People v. Burgess

• Decision Date: 10 December 1986
• Docket Number: Docket No. 83552
• Citation: 153 Mich.App. 715,396 N.W.2d 814
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Wayne BURGESS, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 814

396 N.W.2d 814

153 Mich.App. 715

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Wayne BURGESS, Jr., Defendant-Appellant.

Docket No. 83552.

Court of Appeals of Michigan.

Submitted June 10, 1986.

Decided Aug. 4, 1986.

Released for Publication Dec. 10, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

George C. Bush, Saginaw, for defendant-appellant on appeal.

Before BEASLEY, P.J., and WALSH and HOOD, JJ.

BEASLEY, Presiding Judge.

Defendant, Douglas Wayne Burgess, Jr., was convicted by a jury of murder in the first degree, in violation of M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, conspiracy to commit murder, in violation of M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), and inciting, inducing or exhorting another to commit murder, in violation of M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2). Defendant was sentenced to life imprisonment for first-degree murder and to not less than 70 years nor more than 105 years in prison on each of the other two convictions. Defendant appeals as of right, raising five issues.

Defendant first claims that the trial judge's comments and questioning of the witnesses deprived him of a fair trial. M.C.L. Sec. 768.29; M.S.A. Sec. 28.1052 provides that it is the duty of the trial judge to control all proceedings during the trial and to limit the introduction of evidence and the argument of counsel to relevant and material matters. In conjunction with this duty, the trial court may interrogate witnesses, whether called by the court or by a party. ¹ MRE 614(c) requires that objections to the interrogation of a witness by a judge be made at the time of the interrogation or at the next available opportunity when the jury is not present.

Michigan case law provides that a trial judge has wide discretion and power in matters of trial conduct. ² However, this power is not unlimited. If a trial court's conduct pierces the veil of judicial impartiality, a defendant's conviction must be reversed. ³ The appropriate test to determine whether the trial court's comments or conduct pierced the veil of judicial impartiality is whether the trial court's conduct or comments "were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial." ⁴

Generally, this Court will not review allegations of error based upon the conduct of the trial court where the conduct was not objected to at trial, absent manifest and serious error. ⁵

In the within case, defendant does not indicate the specific questioning of witnesses by the trial court that pierced the veil of impartiality. However, in his statement of facts, defendant reproduces at length the questioning of several witnesses by the trial court, but does not indicate how this questioning pierced the veil of judicial impartiality and how it prejudiced defendant.

Our review of the trial court's interrogation indicates that possibly the questioning was designed to elicit additional relevant information or to clear up ambiguities in the witnesses' testimony. If so, such interrogation by the trial court is proper. ⁶ While at times skirting the edge, the trial court's conduct, comments and questions did not in fact clearly pierce the veil of judicial impartiality. Consequently, we do not conclude that the trial court's conduct and comments were of such a nature as to unduly influence the jury and deprive defendant of his right to a fair and impartial trial.

Furthermore, defense counsel never objected at trial to the trial court's interrogation of the witnesses. Therefore, absent manifest and serious error, this Court should not review defendant's allegations of error based upon the conduct of the trial court. ⁷ We hold that manifest and serious error has not occurred and, therefore, we do not review defendant's allegations of trial court misconduct.

Second, defendant claims that the prosecuting attorney's direct examination of his chief witness, Keith Fischer, and his comments during final argument regarding Fischer's plea bargain agreement, coupled with the trial court's jury instructions regarding Fischer's possible penalty, were so misleading as to improperly bolster Fischer's credibility and warrant reversal.

Where there is a plea agreement between a witness and the prosecution which includes consideration for testimony against a codefendant, the prosecutor must disclose the consideration to the jury if defense counsel so desires and is duty bound to correct any false testimony regarding the same. ⁸

In the within case, Fischer testified that he entered into a plea agreement in consideration for his testimony. He stated that the prosecutor agreed to charge him only with second-degree murder and to drop charges of conspiracy to commit murder and felony-firearm. Additionally, the prosecutor agreed to recommend that Fischer not be given a nonparolable sentence. However, Fischer testified that it was his understanding that the trial judge could still give him "natural life."

