People v. McCline

• Decision Date: 04 January 1993
• Docket Number: Docket No. 116486
• Citation: 496 N.W.2d 296,197 Mich.App. 711
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Lee McCLINE, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 296

496 N.W.2d 296

197 Mich.App. 711

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Lee McCLINE, Jr., Defendant-Appellant.

Docket No. 116486.

Court of Appeals of Michigan.

Submitted Feb. 4, 1992, at Detroit.

Decided Aug. 6, 1992.

Approved for Publication Jan. 4, 1993, at 9:05 a.m.

Released for Publication March 18, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., and Edward L. Graham, Asst. Pros. Atty., for the people.

Michael J. Brady, Southfield, for defendant-appellant.

Before WAHLS, P.J., and JANSEN and THOMAS G. KAVANAGH, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his conviction, following a jury trial, of delivery of more than 650 grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(i); M.S.A. Sec. 14.15(7401)(2)(a)(i). On January 4, 1989, defendant received the statutorily mandated sentence of life imprisonment without possibility of parole.

Defendant's conviction arises out of the sale of a kilogram of cocaine to undercover police officers and his subsequent arrest on March 15, 1987. Defendant was tried jointly with his two codefendants . ¹ Macomb Circuit Judge Frederick Balkwill presided over three days of jury selection, which began on November 29, 1988. After a panel had been selected and sworn, and over the objections of all defendants, the matter was transferred to visiting Judge Frank Jeannette. ² Judge Jeannette then presided over the remainder of the trial.

The defendant's first issue addresses his entitlement to a jury trial presided over by the same judge from preliminary matters to the rendering of a verdict and sentencing. The seminal case in this area of the law is the Second Circuit Court of Appeals decision in Freeman v. United States, 227 F. 732 (C.A.2, 1915). There, the trial judge had been replaced by another judge after the close of the prosecutor's case, which involved 106 witnesses. After an extensive exploration of the history underlying the constitutional rights to a jury and to due process, the Court held:

It is the opinion of this court that in a criminal case trial by jury means trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. It is not possible for either the government or the accused, or for both, to consent to a substitution either of one judge for another judge, or of one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial. [Id. at 759-760.]

Most cases have refused to apply Freeman to those instances where the substitution has occurred before any evidence was introduced. The older view held that substitution of judges before the introduction of evidence was permissible, with the underlying theory "apparently being that the rule against substitution is designed to insure that the judge who hears the testimony as to the facts also applies the law thereto." Anno: Substitution of judge in criminal case, 83 A.L.R.2d 1032, 1034. Most of the more recent cases involving this area of the law seem to agree with the conclusion that substitution of trial judges at the conclusion of voir dire, but before opening arguments or the admission of evidence, requires that the defendant show prejudice to constitute error requiring reversal. ³

We agree with those decisions that have found that a criminal trial is an entity, consisting of one judge and one jury panel throughout the proceedings. See Freeman, supra; Yates v. United States, 227 F.2d 844, 846-847 (C.A.9, 1955). We also agree that the jury selection process is an important and integral part of a criminal trial. See Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 2246, 104 L.Ed.2d 923 (1989). During a criminal trial, the jury plays what is undoubtedly the most important role in the determination of the defendant's guilt or innocence. The questions asked at voir dire, at the discretion of the presiding judge, enable both the prosecution and the defendant to attempt to find an impartial jury oriented toward the determination of the truth. While no manifest or tangible prejudice certainly results from a jury fairly picked before a second judge, we believe that a subtle or intangible prejudice may result.

Accordingly, we reject any test requiring that the defendant show prejudice to be entitled to appellate relief. Requiring the defendant to show prejudice when deprived of a right that is so fundamental to our system of justice unduly burdens the defendant and works to the detriment of the system. Instead, we require that the defendant simply show that a substitution was made, after voir dire had begun, for a reason other than those enumerated in MCR 2.630.

Such a case is presented here. After three days of jury selection, a change of judge took place over the objections of defendant. There is nothing in this record that even inferentially supports a conclusion that the substitution was made because of any disability of Judge Balkwill. Accordingly, we conclude that defendant was deprived of his constitutional right to a jury trial, and we remand this matter for a new trial.

