People v. Rogers

• Decision Date: 25 April 1975
• Docket Number: Docket No. 19971,No. 1,1
• Citation: People v. Rogers, 233 N.W.2d 8, 60 Mich.App. 652 (Mich. App. 1975)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda ROGERS, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 8

233 N.W.2d 8

60 Mich.App. 652

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda ROGERS, Defendant-Appellant.

Docket No. 19971.

Court of Appeals of Michigan, Division No. 1.

April 25, 1975.

Released for Publication July 24, 1975.

David Harris, Detroit, for defendant-appellant.

Frank J. Kelly, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and McGREGOR and CAVANAGH, JJ.

ALLEN, Presiding Judge.

On February 16, 1974, a jury found defendant guilty of manslaughter. M.C.L.A. § 750.321; M.S.A. § 28.553. On February 25, 1974, she received a sentence of 7 1/2 to 15 years in the Detroit House of Corrections, and has appealed.

Defendant argues on appeal that the trial court committed reversible error when it commented to defense counsel that a certain witness' answers were not inconsistent with answers he had previously given at the preliminary examination. Defendant argues that error was also committed when the trial court allowed the admission of a statement into evidence purportedly falling within the excited utterance exception to the hearsay rule without establishing a foundation that the declarant had witnessed the event. Finally, defendant argues that reversible error was committed when the trial court instructed the jury to 'scrutinize' defendant's defense of self-defense.

On the night of January 18, 1974, defendant, her husband and a number of other friends attended a party at the home of Dorothy White, 9366 Lessing, in the city of Detroit. The party continued until the early morning hours of January 19, at which time defendant became engaged in an argument with Gloria Armstrong, the deceased. At about 6:30 a.m., on January 19, an argument ensued, one thing led to another, and defendant stabbed Gloria Armstrong in the chest. Defendant was charged with second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. Her defense was self-defense, and, as we have seen, the jury convicted her of manslaughter.

Defendant's initial claim of error arises out of two occurrences during defense counsel's cross-examination of Neal Graham, a witness to the episode recited above. Defense counsel questioned Graham as to whether he had seen defendant holding a knife, and whether Armstrong had been armed. Graham testified that the first time he saw defendant with a knife was when it was 'coming down' toward the deceased. He then said that he did not know if the deceased had a knife or any other weapon, and the also said that deceased did not have a weapon. Defense counsel referred to a portion of the examination transcript at which time the witness said that he did not know if the deceased had a knife. the prosecutor objected on the grounds that this question had been asked and answered and that the witness' answer was not inconsistent. In the presence of the jury, the court, defense counsel and the prosecutor discussed whether or not the answers were inconsistent or whether the witness, based upon his level of education and ability to articulate a clear answer in response to defense counsel's questions, was merely confused. In the course of his discussion, the trial court said that the witness' 'answers haven't been inconsistent with what he said before * * *'. The court then said 'I don't think he gave different answers', and allowed defense counsel to proceed with his examination.

Subsequently, defense counsel questioned Graham as to Graham's recitation of the events preceding the assault, and in particular Graham's activities in talking to a particular woman in the doorway. Defense counsel was trying to pin Graham down as to with whom he was speaking. Once again, counsel referred to the preliminary examination testimony in which Graham stated that he had been 'chatting' with a lady in the doorway. This is exactly what he had testified to at trial. Defense counsel then presented the witness with the next question at the examination and the witness' answer thereto. The witness read this question to himself, and our examination of the preliminary examination transcript has revealed that the question related to whether or not Graham saw defendant and the deceased in the kitchen. The witness replied 'yes'. The prosecutor then objected and the court requested both counsel to approach the bench. However, previous to engaging in an off-the-record discussion at the bench, defense counsel told the court that the witness was 'giving me a hard time * * *'. The trial court replied that the witness was not being difficult, referred to the educational differences between the witness and a person such as a lawyer, and stated that while the lawyer may not be getting the answers that he desired, 'the answers that you have gotten have not been inconsistent'. Counsel then continued his examination as to with whom the witness spoke in the kitchen or in the doorway, and it was established that he had spoken to the deceased previous to the above described altercation.

