People v. Wigfall

• Decision Date: 17 July 1987
• Docket Number: Docket No. 80977
• Citation: 408 N.W.2d 551,160 Mich.App. 765
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnnie Lee WIGFALL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 551

408 N.W.2d 551

160 Mich.App. 765

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnnie Lee WIGFALL, Defendant-Appellant.

Docket No. 80977.

Court of Appeals of Michigan.

Submitted Feb. 11, 1987.

Decided June 16, 1987.

Released for Publication July 17, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul Maloney, Pros. Atty. and Brian S. Berger, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Ronald J. Bretz, Lansing, for defendant-appellant.

Before MAHER, P.J., and SAWYER and TAHVONEN, ^* JJ.

TAHVONEN, Judge.

Defendant, Johnnie Lee Wigfall, was convicted by a jury as an aider and abettor of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797; M.C.L. Sec. 767.39; M.S.A. Sec. 28.979, and of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to eight to twenty years in prison for the armed robbery and to a mandatory consecutive two-year term for the felony-firearm conviction. He now appeals as of right and we reverse.

Defendant contends he was denied a fair trial when the trial judge repeatedly criticized and belittled defense counsel in the presence of the jury. Defendant points to the following exchanges which occurred during the course of his trial:

"Q. [Mr. Ryan, attorney for defendant ] You gave the gun back to Fields?

"A. [Defendant ] Yes.

"Q. After you talked to Trooper Gunderson, you were arrested, weren't you?

"A. Who?

"Q. Well, after you talked to Gunderson, he let you go, didn't he?

"A. Yeah

"Q. And you went out to try to help him?

"A. Yeah.

"Q. And did you try to help him?

"A. Yeah.

"Q. You tried to.

"MR. BANYON: Your Honor, Mr. Ryan is continually leading this witness.

"THE COURT: He has been since he started. I think I would let your client testify instead of you, unless you want to take the oath and get on the stand and be sworn.

"MR. RYAN: No, sir. I do not.

"THE COURT: Then, I suggest you let the witness testify, not you. You haven't done very well yet, so far. Don't ask leading questions is what I am saying.

"MR. RYAN: Okay."

* * *

* * *

"Q. [Mr. Ryan ] Can you tell the jurors how you know they were checking it out to rob it?

"A. [Defendant ] The time that I had went and talked to the police and he had told me what had happened, then, when Trooper Olson, he was asking me, did I know then, then, I was referring to what the police had told me earlier, and when I told about sitting on the side of the road, that's what I assumed they were doing was checking out the place.

"Q. Do you know, for a fact, right now, whether or not they were checking the station to rob it, when you were in the car?

"A. I don't know.

"Q. When you saw Rogers and Nunn, when they gave you the gun back to give to Fields, did they give you any money?

"A. Before Robert Rogers pulled up, I had asked Jimmie about my $2.00 that I had gave him earlier, and he said that he had to go in the house and get it from his mother. And he went and got $2.00 and brung it back out.

"Q. Was that $2.00 for using the gun?

"A. No. It was $2.00 that I had gave him earlier to buy some gas.

"Q. And he went inside his house to get that?

"A. Inside his mother's house.

"Q. Did he tell you, here, this is money we got from the robbery?

"MR. BANYON: Your Honor, again, I'm going to object, he is still leading the witness.

"THE COURT: He certainly is. I am going to put him under oath pretty soon and have him sworn in so he can testify. He might as well be under oath as long as he is doing it."

* * *

* * *

"Q. That's not your car?

"A. No.

"Q. Was that gun ever yours?

"A. No.

"Q. Had you ridden around in that car before?

"A. Just that time.

"Q. When they dropped you off, after going to Henry's and getting the hamburgers, did you ever ride in that car again?

"A. No.

"Q. When you gave them that gun, did you want them to use it in a robbery?

"A. No.

"Q. Did you intend for them to go out and shoot Carol Palmer in the head?

"A. No.

"Q. Did you have any idea they were going to do that?

"A. No.

"Q. Did you even think about it?

"A. No.

"Q. When you gave the gun back to Tony Fields, did you think about the gun?

"MR. BANYON: Your Honor, Mr. Ryan is leading his witness.

"THE COURT: I would say that is an understatement, Mr. Banyon. Your statement is an understatement. He is leading. He is testifying.

"MR. RYAN: I am not testifying, Your Honor. I do not--

"THE COURT: Everything you said suggests the answer. Did you go to law school and understand what a leading question is? It suggests the answer. Everything you said suggests the answer. That is a leading question. You know that is not proper. I presume you learned that. You are suggesting the answer."

