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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBERT L. FRIESS, Defendant-Appellant.

UNPUBLISHED January 8, 1999

No. 204708 Recorder's Court LC No. 96-007435

Before: Holbrook, Jr., P.J., and O'Connell and Whitbeck, JJ. PER CURIAM. A jury convicted defendant of two counts of manslaughter with a motor vehicle, MCL 750.321; MSA 28.553. The trial court sentenced defendant to ten to fifteen years' imprisonment on each count. Thereafter, the trial court enhanced defendant's sentence to twenty to forty years' imprisonment as a fourth habitual offender pursuant to MCL 769.12; MSA 28.1084. Defendant appeals as of right on multiple grounds. We affirm. I. Basic Facts Defendant and a female companion were occupants of a Mercury Marquis registered in defendant's name. Two police officers witnessed what appeared to be a drug transaction transpiring between the occupants of the Mercury and a pedestrian. When the police approached the Mercury, the driver attempted to flee. A highspeed pursuit ensued, that culminated in the Mercury entering an intersection against a red light. As a result, the Mercury struck another vehicle. The crash killed the occupant of that vehicle, as well as defendant's female companion. Defendant was also injured in the accident. Defendant contended at trial that he was not driving the vehicle at the time of the accident. II. Standards Of Review A. Suppression Of Defendant's Inculpatory Statements Whether a defendant's statements were knowing, intelligent and voluntary is a question of law for the court which must be determined under the totality of the circumstances. People v Cheatham,

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453 Mich 1, 27; 551 NW2d 355 (1996). An appellate court must give deference to the trial court's findings in a suppression hearing. Id. at 29. Although we review the entire record do novo, we will not disturb a trial court's factual findings regarding a knowing and intelligent waiver of Miranda rights unless we find that ruling to be clearly erroneous. Id. We will find a lower court's ruling to be clearly erroneous only where we are left with a definite and firm conviction that a mistake had been made. People v O'Neal, 167 Mich App 274, 279; 421 NW2d 662 (1988). B. Judicial Impartiality We review issues of law de novo. People v White, 212 Mich App 298, 304-305; 536 NW2d 876 (1995). A trial court's conduct pierces the veil of judicial impartiality where its conduct or comments unduly influence the jury and thereby deny a defendant a fair and impartial trial. People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995). C. Jury Instructions We consider jury instructions as a whole rather than piecemeal to establish error. People v Bell, 209 Mich App 273, 276; 530 NW2d 167 (1995). The trial court must charge the jury concerning the law applicable to the case. People v Moldenhauer, 210 Mich App 158, 159; 533 NW2d 9 (1995). "Even if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and sufficiently protected the defendant's rights." Bell, supra at 276. D. Expert Witness Qualification The qualifications of a witness as an expert, and the admissibility of his testimony, are in the trial court's discretion, and we will not reverse on appeal absent an abuse of that discretion. People v Smith, 425 Mich 98, 106; 387 NW2d 814 (1986). E. Sentencing In reviewing sentences imposed for habitual offenders, this Court must determine whether there has been an abuse of discretion. People v Hansford, 454 Mich 320, 323-324; 562 NW2d 460 (1997). When an habitual offender's underlying felony and history of prior felonies demonstrate that the offender is unable to conform with the law, a sentence within the statutory limits is not an abuse of discretion. Id. at 326. III. Suppression Of Defendant's Inculpatory Statements Defendant argues that two inculpatory statements that he gave while hospitalized were not voluntarily made because he was physically and mentally incapable of giving a voluntary statement due to the injuries he received in the accident. Defendant contends that the trial court erred in denying his motion to suppress. We disagree. The prosecution may not use custodial statements as substantive evidence unless it demonstrates that, prior to any questioning, the police warned the accused that he had the right to remain silent, that

