People v. Grable

• Decision Date: 05 December 1974
• Docket Number: No. 3,Docket No. 18278,3
• Citation: 57 Mich.App. 184,225 N.W.2d 724
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Val Dean GRABLE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 724

225 N.W.2d 724

57 Mich.App. 184

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Val Dean GRABLE, Defendant-Appellant.

Docket No. 18278.

Court of Appeals of Michigan, Division No. 3.

Dec. 5, 1974.

Released for Publication Feb. 20, 1975.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David L. Smith, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and BEBEAU,* JJ.

BEBEAU, Judge.

In a nonjury trial, defendant was convicted of assaulting a police officer, M.C.L.A. § 750.479A, M.S.A. § 28.747(1), and resisting arrest, M.C.L.A. § 750.479, M.S.A. § 28.747.

Defendant had been drinking in a bar. He had 'women trouble' and made some 'nasty remarks'. He was asked to leave and the police were called. Deputy Woods was sent. Deputy Woods and defendant had an altercation outside of the bar.

On April 17, 1973 defendant decided to plead guilty to the two-count information. The plea proceeding was conducted by Judge Willard L. Mikesell. The plea was rejected, when defendant in his factual recital stated that Deputy Woods struck the first blow.

In the pretrial conference that followed, defendant waived jury trial and expressed a desire that Judge Mikesell hear his case. At trial Judge Mikesell did preside.

'The Court: And it is your desire to waive your right to a jury trial in this matter?

'Mr. Grable: Yes, sir.

'The Court: And waive a jury trial and have the case tried just before me?

'Mr. Grable: Yes, sir.

'The Court: This is what you want?

'Mr. Grable: Yes, sir.'

On appeal defendant alleges prejudicial error at trial and in sentencing.

Defendant contends it was reversible error for the same judge who heard defendant's attempted guilty plea to subsequently preside over defendant's bench trial because, as trier of facts, the judge was necessarily aware of facts outside the record and because defendant's privilege against self-incrimination was necessarily infringed.

The second question presented adopts much the same argument. Is it reversible error for the trial judge to sit as trier of facts when a few years before, as county prosecutor, his office charged and convicted defendant of a prior offense?

In each situation the trial judge had prior knowledge, the attempted guilty plea and the previous offense. Defendant claims this is knowledge a juror would not have. A trial judge may not go outside the record in hearing a case. He can assume no greater prerogatives than if a jury were impaneled to determine the facts. People v. Ramsey, 385 Mich. 221, 187 N.W.2d 887 (1971). His impartiality is automatically suspect. As a juror he could have been challenged for cause. People v. Walker, 24 Mich.App. 360, 180 N.W.2d 193 (1970) aff'd 385 Mich. 596, 189 N.W.2d 41 (1971).

For these reasons, defendant petitions this Court for reversal.

We will be the to agree that if prejudice is demonstrated, reversal is in order. A review of cases will illustrate this point. In People v. Ramsey, Supra, cited by defendant, the trial court referred to the transcript of the preliminary examination. In People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), reversal was on the ground that the judge had a predisposition of guilt. In the case before us, it is obvious that he did not. In People v. Dudley, 44 Mich.App. 9, 204 N.W.2d 743 (1972), the judge had an occasion to study a presentence report regarding the defendant. In People v. Walker, Supra, the judge referred to an unsuccessful lie detector test.

These are strong indications, if not proof, of partiality or prejudice.

Nothing in this case approaches such magnitude. Defendant fails to assert or point out any specific trial instances where the judge's actions or words were prejudicial to defendant's cause. There is no showing of partiality or prejudice either by defendant or upon our review of the record. The reverse of predisposition of guilt was indicated by the court's refusal to accept an attempted guilty plea. What the judge heard at the attempted guilty plea indicated insufficient information to accept a guilty plea.

We affirm defendant's conviction.

Defendant contends it was reversible error for the trial judge to misinterpret material testimony and based thereon to attempt to force defendant to admit guilt before sentencing, and to impose a harsh sentence based upon defendant's refusal to depart from his story.

Defendant argues that the court should have believed that Deputy Woods was the aggressor. We find the court did not misinterpret material testimony. He simply did not believe the defendant, but did believe Deputy Woods. This is his prerogative. Credibility is for the trier of facts and his finding of guilt is supported by the record. We do not disturb that finding. People v. Matthews, 53 Mich.App. 232, 242--243, 218 N.W.2d 838, 843 (1974).

At sentencing the following colloquy was recorded:

'The Court: After three, four witnesses get on the stand and say that you not only struck but also kicked Deputy Woods, before he ever touched you, you're telling me that those just weren't the events?

'Mr. Swarthout (defense attorney): Your Honor, I might mention at this point all the - - -

'The Court: I don't want any more mentioning out of you. I'm talking with Mr. Grable now. I want to listen to Mr. Grable and see how good his memory is today. Now, do you believe that every one of those witnesses was lying or are you just rationalizing these...