*1 v Collier PEOPLE v COLLIER 3, 1987, Docket February No. 85740. Submitted at Detroit. Decided 18,1988. February appeal applied Leave to for. Dillard great Collier was convicted of assault with intent to do bodily murder, Detroit, harm less than Recorder’s Court of Talbot, Michael appealed, alleging J. J. Defendant error in the admission possibly of evidence of a scales used for narcotics in possession, in the reopen- court’s refusal to allow a ing proofs testimony witness, to hear late-arriving of a indicating special court’s remarks relationship jury judge. between the foreman and the Appeals
The Court of held: 1. The court allowing abused its discretion in evidence con- cerning the scales. There drugs was no other evidence that charged were material pos- the crime or that defendant sessed, drugs. sold or used 2. The court allowing abused its discretion not defendant reopen proofs testimony late-arriving obtain the of the testimony helpful witness. The would have been and would not given advantage have surprised defendant an undue or or prejudiced prosecution. permitting Nor would the witness testify disruption proceedings. caused a 3. jury The court’s remarks to the foreman indicated a relationship juror between that and the court and _special References 2d, Am Battery seq. Jur Assault and 96 et §§ 2d, Am Jur Evidence 339-343. §§ 2d, Judges seq. Am Jur 166 et §§ 2d, seq., Am Jur Trial 87 et 156. §§ Attacking supporting credibility or of witness evidence in form opinion reputation, 608(a) under Rule of Federal Rules of Evidence. 52 ALR Fed 440. 608(d) application Construction of Rule of Federal Rules of dealing specific Evidence attack or with use of instances of conduct to support credibility. 36 ALR Fed 564. Propriety reopening present criminal case in order to omitted or evidence, overlooked after submission to but before return of verdict. 87 ALR2d 849. influencing impartiality, pierced judicial unduly the veil of denying a fair trial. remanded. Reversed and J., implication He Kelly, believed that M. J. dissented. *2 drug probative employed use of was was scale properly He also believed motive and admitted. refusing late witness to no to allow the the court made error questions jury testify and comments to the foreman. and in its He would aifirm. Batteky — — — Rules of 1. and Evidence Narcotics Assault Evidence. posses- suggesting was involved in that defendant Evidence material, narcotics, sion, where not is inadmissi- sale or use of 402). (MRE prosecution in a for assault ble — — — 2. Bad Acts Rules of Other Criminal Law Evidence Evidence. may not be bad of a defendant admitted Evidence of other acts purpose proper exists evidence for a unless there substantial sought actually perpetrated the bad act be that defendant (MRE 404[b]). introduced Reopening — 3. Proofs. Trial reopening proofs party either rests allowance or denial of for judge; to the issue in the of the trial relevant sound discretion advantage moving is undue would be taken whether any showing surprise preju- party is of and whether there nonmoving party. dice to the Appeal. — 4. Law Criminal rule, general precludes objection, timely as a Failure make react, however, review; appellate appellate an court can even timely objection, resulted in a to error which absence trial. denial a fair Judges Impartiality Appeal. — — — 5. Trial trial, great power conducting judge, and wide discre- A has unlimited, power if examination of but is not and tion pierced judge trial has veil the record reveals that a judicial impartiality, must reversed. a case Appeal. Impartiality — Judges — — —Trial 6. Fair Trial applied has to determine whether a The test to be impartiality requiring pierced judicial is reversal the veil unduly as to were of such a nature whether his comments right thereby deprive party of his influence the and impartial fair trial. Collier op Opinion the Court Attorney Kelley, General, Frank J. Louis J. Caruso, General, O’Hair, Solicitor John D. Prose- cuting Attorney, Timothy Baughman, A. Chief of Joseph Division, Puleo, the Criminal A. Assis- Prosecuting Attorney, people. tant for the Jordan), Appellate (by State Defender Herb appeal. defendant on Kelly Wahls, P.J., M.
Before: J. and C. W. Simon, Jr.,* JJ.
