*1 PEOPLE v CLEMONS 1979, 10, April at Detroit. Decided No. 77-4694. Submitted Docket 20, appeal applied for. June 1979. Leave to receiving concealing convicted of Kenneth Clemons was Plym- the theft of a in connection with Brezner, Detroit, automobile, Court of Samuel Recorder’s outh 1) alleging appeals, lower court J. The defendant questioning the defendant’s reversible committed lying to save the he would consider as to whether brother 2) (cid:127)defendant, closing arguments unfairly prosecutor’s that the 3) trial, improperly the court a fair denied the defendant charge jury instruction its to the a relevant failed to include in 4) defense, right pertaining that a defendant has a to an alibi who conducted defendant’s to be sentenced trial, 5) produced to establish insufficient evidence the court erred in instruct- car stolen and that the value of the regarding ing jury the value of the car. Held: judge, questioning than rather 1. The line of information, ambiguity eliciting clarifying con- relevant an jury veyed court’s disbelief of the instructions, However, agreed cautionary alibi witness. counsel, prejudicial sufficient to eradicate the defense were addition, impact in view of the examination. In of the court’s beyond guilt, any overwhelming harmless error was evidence doubt. a reasonable prosecutor’s closing objected to the 2. counsel neither Defense prosecu- argument requested a curative instruction. injustice. manifest The issue statements did not result in tor’s appeal. is not trial to the trial court’s 3. Defense counsel did not at ^[1] ^[2] [3] [4, ^[5] [6] [7, Substitution of 5 Am 29 Am Jur 5 Am Jur 8] 8] Am Jur Am Jur 75 Am Jur 75 Am Jur Jur 2d, Appeal 2d, Appeal 2d, 2d, 2d, References Trial §§ Evidence 387. Evidence 1091. 2d, 2d, Trial § Trial 48. and Error 896. criminal 88, 122, § § for Points in § Error 48. 322, § §§ case. 83 ALR2d 623, 666. 891. Headnotes v Clemons failure to instruct the that in the case of an alibi defense you "if have a reasonable doubt whether the defendant was place charged, you the time and the crime then *2 guilty”. give must find him to not failure this instruction injustice. error, did not result in manifest While there was it error. harmless Michigan uniformly rejects 4. case law the contention that a right judge has a to be sentenced who conducted the defendant’s trial. The defendant has no constitu- right, provided by rule, tional nor one statute or court judge preside sentencing. demand that the trial at his insufficiency 5. The issue of the of evidence of the value of appeal. the car was not The defendant neither objected presented requested to the circumstantial evidence nor jury a instruction. Affirmed. Beasley, P.J., require judge concurred. He would presided

who over the trial to sentence unless there is good judge. and sufficient reason to substitute another record in the case at bar does not indicate that the trial any disability imposing was absent or had from sentence. He conviction, would affirm the defendant’s but would vacate the resentencing by defendant’s sentence and remand for trial, who over the if he is available.

Opinion op — — — 1. Witnesses Criminal Law Trial Court Questions Prejudice. may permissibly question A trial court a witness when it seeks to ambiguity bring resolve an forth additional information; however, doing may relevant in so the trial court prejudice rights and, questions not of a defendant if the are another, such as to indicate that the favors one side or province jury has invaded the and has committed revers- error; nevertheless, proper ible in certain circumstances a cautionary any prejudice instruction serve to alleviate the defendant. Appeal — Argument op — — 2. and Error Criminal Law Counsel Preserving Question.

