People v. Coones

550 N.W.2d 600, 216 Mich. App. 721

• Court: Michigan Court of Appeals
• Decided: July 12, 1996
• Docket: Docket 166114
• Status: Published

Opinions

Bandstra, J.

Following a jury trial, defendant was convicted of aggravated stalking, MCL 750.41 li; MSA 28.643(9), wilful and malicious destruction of a building resulting in damage in excess of $100, MCL 750.380; MSA 28.612, entering a dwelling house without permission from the owner or occupant, MCL 750.115; MSA 28.310, and entering the premises of another after being forbidden to do so by the occupant, MCL 750.552; MSA 28.820(1). Defendant was sentenced to concurrent terms of forty to sixty months for aggravated stalking, thirty-two to forty-eight months for malicious destruction of property, ninety days for entering a dwelling house without permission, and thirty days for entering the premises without permission. He now appeals as of right. We affirm defendant’s convictions, but remand for resentencing.

The victim of the stalking, defendant’s wife, testified that in July 1989, she separated and filed for divorce from defendant, but reconciled with him despite the fact that defendant physically abused her and even threatened her life. In October 1992, the victim again separated from defendant and commenced divorce proceedings. The victim testified that she obtained a temporary restraining order in January 1993 after defendant threatened her. Thereafter, defendant repeatedly attempted to contact the victim and, on February 2, 1993, defendant came to the victim’s residence and forcibly entered after the victim refused to let him into the home. The police arrived and arrested defendant. After defendant’s arrest, he was released on a personal recognizance bond, which provided that he was to have no contact with the victim and was not to go near the victim’s residence. However, defendant violated the terms of the bond by attempting to contact the victim. Defendant denied ever harassing, threatening, or physically abusing the victim.

After charges were brought, defense counsel filed a disqualification motion one day before trial, arguing that the trial judge should be disqualified because he had issued the temporary restraining order and had found defendant guilty of criminal contempt for violating that order. The trial judge denied the motion for disqualification, and trial began the next day as scheduled. At the conclusion of the two-day trial, defendant was found guilty of all charges. After trial, but before sentencing, defense counsel filed a supplemental motion to disqualify the trial judge. The trial judge subsequently entered an order removing defense counsel as defendant’s attorney and appointing new counsel. The chief judge later denied defendant’s motion for disqualification of the trial judge.

Defendant first argues that the trial court improperly excluded from the jury instructions the “legitimate puipose” portion of the harassment definition in the aggravated-stalking statute. The aggravated-stalking statute proscribes stalking, which it defines in part as “a willful course of conduct involving repeated or continuing harassment of another individual.” MCL 750.411i(l)(e); MSA 28.643(9)(l)(e). “[Constitutionally protected activity or conduct that serves a legitimate puipose” is expressly excluded from the statutory definition of “harassment,” MCL 750.41li(l)(d); MSA 28.643(9)(l)(d), and such protected activity or conduct has been defined to include labor picketing or other organized protests, People v White, 212 Mich App 298, 310; 536 NW2d 876 (1995), citing Pallas v Florida, 636 So 2d 1358, 1360 (Fla App, 1994).

Defendant asserts that he did not harass the victim within the meaning of the statute because he engaged in the conduct at issue for a legitimate purpose, i.e., to communicate with his wife and preserve his marriage. However, defendant’s conduct was clearly in violation of the temporary restraining order and the conditions of defendant’s bond, both of which forbade defendant from having contact with the victim. Defendant’s conduct was, therefore, illegitimate, under usual definitions of “legitimate” as “according to the law; lawful,” Random House Webster’s College Dictionary (1992), or “[t]hat which is lawful, legal, recognized by law, or according to law,” Black’s Law Dictionary (6th ed). A panel of our Court has previously and correctly concluded that the statute cannot be read as excluding from its definition of “harassment” conduct that is clearly illegitimate, notwithstanding an “ends justifies the means” argument that the conduct serves a legitimate purpose. White, supra at 311. The trial court properly excluded the “legitimate purpose” language from the jury instructions. The instructions given fairly presented the issues to be tried and sufficiently protected defendant’s rights. People v Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994).

Defendant makes various arguments that the trial judge should have been disqualified. Disqualification is appropriate when a judge cannot impartially hear a case, including when the judge is personally biased or prejudiced for or against a party or attorney. MCR 2.003(B)(2); In re Forfeiture of $1,159,420, 194 Mich App 134, 151; 486 NW2d 326 (1992). An actual showing of prejudice is required before a trial judge will be disqualified. Id. An exception to this rule requiring a showing of “actual” prejudice occurs when the trial judge or decisionmaker might have prejudged the case because of a prior participation as an accuser, investigator, factfinder, or initial decisionmaker. Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975).

We have reviewed defendant’s arguments and the lower court record and conclude that the trial judge and the chief judge appropriately denied defendant’s motion for disqualification because there was no “actual showing” of prejudice against defendant or defense counsel. Nor should the trial judge have been disqualified because he participated in the show-cause hearing on the temporary restraining order in defendant’s divorce case. The trial judge did not participate as the initial factfinder or decisionmaker in pretrial proceedings in the instant criminal case. Defendant has failed to overcome the presumption of judicial impartiality. Jackhill Oil Co v Powell Production, Inc, 210 Mich App 114, 120; 532 NW2d 866 (1995). Although we believe that, as a practical matter, the chief judge should review a denial of a motion for disqualification before trial rather than after, any error was harmless in the instant case because the motion was properly denied.