"MR. RYAN: I am not intending to, Your Honor.

"THE COURT: Then don't do it, then. Follow the Rules of Evidence. Ask the question--

BY MR. RYAN:

"Q. What did you think when you gave him the gun?

"THE COURT: That is a proper question, that does not suggest the answer.

"THE WITNESS: That it was his, that Tony--he had let Tony use it and he was getting it back from Tony.

"MR. RYAN: I have no further questions of this witness.

"THE COURT: Very well. That was a very fine question, it did not suggest the answer.

"MR. BANYON: I have nothing further, Your Honor."

[Emphasis added.]

During a recess, defense counsel made a motion for a mistrial because the trial court had "said some things about law school, and what not" and because counsel was not "sure that the effect of that can be taken away from the jury." The trial court denied the motion, stating:

"THE COURT: The objection made was leading questions. As you know, a leading question is one that suggests the answer, and they were highly leading. As you rather curtly, Mr. Ryan, in effect, criticized the Court for ruling that they were leading, when you said they weren't. I merely said I think, Mr. Ryan, you probably learned in law school that a leading question is one that suggests the answer. And those are highly suggestive.

"I recall when Judge Taylor was a prosecutor, he would ask a question, isn't it a fact, witness, that such and such happened. Opposing would object, leading. Judge Taylor would say that is not leading, because it doesn't suggest the answer, because it can be answered yes or no.

"Obviously, the jury would be instructed that if they have come to believe, by my remarks I have made, or any conduct I have made during the trial, that I am trying to tell them how to decide the case, they must completely disregard that, because the case will be decided strictly from the evidence produced by testimony and exhibits received and that they are the sole and exclusive judges of the facts, credibility of witnesses and no way are they to take what the Court says, conduct or remarks as I am trying to decide the case. They will be so instructed. So, the motion for mistrial is denied. Bring the jury back in."

During his instruction to the jury, the trial court provided the jury with the standard instructions to the effect that the trial court's ruling statements and remarks were not evidence and were not intended to indicate any opinion by the court as to how the case should be decided.

Our Supreme Court has had occasion to address a similar issue in People v. Neal, 290 Mich. 123, 129, 287 N.W. 403 (1939). The Court stated:

"Pert remarks and quips from the bench have no place in the trial of a criminal case, do not comport with judicial dignity and the injurious effect of such, though thoughtlessly uttered, may prove exceedingly damaging to the party entitled to a fair trial.

"The accused had a right to be represented by an attorney and have the attorney treated with the consideration due such an officer of the court and belittling observations aimed at the attorney are, necessarily, injurious to the one he represents."

The Neal Court determined that the trial judge's gratuitous statements denied defendant a fair trial. On that basis, the Supreme Court reversed.

That same year, our Supreme Court again faced a situation where the trial court had made unfavorable comments about counsel in the presence of the jury. In In re Parkside Housing Project, 290 Mich. 582, 596, 287 N.W. 571 (1939), the Supreme Court held:

"It is error for the court to comment, unfavorably, in the presence of the jury, on the conduct of the trial by counsel for one of the parties, especially in view of the fact that counsel, in such a situation, is without opportunity to resent such criticism without risk to himself and injury to his clients' cause with the jury. Christman v Railway Co, 210 App Div 104; 205 NY Supp 594 [1924]; 64 CJ 92. It is improper and prejudicial for the judge to rebuke counsel and accuse him in the presence of the jury of unprofessional conduct, for asking a witness a question which is proper and which counsel has the right to ask. Cooke v Glassheim, 207 App Div 592, 202 NY Supp 599 [1924]."

The Parkside Housing Project Court further stated that, even where counsel makes contentions that are not deemed sound, the trial judge should overrule them with dignity and not use language holding counsel up to ridicule. 290 Mich. at 597, 287 N.W. 571. Similarly, in this case the issue is not whether counsel was asking leading questions. Rather the issue is whether the manner in which the trial court correctly sustained the objections denied the defendant a fair trial. The Parkside Court noted that belittling defense counsel results in belittling the defendant and his claims or defenses. 290 Mich. at 598, 287 N.W. 571. The Court held that there was "strong likelihood" that the jury was prejudiced against the defendant and his counsel because of the conduct of the trial judge. 290 Mich. at 599, 287 N.W. 571. Jurors are prone to follow the slightest indication of bias or prejudice on the part of the trial judge. 290 Mich. at 600, 287 N.W. 571. The words and...