People v. McCline, Docket No. 94614

• Citation: 499 N.W.2d 341,442 Mich. 127
• Decision Date: 16 April 1993
• Docket Number: Docket No. 94614
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donald Lee McCLINE, Jr., Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 341

499 N.W.2d 341

442 Mich. 127

PEOPLE of the State of Michigan Plaintiff-Appellant, v. Donald Lee McCLINE, Jr., Defendant-Appellee.

Docket No. 94614.

Supreme Court of Michigan.

April 16, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., Edward L. Graham, Asst. Pros. Atty., and Robert J. Berlin, Chief Appellate Atty., Mt. Clemens, for the People.

OPINION

PER CURIAM.

Early in the defendant's jury trial, before any testimony was taken, a new judge was substituted. The Court of Appeals found the substitution to be reversible error. Because the defendant was not prejudiced by this substitution, his conviction should not have been reversed. We vacate the judgment of the Court of Appeals and remand this case to the Court of Appeals for further consideration of the defendant's remaining issues.

I

A jury convicted the defendant of delivering more than 650 grams of cocaine. ¹ He is serving a life term of imprisonment.

This case was originally assigned to Macomb Circuit Judge Frederick D. Balkwill, who presided during the proceedings that took place before trial. Judge Balkwill also conducted the jury selection, which took three days.

After the jury had been selected and instructed regarding its duties, Judge Balkwill announced to the jury that the remainder of the case would be heard by retired Macomb Circuit Judge Frank E. Jeannette. The jurors were asked to go upstairs to the courtroom occupied by Judge Jeannette.

When the jury had left Judge Balkwill's courtroom, the attorney for a codefendant expressed surprise and asked Judge Balkwill to explain the change. Judge Balkwill responded:

"The chief judge has indicated that Judge Jeannette has been brought back to handle cases that are over 180 days to permit the regular courts to clear up the dockets, and the chief judge has determined that this case being over 180 days is one of the cases that Judge Jeannette could hear. He's determined, based on the case log, that one judge can pick a jury and another judge can hear the trial."

The defendant's attorney then complained of the lack of notice. The objections were joined by counsel for a second codefendant, who asked why the defense attorneys were "the last to know." The defense objections were renewed the following day.

Judge Jeannette then presided over the defendant's trial, received the jury's verdict, and imposed the life sentence. ²

The Court of Appeals reversed the defendant's conviction, finding the transfer to have been improper. People v. McCline, 197 Mich.App. 711, 496 N.W.2d 296 (1992). Judge Jansen dissented.

The prosecutor has applied to this Court for leave to appeal.

II

In reversing the defendant's conviction, the Court of Appeals relied primarily upon Freeman v. United States, 227 F. 732, 741-760 (CA 2, 1915), where the Second Circuit characterized "[t]he continuous presence of the same judge" as essential:

"It is the opinion of this court that in a criminal case trial by jury means trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. It is not possible for either the government or the accused, or both, to consent to a substitution either of one judge for another judge, or of one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial." Freeman, 227 F. at 759-760.

In the present case, the Court of Appeals acknowledged that "[m]ost cases have refused to apply Freeman to those instances where the substitution has occurred before any evidence was introduced." The panel also noted that, "[m]ost of the more recent cases involving this area of the law seem to agree with the conclusion that substitution of trial judges at the conclusion of voir dire, but before opening arguments or the admission of evidence, requires that the defendant show prejudice to constitute error requiring reversal." 197 Mich.App. at 714-715, 496 N.W.2d 296.

Despite the preponderance of contrary authority, the majority reversed because of the possibility of "subtle or intangible prejudice...." Id. at 715, 496 N.W.2d 296. The majority held that reversal is required if a substitution was made after the beginning of voir dire, except as provided in MCR 2.630. ³ Because there was no indication that Judge Balkwill had become disabled, the majority concluded that the defendant was "deprived of his constitutional right to a jury trial...." Id. at 716, 496 N.W.2d 296.

In dissent, Judge Jansen explained the general rule and its recognized exceptions:

"The general rule is that it is error requiring reversal to substitute a judge to preside over the remainder of a trial in which evidence was adduced while the original judge was presiding. State v. McClain, 194 La 605, 613-614; 194 So 563 (1940); Commonwealth v. Thompson, 328 Pa 27, 29; 195 A 115 (1937); State v. Johnson, 55 Wash 2d 594, 596; 349 P2d 227 (1960).