Wahls, P.J. Defendant was convicted after a great trial of assault with intent to commit bodily murder, 750.84; harm less than MCL MSA 15, 1985, 28.279. On March he was sentenced Judge Detroit Recorder’s Court J. Michael Talbot years imprisonment. to from to ten six Defendant appeals right, now as of and we based reverse on *3 appeal. three of the several raised on issues twenty-six-year-old in victim this An- thony September Mitchell, 14, testified on visiting defendant, Collier, he was Dillard During brother, visit, and his Terrance Collier. Mitchell refused to drive defendant to the east side "get Detroit order to his check cashed” .very because Mitchell’s car insurance "wasn’t good.” Subsequently, purchased three men a pint cognac, they which drank at defendant’s house, bar, then a and went to with Mitchell wearing a shirt borrowed from Terrance. Accord- ing together Mitchell, to left three the bar at home, 2:00 a.m. and returned to defendant’s where began point, they to talk. At that defendant be- upset came and told his brother not to Terrance listen to Mitchell because Mitchell had earlier drive him refused to to east side. Mitchell sitting Appeals judge, by assignment. * Circuit on the Court 168 get shirt then moved to his own and stated he why he house, defendant leave the but first asked replying, prior made statement. Instead of had defendant struck ensued, his jaw. A scuffle Mitchell on striking fray, and Terrance entered on of the head once with his Mitchell the side something than his and with other hand hand. The next twice thing remembered was Mitchell awakening hospital, apparently days in a seven later. injuries, in- numerous
Mitchell had sustained swelling cluding jaw, on the left a fractured a side multiple "split” head, fractures, of sion, facial vi- his multiple "clogged” ear, back, burns on multiple and scars. and bruises police testimony elicited, After medical version of defendant took stand. Defendant’s markedly from Mitchell’s. Ac- the facts differed cording defendant, Mitchell had refused drive check, he, him to side to cash a the east purchased brandy some Mitchell and Terrance liquor store and returned from house to drink Mitchell borrowed
it. a shirt from the three men left visit bar defendant and after closet. Defendant maintained placed money of his in a defendant some
that he and his being after left the bar at 3:00 a.m. unsuc- brother cessful returning Upon attempts Mitchell. their locate 5:00 at 4:30 a.m., home about a.m. Mitchell’s car in the drive- discovered wrong way Mitchell "was and assumed being my house, Defendant entered the house.” kitchen, asked him Mitchell in discovered *4 According doing defendant, he there. what swung him, at but missed. Defen- Mitchell then in the with his then hit Mitchell once head dant fist, grabbed hit him and Mitchell defendant struggling together They on the shoulder. were v Collier about two minutes when Terrance walked in and beat Mitchell numerous times with a broom and object. During an unknown brawl, this passed either out due to intoxication for less than minutes, five Mitchell, was knocked out everything transpired thus did not observe between Mitchell and Terrance. up, that,
Defendant asserted
when he woke
he
police.
found Mitchell on the floor and called the
waiting
police
After
to
ten to fifteen minutes for the
again
arrive,
defendant asked Terrance to
call
police.
The first issue raised
defendant concerns the
photograph
admission into evidence of the
of a
weight scale
found
a bedroom of defendant’s
essentially argues
pho-
house. Defendant
tograph
highly prejudicial.
was irrelevant and
admissibility
question
of evidence is a
that rests
within the sound discretion of the trial court. This
Court will not overturn a trial court’s decision to
admit or exclude evidence absent a clear abuse of
App
Solak,
discretion.
