People v. Clemons

• Decision Date: 20 June 1979
• Docket Number: Docket No. 77-4694
• Citation: People v. Clemons, 282 N.W.2d 838, 91 Mich.App. 68 (Mich. App. 1979)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth CLEMONS, Defendant-Appellant. 91 Mich.App. 68, 282 N.W.2d 838
• Court: Court of Appeal of Michigan

Page 838

282 N.W.2d 838

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth CLEMONS, Defendant-Appellant.

Docket No. 77-4694.

91 Mich.App. 68, 282 N.W.2d 838

Court of Appeals of Michigan.

June 20, 1979.

Released for Publication Aug. 22, 1979.

[91 MICHAPP 71] Gillis, Nelson, Louisell & Berg, by Richard R. Nelson, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Rita Chastang, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and ALLEN and RILEY, JJ.

PER CURIAM.

Defendant Kenneth Clemons was arrested for the theft of complainant's 1965 Plymouth automobile and, in connection therewith, was jury convicted of receiving and concealing stolen property over $100, M.C.L. § 750.535; M.S.A. § 28.803. Defendant was sentenced to 3 to 5 years imprisonment, appeals as of right, and raises five issues which we address in turn.

Defendant first maintains that the lower court reversibly erred in questioning defendant's brother as to whether he would consider lying to save the defendant. The judge's inquiries were met by defense counsel's motion for mistrial, after which the court admitted error and subsequently gave two separate curative instructions to the jury.

A trial court may permissibly question a witness when it seeks to resolve an ambiguity in testimony or bring forth additional relevant information, People v. Karmey, 86 Mich.App. 626, 636, 273 N.W.2d 503 (1978); People v. Moore, 78 Mich.App. 150 155, 259 N.W.2d 403 (1977), Lv. den.402 [91 MICHAPP 72] Mich. 950t (1978); however, in doing so it may not prejudice the rights of the defendant, People v. Gray, 57 Mich.App. 289, 294, 225 N.W.2d 733 (1975), and if the questions are such as to indicate that the judge favors one side or another, he has invaded the province of the jury and committed reversible error. People v. Gray, supra. Nevertheless, in certain circumstances, a proper cautionary instruction may serve to alleviate any prejudice to the defendant. People v. Gray, supra, at 295; People v. Withrow, 26 Mich.App. 679, 685-686, 182 N.W.2d 775 (1970), Lv.den. 384 Mich. 795 (1971).

Applying these principles to our review of the transcript, we conclude that the trial judge's line of questioning, rather than clarifying an ambiguity or eliciting relevant information, conveyed to the jury the court's disbelief of the testimony of the alibi witness. At the same time, however, we are convinced that the cautionary instructions, agreed to by defense counsel, as an appropriate remedy for curing the error, were sufficient to eradicate the prejudicial impact of the court's examination. The judge informed the jury that he was plainly mistaken in questioning the witness in such a manner. His remarks clearly delineated the roles of the court, trial counsel and jury, and warned the jury to disregard any questions posited by him, and the answers thereto. The jurors were further told that the court had no opinion as to defendant's guilt, and that they should draw no such inference. As a final safeguard, the jury was polled by the trial judge and unanimously indicated that it could strike the question and answer from their minds. Under these circumstances we decline to reverse. In addition, any error, in view of the overwhelming evidence of guilt presented against defendant, would be harmless beyond a reasonable [91 MICHAPP 73] doubt. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972); People v. Heard, 58 Mich.App. 312, 316, 227 N.W.2d 331 (1975), Lv. den. 400 Mich. 812 (1977).

Next, defendant argues that the prosecutor's closing arguments unfairly denied him a fair trial. Defense counsel did not object to any of the remarks, nor request a curative instruction. Therefore, any error remains preserved for appeal only if it resulted in manifest injustice. M.C.L. § 769.26; M.S.A. § 28.1096; People v. Duncan, 402 Mich. 1, 15-16, 260 N.W.2d 58 (1977); People v. Clark, 68 Mich.App. 48, 51-52, 241 N.W.2d 756 (1976). We do not find that standard met in the case at bar. The arguments of the prosecutor were related to the evidence of the case and did not amount to an expression of personal opinion as to guilt. See People v. Page, 63 Mich.App. 177, 179, 234 N.W.2d 440 (1975). Further, the prosecutor's comments on the failure of defendant to produce more alibi witnesses, in view of the factual circumstances surrounding that defense, were within the boundaries of permissible observation. People v. Shannon, 88 Mich.App. 138, 145, 276 N.W.2d 546 (1979); People v. Ford, 59 Mich.App. 35, 39, 228 N.W.2d 533 (1975); People v. Hooper, 50 Mich.App. 186, 196-197, 212 N.W.2d 786 (1973), Lv. den. 391 Mich. 808 (1974).

