People v. Wilson, Docket No. 5642

• Decision Date: 10 December 1969
• Docket Number: Docket No. 5642,No. 2,2
• Citation: 21 Mich.App. 36,174 N.W.2d 914
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willard WILSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 914

174 N.W.2d 914

21 Mich.App. 36

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willard WILSON, Defendant-Appellant.

Docket No. 5642.

Court of Appeals of Michigan, Division No. 2.

Dec. 10, 1969.

Released for Publication March 11, 1970.

Carl L. Bekofske, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Paul C. Miller, Jr., Dennis C. Karas, Asst. Pros. Attys., Genesee County, Flint, for plaintiff-appellee.

Before QUINN, P.J., and BRONSON and T. M. BURNS, JJ.

BRONSON, Judge.

Defendant, Willard Wilson, was tried and convicted before a jury in the Genesee County Circuit Court of possession of a stolen vehicle. M.C.L.A. § 257.254 (Stat.Ann.1968 Rev. § 9.1954). From that conviction defendant appeals.

During the trial, the judge repeatedly disciplined counsel, often before the jury, questioned and cross-examined witnesses, often argumentatively, and 'clarified' testimony. On appeal defendant questions whether the actions and comments of the trial judge precluded the jury from rendering a fair and impartial verdict.

The trial judge made a number of comments and asked a number of questions during the trial of defendant. The trial transcript is 250 pages long, and a cataloging of all of the judge's comments would serve no useful purpose. The issue is whether the trial judge's comments or questions 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. Cole (1957) 349 Mich. 175, 200, 84 N.W.2d 711.

In matters of trial conduct the trial judge has great power and wide discretion. People v. Cole, Supra, at 199, 84 N.W.2d 711. But this power is not unlimited. If an examination of the record reveals that the veil of judicial impartiality was pierced by the trial judge, the case must be reversed. People v. Bedsole (1969), 15 Mich.App. 459, 462, 166 N.W.2d 642.

In People v. Cole, 349 Mich. at 196, 84 N.W.2d at 717, the Court stated:

'American Jurisprudence says upon the point in question:

"The assumption by the trial judge of the burden of cross-examining the accused in the criminal case with the use of sharp language in framing the questions is reversible error.' 3 Am.Jur., Appeal and Error, § 1056, pp. 606, 607.

'We do not intimate that a trial judge may not, in the interest of justice, participate in the questioning of a witness or witnesses. We believe, however, that Hostile cross-examination of a defendant in a criminal prosecution is a function of the prosecuting attorney and that a judge before whom a jury case is being tried should avoid any invasion of the prosecutor's role. People v. Egan, (1928), 331 Ill. 489, 163 N.E. 357; Smith v. State (1916), 12 Okl.Cr. 513, 159 P. 940; Annotation 84 A.L.R. 1172; Annotation 57 L.R.A. 875, 882. * * *' (Emphasis supplied.)

A careful reading of the transcript persuades us that the trial judge too frequently interjected her personality and views into the proceedings.

Trial judges who berate, scold, and demean a lawyer so as to hold him up to contempt in the eyes of the jury, destroy that balance of judicial impartiality necessary to a fair hearing.

The language of the Canons of Professional Ethics and the Canons of Judicial Ethics is not ambiguous:

'It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of...