People v. Sterling, Docket No. 79570
| Decision Date | 29 December 1986 |
| Docket Number | Docket No. 79570 |
| Citation | 397 N.W.2d 182,154 Mich.App. 223 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joe Willie STERLING, Defendant-Appellant. 154 Mich.App. 223, 397 N.W.2d 182 |
| Court | Court of Appeal of Michigan — District of US |
[154 MICHAPP 226] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Jan J. Raven, Asst. Pros. Atty., for the People.
State Appellate Defender Office by James A. Krogsrud, Detroit, for defendant-appellant on appeal.
Before MacKENZIE, P.J., and WALSH and SHEPHERD, JJ.
Defendant, Joe Willie Sterling, was convicted of two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c), following a jury trial held in the Detroit Recorder's Court, Judge Warfield Moore, Jr., presiding. An earlier trial resulted in a mistrial when the jury was unable to agree on a verdict. Defendant was sentenced to concurrent terms of thirty to sixty years on the first count and forty to seventy years on the second count. Defendant raises a number of issues on appeal which he claims require reversal of his conviction. We agree that the conviction must be reversed and [154 MICHAPP 227] the case remanded for a new trial before another trial judge.
The complaining witness, sixteen-year-old Deanita Partee, testified that on May 25, 1983, as she crossed a vacant lot in the vicinity of Forrest and Avery Streets in Detroit shortly after 8:00 a.m. on her way to school, defendant grabbed her from behind, threatened her with a steak knife and pulled her to a spot behind a nearby vacant school. There, defendant forced her to perform fellatio on him and to submit to cunnilingus. Afterward, the man ran away. Partee testified that about two months later, she saw the defendant again on a basketball court behind another school in the same vicinity. She flagged down a passing police car, explained the situation and rode with the police back to the basketball court where she identified defendant.
At trial, defendant took the witness stand in his own behalf and presented an alibi defense. He testified that, although his normal working hours as a CETA employee for the Department of Human Rights were from 8:30 a.m. to 4:30 p.m., on the day in question he did not arrive for work until 10:00 a.m. because there was a problem with the plumbing in his sister's house where he was staying and he also had some work left to do on an overdue school paper. He testified that he finished the school work, walked several blocks to his cousin's house to use the bathroom, and then reported to work at 10:00 a.m.
Defendant's sister's testimony verified that there was a plumbing problem on the day in question and that her brother had left at about 8:00 a.m. but returned at 9:00 a.m.
Defendant also produced the testimony of Daryl Bailey, a fellow worker at the Department of Human Rights. He testified that he had received a [154 MICHAPP 228] phone call from defendant at 8:30 a.m., explaining that he would be a little late.
Defendant first contends that he was denied a fair trial by numerous questions and comments of the trial judge. We agree that the trial judge's conduct in questioning witnesses constituted an abandonment of his mantle of judicial impartiality and denied defendant a fair trial 1.
A trial court may question witnesses in order to clarify testimony or elicit additional relevant information. See MRE 614(b); People v. Pawelczak, 125 Mich.App. 231, 236, 336 N.W.2d 453 (1983). However, the court's discretion in questioning witnesses is not unlimited. The court must avoid any invasion of the prosecutor's role and exercise caution so that its questions will not be intimidating, argumentative, prejudicial, unfair or partial. People v. Cole, 349 Mich. 175, 84 N.W.2d 711 (1957); People v. Jackson, 97 Mich.App. 660, 662, 296 N.W.2d 135 (1980). The test is whether "a judge's questions and comments 'may well have unjustifiably aroused suspicion in the mind of the jury' as to a witness' credibility, * * * and whether partiality 'quite possibly could have influenced the jury to the detriment of defendant's case.' " People v. Redfern, 71 Mich.App. 452, 457, 248 N.W.2d 582 (1976), citing People v. Smith, 64 Mich.App. 263, 267, 235 N.W.2d 754 (1975) (emphasis in original).
Although defendant has referred to numerous instances of the trial court's comments and questions, the propriety of which are highly questionable, the following two instances especially invaded the province of the prosecutor and may have [154 MICHAPP 229] influenced the jury to the detriment of defendant's case.
After the prosecutor's redirect examination of the complaining witness the trial court asked her the following questions:
[154 MICHAPP 230] "A. Yes.
Defense counsel's objection to the court's questions made a short time later outside of the presence of the jury was overruled.
We agree with defendant that the trial court's questions were not designed to "produce fuller and more exact testimony" or to "clarify points and elicit additional facts." People v. Smith, supra, p. 267, 235 N.W.2d 754. The trial court assumed the prosecutor's role with advantages unavailable to the prosecution, i.e., use of leading questions. Moreover, the trial court's questions may well have been interpreted as the court's seal of credibility on the complainant's testimony.
In the second instance, the trial court questioned defendant's alibi witness about his testimony that he received a phone call from the defendant at the time the crime was allegedly committed:
Later the court interjected:
Although the precise translation of the trial court's comment escapes us, we can only conclude from the context that it was a derogatory comment on the credibility of the witness. Viewed together, we conclude that these questions and comments invaded the province of the jury and "pierced the veil of judicial impartiality." People v. Audison, 126 Mich.App. 829, 833, 338 N.W.2d 235 (1983). We have no recourse but to find that defendant was denied a fair trial. The fact that defense counsel made no objection to some of these comments and questions does not alter the result since defense counsel may have been understandably reluctant to challenge the judge's own behavior on the bench. See People v. Smith, supra, 64 Mich. pp. 269-270, 235 N.W.2d 754; People v. Redfern, supra, 71 Mich.App. p. 457, 248 N.W.2d 754.
[154 MICHAPP 232] Defendant next raises five separate instances of alleged prosecutorial misconduct committed during trial and during closing argument. We agree that several of these were improper. Defendant first argues that he was denied a fair trial because of the prosecution's extensive questioning and argument about defendant's substitution of counsel, letters from defendant to the court about his case, and defendant's assistance with his defense in the form of taking notes and performing legal research. The thrust of the prosecution's closing argument was that defendant was a "jailhouse lawyer" and "manipulative" because he had requested new attorneys and assisted in his own defense. The strong implication of the prosecution's argument was that these facts somehow tended to prove defendant's guilt.
We fail to see how this evidence could possibly be relevant to the issue of defendant's guilt. Moreover, the prosecution's argument tended to chill the...
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