People v. Jackson

• Decision Date: 02 June 1980
• Docket Number: Docket No. 78-930
• Citation: 97 Mich.App. 660,296 N.W.2d 135
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony JACKSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 135

296 N.W.2d 135

97 Mich.App. 660

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony JACKSON, Defendant-Appellant.

Docket No. 78-930.

Court of Appeals of Michigan.

June 2, 1980.

Released for Publication Sept. 24, 1980.

Brenda J. Maxwell, Detroit (Howard Hertz, Detroit, of counsel), for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and HOLBROOK and MAHER, JJ.

HOLBROOK, Judge.

Defendant was convicted by a jury of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and assault with intent to kill and murder, M.C.L. § 750.83; M.S.A. § 28.278. Thereafter sentenced to concurrent prison terms of 25 to 40 years, life imprisonment, and 20 to 40 years, respectively, he appeals as of right.

Defendant and two friends went to a notorious "dope den". Defendant entered the apartment alone with the intention of getting the occupant's gun. After obtaining the gun, defendant opened the apartment door. His friends came in and there was shooting. Two men from the apartment were wounded and one was killed.

At trial defendant's two friends obtained pleas to lesser charges in return for their testimony. There were conflicting stories as to whether defendant or his friends did the shooting.

Defendant claims that the trial court questioned him at length in such a way as to discredit his testimony in the jury's minds. We agree. Where there is a jury, the judge should avoid any invasion of the prosecutor's role and exercise caution so that his questions will not be intimidating, argumentative, prejudicial, unfair or partial. People v. Cole, 349 Mich. 175, 199, 84 N.W.2d 711 (1957).

The judge pursued an intimidating and argumentative line of questioning. By injecting into the trial his skepticism of defendant's testimony, he exceeded the bounds of impartiality. For example, he challenged defendant's testimony concerning defendant's tricking the decedent out of his gun:

"THE COURT: Did you think that you could have gotten Mr. Jackson's weapon from him voluntarily?

"THE WITNESS: Voluntarily?

"THE COURT: Yes.

"THE WITNESS: I did.

"THE COURT: You said you went there to borrow the weapon, right?

"THE WITNESS: Oh, yes, sir.

"THE COURT: Did you realistically think that he would loan you his weapon?

"THE WITNESS: Yes, sir.

"THE COURT: And was he running a dope pad?

"THE WITNESS: Yes.

"THE COURT: How long have you been familiar with dope pads?

"THE WITNESS: Oh, since I was 16.

"THE COURT: How old are you now?

"THE WITNESS: 24

"THE COURT: You realistically thought Mr. Jackson would loan you his weapon which he was using to protect his dope pad?

"THE WITNESS: Yes, sir."

Such judicial questioning did not serve the purpose of producing fuller testimony or of clarifying points as sanctioned under Simpson v. Burton, 328 Mich. 557, 564, 44 N.W.2d 178 (1950).

Defendant testified that one of the accomplices, Melvin Daniels, gave him a gun prior to entering the apartment. He stated that he went into the apartment for the sole purpose of borrowing decedent's gun and that he had no prior knowledge of the events which took place. He also said that he did not participate in the robberies or shootings. He obtained decedent's gun and was leaving the apartment when he was surprised by Daniels and McKinney, the other accomplice. The trial judge questioned defendant regarding the alleged surprise:

"THE COURT: Mr. Jackson, how tall were you on January 3, 1977?

"THE WITNESS: I am about five ten, five eleven.

"THE COURT: And how much did you weigh then?

"THE WITNESS: Same as I do now.

"THE COURT: What is that?

"THE WITNESS: 180. I am sure.

"THE COURT: Is Mr. Daniels as tall or as heavy as you?

"THE WITNESS: He is not as tall, but about as heavy as me.

"THE COURT: Is Mr. McKinney as tall or heavy as you?

"THE WITNESS: I am not sure. I don't know Mr. McKinney.

"THE COURT: You don't know him?

"THE WITNESS: The first I seen him was the day this happened.

"THE COURT: You saw him the other day, didn't you?

"THE WITNESS: Yes, sir.

"THE COURT: And at the time you became frightened, either Mr. Daniels or Mr. McKinney or both, and you had two weapons, one of which was loaded?

"THE WITNESS: Yes, sir.

"THE COURT: You were armed and bigger than either of those individuals, is that right?

"THE WITNESS: I was armed and taller, but I would like to express myself.

"THE COURT: Feel free to.

"THE WITNESS: Okay. I have never been in places--placed in a position like that before, and opening the door and seeing them and the expression on their face was something I can't describe.

"THE COURT: Anything further, counsel?

"MR. HOGG: I have some further questions based on the Court's examination."

Such an interrogation indicates skepticism or incredulousness on the part of the judge. It could have influenced the jury to the detriment of defendant's case. People v. Roby, 38 Mich.App. 387, 392, 196 N.W.2d 346 (1972). Defendant's version of the facts, that he was frightened and surprised, was impeached by the trial court's suggestion that defendant had a physical advantage over both Daniels and McKinney.

A prosecution witness testified to seeing two men run to a car. He then heard more gun shots from within the building and saw a third man in a blue parka run from the building and enter the car. Defendant testified that he was one of the first two men to enter the car. The trial court questioned defendant:

"THE COURT: Were you wearing a blue parka similar to the one that is on evidence here?

"THE WITNESS: That's correct.

"THE COURT: Were you the last person to get in the car?

"THE WITNESS: No, sir.

"THE COURT: Did you hear that young man testify and say he was on his porch and he heard shots?

"THE WITNESS: Yes, sir.

"THE COURT: That he saw two people come out with one wearing a tan coat or a beige coat and another one who he couldn't describe, and they went and got straight into the car?

"THE WITNESS: Yes, I remember.

"THE COURT: And then after hearing the shots he saw somebody come out who hesitated, looked around and then got into the car?

"THE WITNESS: That's what he said.

"THE COURT: Did you know him?

"THE WITNESS: No.

"THE COURT: Have you ever seen him before in you life?

"THE WITNESS: In the neighborhood.

"THE COURT: Had you ever done anything to him?

"THE WITNESS: No."

The trial court improperly assumed a prosecutorial role. The above colloquy rejected defendant's credibility and implied judicial support of the prosecution witness's testimony. Such partiality quite possibly could have influenced the jury to the detriment of defendant's case. People v. Roby, supra.

In order to escape prejudicial error under People v. Piscunere, 26 Mich.App. 52, 181 N.W.2d 782 (1970), the questioning and comments by the trial judge must be limited in scope, material to the issue, and must not communicate to the jury any opinion that the trial judge may have regarding these matters. We have no other recourse but to find that defendant was denied a fair and impartial trial despite the evidence presented. People v. Smith, 363 Mich. 157, 108 N.W.2d 751 (1961).

Defendant also contends that the trial judge committed reversible error in failing to give a cautionary instruction regarding accomplice testimony. No such instruction was requested, but it has been held in People v. McCoy, 392 Mich. 231, 240, 220 N.W.2d 456 (1974), that it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge when the issue is "closely drawn". We find that the issue of guilt or innocence was closely drawn in the instant case. Since there were no...