People v. Conley
| Decision Date | 16 March 2006 |
| Docket Number | Docket No. 258400. |
| Citation | 270 Mich. App. 301,715 N.W.2d 377 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aaron Daniel CONLEY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Stuart J. Dunnings III, Prosecuting Attorney, Susan L. LeDuc, Appellate Division Chief, and John J. Murray, Assistant Prosecuting Attorney, for the people.
Michael A. Faraone Lansing, for the defendant.
Before: SMOLENSKI, P.J., WHITBECK, C.J., and O'CONNELL, J.
Defendant Aaron Conley appeals as of right his jury trial convictions of first-degree home invasion,1 felonious assault,2 and possession of a firearm during commission of a felony (felony-firearm).3 The trial court sentenced Conley as a third-offense habitual offender4 to serve prison terms of 16 to 40 years for the first-degree home invasion conviction, four to eight years for the felonious assault conviction, and two years for the felony-firearm conviction. The terms for the home invasion conviction and the felonious assault conviction are to be served concurrently with each other, but consecutively to the term for the felony-firearm conviction. We affirm Conley's convictions, but remand for resentencing.
On the night of October 20, 2003, at about 9:00 p.m., Victor Lyons broke up a fight between Conley and another man. Lyons knew Conley because they lived across the street from one another. After the altercation, Lyons went into his house, where his eight children, his wife Lisa Hallock, his father-in-law Thomas Hect,5 and his brother-in-law were. He was in the kitchen when he heard a loud bang and a man yelling racial slurs. According to Lyons, Conley kicked in the locked door, entered the doorway without permission, waived a gun, and yelled, "Come on out, nigger, what's up now." Lyons approached the front door carrying a baseball bat and saw that Conley had a small handgun. Lyons said he and Conley went outside, and Conley told him to put the bat down, so he did. After he put the bat down, Conley put the gun in his pocket. Lyons said Conley then walked up to him and hit him. Lyons said he fell on the ground and got back up, but Conley had run across the street. Hallock and Hect confirmed Lyons's testimony.
Conley testified that on the night of October 20, 2003, at approximately 9:00 p.m., he and Lyons smoked crack cocaine. Conley further testified that he and another man had gotten into a fight that lasted about 15 minutes, and that the fight had ended with him and his brother being chased around the corner by Lyons and several other men. Ten minutes after the altercation, according to Conley, he went to Lyons's house. Conley saw Lyons standing outside the house near the curb and said the two of them were about to fight. According to Conley, Lyons ran into his house, and he thought Lyons was going to get something, so he stood on Lyons's porch and kicked the door twice. Conley said the door opened and Lyons came running out with a bat. Conley testified that he ran to his brother and grabbed a beer bottle. Conley said he and Lyons swung at each other with their respective weapons, but did not hit each other. Conley said he eventually hit Lyons and left. Conley testified that he never entered the home and never possessed a firearm.
Conley argues that the trial court lacked impartiality, as indicated by the court's threat to tape his mouth shut. Therefore, Conley argues, he was denied his due process right to an impartial and fair trial. "In the absence of objection, this Court may review the matter if manifest injustice results from the failure to review."6 We review this unpreserved issue for plain error.7
The following occurred following jury selection:
The Court: Is there a problem, Mr. Lange?
Mr. Lange (defense counsel): Can I approach?
The Court: No. Just don't make any noise, sir.
Mr. Matwiejczyk (the prosecutor): Other witnesses present in the court, Victor Lyons.
The Court: Which one is Victor? Would you raise your hand? Victor? Thank you.
Mr. Matwiejczyk: Thomas Hecht and Lisa Hallock.
Mr. Lange: Potentially, Your Honor, Nicholas Conley.
The Court: And is he here? All right. Would you stand and turn so everyone can see you, sir? Would you turn so everyone can see you? Thank you very much. Please be seated. Mr. Conley?
[Nicholas] Conley: I didn't know I was supposed to be a witness in court.