Appellate alleged prejudice prosecutor’s closing review of in a argument precluded objection is of absence

unless failure to consider the issue would result in a miscar- riage justice. of App 68 Jury — — Preserving — Appeal Error Instructions 3. Error — Miscarriage Rules. Court of Justice object at trial to the instructions failure A defendant’s except where a precludes appellate of such instructions review 516.2). (GCR 1963, justice miscarriage would otherwise result of Judge. — — Trial Sentences 4. Law Criminal right, provided one has no constitutional A defendant rule, that the to demand or court statute preside sen- at the defendant’s trial also the defendant’s tencing. Property — — Value. Personal 5. Evidence testify regarding qualified property is An owner provided to sentimental or property, it not relate does such personal value. — — — — Value Posses- Automobiles Evidence Law Criminal Property — Circumstantial Evidence. sion of Stolen complainant regarding his automo- Testimony by the value of is on the defendant and for which had been stolen bile which $100 is possession in excess trial for *3 value, as such automobile’s evidence of the circumstantial jury question value to whether the a as to is sufficient $100. in excess was Partial Dissent Judge — Sentencing — — Failure to Substitute 7. Law Criminal Object — Court Rules. sentencing, for at his to substitute unfair to a defendant It was stranger undisclosed, to judge a total who was another reasons judge who had over proceedings where going to ñt indicate that was trial had seen to defendant’s factors involved give to some of the some consideration was no respect where there the sentence and with required by the as showing was "absent” that the trial rules; requiring a defendant in such circumstances disqualify sentencing judge himself to seek to have the great appeal places too on matter be considered before the a burden a defendant. and too Unfair Judge — — Sentencing — Trial Substitution Law Criminal Judges — Court Rules. over practice who has is for the The usual plea to taken a defendant’s trial or who has criminal showing sentence, been a unless there has Clemons Opinion of the Court sentencing, at the time bf was "absent” because the presiding acquaintance greater over the trial has a closer ahd a familiarity with the and with the issues and because system our strives for sentences will be tailor-made for the particular particular defendant and the offense for which he is 531). (GCR 1963, being sentenced Frank J. A. General, Robert Kelley, Attorney Cahalan, Derengoski, Solicitor William L. General, Wilson, R. Attorney, Edward Prosecuting Principal Chastang, and Rita Appeals, Assistant Attorney, people. for the Prosecuting Attorney, Nelson, R. Richard for defendant on appeal. P.J., Before: and D. C. Ri- Beasley, Allen ley, JJ.

Per Curiam. Defendant Kenneth Clemons was complainant’s the theft of 1965 Plym- arrested for and, therewith, outh automobile in connection receiving concealing convicted of $100, 750.535; MSA 28.803. MCL imprison- Defendant was sentenced to 3 to 5 years ment, appeals right, as of and raises five issues which we address in turn.

Defendant the lower court first maintains erred in brother reversibly questioning defendant’s as to lying whether he would consider save judge’s inquiries defendant. The were met de- mistrial, fense counsel’s motion for after which gave court admitted error and two subsequently separate jury. curative instructions *4 A a witness may permissibly question testimony it an ambiguity when seeks resolve information, bring or forth additional relevant 626, 636; 273 People Karmey, Moore, v John Mich 503 78 lv den 155; 259 NW2d 403 Mich op Opinion however, doing so it not (1978); may Mich 950t defendant, the rights the prejudice Gray, to indicate that such as questions if the are another, has or in- favors one side

the judge of the and committed province jury the vaded supra. Neverthe- Gray, reversible error. circumstances, less, proper cautionary in certain prejudice to any serve to alleviate instruction Peo- People Gray, supra, the defendant. Withrow, 679, 685-686; ple v (1970), lv den 384 Mich 795 NW2d 775 of the principles these to our review Applying judge’s the trial line transcript, we conclude ambiguity rather than an questioning, clarifying information, eliciting conveyed relevant the of the the disbelief of jury court’s time, however, are At the same we alibi witness. instructions, agreed the cautionary convinced counsel, appropriate remedy defense as an error, sufficient to eradicáte curing were impact of the court’s examination. prejudicial plainly informed the that he was jury in such a questioning mistaken witness clearly remarks delineated the roles manner. His court, and warned jury, trial counsel and him, posited jury disregard any questions and the were further jurors answers thereto. to defen- opinion told that the court had no as dant’s and that draw no such guilt, they should polled inference. As a final safeguard, indicated that unanimously their it answer from question could strike minds. circumstances we decline Under these error, addition, In in view of reverse. any against overwhelming guilt presented evidence of defendant, a reasonable beyond would be harmless *5 People 73 v Clemons Opinion of the Court Robinson, v 551, 563; People 386 Mich

doubt. 194 Heard, People v (1972), 709 58 Mich App NW2d lv den 400 Mich 312, (1975), 331 316; 227 NW2d (1977). 812