659, 673;
146 Mich
photograph
possible prejudice of photograph. having any
Relevant evidence is "evidence ten- dency to make the existence of fact that is of consequence to the determination of the action probable probable more or less than it would be without the evidence.” MRE 401. Irrelevant evi- relevant, dence is MRE 402. inadmissible. Even if may however, a trial court choose to exclude evi- ground prejudice, confusion, dence on the waste *5 Opinion the of Court presentation time, of or needless of cumulative MRE 403. evidence. prosecutor persuaded trial,
At the the court that explain possible the scale could motive for the assault on Mitchell. He reasoned that defendant’s anger in at Mitchell was rooted not Mitchell’s of refusal to drive defendant east side purpose cashing in Detroit for check but him to for the refusal drive the east side purpose obtaining ostensibly, of, narcotics —narcot- ultimately weighed ics which would on pictured photograph in into scale admitted strenuously objected, Defense evidence. pointing counsel speck that "there one [not] out was dope in the that there was some found evidence house, house,” that narcotics found in the some pur- for the "scale could be used poses,” number of photograph that introduction of unfairly suggest the scale would therefore result, involvement of narcotics the case. As a credibility concluded, defense counsel greatly undermined. would be agree the trial court We with defendant admitting photograph abused its discretion of the cutor’s defendant wanted to prose- weight in this Absent the scale case. conjecture, no evidence there was
go to the east side order purchase Thus, not a check. to cash narcotics drug prejudicial in- was issue of involvement evidentiary jected basis. into case without possession of a was not on Defendant possession, sale, substance, and the controlled use of drugs case. issue in the was not a material suggested such of evidence which introduction tangential possession, sale, was or use therefore only jury’s charged divert the could crime and imply perhaps was attention, that defendant generally or of criminal character. bad man Collier Opinion op the Court DerMartzex, 413; Permitting photograph weight that defen- scale allowed the infer dant guilty charged offense because he might illegal drug transac- have been involved tions.
To
ruling
the extent
that
the trial court’s
may
404(b),
be based
MRE
upon
permits
which
of,
of
purpose
among
introduction
evidence for the
other
things, proving
charged
the motive for the
offense, we also find an
of
As
abuse
discretion.
we
People Cramer,
v
148,
156;
stated
97 Mich App
(1981):
(1980),
for other of evidence. The lead- ing Wilkins, point case on is v App 260, 267-271; (1978), den 406 lv essence, Mich 857 In to admit evidence under the so-called "similar acts” it doctrine is necessary that of evidence the defendant’s substantial, relevant, other bad acts be unduly prejudicial and not to matter which is material in controversy and ples princi- the case. While these (of law) evidentiary readily applicable are the admission of any type proffered of evidence (see, e.g., 401, 403), MRE they special take on meaning when the sought evidence to be admitted in a pertains criminal instances bad or criminal acts defendant which he is not presently on trial. People Golochowicz, See 309; Mich Wilkins rule. NW2d 518 adopting case, In above, this as mentioned the evidence of "other bad act” of purported drug 168 substantial, not rather con- but involvement fined mately, prosecutor. speculations Ulti- to the photograph of the it was based on the knowing weight itself, defendant denied scale since implied prose- drug anything sales, as about may cutor, occurred the east side which near check. wanted cash his store where defendant drug-related entered into evidence was No other although that, motive We note has evidence. also propriety been claimed as basis for specifically weight prosecutor evidence, the scale from the court have the declined an invitation Although commis- instructed as to motive. prior proven act need not be sion bad beyond doubt, there must exist "sub- a reasonable actually per- stantial evidence petrated sought introduced.” the bad act supra, p Golochowicz, 309. Since such exist this evidence” did not "substantial safeguards applicable evidentiary find that the we met, thus conclude that not admission were *7 depicting photograph the into evidence of the weight constituted an abuse of discretion. scale argues Second, the trial court proofs permit refusing reopen to to erred in late-arriving testify. In witness to this defense prosecution rested, and defense after both closing prior arguments, to counsel and requested defense reopening proofs a late- of the allow arriving testify in character witness to behalf of request denied, was the court defendant. The merely ruling, reopening Generally, "No, sir.” prosecution proofs defense rests of for either the or judge. of the trial the sound discretion within People Lay, 77, 79; 57 453 336 Mich NW2d v (1953); People Egner, App 212, 214-215; v Mich (1967). ruling in on a Relevant NW2d proofs any reopen is whether undue motion to v Collier advantage moving party would be taken showing surprise and whether there is of prejudice nonmoving party. Ames, to the Bonner 537, 541; 97 appeal, people argue
On that defendant was present every opportunity to afforded and Rodney his defense proffered testimony in fact of his brother Citing and of Collier two friends.