The Defendant: I am sorry, sir. None of my witnesses are here, sir.
The Court: If you have a concern, take it up with your attorney.
The Defendant: I tried to take it up with my attorney. Take the jury. How can I go with this trial. I have no witnesses. I'm sorry. I have no witnesses.
The Court: Sir, be quiet or you'll be going to jail for something else.
The Defendant: That's not right. I have already been here six months, sir.
The Court: I am going to keep somebody here. Bring Mr. Conley back. Keep your mouth shut. Sit down, sir. Sir, sit down. If this is what you want, I'm going to have the officers put this around your mouth.
The Defendant: I'm sorry, sir.
The Court: Are you going to talk?
The Defendant: No, sir.
The Court: When they come back, are you going to say one word? If you have a concern, take it up with your attorney. This will go around your mouth all the way around several times. You will be able to breathe, but won't be able to talk. Is that clear?
The Defendant: Yes, sir.
The Court: All right. Leave it right here. Just in case you want to act up. All right. Mr. Lewycky, bring everyone back.
(Jury present in the courtroom.)
The Court: You relatives, folks, friends, whoever you are, if you want to talk about it with the officers, go ahead and do it. No skin off my nose, you're not my friend. I'm not your friend. I won't shake my head either, sir. It's appropriate to stand up, Mr. Conley, when the jury comes in. It's appropriate for everybody to stand up when the jury comes in, including the Judge.
Now, my question, members of the jury, about everybody when we were interrupted was, do you know any of the persons who was [sic] identified as potential witnesses, anyone know any of the persons who were identified? All right. Thank you very much.
The Sixth Amendment of the United States Constitution and article 1, § 20 of the Michigan Constitution guarantee a defendant the right to a fair and impartial trial. In People v. Collier,8 this Court set forth the following analysis for determining whether a trial court's comments or conduct deprived a defendant of his or her right to a fair and impartial trial:
Michigan case law provides that a trial judge has wide discretion and power in matters of trial conduct. People v. Cole, [349 Mich. 175, 199, 84 N.W.2d 711 (1957)]. This power, however, is not unlimited. If the trial court's conduct pierces the veil of judicial impartiality, a defendant's conviction must be reversed. People v. London, 40 Mich.App. 124, 129-130, 198 N.W.2d 723 (1972); People v. Wilson, 21 Mich.App. 36, 37-38, 174 N.W.2d 914 (1969). 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." People v. Rogers, 60 Mich.App. 652, 657, 233 N.W.2d 8 (1975). . . . See People v. Burgess, 153 Mich.App. 715, 719, 396 N.W.2d 814 (1986).
In Illinois v. Allen,9 the United States Supreme Court set forth a number of permissible ways courts can handle an obstreperous defendant. In that case, the defendant continually interrupted court proceedings and responded to the trial court's questions with vulgar language.10 Although the trial court continually asked the defendant to behave himself and threatened to remove him from the courtroom, the defendant continued to be disruptive.11 In holding that the trial court was within its authority to remove the defendant from the courtroom, the Court noted, "We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant . . .:(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly."12 Although the Court noted that the first method could affect the jury's feelings about a defendant and should be used as a last resort, the Court noted that "[I]n some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as [this defendant] did here."13
Similarly, this Court in People v. Kerridge14 addressed whether a trial court abused its authority in gagging an unruly defendant. Although the Court noted that gagging should only be considered as a last resort, the Court said that such a measure was appropriate when the defendant used vulgar language, repeatedly stated that he was not going to stand trial, attempted to leave the courtroom, and undressed himself in his cell.15 Clearly, if a defendant is unruly, disruptive, rude, and obstreperous, a trial court is within its discretion to gag a defendant when repeated warnings have been ineffective.
In this case, Conley interrupted the court proceedings several times before the trial court issued its threat that it would have his mouth taped shut. Therefore, the trial court merely issued Conley a warning about what could happen if he chose to continue, or...
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