Michigan Court of AppealsJun 2, 1980
97 Mich. App. 660 (Mich. Ct. App. 1980)
97 Mich. App. 660296 N.W.2d 135

Docket No. 78-930.

Decided June 2, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Robert E. Edick, Assistant Prosecuting Attorney, for the people.

Maxwell Sniderman (Howard Hertz, of counsel), for defendant.

Before: N.J. KAUFMAN, P.J., and D.E. HOLBROOK, JR. and R.M. MAHER, JJ.

Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549, armed robbery, MCL 750.529; MSA 28.797, and assault with intent to kill and murder, MCL 750.83; MSA 28.278. Thereafter sentenced to concurrent prison terms of 25 to 40 years, life imprisonment, and 20 to 40 years, respectively, he appeals as of right.

Defendant and two friends went to a notorious "dope den". Defendant entered the apartment alone with the intention of getting the occupant's gun. After obtaining the gun, defendant opened the apartment door. His friends came in and there was shooting. Two men from the apartment were wounded and one was killed.

At trial defendant's two friends obtained pleas to lesser charges in return for their testimony. There were conflicting stories as to whether defendant or his friends did the shooting.

Defendant claims that the trial court questioned him at length in such a way as to discredit his testimony in the jury's minds. We agree. Where there is a jury, the judge should avoid any invasion of the prosecutor's role and exercise caution so that his questions will not be intimidating, argumentative, prejudicial, unfair or partial. People v Cole, 349 Mich. 175, 199; 84 N.W.2d 711 (1957).

The judge pursued an intimidating and argumentative line of questioning. By injecting into the trial his skepticism of defendant's testimony, he exceeded the bounds of impartiality. For example, he challenged defendant's testimony concerning defendant's tricking the decedent out of his gun:

"THE COURT: Did you think that you could have gotten Mr. Jackson's weapon from him voluntarily?

"THE WITNESS: Voluntarily?



"THE COURT: You said you went there to borrow the weapon, right?

"THE WITNESS: Oh, yes, sir.

"THE COURT: Did you realistically think that he would loan you his weapon?

"THE WITNESS: Yes, sir.

"THE COURT: And was he running a dope pad?


"THE COURT: How long have you been familiar with dope pads?

"THE WITNESS: Oh, since I was 16.

"THE COURT: How old are you now?


"THE COURT: You realistically thought Mr. Jackson would loan you his weapon which he was using to protect his dope pad?

"THE WITNESS: Yes, sir."

Such judicial questioning did not serve the purpose of producing fuller testimony or of clarifying points as sanctioned under Simpson v Burton, 328 Mich. 557, 564; 44 N.W.2d 178 (1950).

Defendant testified that one of the accomplices, Melvin Daniels, gave him a gun prior to entering the apartment. He stated that he went into the apartment for the sole purpose of borrowing decedent's gun and that he had no prior knowledge of the events which took place. He also said that he did not participate in the robberies or shootings. He obtained decedent's gun and was leaving the apartment when he was surprised by Daniels and McKinney, the other accomplice. The trial judge questioned defendant regarding the alleged surprise:

"THE COURT: Mr. Jackson, how tall were you on January 3, 1977?

"THE WITNESS: I am about five ten, five eleven.

"THE COURT: And how much did you weigh then?

"THE WITNESS: Same as I do now.

"THE COURT: What is that?

"THE WITNESS: 180. I am sure.

"THE COURT: Is Mr. Daniels as tall or as heavy as you?

"THE WITNESS: He is not as tall, but about as heavy as me.

"THE COURT: Is Mr. McKinney as tall or heavy as you?

"THE WITNESS: I am not sure. I don't know Mr. McKinney.

"THE COURT: You don't know him?

"THE WITNESS: The first I seen him was the day this happened.

"THE COURT: You saw him the other day, didn't you?

"THE WITNESS: Yes, sir.

"THE COURT: And at the time you became frightened, either Mr. Daniels or Mr. McKinney or both, and you had two weapons, one of which was loaded?

"THE WITNESS: Yes, sir.

"THE COURT: You were armed and bigger than either of those individuals, is that right?

"THE WITNESS: I was armed and taller, but I would like to express myself.

"THE COURT: Feel free to.

"THE WITNESS: Okay. I have never been in places — placed in a position like that before, and opening the door and seeing them and the expression on their face was something that I can't describe.

"THE COURT: Anything further, counsel?

"MR. HOGG: I have some further questions based on the Court's examination."