Holguin,
App 268,
271;
Defendant’s witness was reputation community defendant’s for 803(21). honesty. truthfulness and fendant’s MRE Since de- injured account how Mitchell was Mitchell’s account what occurred in defendant’s morning September 15, 1984, home on the were clearly disparate veracity nature, truth and important ingredients were If case. story
believed his home and that that Mitchell broke into upon entering his home defen- merely dant defended himself from Mitchell’s physical attack, then a conviction of assault with great bodily intent to commit harm less than murder would have been unfounded. testimony late-arriving witness in greater significance
this instance was elevated to witness, because defendant’s first character Ronald understanding Whittiker, stated that his defen- reputation honesty dant’s truthfulness and personal on based belief and on failure of *8 community in others the assert that defendant reputation dishonesty. had The trial untruthfulness or
judge, discussing jury in instructions 168 suggested counsel, that because Whittiker’s with testimony negative,” i.e., the concerned was "in reputation for untruthfulness and of a the absence presence reputation dishonesty not the of a honesty, "not a for truthfulness and proper accordingly Whittiker was agreed, Counsel character witness.” regarding jury the not instructed was late-arriving witness, If the character evidence. just apparently coun- arrived moments after who jury agreed instruc- sel that a evidence character testi- warranted under Whittiker’s tion was not permitted only testify, mony, had then not been pre- may proper character evidence have been jury, may have been sented the but defendant regarding jury char- instruction able to include charge jury. to the acter evidence showing Moreover, defen- there has been no advantage any or have undue dant would received any surprise people would have sustained that or by permitting prejudice witness to the character prosecution prepared testify. was to meet Since testimony of first character wit- hardship ness, undue we fail to' discern upon people permitting surprise redounding late-arriving testify. the There the court or deviation from last character witness been disruption
would have little or no procedure since the Whittiker, had Ronald witness just testifying. Whittiker left the finished After judge jury stand, the trial announced to rested,” comments, made few "both sides and excused couple jury minutes” at "for a p.m. 2:48 Counsel and discussed minutes, for a few and defendant’s instructions late-arriving attorney requested that witness request testify. permitted denied, into the courtroom at was called back and 2:59 p.m. closing arguments. under to hear Because *9 People 697 v Collier op Opinion the Court prejudice disruption these no circumstances testimony resulted, would have and because re- garding reputation for defendant’s truthfulness veracity great would have been a asset to in this we find that the trial reopen proofs permit court’s refusal to to late-arriving to character witness tes- tify constituted an abuse of discretion. argues
Third, defendant certain comments judge jury foreman, made trial Attorney right Mitchell, Robert him denied impartial jury. trial Defendant reasons that judge’s partiality the trial remarks demonstrated a placing foreman, toward vored the latter in a "fa- position” unduly jury. People influence the US Const, VI; 1963, 1, § 20; Am Const art v (1941). Bigge, 58, 64; 297 Mich 70 297 NW Defen- argues, citing People Cole, dant also v 349 Mich (1957), 175, 199-200; 84 711 trial NW2d by improp- court’s remarks denied him a erly piercing fair judicial impartiality. the veil object general Trial counsel failed to below. As a allegations rule, Court this will not review of error based on the conduct of the trial court in situa- tions where no
objection made at the trial Bouknight, court level. v 106 Mich (1981), 798, 807; 308 703 NW2d rev’d on other (1984). grounds 458, However, 419 Mich 490 since appellate injustice, courts cannot condone manifest timely react, this can Court even in absence objection, error which resulted a denial of a People Roby, App 387, 389; fair trial. (1972). Such review without benefit objection of an at the trial court level has been appropriate” "particularly characterized as objection this, cases such as made to the trial to be where had judge concerning himself his own conduct. Id. not Portions record should App 687 show trial court out of context order
taken
rather,
defendant;
the record should
against
bias
v Allis Chal-
as a whole. Moldovan
be reviewed
Co,
380;
Mfg
268 NW2d
mers
83 Mich App
(1979),
cert den
lv den 406 Mich
familiar, chance, with this case Okay. parties or witnesses involved? Collier Mitchell, Mr. would you familiarity with prosecutor, charge, with officer in with the probably defense counsel and some of the wit- nesses, wouldn’t you? Juror Mitchell: I think I almost know the defen- I dant. don’t know him face.
The Court: He looks familiar you, does he? Juror Mitchell: heYes does. sorry. Mitchell: I’m I Juror don’t know the other
parties. Okay. Court: Sergeant Christopher Juror Mitchell: I know quite out and Mr Reynolds well assis- [the know, man, prosecuting attorney] young tant I fine attorney] and Mr. Parzen defense is also a fine [the young man. against The Court: You’ve done battle one side table, you’ve sat probably with Mr. on Parzen occasion.
