People v. Cavataio, Docket No. 10279
| Decision Date | 26 May 1971 |
| Docket Number | Docket No. 10279,No. 2,2 |
| Citation | 190 N.W.2d 718,34 Mich.App. 126 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter CAVATAIO, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Gerald M. Franklin, Franklin & Harris, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and FITZGERALD and QUINN, JJ.
Convicted by jury verdict and sentenced, defendant raises two issues on his appeal. The first relates to his attempt to disqualify the trial judge, and the second concerns prejudicial remarks of the prosecuting attorney in closing argument.
Grounds for disqualification of a judge and the procedure to obtain disqualification are specified in GCR 1963, 405. Defendant moved orally for the trial judge's disqualification on the basis of the latter's personal bias and prejudice against defendant, 405.1(3). The record does not establish nor does defendant demonstrate the personal bias and prejudice in fact required for disqualification. Crowley, Milner & Company v. Macomb Circuit Judge (1927), 239 Mich. 605, 613, 215 N.W. 29.
On denial of the oral motion for disqualification, defendant moved for permission to file a motion for disqualification supported by affidavits, 405.2. Denial of this request was not error. Defendant elected to proceed under 405.1. The election satisfied his right to move for disqualification, and the record does not demonstrate an abuse of discretion in the denial of the subsequent motion.
Objection to the prosecuting attorney's prejudicial remarks in closing argument was sustained and the jury was instructed to disregard those remarks. If error occurred, it was not reversible error, People v. Gerndt (1928), 244 Mich. 622, 222 N.W. 185.
Affirmed.
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United States v. Cavataio
...also an issue that was presented to the state appellate courts, which considered and decided defendant's claims. People v. Cavataio, 34 Mich.App. 126, 190 N.W.2d 718 (1971). In addition, it is not an issue where a defendant normally gets the benefit of shifting burden of proof. Compare Katz......
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People v. Strodder
...trial judge's failure to remove himself, defendant has made no showing that the trial judge was personally biased. People v. Cavataio, 34 Mich.App. 126, 190 N.W.2d 718 (1971). The trial judge acknowledged knowing the victim's husband. YetT he defendant chose to submit the factual issues to ......
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People v. Teague
...We find no error as there is no showing of the prejudice or personal bias required for reversal on this ground. People v. Cavataio, 34 Mich.App. 126, 190 N.W.2d 718 (1971), lev. den., 386 Mich. 779 Defendant also asserts that the trial judge erred in his instructions to the jury. Since no o......
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...or (b) was, thereby, rendered harmless error. See People v. Alexander, 26 Mich.App. 321, 182 N.W.2d 1 (1970) and People v. Cavataio, 34 Mich.App. 126, 190 N.W.2d 718 (1971). (2) During his closing argument to the jury, defense counsel, Paul Valentino, made the following 'Again, this is all ......