People v. Conyers
| Decision Date | 19 May 1992 |
| Docket Number | Docket No. 128129 |
| Citation | 194 Mich.App. 395,487 N.W.2d 787 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lenard Steven CONYERS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Asst. Pros. Atty., for the People.
Marcia J. Covert, Detroit, for defendant on appeal.
Before SAWYER, P.J., and NEFF and FITZGERALD, JJ.
Defendant appeals as of right his January 5, 1990, jury conviction and January 16, 1990, sentence for carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. Recorder's Court Judge Warfield Moore, Jr., sentenced him to eighteen months to five years in prison. The guideline sentence range was zero to twelve months. Defendant raises issues of improper judicial comments, improper denial of a motion for mistrial, lack of due diligence in obtaining a witness, and abuse of discretion in sentencing. We reverse.
We are again confronted with issues of judicial misconduct related to Judge Warfield Moore. 1 The relevant portions of Canon 3 of the Michigan Code of Judicial Conduct relating to the issues in the present case are as follows:
A(8) A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto.
Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone.
He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.
In addition, Canon 2 of the Code of Judicial Conduct provides:
B. A judge should respect and observe the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
The record is replete with instances of highly questionable judicial conduct during the course of this trial. However, our opinion will focus primarily on those instances that have jeopardized the defendant's opportunity for a fair trial. Judge Moore was clearly "not the neutral and detached magistrate of justice that any defendant is entitled to expect in a criminal trial." People v. Moore, 161 Mich.App. 615, 619, 411 N.W.2d 797 (1987).
In the present case, defendant argues that the judge denied him a fair trial by repeatedly interjecting improper and impartial comments and questions. We agree. Judge Moore's conduct in questioning witnesses and jurors constituted an abandonment of his mantle of judicial impartiality and denied defendant a fair trial.
Defendant claims the judge unjustifiably aroused suspicions in the mind of the jury with respect to the credibility of a witness and through his comments connected the defendant to conduct of which he expressed disapproval. In questioning a witness about the timing of his preliminary hearing testimony, Judge Moore volunteered:
The Court: Before Thanksgiving, right? I mean you don't go to court everyday?
When the defense attorney later objected to the relevance of the prosecutor's question whether the witness called the police to offer a statement about the incident involving defendant, the judge responded:
The Court: It has to do with him, when he first indicated to anybody that this man had not in his vision or from what he saw, committed a crime. That's all. It just has to do with when he first told it. That's all. And that's relevant for the jury to determine if there's credibility and weight to give to his testimony today.
Judge Moore commented numerous times during voir dire and trial that guns are a "terrible thing in society." He then instructed the jury regarding the presumption of innocence and proceeded to ask what their verdict would be before trial. Although the judge was attempting to inform the jury that before any evidence was presented they must presume defendant's innocence, it was clear from the record that many jurors felt intimidated and did not understand what he was doing:
The Court: Mr. Conyers, as he sits here now, is presumptively innocent. What do we mean by that? Am I saying he is not guilty of this? No. I am certainly not saying that. As a matter of fact, I will never tell you that. That will not be my responsibility. My responsibility is to tell you what the law is, to instruct you, to see that the trial is had fairly and properly and efficiently. And it will be for you to decide, based on the evidence, that you hear, and the facts that you determine from that evidence, as to whether you believe that there is sufficient evidence to prove beyond a reasonable doubt that this man is guilty.
* * * * * *
But the defendant is clothed with the presumption of innocence. Now, its no sense in us sitting here and talking about presumptions, because everyday of our lives, and especially at this time of the year, when everyone is summarizing how many people have died from gun shot wounds in Detroit and everywhere else, guns are a big issue in our society.
It seems that everyday somebody--something happens with somebody relative to a gun. And so, we know there are many guns in the community. And we know, in truth, that people carry those guns because you have to have it in order that all of these things happen.
And why am I saying that to you? Because it may be, ladies and gentlemen, because the defendant is charged with this crime, that some of you say, well, I cannot presume him to be innocent. I know I haven't heard any evidence of his guilt, but because of the proliferation of guns in our community and because of all of the activity therewith, I cannot, in honesty, say as I look at Mr. Conyers, that I presume him to be innocent.
See, folks, I want you to get used to that. You can't say anything else but guilty or not guilty in [a] criminal case. Did somebody--it's guilty or not guilty. What is your verdict, guilty or not guilty, if you had to go in there based on having heard no one talk but me?
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