People v. Elmore

• Citation: 285 N.W.2d 417,92 Mich.App. 678
• Decision Date: 01 October 1979
• Docket Number: Docket No. 78-3647
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert ELMORE, Defendant-Appellant. 92 Mich.App. 678, 285 N.W.2d 417
• Court: Court of Appeal of Michigan (US)

Page 417

285 N.W.2d 417

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert ELMORE, Defendant-Appellant.

Docket No. 78-3647.

92 Mich.App. 678, 285 N.W.2d 417

Court of Appeals of Michigan.

Oct. 1, 1979.

Released for Publication Nov. 29, 1979.

[92 MICHAPP 679] Robert Elmore, pro per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Mark I. Leach, Pros. Attys. Appellate Service, Lansing, for plaintiff-appellee.

[92 MICHAPP 680] Before V. J. BRENNAN, P. J., and BRONSON and CYNAR, JJ.

V. J. BRENNAN, Judge.

Defendant appeals as of right from his March 23, 1978, jury conviction of delivery of a controlled substance, heroin, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Defendant also pled guilty to a supplemental information charging him as a third felony offender, M.C.L. § 769.11; M.S.A. § 28.1083, and was sentenced to prison for 20 to 40 years with credit for 311 days served.

This case is one of a series of heroin delivery cases that resulted from the activities of police undercover agents in Lenawee County in the spring of 1977. In this particular case an addict informant working with the Michigan State Police testified that on March 24, 1977, he went with Michigan State Police undercover agent David W. Hubbard to the E & E Pool Hall in Adrian, Michigan, defendant's place of business. After the informant had engaged in some preliminary conversation with Elmore, Hubbard gave the informant $100 with which to purchase heroin. The informant testified that he gave defendant the money in return for 10 aluminum foil packets which were later determined to contain heroin.

Defendant testified and denied selling heroin to anyone. Defendant was convicted and this appeal followed.

Defendant first argues that the lower court erred when it failed to grant his motion to disqualify. We disagree.

On the date of trial, defendant asked Judge Martin to disqualify himself. Defendant argued that Judge Martin was biased because the judge had heard several cases arising from the metro squad operation in Lenawee County. Some of these [92 MICHAPP 681] cases had involved defendant and some had occurred at defendant's place of business, the E & E Pool Hall. Defendant also referred to Jackson County Circuit Judge Charles Falahee's ruling disqualifying both Judge Martin and Lenawee County Circuit Judge Kenneth B. Glaser from hearing a case involving Cleveland Edmonds.

The trial court responded that:

"Well, I, of course, I didn't hear what went on when Mr. Wilcox had his motion before Judge Falahee under the rules that then prevailed. Seems to me in this particular case that the Court is duty bound as part of his responsibility to deny the motion. I don't think there's any personal prejudice here, and I know of none, and if I have to disqualify myself in this case because I have heard other matters both relative to the drug raid and other matters relative to this Defendant, then there's going to be dozens and dozens and dozens of cases through the years that I am going to have to be disqualified on. There have been other people charged in this Court with very serious felonies, and some of 'em we have tried four and five times, and some of those trials, they have been found not guilty with this Judge sitting here. Others have been found guilty, and this Judge has had to sentence 'em. But I felt it my responsibility to continue to do a job I have been sworn to do."

The record must show actual bias or prejudice before a conviction will be reversed on the ground that the trial judge should have disqualified himself. People v. Rorke, 80 Mich.App. 476, 480, 264 N.W.2d 30 (1978); People v. Lobsinger, 64 Mich.App. 284, 235 N.W.2d 761 (1975). A judge is not automatically disqualified because he has made prior rulings adverse to a defendant. People v. Rorke, supra.

The present case differs from People v. Lobsinger, supra, where Judge Ravitz of Detroit Recorder's Court acknowledged that he and the defendant[92 MICHAPP 682] were opposed politically and that he, Judge Ravitz, had some degree of animus towards the defendant.

Here defendant argues that Judge Martin's presence at earlier trials and remarks at the sentencings required his disqualification in this case to avoid the appearance of impropriety. There is no showing that the court's prior contact with defendant interfered with his impartiality towards defendant in this trial. Wayne County Prosecutor v. Doerfler, 14 Mich.App. 428, 165 N.W.2d 648 (1968). Our inquiry focuses on the trial court's state of mind at the time of the trial. People v. Lobsinger, supra. The record shows that the trial court felt no bias or prejudice towards the defendant. In such a case there is nothing to prevent the trial court from hearing several cases involving the same defendant.

Next defendant claims that his waiver of jury trial went unheeded, thus warranting reversal. This claim is without merit. Defendant was upset by the trial judge's refusal to disqualify himself. His displeasure led to an outburst which ultimately resulted in his removal from the courtroom. During the course of his outburst, defendant first said "I don't want no jury trial". Later he said "I want a trial by jury, but that trial cannot be by a jury if you (Judge Martin) is the (Sic ) juries, if you want to reside over that (Sic )". A careful reading of defendant's outburst shows that he wanted a trial by jury, but with a different judge presiding. This conclusion is supported by the fact that no written waiver of a jury trial was filed as required by M.C.L. § 763.3; M.S.A. § 28.856.

Next defendant argues that the trial court improperly[92 MICHAPP 683] denied his request for a cautionary instruction concerning his outburst before the jury. ¹

In certain circumstances the failure to give a requested cautionary instruction is reversible error. People v. Guilinger, 30 Mich.App. 711, 186 N.W.2d 861 (1971). However, the trial court has some discretion in giving instructions to the jury, People v. Emmert, 76 Mich.App. 26, 255 N.W.2d 757 (1977), and where it is not clear that a requested instruction would have been favorable to the defendant, the refusal to give it does not require reversal. See People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973).

Here the lower court's refusal may well have been predicated on the fear that the cautionary instruction would emphasize defendant's outburst and prejudice him. In addition the...