*1 PEOPLE v UPSHAW May at Detroit. Decided No. 102138. Submitted Docket 17,1988. October Upshaw involuntary manslaughter was convicted of bench trial before Detroit Recorder’s Court charges posses- Robert L. on murder and felony. the commission of a sion Appeals appealed the Court of reversed in an 88718), 25,1987 holding great weight of the that the verdict was remand, evidence. On Evans and defendant waived his trial. The people disqualify Judge the motion was moved to Evans and subsequently and was also denied Recorder’s Court denied people appealed by leave Dalton A. Roberson. The granted. Appeals The Court of held: Disqualification of a trial the finder of fact in a subsequent required solely trial is not because the sat as special in a former circum- the trier fact absent people increase the risk of unfairness. The did stances which any not show circumstances. Burns, J., people He that the are dissented. would hold prosecution by barred from a second virtue of the Court’s charges holding prove the that the failed to the defendant. trial. He would dismiss the case and release — — — Disqualification New Trial Bench Trials Retrial Judges. Disqualification of a trial as the finder of fact a subse- quent judge sat as the because the special circum- trier of fact in a former absent some stances which increase the risk of unfairness. Attorney General, Kelley, Louis Frank References 2d, Judges Am Jur § Judges. the Index to Annotations under See Caruso, O’Hair, John D. General, Solicitor Prose- Timothy Baughman, A. cuting Attorney, Chief Mary Czarnecki, Sue Division, Criminal Assistant Prosecuting Attorney, the people. *2 Kriger,
Mark J. for defendant. Cynar Hood, P.J., Before: Burns,* and R. B. JJ.
Hood, 20, P.J. 1985, On May following a bench trial before Detroit Recorder’s Court Judge Robert L. defendant, Randall Upshaw, also known as Randolph Upshaw, was convicted of involuntary manslaughter, MCL 750.321; MSA 28.553. This reversed an unpublished 88718), finding the verdict to against be great weight of the Upon remand, evidence. Judge Evans, and defendant The people’s
motion to disqualify Evans was denied by order entered on June and the motion was then referred to Roberson, Dalton A. who also denied it by an order entered the same day. appealed to this Court. We now affirm.
The people argue that, rule, as an automatic judge who sat as the factfinder the first should from sitting as the factfinder in the retrial. The people reason that a judge who has heard and weighed evidence, and rendered verdict, has necessarily prejudged the facts such that he or she cannot impartial be a fair and trier of fact when the same charges are tried in the new trial._ * Appeals judge, sitting Former Appeals by Court of on the Court of
assignment. App 172 MCR under disqualify
In order
shown.
2.003(B)(2),
must be
prejudice
bias or
actual
507, 514; 415
163 Mich
Impullitti
Impullitti,
proving
Merely
proceeding
or other
in a
involved
does not amount
defendant
the same
Peo
disqualification.
purposes
of bias
White, 411 Mich
366, 386;
ple v
(After Remand), Arnold
Emerson v
(1979) (where the
345, 353; 285 NW2d
disposition
summary
conducted
same
trial). However,
pan
bench
hearing and the
Court,
involving
in cases
of this
els
con
expressed
present,
identical
not
serves as factfinder
or caution when
cern
Bruce, See Clemens
Cramp
quoting
37; 329 NW2d
State, 347, 351; 235 NW2d
Dep’t
ton v
*3
People v
Mich 956
(1975),
den 396
352
reh
1;
n
325
Lowenstein,
Mich
118
(1982).
(1982),
lv den
NW2d
suspicion
that
about
it
inevitable
is
Perhaps
arise when
would
impartiality
Evans’
in
as the factfinder
second time
sits for the
However,
not con-
suspicions do
prejudice.
or
partiality
stitute
(On Remand),
People v Gibson
cite
The standard of review whether denying motion for discretion abused its disqualification. Bero, 549; 425 We hold that require presented here do not auto- *4 judge, and that there was matic recusal of of discretion. no abuse
Cynar, J., concurred. by Burns, R. B. Dissent (dissenting). Burns, Although the issue to me the error not raised either party, was it. ignore that I cannot to be so obvious appears with charged was Defendant first-degree possession murder and during the commission of a and was con- felony manslaughter in violation of involuntary victed 28.553, 750.321; MCL MSA a bench this Court appeal, before Robert Evans. On in an reversed defendant’s conviction 25, 1987 opinion curiam decided on March per 88718). (Docket No.
This Court stated: charged murder felony Following firearm. a bench guilty involuntary
trial court found him man- slaughter acquitted felony him of the firearm charge. We reverse and remand for a new finding great weight verdict of the evidence.
The Court further stated: alibi, accepted
Because court however, required we believe some evidence was period establish that the victim died time when the defendant did not have an alibi. As indicated, presented
no such at trial. evidence was prosecution The Court found that had not its case. Defendant cannot be tried a sec- proved get ond time. Prosecutors do not two chances prove cases.
I the case and release the defen- would dismiss dant.