"The theory behind the general rule is that the second or substituted judge, not being familiar with the prior testimony or evidence, is not in a position to give the accused a fair and impartial trial as contemplated under the law. McClain supra [194 La.] at 614. The only judge competent to instruct the jury is the one who heard the testimony, observed the demeanor of the witnesses and had an opportunity to form an opinion with respect to their credibility, and knows something about the 'atmosphere' of the case. Thompson, supra [328 Pa.] at 29. Another judge, without knowledge of such matters taking place during the trial and with no possibility of learning from the record all the attendant circumstances of the trial, is not qualified to properly charge the jury. Id.

"At other stages of trial, a different rule exists. Id. at 30. In Thompson, an exception to the general rule was recognized for the substitution of a judge occurring during the selection of the jury. Id.; McClain, supra [194 La.] at 614. The examination of jurors during voir dire does not elicit any information that can be used in the trial of the case; rather, such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be properly performed by any judge. Thompson, supra [328 Pa.] at 31; McClain, supra [194 La.] at 614; Johnson, supra [55 Wash.2d] at 596." Id. 197 Mich.App. at 719-720, 496 N.W.2d 296.

In light of the harmless error rule, ⁴ Judge Jansen concluded that "in circumstances such as those in the present case, a defendant must establish prejudice by the substitution of one judge for another when the substitution occurs before the opening statements of counsel and the introduction of evidence." Id. at 722, 496 N.W.2d 296. Because Judge Jeannette heard "[t]he entire case, from the opening statements to the rendition of the verdict," Judge Jansen could see no prejudice to the defendant. ⁵ Id. at 721, 496 N.W.2d 296.

III

As the Court of Appeals majority acknowledged, the great weight of authority favors the rule that substitution of a judge before opening argument or the admission of evidence is not an automatic ground for reversal. ⁶ While "it is not the best practice to have a substitute judge preside over part of an ongoing trial," ⁷ "the rule against substitution is designed to insure that the judge who hears the testimony as to the facts also applies the law thereto." ⁸

We thus agree with the analysis provided by the Washington Supreme Court in State v. Johnson, supra 55 Wash.2d at 596, 349 P.2d 227:

"The second assignment of error presents a new question in this jurisdiction. The general rule, as stated by the appellant in his brief, is that a judge may not be substituted to preside over the remainder of a trial after evidence has been adduced before the original judge. The leading case is Commonwealth v. Thompson, 328 Pa 27; 195 A 115; 114 ALR 432.

"As a rule, a judge cannot finish the performance of a duty already entered upon by his predecessor where that duty involves the exercise of judgment and the application of legal knowledge to, and judicial deliberation of, facts known only to the predecessor. Durden v. People, 192 Ill 493; 61 NE 317 [1901]; Commonwealth v. Thompson, supra; 30 Am Jur 25, Sec. 39.

"It immediately is apparent that the substitution of a judge after the jury has been sworn but before any evidence has been taken, does not involve this objection. As was said in Commonwealth v. Thompson, supra, the examination of jurors under voir dire does not elicit any information that can be used in the trial of the case. Such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be performed properly by any judge, but after a jury is selected and sworn, a different situation arises." ⁹

In the present case, the Court of Appeals relied on Freeman, but that 1915 decision is readily distinguishable. Well along in a four-month trial, after the prosecution had introduced the testimony of 106 witnesses and had rested its case, a new judge was substituted. It was in that procedural context that the Second Circuit said that the "continuous presence of the same judge" is essential.

It is far preferable that a single judge preside over all aspects of a trial. For the reasons stated above, though, we agree that a substitution following voir dire, and before opening statements or the introduction of proof, is not a ground for automatic reversal. ¹⁰ Because the substitution in this case took place before opening argument or the introduction of any testimony, and because the defendant has demonstrated no prejudice, we set aside the judgment of the Court of Appeals.

IV

In deciding the defendant's appeal, the Court of Appeals found that the trial court had made an erroneous evidentiary ruling. However, the Court of Appeals did not (in light of its holding with regard to the main issue) reach the question whether...