Referring to the above, defense counsel has argued that the trial court expressed his opinion that Graham's testimony was consistent with the preliminary examination transcript and that the trial court improperly invaded the province of the jury to judge the credibility of the witness. It is clear from our examination of the record that defense counsel failed to voice this specific objection in response to the trial court's comments, and generally our Court will not consider such a claim when trial counsel has failed to object to the trial court's comments at trial. People v. Williams, 29 Mich.App. 420, 425, 185 N.W.2d 435 (1971).

In any event, we find that reversible error was not committed. The test to be applied in such a situation is whether or not the trial judge's comments 'were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial'. People v. Wilson, 21 Mich.App. 36, 37, 174 N.W.2d 914 (1969), U.S.Const. Am. VI, and Const.1963, Art. 1, § 20. If the Court's examination of the record discloses that the trial court 'pierced the veil of judicial impartiality', defendant's conviction must be reversed. People v. London, 40 Mich.App. 124, 129--130, 198 N.W.2d 723 (1972), and cases cited therein. See also People v. Watson, 52 Mich.App. 211, 214--215, 217 N.W.2d 121, 123 (1974).

According to M.C.L.A. § 768.29; M.S.A. § 28.1052, the trial court has the duty to control the trial proceedings, which includes the duty to;

'limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.'

Also, that statute allows the trial judge, in the course of the jury instructions, to comment upon the evidence 'as in his opinion the interest of justice may require'. The instant case involves not an instruction but rather a comment during the course of defense counsel's cross-examination. As noted in ABA Project on Minimum Standards for Criminal Justice, Standards Relating To The Administration of Criminal Justice, The Function of The Trial Judge, § 5.5, p. 176:

'The trial judge should permit reasonable latitude to counsel in the examination and cross-examination of witnesses, but should not permit unreasonable repetition or permit counsel to pursue clearly irrelevant lines of inquiry.'

In Michigan, reversible error was not found where, although the trial court 'may have lost patience at the continued repetition of questions and objections, and have gone to some length in compelling counsel to desist'; it was held that this was a matter within the trial court's discretion which must be exercised to 'control * * * the orderly conduct of the business of the court'. People v. Whitney, 105 Mich. 622, 634, 63 N.W. 765, 768 (1895).

We find that the trial court's comments fall within the above rule. Unlike the situation in Wilson, supra, the trial court did not interject its 'personality and views into the proceedings'. Defense counsel was neither 'berate(d), scold(ed)' nor demeaned by the trial court. People v. Wilson, 21 Mich.App. 36, 38, 174 N.W.2d 914 (1969). Unlike the situation in People v. Harris, 37 Mich.App. 409, 410, 195 N.W.2d 29 (1971), the trial court did not say that the prosecution had proven the elements of the crime. Further, the instant case does not approach the situation in People v. London, supra, wherein pressures imposed by an irritated and impatient trial judge seemingly led to a hasty verdict and denied defendant his right to a fair trial. 40 Mich.App. at 125--126, 198 N.W.2d at 724--725. In the present case, the trial court exercised its discretion to reach an 'expeditious and effective ascertainment of the truth', and did not pierce the veil of judicial impartiality. The witness' trial testimony was not inconsistent with his preliminary examination testimony. At the examination, he testified that he did not see the weapon in defendant's hand until she was stabbing the deceased. That is precisely what he testified to at trial. As far as whether the deceased was armed, Graham said that her back was turned to him and that he could not see if she had a weapon. His testimony that he 'did not know' if she had a weapon was not inconsistent with his statement that he 'did not see one'. The witness' testimony was the same at trial, and we find that the answers were not inconsistent. Further, defense counsel's questions regarding with whom defendant was chatting at the doorway did not elicit an inconsistent response from defendant, and we find that the trial court properly exercised its discretion to control proceedings. In light of trial counsel's failure to voice his specific objection to this point, and the discretion afforded the trial court to control the proceedings, we find no reversible error.

In the course of...