Next, argues prosecutor’s him closing arguments unfairly denied a fair trial. any counsel did not Defense the re- marks, request a curative instruction. There- fore, appeal remains for any only if injustice. 769.26; it resulted in manifest MCL Duncan, People v 28.1096, 1, 15-16; MSA 402 Mich Clark, (1977), People v William 260 58 68 NW2d (1976). 48, App 51-52; Mich 241 756 NW2d We do not find that standard met in the case at bar. The arguments were related to the prosecutor evidence of the case and did not amount to an expression opinion guilt. as to See 177, 179; People Page, v 63 234 App Mich (1975). Further, 440 prosecutor’s comments on produce the failure of defendant more alibi witnesses, in view of the factual circumstances defense, surrounding were within the bounda- Shannon, People permissible ries of observation. (1979), 546 Mich Ford, People 35, 39; 59 Mich NW2d 533 People Hooper, (1975), 186, 196-197; 50 Mich App lv den 391 Mich 808 (1973), 212 NW2d 786 Defendant also the possibility raised of instruc- tional error by the court’s failure to include its charge jury paragraph four of Criminal that, 7:2:01, Instruction Jury which states defense, case of an alibi have a reasonable you "[i]f doubt whether the defendant was time and then place charged, you crime Again, exception must find him not guilty”. no appel- proffered required as save the issue v Haney, review, 1963, 516.2, late GCR App 68 91 Mich op Opinion 318; 272 NW2d Mich 462; 258 NW2d Hall, Sherman finding support fails to the record error, Peo- Although we find injustice. of manifest 60; 227 NW2d Johnson, ple v John Johnson, v William *6 228 Erb, 48 (1974), People v 678; 221 452 App (1973), also 51 see 622; 211 NW2d App 847 Wilder, 358; 266 NW2d v 82 Mich People (D. we (1978) J., dissenting/concurring), Riley, C. As it was harmless.1 that conclude nevertheless defendant noted, against the evidence previously was considerable.2 ques review offered for issue penultimate to be sen right has a a defendant

tions whether his trial. who conducted tenced this conten rejects uniformly law Michigan case no constitu has tion, that a defendant holding court statute or provided by one right, nor tional at his judge preside rule, to demand 230, McKinley, 5 Mich sentencing. People lv den 378 Mich 142 235-237; 146 NW2d Blair, 649, 651; 11 Mich (1967), People v 750 Collins, 25 Cf., 112 162 NW2d (1970). In 601 613; 181 NW2d 237 McKinley, supra, at People v addition, both Blair, a supra, at held that such People v all, would be existing if right, failure defendant, to waiver subject Here, defendant’s sentencing. time of at the object 358; Wilder, 82 Mich dissent in where, testimony presented, distinguishable the in view of is beyond a harmless unobjected-to could not be considered doubt. reasonable questiona strength alibi was of defendant’s note that the We also his presence held at at a barbecue to his Witnesses testified ble. question, p.m. day at which on house until about mother’s time vehicle driving the stolen premises. was observed he left the Defendant shortly p.m. before 7 Clemons Partial Dissent relinquished any predication failure error. evi- alleges insufficient

Lastly, to establish the value of produced dence automobile, and that erred said value. We dis- instructing jury regarding trial, complainant agree. At testified that he had $950, installed car for had new bought it, motor, less than accept and would not $250 also his estimate figure represented which it was stolen. Further- day vehicle’s worth on the more, good running he stated that the auto was (also capture evidenced defendant’s condition chase) body and that had high speed after a it was still police out. The testified not rusted the owner. running its return to qualified is personal property An owner of Kav- property, the value of such regarding testify Co, St Paul Fire & Marine Ins anagh v People, Printz v NW *7 Janni, Duma v 144; 3 Mich NW provided 182 NW2d Mich or value. it does not relate to sentimental Tillman, 768, 771-772; 229 59 Mich (1975). Complainant’s of the was circumstantial evidence case value, to and as such was sufficient automobile’s no jury question. objection form a As there was instruction, claim that request defendant’s charged regarding erroneously properly of the was not market value 1963, 516.2, for review. GCR supra. Haney,

Affirmed. dissenting in (concurring part P.J.