Defendant also raised the possibility of instructional error by the court's failure to include in its charge to the jury paragraph four of Criminal Jury Instruction 7:2:01, which states that, in the case of an alibi defense, "(i)f you have a reasonable doubt whether the defendant was present at the time and place of the crime charged, then you must find him not guilty". Again, no exception was proffered as required to save the issue for appellate review, GCR 1963, 516.2, People v. Haney, 86 [91 MICHAPP 74] Mich.App. 311, 318, 272 N.W.2d 640 (1978); People v. Hall, 77 Mich.App. 456, 462, 258 N.W.2d 517 (1977), and the record fails to support a finding of manifest injustice. Although we find error, People v. Johnson, 58 Mich.App. 60, 227 N.W.2d 228 (1975); People v. Johnson, 54 Mich.App. 678, 221 N.W.2d 452 (1974); People v. Erb, 48 Mich.App. 622, 211 N.W.2d 51 (1973); see also People v. Wilder, 82 Mich.App. 358, 266 N.W.2d 847 (1978) (D. C. Riley, J., dissenting/concurring), we nevertheless conclude that it was harmless. ¹ As previously noted, the evidence against defendant was considerable. ²

The penultimate issue offered for review questions whether a defendant has a right to be sentenced by the same judge who conducted his trial. Michigan case law uniformly rejects this contention, holding that a defendant has no constitutional right, nor one provided by statute or court rule, to demand that the trial judge preside at his sentencing. People v. McKinley, 5 Mich.App. 230, 235-237, 146 N.W.2d 142 (1966), Lv. den. 378 Mich. 750 (1967); People v. Blair, 11 Mich.App. 649, 651, 162 N.W.2d 112 (1968). Cf., People v. Collins, 25 Mich.App. 609, 613, 181 N.W.2d 601 (1970). In addition, both People v. McKinley, supra, at 237, 146 N.W.2d 142 and People v. Blair, supra, at 651, 162 N.W.2d 112 held that such a right, if existing at all, would be personal to defendant, and subject to waiver by failure to object at the time of sentencing. Here, defendant's [91 MICHAPP 75] failure to object relinquished any predication of error.

Lastly, defendant alleges that insufficient evidence was produced to establish the value of the stolen automobile, and that the court erred in instructing the jury regarding said value. We disagree. At trial, complainant testified that he had bought the car for $950, had installed a new motor, and would not accept less than $250 for it, which figure also represented his estimate of the vehicle's worth on the day it was stolen. Furthermore, he stated that the auto was in good running condition (also evidenced by defendant's capture after a high speed chase) and that the body had not rusted out. The police testified that it was still running upon its return to the owner.

An owner of personal property is qualified to testify regarding the value of such property, Kavanagh v. St. Paul Fire & Marine Ins. Co., 244 Mich. 391, 394, 221 N.W. 119 (1928); Printz v. People, 42 Mich. 144, 3 N.W. 306 (1879); Duma v. Janni, 26 Mich.App. 445, 452, 182 N.W.2d 596 (1970), provided it does not relate to sentimental or personal value. People v. Tillman, 59 Mich.App. 768, 771-772, 229 N.W.2d 922 (1975). Complainant's testimony in the present case was circumstantial evidence of the automobile's value, and as such was sufficient to form a jury question. As there was no objection or request for instruction, defendant's claim that the court erroneously charged the jury regarding the market value of the property was not properly preserved for review. GCR 1963, 516.2, People v. Haney, supra.

Affirmed.

BEASLEY, Judge (concurring).

I concur in affirming, but differ from the [91 MICHAPP 76] majority in that I would require the trial judge who presided over the trial to impose sentence unless there is good and sufficient reason to substitute another judge.

The majority cite People v. McKinley, 5 Mich.App. 230, 146 N.W.2d 142 (1966), but that case is distinguishable, the Court saying:

"It appears that Judge Van Domelen had the necessary disability called for by Rule 531 to allow Judge Stephens of the same court to impose sentence upon the defendant." Id., at 235-236, 146 N.W.2d at 145.

In the within case, there is nothing in the record to indicate that Judge Brezner who presided over the trial was absent or had any disability from imposing sentence. As a matter of fact, the Court in McKinley went on to say:

"Although cases might be imagined in which it would be unfair to a defendant to allow a second judge to sentence him, such is not the case here." McKinley, supra, at 236, 146 N.W.2d p. 145.

The majority also cite People v. Blair, 11 Mich.App. 649, 162 N.W.2d 112 (1968). In Blair, the trial judge disqualified himself because he was convinced before trial that defendant was guilty, and the trial was to be nonjury. In spite of this, and in spite of a lack of any showing of unavailability, defendant was sentenced by the same judge who had disqualified himself. I am aware that this Court chose to affirm under those facts. I believe...