*1 App PEOPLE v SMITH 11, 1979, Lansing. at Docket No. 43243. Submitted December De 20, 1980. February cided Arthur L. Smith convicted of armed Macomb Circuit Court, Cashen, Raymond R. J. the Defendant took stand the trial and asserted an alibi defense. He called a co-worker to substantiate that defense. After direct examination defense prosecutor, counsel and cross-examination the the trial regarding ability examined the co-worker his to recall the robbery prior years of the which occurred three to trial. only portion transcript requested by jury during the part their deliberations was that in which trial the asked credibility-testing questions. these Defendant’s trial counsel objection interrogation judge’s raised no the trial until the guilty. appeals. had returned a verdict of Defendant On appeal judge’s interroga- issues center around the trial tion of defendant’s alibi witness. Held: Objections to the or witnesses court interrogation by may be at the or made time at next opportunity available is when not objection no admits that motion for a new were made timely object with a court rule. Failure review, precludes appellate especially perusal judge’s reveals that the trial examination did not of the witness so as to create manifest injustice.
Affirmed. J., dissented. He would hold that improper prejudicial. conduct was The thrust of impeach court’s of defendant’s alibi was to clarify conflicting testimony elicit missing unjustified facts. The found in these an [2, [3] [1] [1, 3] 3] 5 Am Jur Am75 Am Jur Am Jur Witnesses Jur 2d, Appeal 2d, References 2d, 2d, Trial Trial 87. § and Error 553 et § §§ Points § - 421. Headnotes seq. Therefore, importance. although defendant did not opportunity at the next available present, injustice was not it is obvious that manifest resulted and that defendant has been denied a fair trial. He *2 would reverse and remand for a new trial.
Opinion of Court — Objec- — — — Questioning 1. Courts Trial Witnesses Judicial Prejudice Credibility Injustice — — — — tions Appeal Manifest — and Error Rules of Evidence. may interrogate by by party A court witnesses called itself or a any objections by of witnesses the court or to interrogation by may be made at the time or at the next opportunity present; available is not failure timely with a court rule until after a apparent verdict when it becomes the court’s may prejudicial jury precludes appel- have had a effect on the review; late counsel cannot sit back and harbor error to be used appellate parachute failure, as an in the event of a especially perusal where that the trial reveals judge’s interrogation did not of a 614). (MRE injustice as create so manifest Burns, Judge’s Improper — — Jury Preju- — — 2. Courts Trial Conduct —dice Fair Trial. Improper judge during conduct a trial the course of a trial can prejudice jury deny a a defendant a fair trial. n — Judge’s — Improper — 3. Courts Trial Manifest Conduct Injustice — Fair Trial. great power discretion, A trial and wide and he has the has right purpose a witness where the obvious and sole clarify testimony, such is to but sole purpose of the trial was not to resolve conñict- ing testimony challenge important but to of an witness for a defendant and the in their deliberations placed unjusti&ed importance judge’s credibility-testing on the questions, injustice it becomes obvious that manifest re- sulted and that the has been a fair trial. defendant denied Kelley, Attorney Frank General, A. Robert J. Derengoski, George General, Solicitor Parris, N. Prosecuting Attorney, Ap- Milbourn, Don L. Chief Opinion of the Court
pellate Lawyer, Berlin, and Robert John Assistant Prosecuting Attorney, people. for the Foster), (by Ricard,
Donald Z. P.C. John C. appeal. defendant on P.J., Before: T. M. H. and J. Gillis JJ.
Bashara, appeals J. Defendant from his convic- Bashara, tion 750.529; armed MCL appeal MSA 28.797. The issues raised on judge’s interrogation center around the trial of an alibi witness. took the stand the trial and
asserted an defense. He alibi called a co-worker to substantiate that defense. After direct examina- *3 by tion defense counsel and cross-examination prosecutor, the trial examined the co- extensively. questioned worker rather The court regarding ability the witness to recall the prior years which occurred three to the trial.1 objection
Defendant’s trial counsel raised no judge’s interrogation until had guilty. returned a must, therefore, verdict of We precluded appel- whether defendant late review of the issue. provides:
MRE 614 "(a) Calling by may, court. The court on its own suggestion witnesses, motion or at the party, of a call parties and all thus called. are entitled to cross-examine witnesses alleged 11, September crime occurred on 1975. Defendant’s trial, 27, 1977, first on October in resulted a mistrial. The second one began on October Opinion of the Court
"(b) Interrogation by court. The Court may interro- witnesses, gate whether called itself by party. "(c) Objections. Objections of witnesses interrogation the court or to by may be made at the time or at the next available opportunity when the present.” is not MRE 614 is identical with Rule 614 of the Federal Rules of Evidence. The Advisory Committee’s Note 614(c) to FRE states: provision relating
"The
objections
designed
is
relieve counsel of the embarrassment
upon
attendant
objecting
the
questions by
presence
in the
jury,
while at the same time assuring that objec-
apt
tions are
take
made
time to afford the opportunity to
possible
corrective measures.”
