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rejecting a claim of judicial misconduct where most of the allegedly improper comments occurred outside the presence of the jury
Summary of this case from People v. BowmanOpinion
Docket No. 43042.
Decided July 22, 1980. Leave to appeal denied, 409 Mich. 930.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
Henry Dillard, for defendant on appeal.
Defendant was convicted by a Detroit Recorder's Court jury of one count of obtaining money under false pretenses, MCL 750.218; MSA 28.415, and two counts of uttering and publishing, MCL 750.249; MSA 28.446. He was sentenced to four to ten years imprisonment on the false pretenses conviction and 4 to 14 years on each of the uttering and publishing convictions. From these convictions and sentences, defendant appeals as of right under GCR 1963, 806.1.
Defendant raises four allegations of error in this appeal, which we shall address seriatim. First, defendant contends that his uttering and publishing convictions were based upon an improper statutory provision. As stated, defendant was convicted under MCL 750.249; MSA 28.446, which provides:
"Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fourteen [14] years.
Defendant argues that, since the items allegedly uttered and published were City of Detroit payroll checks, instead of being charged under the aforementioned statute, he should have been charged under MCL 750.253; MSA 28.450, which provides:
"Any person who shall utter or pass, or tender in payment as true, any such false, altered, forged or counterfeit note, certificate or bill of credit for any debt of this state, or any of its political subdivisions or municipalities, any bank bill or promissory note, payable to the bearer thereof, or to the order of any person, issued as aforesaid, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment of not more than five [5] years or by fine of not more than two thousand five hundred [2,500] dollars."
We agree. In People v Hall, 391 Mich. 175; 215 N.W.2d 166 (1974), the Supreme Court considered the same statutory provisions in controversy herein. In that case, the Court noted that § 249 was a general statutory provision prohibiting the forgery and uttering and publishing of most types of written instruments and of all negotiable instruments, while the proscription of § 250 was limited to instruments issued by the state or any of its political subdivisions or municipalities. The Court then reasoned that the specific reference in § 253 to instruments issued by the state or its political subdivisions had the effect of removing the alteration of an instrument issued by the state or its subdivisions from the general coverage of § 249, and held that the conviction under that section was invalid. See Hall, supra, 189-190. Additionally, the Court stated at 190:
"It is not possible under these statutes, properly construed, for the Prosecutor to pick and choose under which statute he will prosecute. The items set forth in § 250, et seq. are indictable solely under those sections, and not under §§ 248 and 249."
The instant defendant was charged with uttering and publishing state issued instruments; namely payroll checks issued by the City of Detroit. This precluded any prosecutorial discretion in the matter. The defendant could be properly prosecuted only under MCL 750.253; MSA 28.540. Plaintiff's counter argument suggests that, as per Hall, § 250 et seq. should be interpreted to encompass only nonnegotiable instruments. This view finds no support in post Hall decisions however. See People v Richard Ford, 95 Mich. App. 412; 291 N.W.2d 60 (1980), People v Beckner, 92 Mich. App. 166; 285 N.W.2d 52 (1979), and People v Shears, 84 Mich. App. 175; 269 N.W.2d 519 (1978). Accordingly, we vacate defendant's uttering and publishing convictions and the sentences imposed thereon.
Next, defendant challenges the sufficiency of the evidence proffered in support of his convictions. With respect to defendant's "obtaining money under false pretenses" conviction, we have reviewed the evidence adduced and found that it was sufficient to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. People v Hampton, 407 Mich. 354, 366; 285 N.W.2d 284 (1979).
Next, defendant contends that several errors occurred in the jury instructions. However, we note that defendant neither objected nor requested a curative instruction regarding these alleged instructional errors. Therefore, any error remains preserved for appeal only if it resulted in manifest injustice. MCL 769.26; MSA 28.1096, People v Duncan, 402 Mich. 1, 15-16; 260 N.W.2d 58 (1977), People v Clemons, 91 Mich. App. 68, 73; 282 N.W.2d 838 (1979). We do not find this standard met in the case at bar.
Finally, defendant argues that the trial judge engaged in improper questioning and prejudicial commentary while in the jury's presence. A trial judge has wide discretion in the conduct of a trial and may properly participate in the questioning of a witness. The judge may not, by doing so, prejudice the rights of the defendant. One proper role of questioning by the trial judge is to clarify points and to elicit additional relevant information. People v Hanna, 85 Mich. App. 516, 520; 271 N.W.2d 299 (1978). Where a case is being tried before a jury, however, the judge must be especially careful that his questions or comments do not indicate partiality. An observation of the Michigan Supreme Court in People v King, 384 Mich. 310, 315; 181 N.W.2d 916 (1970), becomes apt:
"While the weight of a trial judge's word may not equal the ton ascribed to the word of the President of the United States, he should remember how heavily it weighs with the jury."
See also People v London, 40 Mich. App. 124, 128; 198 N.W.2d 723 (1972).
In People v Smith, 64 Mich. App. 263, 267; 235 N.W.2d 754 (1975), this Court noted:
"Appellate courts in this jurisdiction have carefully scrutinized substantial claims of judicial partiality and have not required a specific showing of prejudice where such partiality is demonstrated. A new trial has been ordered where a judge's questions and comments `may well have unjustifiably aroused suspicion in the mind of the jury' as to a witness' credibility, (emphasis supplied), Simpson v Burton, [ 328 Mich. 557, 563-564; 44 N.W.2d 178 (1950)] and where partiality `quite possibly could have influenced the jury to the detriment of defendant's case', (emphasis supplied), People v Roby, 38 Mich. App. 387, 392; 196 N.W.2d 346 (1972)."
Our review of the specific instances of judicial misconduct alleged by the defendant reveals that such occurred, for the most part, outside the presence of the jury. Moreover, the incident that occurred in front of the jury was a relatively brief one, provoked by defendant's statements and his adamancy in refusing to answer questions on cross-examination. We do not find that this incident was sufficiently prejudicial so as to deny the defendant a fair trial under the standard set forth in Smith, supra.
In view of the foregoing, we affirm defendant's "obtaining money under false pretenses" conviction but set aside his uttering and publishing convictions because of his prosecution under an improper statute.