137; 5 CJS, Appeal & Error, § 1564(5), p 1270 et seq.; Jones v Jones, 325 Mich 671, 680 (1949). But see State v Miller, 64 NJ Super 262, 266; 165 A2d 829, 831 (1960); People v Eglar, 19 Mich App 563 (1969) ; People v Harvey, 13 Mich App 211 (1968) ; People v Ramsey, 385 Mich 221, 225, 229 (1971); People v Frazier Walker, 385 Mich 596 (1971), aff’g and adopting the opinion of our Court in the same case, 24 Mich App 360 (1970); Note, Improper Evidence in Nonjury Trials: Basis for Beversal?, 79 Harv L Rev 407, 409, 415 (1965).