Defendant asserts that his convictions of both aggravated stalking and criminal contempt for violation of the temporary restraining order constitute double jeopardy in violation of the Michigan and United States Constitutions, US Const, Am V; Const 1963, art 1, § 15. We disagree. The protection against multiple punishment for the same offense is designed to ensure that courts impose sentences within the limits set by the Legislature. People v Sturgis, 427 Mich 392, 399; 397 NW2d 783 (1986); People v Ayers, 213 Mich App 708, 716; 540 NW2d 791 (1995). Because the power to define crime and fix punishment is wholly legislative, the Double Jeopardy Clause is not a limitation on the Legislature, and the Legislature may specifically authorize penalties for what would otherwise be the “same offense.” Sturgis, supra at 400; Ayers, supra. Cumulative-punishment of the same conduct does not necessarily violate the prohibition against double jeopardy in either the federal or the state system. Sturgis, supra; Ayers, supra. The determinative inquiry is whether the Legislature intended to impose cumulative punishment for similar crimes. Sturgis, supra; People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984); Ayers, supra.

In this case, the aggravated-stalking statute provides:

A criminal penalty provided for under this section may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for contempt of court arising from the same conduct. [MCL 750.4111(6); MSA 28.643(9)(6).]

Thus, it is clear from this subsection that the Legislature intended to impose multiple punishments for both of defendant’s convictions of aggravated stalking and criminal contempt for violating the temporary restraining order.

With respect to defendant’s assertion that his aggravated-stalking conviction should be overturned because the stalking statute is unconstitutionally vague, we conclude that defendant’s argument is without merit. In White, supra at 308-309, a panel of this Court addressed this exact issue and held that the aggravated-stalking statute, MCL 750.41 li; MSA 28.643(9), is not unconstitutionally vague.

Defendant also asserts that the trial court abused its discretion in removing sua sponte defendant’s appointed counsel and appointing new counsel after trial but before sentencing. We agree. A trial court may remove appointed counsel for gross incompetence, physical incapacity, or contumacious conduct. People v Arquette, 202 Mich App 227, 231; 507 NW2d 824 (1993); People v Abernathy, 153 Mich App 567, 569; 396 NW2d 436 (1985); People v Crawford, 147 ; 383 NW2d 172 (1985). However, “careful inquiry” is needed before the “right of the defendant to representation by counsel of his choosing” can be abrogated. Crawford, swpra at 250.

In this case, the trial judge entered an order removing defense counsel after counsel filed a supplement to the motion to disqualify the trial judge and provided a copy of the supplemental motion to another circuit judge in Bay County who was not associated with the case. Without giving notice to defense counsel or defendant, the trial judge entered an order stating:

Robert K. Hess is presently appointed by the Court to represent the defendant in the above actions. Mr. Hess has engaged in a course of conduct involving making numerous allegations of personal impropriety and lack of integrity on the part of the Court. Mr. Hess has engaged in these attacks by reducing them to writing and distributing them to other persons who have no legal interest in the matter. The Court is satisfied that continuing Mr. Hess as court-appointed attorney in the above causes may lead the defendant to be concerned that his interests could be lost sight of and may lead to the appearance of injustice in this case.

The trial court did not make any findings regarding gross incompetence, physical incapacity, or contumacious conduct. Cf. Abernathy, supra (“[T]he trial court found that defense counsel's actions constituted gross incompetence.”); Crawford, supra. The trial court did not hold any type of hearing or conduct a “careful inquiry” before removing defense counsel in this case. Crawford, supra at 249-250. We do not conclude that defense counsel’s conduct constituted “gross incompetence” or “contumacious conduct.” See Arquette, supra at 232. Thus, the trial judge abused his discretion in removing defense counsel and substituting new counsel. Under these circumstances, a harmless-error analysis does not apply and defendant is not required to show prejudice. People v Johnson, 215 Mich App 658, 663-664; 547 NW2d 65 (1996); People v Durfee, 215 Mich App 677, 681; 547 NW2d 344 (1996).¹ Defendant is entitled to resentencing.

Because defendant is entitled to resentencing for his convictions, we need not address defendant’s remaining arguments regarding the proportionality of his sentences. Furthermore, defendant’s argument that he should be resentenced before a different judge is moot because the original sentencing judge is now retired. Therefore, defendant will necessarily be resentenced by a different judge.

Defendant’s convictions are affirmed, but we remand for resentencing. We do not retain jurisdiction.

1 The record shows that defendant was in fact prejudiced by the removal of his attorney. In response to the trial judge’s inquiry regarding whether defendant’s newly appointed attorney had anything to say before sentencing, the attorney stated that he was “very new” to the case, was “at a loss for words,” and did not have “a lot of meaningful comments” to make because of his unfamiliarity with defendant and the case.