People v. Ross

449 N.W.2d 107, 181 Mich. App. 89

• Court: Michigan Court of Appeals
• Decided: August 2, 1989
• Docket: Docket 101834
• Status: Published

Opinions

Per Curiam.

Following a jury trial, defendant was convicted of two counts of felonious assault, MCL 750.82; MSA 28.277. Defendant was sentenced to three years probation. Defendant now appeals as of right and we reverse.

Defendant contends that he was denied a fair trial by numerous comments and questions by the trial judge. Defendant complains of several instances where the trial judge belittled defense counsel and called into question his skills and abilities. Defendant also contends that the manner and scope of the trial court’s examination of witnesses, particularly its questioning of defendant concerning his intoxication and memory of the evening in question, exhibited the court’s partiality against defendant and his attorney. We agree with defendant that the trial judge’s conduct seriously undermined the effectiveness of the defense and constituted an abandonment of his mantle of judicial impartiality which denied defendant a fair trial.

A defendant has a right to be represented by an attorney who is treated with the consideration due an officer of the court. Belittling observations aimed at defense counsel are necessarily injurious to the one he represents. Trial judges who berate, scold, and demean an attorney, so as to hold him up to contempt in the eyes of the jury, destroy the balance of impartiality necessary for a fair hearing. People v Anderson, 166 Mich App 455, 461-462; 421 NW2d 200 (1988), lv den 432 Mich 858 (1989). Although unfair criticism of defense counsel in front of the jury is always improper, reversal is necessary only where the court’s conduct denied the defendant a fair and impartial trial by unduly influencing the jury. Anderson, supra. We believe that the trial judge’s conduct here destroyed the balance of impartiality and unduly influenced the jury.

We also believe that the trial judge’s questioning of defendant prejudiced him and denied him a fair trial. A trial judge may question witnesses to clarify information or to elicit additional relevant information. The trial court’s discretion in questioning witnesses, however, is not unlimited. The trial judge must avoid any invasion of the prosecutor’s role and must exercise caution so that his questions will not be intimidating, argumentative, prejudicial, unfair, or partial. People v Sterling, 154 Mich App 223, 228; 397 NW2d 182 (1986). The test for whether a new trial should be ordered is whether the judge’s questions and comments may

well have unjustifiably aroused suspicion in the mind of the jury as to a witness’ credibility and whether partiality quite possibly could have influenced the jury to the detriment of the defendant’s case. Sterling, supra.

We find that the following exchange between defendant and the trial court was improper because the trial court’s comments may well have unjustifiably aroused suspicion in the mind of the jury as to defendant’s credibility:

The Court: Did you know what you were doing?

The Defendant: No I didn’t.

The Court: That night you didn’t know what you were doing?

The Defendant: I don’t have that clear of recollection of what I was doing.

The Court: At what point, sir, is it that you don’t have a recollection of what you were doing?

The Defendant: When I got in my car and I started to leave.

The Court: Oh, I see. Before that everything is clear in your mind? You knew what you were doing, and you know what happened to you?

The Defendant: I knew I needed to run away from Mr. Brown because he seemed like he really wanted to persist in . . .

The Court: Did you do anything in an intoxicated state? Do you think you did anything intoxicated?

The Defendant: I don’t understand.

The Court: Oh. Plain English. Do you think you did anything wrong — use that word — while intoxicated?

The Defendant: No I didn’t.

The Court: All right.

We are particularly sensitive to the trial judge’s conduct here because there was a one-on-one credibility contest between defendant and the victim, and the credibility of the witnesses may well have been a very close issue for the jury. The trial judge’s conduct towards defense counsel and his questioning of defendant could easily have influenced the jury to the detriment of defendant’s case.

In light of our resolution of this case, we need not address defendant’s remaining argument.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.