Mr. living. Mitchell does this sort of work He’s a put think is probably way notorious —I State, it—criminal lawyer defense in the just so would be familiar with everybody. about *11 the During judge’s questioning potential jurors, requested he information the regarding employment spouses. their The ex- following change occurred between the court and Robert Mitchell: Mitchell, work, Mr. your Court: we know of
and as to Mrs. Mitchell? Unemployed.
Juror Mitchell: your chagrin. The Court: Much to continued, voir potential As the dire a who juror called, happened to be a owner the bar and tempo- "In one of judge commented: Mr. Mitchell’s And, enterprises finally, a bar rary he was owner.” op Opinion the Court their satisfaction with both counsel stated after judge, presence panel, jury the trial the the following jury, conversation into entered attorney Mitchell and a defense with Robert Jay named Nolan: a jury.
The Court: We have got other you you’ve cases to be any Do have Mitchell, if you have —Mr. on? We could courts any to in court for you cases that have be have tomorrow, I to it that Mr. Nolan today or can see handle them. to, happy I’d Your Honor.
Mr. Nolan: be you in case The Court: Yes. We’ll take a recess any go have over in terms of you have matters He Mr. can We could defer to Nolan. calendar. you. handle them atmosphere in courtroom find that
We Mitchell these comments Robert created judge rapport the, and established a between eyes lift served to Mitchell in the which judicial impartiality. In remarks veil of knowledge judge jury, revealed a before apparent past venture Mitchell’s business Robert attorney, past professional of his work as willingness a as as a take recess order well permit opportunity to resolve Mitchell the Robert scheduling conflicts created familiarity apparent with, Such criminal trial. judge may eagerness juror by accommodate, a evidencing interpreted by jurors easily special relationship as between upon juror juror influ- and thus confers more enjoyed than he or she would otherwise ence judicial panel. circumstance, on the impartiality In such a and, as result of is breached juror, enjoyed by the defen- the favored status *12 Collier Kelly, M. J. J. Dissent right impartial imper- dant’s to a fair and trial is missibly risked.
Accordingly, we conclude that defendant’s con- great viction of assault with intent to commit bodily harm less than murder must be reversed. In view of this conclusion based on the three issues opinion, addressed this we need not review the remaining appeal. issues raised defendant on
Reversed. Simon, Jr., J.,
C. W. concurred. (dissenting). M. J. Kelly, J. I would affirm. prosecutor argued It is true that photograph depicting weight scale was evidence possible motive for the extreme force and prosecutor’s violence visited on the victim. The theory angry was that defendant was because the place victim refused to take him to a where he drugs. buy could Because the victim refused defen- request, dant’s defendant had a motive to assault him. Such a motive for these criminal acts was theory more than believable the defendant’s merely place Mitchell refused to him drive to a where he could cash his check. Defendant did in fact cash his check
long before the altercation. 404(b) MRE states: crimes, wrongs, Evidence of other or acts is not prove person
admissible to the character of a order to show that he acted in conformity there- however, It may, with. be admissible for other purposes, intent, proof motive, such as opportunity, scheme, preparation, plan, system or act, doing knowledge, identity, or absence of material, mistake or accident when the same is crime, wrongs, whether such other or acts are with, contemporaneous prior subsequent or charged. the crime *13 App 687 Mich J. M. J. by Kelly, Dissent App People Cramer, 148, 155; 293
See
(1981);
(1980),
Mich 862
lv den 411
6, 11;
Fisher,
257 NW2d
Finally, judge’s I find no error inject levity during the voir dire of Robert some attorney Mitchell, presumably was a criminal defense who personnel all court well known to including and which no ob- defense counsel drew v Collier by Kelly, M. J. J. Dissent jection opposing counsel. from We sanctioned seating jurors judges lawyers as and I judge’s no of discretion as to the trial find abuse impartiality. juror’s decision on this questions judge’s not tainted the trial Mr. not comments to Mitchell. Defendant was impartial jury. denied a fair trial I affirm. would