Such an interrogation indicates skepticism or incredulousness on the part of the judge. It could have influenced the jury to the detriment of defendant's case. People v Roby, 38 Mich. App. 387, 392; 196 N.W.2d 346 (1972). Defendant's version of the facts, that he was frightened and surprised, was impeached by the trial court's suggestion that defendant had a physical advantage over both Daniels and McKinney.

A prosecution witness testified to seeing two men run to a car. He then heard more gun shots from within the building and saw a third man in a blue parka run from the building and enter the car. Defendant testified that he was one of the first two men to enter the car. The trial court questioned defendant:

"THE COURT: Were you wearing a blue parka similar to the one that is on evidence here?

"THE WITNESS: That's correct.

"THE COURT: Were you the last person to get in the car?

"THE WITNESS: No, sir.

"THE COURT: Did you hear that young man testify and say he was on his porch and he heard shots?

"THE WITNESS: Yes, sir.

"THE COURT: That he saw two people come out with one wearing a tan coat or a beige coat and another one who he couldn't describe, and they went and got straight into the car?

"THE WITNESS: Yes, I remember.

"THE COURT: And then after hearing the shots he saw somebody come out who hesitated, looked around and then got into the car?

"THE WITNESS: That's what he said.

"THE COURT: Did you know him?


"THE COURT: Have you ever seen him before in your life?

"THE WITNESS: In the neighborhood.

"THE COURT: Had you ever done anything to him?


The trial court improperly assumed a prosecutorial role. The above colloquy rejected defendant's credibility and implied judicial support of the prosecution witness's testimony. Such partiality quite possibly could have influenced the jury to the detriment of defendant's case. People v Roby, supra.

In order to escape prejudicial error under People v Piscunere, 26 Mich. App. 52; 181 N.W.2d 782 (1970), the questioning and comments by the trial judge must be limited in scope, material to the issue, and must not communicate to the jury any opinion that the trial judge may have regarding these matters. We have no other recourse but to find that defendant was denied a fair and impartial trial despite the evidence presented. People v Smith, 363 Mich. 157; 108 N.W.2d 751 (1961).

Defendant also contends that the trial judge committed reversible error in failing to give a cautionary instruction regarding accomplice testimony. No such instruction was requested, but it has been held in People v McCoy, 392 Mich. 231, 240; 220 N.W.2d 456 (1974), that it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge when the issue is "closely drawn". We find that the issue of guilt or innocence was closely drawn in the instant case. Since there were no eyewitnesses to the actual shooting, the question came down to whom to believe, the defendant or the accomplices. Moreover, the trial judge, through his questioning of defendant, cast a cloud of judicial skepticism over defendant's testimony. Under these circumstances, the trial court should have sua sponte given the jury a cautionary instruction as to the weight and credibility which should be accorded to the testimony of the accomplices, particularly here where one of the accomplices, McKinney, admitted that he would like to help either himself or his friend, Daniels, the other accomplice. A cautionary instruction as to accomplice testimony would have acted as a safeguard for the defendant:

"`Testimony of an accomplice has been held to be fraught with weakness due to the effect of fear, threats, hostility, motives, or hope of leniency. The consideration of the infirmities of this kind of testimony goes to the credibility of the evidence, and the law requires that such testimony be closely scrutinized and accepted with caution. * * * It has been said that a skeptical approach to accomplice testimony is a mark of the fair administration of justice.'" People v Love, 43 Mich. App. 608, 611; 204 N.W.2d 714 (1972).

Defendant also contends that the trial court never clearly told the jury that it could find defendant not guilty of second-degree murder. At the close of his final charge to the jury, the judge summarized the possible verdicts as to Count I, the first-degree felony murder count, as follows:

"Your possible verdicts are as to Count I, not guilty or guilty of murder in the first degree or guilty of murder in the second degree."

While we wish that the trial judge had been clearer in his instruction, we find that the above ambiguity is resolved when the final charge is read as a whole. The jury was also instructed that, "If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder in the first degree or guilty of the lesser offense of murder in the second degree." This instruction indicated to the jury that they were to decide first whether defendant was guilty of murder; if they so found, then it was necessary to decide what degree. Moreover, general instructions as to the burden of proof and reasonable doubt underscored the option of a not guilty verdict. We do hope, however, that the trial court will be more clear in the future.

As to defendant's remaining allegations of error, we find them to be without merit.

Reversed and remanded.