Defense
counsel
should have
objection
made
directly after
the court’s questioning
of the wit-
ness, or at
the next available opportunity when
the jury
was not
an
Certainly,
appropriate
motion or request
for a limiting instruction
could
have been
prior
made
to the jury’s deliberation.
The opportunity
could have been made available
to take
measures,
corrective
if any were necessary.
admits that
the objection and motion
for a new trial were not
in compliance
made
with
the court
However,
rule.
he argues that
they were
made after
verdict,
when it
apparent
became
the court’s examination
had a prejudicial
effect on the jury. This
reasoning
is not only
strained, but flies
directly
the face of the admo-
*4
nition of People
Brocato,
v
305;
17 Mich App
(1969):
"Counsel cannot sit back and harbor error to be used appellate as an ure.” parachute in the event of fail- App 492 Mich 496 Burns, P.J. App People Williams, 226; 84 269 also, v Mich
See (1978). 535 NW2d object timely in that the failure
We conclude
precludes appellate
rule
with the court
reveals that
Perusal of
review.
lengthy,
judge’s examination, while
did not
credibility of the witness so as to
injustice. The instant case can be
create manifest
distinguished
People
Redfern,
on its facts from
v
(1976).
App 452; 248
582
See
71 Mich
NW2d
App
263;
Smith, 64 Mich
Affirmed. Gillis, J.,
J. H. concurred. (dissenting). Burns, respect judge "A trial should and observe the law and in a should conduct himself at all times manner integrity impar- promotes public confidence tiality judiciary.” Michigan of Judicial Code Conduct, Canon 2B. question, improper conduct a trial
Without
prejudice
of trial can
course
deny
hap-
This
a defendant a fair trial.
pened,
example,
People London, 40 Mich
for
v
(1972),
App
124; 198
a trial
NW2d
repeatedly
time and
commented on his lack of
jury,
they
instructed the
after
had deliberated
nearly
hours,
their deliberation
to continue
they
until
reached a
if it took until
verdict even
People Roby,
a.m.,
387; 196
and in
38 Mich
(1972),
NW2d 346
where a trial
comments
nearly
pages
to witnesses filled
*5
People
497
v
T. M.
P.J.
Dissent
300 page
a
trial
added
prosecution.
the witnesses
"great power
I recognize the
and wide discre
of
trial
controlling
tion”
a
the course of a
v
People
Gray,
289, 294;
trial.
57 Mich
App
225
(1975). Further,
733
I
not challenge
NW2d
do
a
right
trial
a
judge’s
witness where the
obvious and sole
of such
purpose
questioning is to
clarify conflicting testimony. People Hooper,
v
50
lv den 391
186;
(1973),
Mich
App
NW2d
Saunders,
(1974),
People v
Mich 808
App
Mich
lv den
In conflicting resolve Yes, 12th. you at work on the even if were "THE COURT: Friday. at work on He was "THE WITNESS: *6 you that? do know How "THE COURT: at work. I was "THE WITNESS: following at work on remember he was You "THE COURT: day? following Monday? about the "THE How COURT: Yes. "THE WITNESS: Yes. Yes. "THE WITNESS: you in? Do know which first not come did he "THE COURT: When the 11th? day come in after he didn’t No. "THE WITNESS: that? You don’t remember "THE COURT: "THE WITNESS: No. you all these details? But do remember "THE COURT: I remember that Thurs- that he left. I remember "THE WITNESS: day night. you asked to talk the first time were was "THE COURT: When long 11th, September after it occurred did 11th? How about about the anyone say you September happened you, 'Hey, on what 1975?’ * * * somebody said When "THE WITNESS: went, 1975, (Interposing) September came and "THE COURT: right? Yes. "THE WITNESS: you many days later did someone ask what How "THE COURT: happened the 11th? on day. is when the next The next That was "THE WITNESS: happened. talking everybody was about what happened? you asked about what "THE COURT: Who * * * “THE WITNESS: Oh Anybody? “THE COURT: asking had I heard Michaels me "THE I remember WITNESS: something. about "THE Michaels who? COURT: "THE WITNESS: Michael Harris. doing you Anybody was on "THE ask what Mr. Smith COURT: 11th? No, day. "THE WITNESS: not the next you anybody what asked When was the first time "THE COURT: doing September on 11? Mr. Smith was Oh, something. year half or about a and a “THE WITNESS: Alright, anything witness? else of this "THE COURT: No, “MR. NOEL: Your Honor. down, may step "THE You sir” COURT: v Smith testimony challenge but to of the important defendant or an for the defen- presents fact, In instant dant. case better Here, case reversal than did Redfern. portion requested by part their deliberations was that in which credibility-testing ques- asked these signifi- then, It is tions. clear that the found a questions beyond cance in these far that found in majority opinion. fully recognize I that defendant did not the trial opportunity” "at the next available MRE 614(c). However, because the thrust of the trial questions to defendant’s alibi witness impeach clarify was to and not to conflicting testimony missing facts, elicit because the found in these an un- justified importance, injus- I believe that manifest *7 tice has resulted that defendant has been denied a Therefore, fair trial. I would reverse and remand for trial. new