People v. Redfern , 71 Mich. App. 452 ( 1976 )

71 Mich. App. 452 (1976) 248 N.W.2d 582

PEOPLE
v.
REDFERN

Docket No. 23782.

Michigan Court of Appeals.

Decided September 28, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training and Appeals, and Donald S. Walker, Assistant Prosecuting Attorney, for the people.

McCallum & Ziolkowski, for defendant.

Before: R.M. MAHER, P.J., and D.C. RILEY and R.M. RYAN,^[*] JJ.

PER CURIAM.

Defendant appeals from a Detroit Recorder's Court jury verdict of guilty to the charge of receiving and concealing stolen property over $100, MCLA 750.535; MSA 28.803. We address and answer his appellate arguments seriatim.

Defendant first argues that the trial court erred reversibly in permitting the prosecutor to elicit, from a witness residing in the same neighborhood as the complaining witness, testimony connecting defendant with a crime for which he was not charged. The absence of an objection to this testimony, however, narrows the focus of appellate review. After thoroughly reviewing the trial transcript, we discern no miscarriage of justice in admitting the neighbor's testimony. People v Murry, 59 Mich. App. 555, 557; 229 NW2d 845 (1975). There is, therefore, no reversible error on this issue.

Next, defendant alludes to the following remarks by the prosecutor during closing argument as prejudicing defendant's right to a fair trial:

"Now, he says that my duty — this is the adversary system — and it is my duty to convict. I resent that. I resent that most fervently. The State of Michigan doesn't pay or give me enough of anything to try to convict a person who by the law and the facts don't indicate that he is guilty [sic]. My duty is to insure that fair, substantial justice be done, that's the way I see it.

"If his duty is to get his man off, my duty is to insure that justice be done. I resent that remark and I just want to point that out. I would not try to convict anyone without a case."

While we would not encourage such comments, we do not believe they warrant reversal in light of defense counsel's statements just minutes before that the police "too are striving for a conviction" and that in their zeal they occasionally alter the facts to enhance the likelihood of a guilty verdict. The prosecutor made no statement of personal belief in guilt, but rather issued a rejoinder defending the prosecutor's office. Clearly, the present remarks do not approach the level of prejudice condemned in People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970), nor do they resemble the arguably prejudicial remarks countenanced by this Court in People v Pomranky, 62 Mich. App. 304; 233 NW2d 263 (1975). Accordingly, these comments, though certainly ill-advised, are inadequate grounds for reversal.

Defendant also contends that inadmissible statements violative of Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966), were brought out at trial. In view of our disposition of the final issue presented, we leave open the question whether appellate counsel can raise the Miranda issue where defendant's trial counsel registered no objection to the statements, but instead brought out the same information on cross-examination and utilized defendant's statements to the police as a cornerstone in his defense. Even though alleged infringements of constitutional rights are reviewable on appeal despite the lack of objection at trial, e.g., People v Thomas, 44 Mich. App. 649; 205 NW2d 604 (1973), People v Cotton, 38 Mich. App. 763; 197 NW2d 90 (1972), appellate counsel cannot expect this Court to serve as a deus ex machina extricating defendant from the perils occasioned by trial counsel's deliberate trial strategies. People v Brocato, 17 Mich. App. 277, 305; 169 NW2d 483 (1969), People v Willie Johnson, 58 Mich. App. 165; 227 NW2d 272 (1975).

We mention this to emphasize the need for a timely objection that would establish an adequate record. On the sketchy record before us we can only speculate whether defendant was or was not given Miranda warnings and whether the warnings were required under the circumstances. Surely, a comparison of the detailed factual patterns in People v Ridley, 396 Mich. 603; 242 NW2d 402 (1976), and People v Reed, 393 Mich. 342; 224 NW2d 867 (1975), cert den, 422 U.S. 1044, 1048; 95 S. Ct. 2660, 2665; 45 L. Ed. 2d 696, 701 (1975), brings home this point forcefully.

Defendant's final claim of error is the most troubling. At trial, after the prosecution had finished cross-examining defendant, the following exchange took place between the trial judge and defendant:

"The Court: I have a couple of questions. What kind of horses were running at the racetrack at that time of year?

"Mr. Redfern [defendant]: I don't remember.

"The Court: You don't. Do you remember if the track was open at that time?

"Mr. Redfern: The track is always open, the D.R.C. closes at a certain time of the year, like I'm sure it's not open right now, but then Hazel Park opens up.

"The Court: Was it afternoon or night racing?

"Mr. Redfern: This was in the day.

"The Court: If I told you that the only racing on September 12th and 13th was night racing, would you agree with me?

"Mr. Redfern: No, I couldn't agree with that.

"The Court: Counsel, do you want to pursue that?

"Mr. House [Assistant Prosecuting Attorney]: I don't think it's critical to our case, your Honor."

Defendant asserts that since the source of the money found on defendant at the time of his arrest was a matter of considerable dispute, the trial court breached the bounds of judicial impartiality by so questioning defendant. In short, defendant argues that the judge's questions were, at bottom, thinly veiled expressions of disbelief in defendant's testimony which may have unfairly influenced the jury's verdict. Reluctantly, we must agree.

We are not unmindful of the broad discretion conferred on trial judges concerning examination of witnesses. People v Cole, 349 Mich. 175; 84 NW2d 711 (1957), People v Gray, 57 Mich. App. 289, 294; 225 NW2d 733 (1975). In addition, we realize that the number of questions posed does not determine whether the trial judge has overstepped permissible limits. People v Wilder, 383 Mich. 122; 174 NW2d 562 (1970). However, as indicated in People v Smith, 64 Mich. App. 263, 267; 235 NW2d 754 (1975), the appropriate 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, * * * Simpson v Burton, * * * [328 Mich. 557, 563-564; 44 NW2d 178 (1950)], and * * * [whether] partiality `quite possibly could have influenced the jury to the detriment of defendant's case', * * * People v Roby, 38 Mich. App. 387, 392; 196 NW2d 346 (1972). See also People v Young, * * * [364 Mich. 554, 559; 111 NW2d 870 (1961)]." (Emphasis in Smith, supra.)

In the case at bar, the judge's questions may well have implanted in the minds of the jurors doubts as to defendant's veracity. While the intonation in the judge's voice might well allay our concern were we able to hear the quoted colloquy as it took place, we nonetheless hold that a reversal and remand for new trial is the proper course. The judge's questioning does not appear to have been an attempt to clarify ambiguous testimony but rather a clear usurpation of the prosecutorial role. As such, we believe the questions might have jeopardized defendant's right to a fair trial.

That defense counsel raised no objection to the questions posed by the court does not alter the result. Smith, supra, at 269-270, People v Eglar, 19 Mich. App. 563; 173 NW2d 5 (1969). Understandably, counsel may be reluctant to criticize the judge's own behavior on the bench "thereby possible incurring the judge's displeasure". Id at 565.

Reversed and remanded for new trial.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.