People v. Smith

291 N.W.2d 91, 95 Mich. App. 492, 1980 Mich. App. LEXIS 2487

• Court: Michigan Court of Appeals
• Decided: February 20, 1980
• Docket: Docket 43243
• Status: Published

Opinions

Bashara, J.

Defendant appeals from his conviction by a jury of armed robbery, MCL 750.529; MSA 28.797. The only issues raised on appeal center around the trial judge’s interrogation of an alibi witness.

Defendant took the stand during the trial and asserted an alibi defense. He called a co-worker to substantiate that defense. After direct examination by defense counsel and cross-examination by the prosecutor, the trial judge examined the coworker rather extensively. The court questioned the witness regarding his ability to recall the day of the robbery, which occurred three years prior to the trial.¹

Defendant’s trial counsel raised no objection to the trial judge’s interrogation until the jury had returned a verdict of guilty. We must, therefore, question whether defendant has precluded appellate review of the issue.

MRE 614 provides:

"(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

"(b) Interrogation by court. The Court may interrogate witnesses, whether called by itself or by a party.

"(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.”

MRE 614 is identical with Rule 614 of the Federal Rules of Evidence. The Advisory Committee’s Note to FRE 614(c) states:

"The provision relating to objections is designed to relieve counsel of the embarrassment attendant upon objecting to questions by the judge in the presence of the jury, while at the same time assuring that objections are made in apt time to afford the opportunity to take possible corrective measures.”

Defense counsel should have made objection directly after the court’s questioning of the witness, or at the next available opportunity when the jury was not present. Certainly, an appropriate motion or request for a limiting instruction could have been made prior to the jury’s deliberation. The opportunity could have been made available to take corrective measures, if any were necessary.

Defendant admits that the objection and motion for a new trial were not made in compliance with the court rule. However, he argues that they were made after the verdict, when it became apparent that the court’s examination had a prejudicial effect on the jury. This reasoning is not only strained, but flies directly in the face of the admonition of People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969):

"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of a jury failure.” See also, People v Williams, 84 Mich App 226; 269 NW2d 535 (1978).

We conclude that the failure to object timely in compliance with the court rule precludes appellate review. Perusal of the transcript reveals that the trial judge’s examination, while lengthy, did not denigrate the credibility of the witness so as to create manifest injustice. The instant case can be distinguished on its facts from People v Redfern, 71 Mich App 452; 248 NW2d 582 (1976). See People v Smith, 64 Mich App 263; 235 NW2d 754 (1975), and People v Gray, 57 Mich App 289; 225 NW2d 733 (1975).

Affirmed.

J. H. Gillis, J., concurred.

1 The alleged crime occurred on September 11, 1975. Defendant’s first trial, on October 27, 1977, resulted in a mistrial. The second one began on October 3, 1978.