Given our disposition of defendant's first issue, we will not fully address all the remaining issues on appeal. However, we will briefly discuss some that may again present themselves during the retrial of this matter.

Defendant also argues that the trial court abused its discretion in admitting, over objection, a shotgun that was found in the trunk of his car ⁴ and jewelry that he was wearing at the time of his arrest. ⁵ The admission of evidence lies within the sound discretion of the trial court. This Court will find an abuse of discretion only if an unprejudiced person, considering the facts on which the trial court relied in making its decision, would conclude that there was no justification for the ruling made. People v. Rockwell, 188 Mich.App. 405, 410, 470 N.W.2d 673 (1991). We would find such an abuse of discretion in the trial court's admission of both the shotgun and the jewelry in this matter.

Generally, relevant evidence is admissible. MRE 402. Evidence is relevant if it tends to make a fact in issue more probable or less probable than it would be without the evidence. MRE 401; People v. Milton, 186 Mich.App. 574, 576, 465 N.W.2d 371 (1990), remanded for consideration of a new issue 438 Mich. 852, 473 N.W.2d 310 (1991). We cannot conclude that evidence of a shotgun, found in the trunk of defendant's vehicle some distance away from the scene of the drug transaction, was relevant to the determination whether defendant delivered cocaine to an undercover officer. Similarly, we cannot conclude that evidence of defendant's jewelry, no matter its cost and appearance, was relevant to the drug transaction that is at the core of this case. Because we conclude that neither was relevant, we find that the trial court abused its discretion in admitting the shotgun and the jewelry into evidence.

We reject defendant's claim that he was denied his right to a speedy trial. Utilizing the four-part balancing test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), which has been adopted by the courts of this state to review speedy trial claims, we conclude that defendant was not denied his right to a speedy trial. People v. Collins, 388 Mich. 680, 690, 202 N.W.2d 769 (1972); People v. O'Quinn, 185 Mich.App. 40, 47-48, 460 N.W.2d 264 (1990). Although the delay between defendant's arrest and the commencement of trial was nearly twenty-one months, thus shifting to the prosecutor the burden of proof that the defendant has not been prejudiced, Collins, supra at 690, 202 N.W.2d 769, much of the delay was attributable to defendant or, if attributed to the prosecutor, was given minimal weight and a neutral tint. See People v. Holland, 179 Mich.App. 184, 195, 445 N.W.2d 206 (1989); People v. Cooper, 166 Mich.App. 638, 654, 421 N.W.2d 177 (1987). Similarly, the fact that defendant was tried with two codefendants makes any delay more tolerable to this Court. Id., at 655, 421 N.W.2d 177. Because the delay was not unreasonable, defendant was not denied his right to a speedy trial. See Holland, supra at 195, 445 N.W.2d 206.

We summarily reject defendant's claim that the trial court's characterization during voir dire of his right to remain silent infringed upon his exercise of that right. The trial court's comments did not imply that defendant would incriminate himself if he testified. Similarly, we hold that the comments of the prosecutor regarding a codefendant's failure to take the stand do not entitle defendant to a new trial.

Given our resolution of this matter, we decline to address defendant's claims that the sentence imposed for his conviction constitutes cruel and unusual punishment under either the United States or the Michigan Constitution.

Defendant's conviction is vacated and this matter is remanded for a new trial.

JANSEN, Judge (dissenting).

I respectfully dissent. I would hold that when the substitution of judges occurs during the preliminary stages of the trial before any evidence has been received, the defendant should be required to show how the substitution resulted in prejudice.

In the present case, Judge Balkwill presided over three days of jury selection. After the panel was selected and sworn, and over the objections of defendants, the case was transferred to Judge Jeannette. Judge Jeannette presided over the remainder of the trial. Defendant contends that the substitution deprived him of his constitutional rights to a trial by jury and to due process of law. I disagree.

In Freeman v. United States, 227 F. 732 (C.A.2, 1915), one judge was substituted for another after all the government's witnesses had testified. The Second Circuit Court of Appeals reversed the defendant's conviction and established a general rule that prohibits the substitution of a judge...