People v. Audison

• Decision Date: 18 August 1983
• Docket Number: Docket No. 58910
• Citation: 126 Mich.App. 829,338 N.W.2d 235
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bennie Ruth AUDISON, Defendant-Appellant. 126 Mich.App. 829, 338 N.W.2d 235
• Court: Court of Appeal of Michigan — District of US

Page 235

338 N.W.2d 235

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bennie Ruth AUDISON, Defendant-Appellant.

Docket No. 58910.

126 Mich.App. 829, 338 N.W.2d 235

Court of Appeals of Michigan.

Submitted Feb. 7, 1983.

Decided July 6, 1983.

Released for Publication Aug. 18, 1983.

[126 MICHAPP 830] McGinnis & Evelyn, P.C. by James W. McGinnis, Detroit, for defendant-appellant on appeal.

Before MAHER, P.J., and R.B. BURNS and MARUTIAK, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Sentenced to [126 MICHAPP 831] from 30 months to 15 years imprisonment for the manslaughter conviction to be preceded by a mandatory two-year prison term for felony-firearm, she appeals as of right.

The testimony at trial revealed the following events. In the early morning hours of January 2, 1981, Vincent Williams, his half-brother, Russell Williams, and three other men were present at the corner of Linwood and Virginia Park in Detroit when a grey Buick pulled up to the opposite side of the street. The automobile contained defendant and Jacqueline Brown. Vincent Williams and one of his companions approached the car and engaged the women in a conversation. The conversation became heated and the two women departed only to return five minutes later. When they returned, defendant emerged from the car, began "cussing" and produced a gun. She fired two shots causing Vincent Williams and his brother to flee. The defendant returned to the car; the driver then attempted to make a U-turn but succeeded only in sliding into a building. Vincent Williams and his brother went back to the car. Defendant emerged, brandished a gun and threatened to kill one of the men. Ms. Brown then got out of the vehicle and told the defendant to "shoot the mother fucker". Defendant fired another shot which struck Vincent Williams, who died the following day.

Defendant and Ms. Brown were tried separately. On appeal, defendant raised five issues, one of which requires reversal.

Defendant presented an alibi defense and offered the testimony of codefendant Brown. On direct examination, Ms. Brown testified that, at the time of the offense, defendant was asleep in her apartment. She testified that she and defendant shared an apartment at the time of the crime and had [126 MICHAPP 832] done so for about one and one-half years. Ms. Brown also testified that she had moved out of the apartment in April, 1981.

On cross-examination, the prosecutor inquired into Ms. Brown's reasons for leaving the apartment. After the prosecutor had concluded his examination, the court questioned the witness as follows:

"THE COURT: Ma'am, is it not true that you and Miss Audison's relationship, over the two years that you've known her, has been something other than roommates, is it not true?

"WITNESS: No, it's not.

"THE COURT: Lovers at one time?

"WITNESS: No, it's not.

"[DEFENSE COUNSEL]: I think that's objectionable.

"THE COURT: I'm asking. You can object if you want to. You can cross examine her.

"It's not true, ma'am?

"WITNESS: No, it's not.

"THE COURT: Isn't it not true [sic ], ma'am, the reason that you left the apartment is that you became pregnant and there was a falling out between you and Miss Audison?

"WITNESS: No, it's not.

"THE COURT: You never indicated that to anyone at anytime?

"WITNESS: No, I did not.

"[DEFENSE COUNSEL]: Your Honor, I think that's objectionable. I want to make an objection for the record.

"THE COURT: Go right ahead.

"Let me ask you this, ma'am.

"Did you testify on direct examination to Mr. Richardson that, uh, your purse was snatched and the contents dumped on the ground? Didn't you say that, ma'am?

"WITNESS: No. I did not.

"THE COURT: You may examine Mr. Richardson.

[126 MICHAPP 833] "One other question. Is it also not true that you are a named defendant in this same case?

"WITNESS: Yes, it is.

"THE COURT: And isn't part of your testimony an effort to help both you and Miss Audison escape any responsibility?

"WITNESS: No, it's not. I'm not trying to escape anything, your Honor.

"[DEFENSE COUNSEL]: I think that's objectionable, particularly before the jury.

"THE COURT: Who would I ask it in front of, Mr. Richardson? They need to know that she is a defendant in this case, as well as Miss Audison. And they need to know everything there is about this case. Your objection is on the record." (Emphasis added.)

A trial court may question witnesses, People v. Cole, 349 Mich. 175, 84 N.W.2d 711 (1957), but this power is not unlimited, People v. Wilson, 21 Mich.App. 36, 174 N.W.2d 914 (1969). In reviewing the propriety of a trial court's questioning, this Court determines whether the trial court's conduct denied the defendant a fair trial. People v. London, 40 Mich.App. 124, 129, 198 N.W.2d 723 (1972).

The witness had testified on direct examination that she had no relationship with defendant other than as a roommate. In its examination of the witness on this point, the court clearly betrayed its belief that the defendant and the witness had a homosexual relationship. Moreover, the court, in its manner of questioning, invaded the prosecutor's role. In fact, the court prefaced its colloquy by indicating to the prosecutor, who had completed his cross-examination, that it had a "couple" of questions that he "might want to cross examine on". The court's conduct pierced "the veil of judicial impartiality". People v. Roby, 38 Mich.App. 387, 389, 196 N.W.2d 346 (1972). Inasmuch as the defendant's defense rested entirely on the testimony[126 MICHAPP 834] of Ms. Brown, the court's undisguised attack on her credibility denied the defendant a fair trial. Accordingly, we reverse the defendant's convictions and remand for a new trial.

Defendant's remaining allegations of error are without merit and may be briefly discussed.

First, defendant argues that the prosecutor failed to provide her, pursuant to a discovery order, with a prior statement of a prosecution witness. The court had granted the defendant discovery of all signed witness statements. In People v. Pace, 102 Mich.App. 522, 530-531, 302 N.W.2d 216 (1980), this Court held:

"Where a prosecutor has violated a discovery order--even if done inadvertently in good faith--unless it is clear that the failure to divulge was harmless beyond a reasonable doubt, we will reverse." (Footnotes omitted.)

In the present case, defense counsel did not request the court to determine whether the prosecutor failed to provide the witness's statement; he only asked to be given some time to read the statement. Thus, the court made no such determination. Nor may we presume that the prosecutor failed to provide this evidence inasmuch as the prosecutor protested at trial that the defendant had been given the statement in question. Since a violation of the discovery order is not a matter of record, we may not review de...