Defendant contends that because the Supreme Court has ruled that a second-degree murder conviction is parolable, citing People v. Johnson, ⁹ Fischer's testimony that he could be sentenced to natural life was misleading and false. We do not agree. By questioning Fischer, the prosecutor clearly brought before the jury the plea agreement that had been made with Fischer, and we find nothing false or incorrect as far as the plea agreement or the understanding of Fischer as to the plea agreement.

In this connection, defendant also argues that the instructions of the trial court improperly bolstered the credibility of Fischer. The court instructed the jury as follows:

"In deciding whether or not to believe an accomplice, you should be guided by the following considerations.

"You may consider whether there has been any reward or inducement offered which may have caused him to testify falsely. You may consider whether the testimony was affected by the witness' being granted immunity from punishment, receiving a promise of leniency or being allowed to plead guilty to a lesser offense. You may consider whether the testimony is falsely slanted in such a way as to place guilt upon the Defendant in order to further the witness' own interests or any other bias or motive which may have prompted or induced the witness in his testimony.

"You should also consider how the witness impressed you with his appearance on the witness stand. So, to summarize, you should examine an accomplice's testimony with greater care than you would use to examine the testimony of an ordinary witness. It should be carefully and closely examined before a conviction is based upon it."

These instructions informed the jury as to what they could consider in determining whether or not Fischer testified truthfully, but did not bolster Fischer's credibility.

Third, defendant claims that the trial court improperly admitted testimony that defendant had borrowed books entitled "How to Kill" and testimony that defendant requested Lance Corporal Lasnier to help him kill an unidentified woman. The admission or exclusion of evidence rests in the sound discretion of the trial judge, and the judge's exercise of discretion will not be overturned on appeal absent a showing of a clear abuse of such discretion. ¹⁰ 0] Where no objection is made to the admission of the evidence, a claimed error is not preserved unless the failure to review the error would result in manifest injustice. ¹¹

At trial, Lance Cpl. Lasnier was questioned regarding defendant's borrowing of several books from him. Defense counsel objected, stating:

"MR. DENTON: Yes. I anticipate what he's going to say because he testified at preliminary examination on a set of books called "How to Kill" Volumes one through five. My investigation has revealed that the books on how to kill have to do with hand to hand combat and strictly military methods and the fact that Mr. Burgess borrowed them really has absolutely nothing to do with this case and is not indicative of whether or not he planned a conspiracy or incited anyone to shoot his father."

Lasnier was then questioned out of the presence of the jury and testified that the books were basically manuals that would not have much military application except if a guerilla force were used. He further testified that the books were mainly how one- or two-man teams could assassinate or kill an individual. The witness also testified that after the books had been lent to defendant, defendant was constantly talking about different ways of killing someone and presented a scenario about how to plan a perfect murder. The trial court found that this evidence was relevant and its probative value was not outweighed by its prejudicial effect. Thereafter, the following colloquy occurred between the court and defense counsel:

"THE COURT: I just will note that it sounded to me like the potential objection was based on an erroneous premise, so if you have any objection, I'd like to hear it, if you still have one.

"MR. DENTON: I think that the objection was--If the premise was erroneous, we had no way of knowing--

"THE COURT: The premise was that the books didn't have anything to do with what he's--

"MR. DENTON: We still believe our interpretation of the books is right, but inasmuch as the witness has testified they have something else--they have to do with something else, I don't have a basis for the objection."

Thus, it would appear that defense counsel withdrew his objection to testimony regarding defendant's borrowing of the books entitled "How to Kill" and, since the objection was withdrawn, this claimed error was not preserved for appeal. Furthermore, the evidence was relevant and its probative value was not outweighed by any prejudicial effect.

After testifying that defendant had borrowed five volumes of a book entitled "How to...