Bay County Prosecutor v. Bay Circuit Judge

• Decision Date: 24 February 1989
• Docket Number: Docket No. 103473
• Citation: 435 N.W.2d 757,174 Mich.App. 269
• Parties: BAY COUNTY PROSECUTOR, Plaintiff-Appellant, v. BAY CIRCUIT JUDGE, Defendant-Appellee. 174 Mich.App. 269, 435 N.W.2d 757
• Court: Court of Appeal of Michigan — District of US

Page 757

435 N.W.2d 757

BAY COUNTY PROSECUTOR, Plaintiff-Appellant, v. BAY CIRCUIT JUDGE, Defendant-Appellee.

Docket No. 103473.

174 Mich.App. 269, 435 N.W.2d 757

Court of Appeals of Michigan.

Submitted July 7, 1988.

Decided Oct. 10, 1988.

Released for Publication Feb. 24, 1989.

[174 MICHAPP 270] George B. Mullison, Pros. Atty. and Patrick O. Duggan, Chief Asst. Pros. Atty., Bay City, for plaintiff-appellant.

Wilson & Donoghue by James E. Wilson, Midland, for George Schindler.

[174 MICHAPP 271] Before BEASLEY, P.J., and SAWYER and FOLEY, ^* JJ.

PER CURIAM.

The Bay County Prosecutor brought this complaint for an order of superintending control, MCR 7.203(C)(1), requesting this Court to set aside the order of Acting Bay Circuit Judge Carl Horn granting George Schindler's motion for a new trial on the ground that he was not afforded effective assistance of counsel. We grant the order for superintending control and vacate the circuit court's order granting a new trial. Schindler's conviction is reinstated.

George Schindler was charged with four counts of criminal sexual conduct of differing degrees. He was bound over to circuit court and the cases were assigned to the Honorable Eugene C. Penzien. Schindler retained attorney Edward Czuprynski to represent him. Czuprynski has a long-standing and well-publicized feud with Judge Penzien. Czuprynski moved to disqualify Judge Penzien, claiming that the judge was biased and prejudiced against him and all of his clients. Judge Penzien denied the motion. Czuprynski then requested the chief judge to remove Judge Penzien from Schindler's cases and also from other cases in which Czuprynski acted as counsel. The chief judge denied the motion to disqualify Judge Penzien. Czuprynski then filed a complaint in this Court seeking an order of superintending control disqualifying Judge Penzien from presiding over any of Czuprynski's cases. That request was denied. Czuprynski v. Bay Circuit Judge, 166 Mich.App. 118, 420 N.W.2d 141 (1988).

The first Schindler case proceeded to trial and Czuprynski again moved to disqualify Judge Penzien. Czuprynski told the court that he and Schindler[174 MICHAPP 272] were convinced that a fair trial was impossible before the judge, that they would pursue a limited defense, and that they would waive Schindler's right to a jury trial. Schindler said he would not testify because Czuprynski did not trust the judge to fairly manage his cross-examination. Czuprynski explained that Schindler would have testified and proclaimed his innocence in another jury trial. Czuprynski believed that, once the Court of Appeals intervened, Schindler would receive a fair trial.

Judge Penzien made another attorney available to Schindler to advise him about whether to proceed. Schindler concluded that it was in his best interest to dismiss Czuprynski, and a public defender was assigned. Judge Penzien then granted Schindler's motion for mistrial.

The public defender then tried the case to a jury and called Schindler to testify. The jury acquitted him of the charge of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d; M.S.A. Sec. 28.788(4).

Subsequently, Schindler requested Judge Penzien to allow Czuprynski to represent him on the remaining charges. At the second trial, Judge Penzien cautioned Schindler that, had Czuprynski's strategy been followed in the first trial and Schindler not testified, he would have been convicted in a bench trial. The judge pointed out that the strategy of the public defender was sound. Schindler renewed his request to be represented by Czuprynski. At the second trial, he was represented by Czuprynski and requested a jury. The defense theory was that the charges against Schindler were motivated by greed, resentment and jealousy, and instigated by Schindler's estranged wife who was seeking his property in a pending divorce action. Czuprynski attempted to show that the victim's accusations were false and motivated [174 MICHAPP 273] by jealousy and resentment. The trial judge and the prosecutor warned Schindler and Czuprynski that this strategy might open the door to similar acts evidence. The trial court had ruled, prior to trial, that evidence of similar acts would be excluded. Judge Penzien ultimately ruled that the victim could testify to her true motivations, which included testimony about other victims who had been sexually abused by Schindler. Schindler also testified at trial. The jury found him guilty of second-degree criminal sexual conduct M.C.L. Sec. 750.520c; M.S.A. Sec. 28.788(3).

Schindler then retained his present counsel for post-conviction proceedings and to represent him in the remaining cases. Defense counsel moved for a new trial on the ground that Schindler had been denied effective assistance of counsel. Defense counsel argued that Czuprynski subordinated Schindler's interests to his own goal of disqualifying Judge Penzien from his cases. Defense counsel also argued that Czuprynski had made a serious mistake by opening the door to evidence of similar acts.

Judge Penzien was disqualified from hearing further cases involving Czuprynski after Czuprynski filed a complaint against him with the Judicial Tenure Commission. Judge Carl Horn was assigned to hear Schindler's post-trial motion for a new trial.

A hearing on Schindler's motion was held and Czuprynski testified. Czuprynski defended his trial strategy and testified that Schindler expressly approved of it and had wanted Czuprynski to continue to represent him. Judge Horn found that Schindler had been represented by the attorney and the strategy of his choice. However, Czuprynski's testimony convinced Judge Horn that the trial strategy which opened the door to similar [174 MICHAPP 274] acts evidence was not helpful to Schindler's case and that Czuprynski's effort to place the judge-attorney conflict in front of the jury was improper. Judge Horn concluded that Schindler had been denied effective assistance of counsel and granted Schindler's motion for a new trial. The prosecutor then filed this complaint for superintending control.

The right of the prosecution to appeal in criminal cases is limited by statute, and the prosecutor may not appeal a trial court's order granting a new trial. M.C.L. Sec. 770.12; M.S.A. Sec. 28.1109. In re People v. Burton, 429 Mich. 133, 140-141, 413 N.W.2d 413 (1987); People v. Cooke, 419 Mich. 420, 427, 355 N.W.2d 88 (1984). The prosecution does, however, have a remedy in the form of a complaint for superintending control. MCR 7.203(C)(1). Burton, supra. An order for superintending control is an exercise of a court's extraordinary power and should not issue automatically when an appeal is unavailable. Burton, supra, 429 Mich. at pp. 139-140, 413 N.W.2d 413. The reviewing court must determine from the record whether the lower court had jurisdiction, whether it exceeded that jurisdiction, and whether it proceeded according to law. Review in such cases is limited only to questions of law. Burton, supra, at p. 139, 413 N.W.2d 413; Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 681, 194 N.W.2d 693 (1972).

We conclude that an order of superintending control is appropriate in this case because there was no evidence to support Judge Horn's ruling that Schindler was denied effective...