Beasley, in differ from part). affirming, I but concur Partial Dissent require I would the trial that majority impose the trial sentence who over good and sufficient reason to substi- unless there is judge. tute another People McKinley, majority cite 230; 146 but that case is

distinguishable, saying: appears Judge

"It Van Domelen had the neces- sary Judge disability called for Rule 531 to allow Stephens same court to sentence Id., 235-236. defendant.” case, nothing

In there is in the record the within Judge to indicate that Brezner who disability or had from any the trial was absent fact, imposing sentence. As a matter Court to say: McKinley went on might imagined in "Although cases be which it would to a defendant to allow a second be unfair him, McKinley, sentence such is not the case here.” supra, 236. Blair, also cite majority Blair, 649; 162 NW2d 112 In the trial

judge disqualified himself because he was con- vinced before trial that defendant was guilty, this, In and in nonjury. spite was be spite showing unavailability, of a lack of any defendant was sentenced this disqualified

had himself. I am aware I Court chose to affirm under those facts. believe that, this under no circum- stances, should a trial who has chosen *8 upon himself disqualify ever sentence I that defendant. would not be inclined believe the Blair per opinion good prec- curiam constitutes v Clemons Beasley, Dissent Partial Collins, also cite majority

edent. where 609; 181 NW2d a new proceeding revocation probation heard the judge 10 years to 7-1/2 to sentenced the defendant held that neither statute prison. in This Court require judge placed rule the trial probation preside over the revocation defendant on Collins, However, note that this hearing. we placing judge Court held sitting in Record- probation judge on was a circuit Court, and that this Court concluded that er’s circumstances, circuit judge under those was of GCR purposes "absent” for that defendant failed to Lastly, majority say sentence. I object Realistically, time of require would not a defendant about to be sen- tenced a substitute to seek to disqualify great him. too procedure places Such a and too I unfair a burden a defendant. would not hold that failure to constituted waiver. case, showing In this there was no under GCR 1963, 531 that was "absent”. How- ever, and, perhaps, important, in addition more we a trial who had seen fit to indicate that have going give to some of the consideration respect factors involved trial with to the circumstances, sentence. Under these I would be- lieve that it was unfair to defendant for reasons undisclosed to substitute another who was a total stranger proceedings. question

I am aware that this often type in Wayne arises in Detroit Court and Recorder’s Court, have County Circuit both of which courts programs been the off subject so-called "crash” visiting during and on decade wherein past great in to assist judges brought numbers are I under- bring to date. While trying up dockets *9 App 68 Partial Dissent the need for for and also authority the stand and, mov- consequently, visiting judges bringing the ordinarily is than around more ing judges of a substitution case, not the permit I would compliance where except of sentence for purposes record. on the 531 is shown with GCR who has is the practice The usual for. taken or who has over the criminal The reasons the plea the sentence. judge presiding over obvious. appear would greater and acquaintance the trial has a closer issues. the the and with with familiarity defendant proposition merit Certainly there is and knows the more the about defendant he has to case, opportunity the better about objectives reach the which sentence fashion a depart- sentencing, probation indeterminate of Michigan, our In parole. future ments and possible that will be tailor- sentences system strives for particu- and defendant particular made for the being is sentenced. offense for which he lar be, not, is not Sentencing is and intended probation The possibility automatic. two of various are early parole but

possibility familiarity with where situations application significant his wise case are sanctions. criminal to set the sentence

I would vote aside remand resentence trial, he is if available.