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his statements could be used against him and that he had the right to retained or appointed counsel. See Cheatham, supra at 11-12. The police may make an advice of rights orally or in written form. People v Brannon, 194 Mich App 121, 130-131; 486 NW2d 83 (1992). In this case, the police took three statements, two of them inculpatory, from defendant while he was hospitalized. The police officers taking the statements testified that, prior to any interrogation, they read to defendant his rights. One officer actually held the form in front of defendant so that he could read the rights to himself. Then, defendant indicated that he understood his rights and wished to make a statement. Defendant could not sign any of the forms because intravenous lines were attached to his arm. The trial court did not err when it found that defendant was sufficiently advised of his rights. However, compliance with Miranda1 does not complete the inquiry; it only establishes the "knowing and intelligent" aspect of the waiver. It is also necessary to establish that the statement was given voluntarily. People v Godboldo, 158 Mich App 603, 605-606; 405 NW2d 114 (1986). In People v DeLisle, 183 Mich App 713, 719; 455 NW2d 401 (1990), this Court set forth some of the factors to be considered when determining whether a statement is voluntarily made: [T]he circumstances which must be considered include, but are not limited to, the length and conditions of the detention, the physical and mental state of the defendant, the age, mentality, and prior criminal experience of the defendant, the nature of any inducement offered, the conduct of the police, and the adequacy and frequency of the advice of rights. The burden is on the prosecution to prove voluntariness by a preponderance of the evidence. Id. After reviewing the record, we find that the prosecutor proved by a preponderance of the evidence that defendant's statements were voluntarily made. Prior to questioning defendant, the police officer who took defendant's first statement asked the attending nurses for permission to speak with defendant; when he received this permission, he began the questioning. The police officers testified that defendant, while in some pain, was still lucid. Defendant's answers were coherent and responsive to the police officers' questions. One of defendant's attending nurses testified at the suppression hearing that defendant was coherent and u nderstood what was occurring. She also testified that, at the time the second statement was taken, that the interrogation was brief and that the police officer's questions immediately ceased when defendant indicated that he was tired. Lastly, the nurse testified that she would not have given permission for the police officers to question defendant if he showed any signs of being incoherent or confused. Based upon the foregoing record, we conclude that the trial court's finding that defendant's statements were knowingly, intelligently and voluntarily made was not clearly erroneous. IV. Judicial Impartiality A. Introduction

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Defendant argues that the trial court made several remarks during trial and took certain actions that demonstrated that it had abandoned the mantle of impartiality and was biased against defendant. After reviewing the record we find no merit to this argument. Moreover, because defendant failed to object at the trial court level on the grounds asserted on appeal, his claims of judicial bias have not been preserved for our review. Meagher v Wayne State University, 222 Mich App 700, 726; 565 NW2d 401 (1997); People v Ensign (On Reh), 112 Mich App 286, 290; 315 NW2d 570 (1982). B. Motion To Suppress. First, defendant argues that the trial court's reference during the Walker2 hearing to a book that allegedly calls for repudiation of the rule formulated by the Supreme Court in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), was evidence of the trial court's bias against defendant and requires that defendant's conviction be reversed. We disagree. Defendant has not preserved this issue for review, as he did not object at the time of the Walker hearing. Nor would manifest injustice result from our failure to review this issue. Regardless of the trial court's reference to a book that apparently criticized the underpinnings of Miranda, it is evident that the trial court applied the proper test when ruling upon the motion to suppress. A trial judge need not personally agree with binding precedent so long as the judge properly applies that precedent. The trial court looked to whether defendant's statements were knowingly, intelligently and voluntarily made. Because the record does not show actual bias or prejudice, no manifest injustice will result by this Court's refusal to review this unpreserved claim of error. C. Possible Sentence At the conclusion of the Walker hearing, the trial court asked whether the case could be resolved short of a trial. The trial court i ndicated that the consequences of going to trial were grave, given the fact that a notice of habitual offender-fourth had been filed. The trial court then informed defendant that it gave sentence concessions for bench trials and pleas in order to move the docket. The trial court, however, indicated that the concessions were diminished if the pleas or bench trial occurred on the morning set for the jury trial. The trial court then encouraged the prosecution to communicate any available offer to defendant quickly. On the first day of trial, the trial court told defendant, in the interest of adequately informing him of any offers, that there was an outstanding offer of a guilty plea with a ten to fifteen year sentence, in exchange for the dismissal of the habitual offender notice. The trial court reminded defendant that if he were found guilty at trial, he faced the possibility of life imprisonment under the habitual offender statute. Defendant then indicated that he wished to proceed with a jury trial. Defendant contends that the trial court's remarks at trial3 were intended "to send a clear message that if he chose to continue to assert his constitutional right to trial by jury he was going to pay a penalty." We find that the trial court's remarks did not evidence prejudice or bias and that the trial court did not place undue pressure on defendant to enter a plea.

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Once again, defendant's claim of judicial misconduct has not been preserved, as no objection was placed on the record at either the Walker hearing or the first day of trial. Nor is there a risk that manifest injustice will result if the Court refuses to consider the issue. The trial court simply gave defendant a final opportunity to consider his decision. The language employed by the trial court was not coercive. In addition, the suggestion of a sentence concession at the Walker hearing is not unduly coercive because there is no indication that if defendant opted for a jury trial he would have faced retaliatory sentencing. People v Godbold, 230 Mich App 508; ___ NW2d ___ (1998). Finally, and perhaps most telling, defendant obviously did not feel unduly pressured, as he did not enter a plea nor did he waive his right to a jury trial. We find no error. D. Questioning Of The Assistant Medical Examiner And Defense Expert Defendant contends that the trial court's questioning of the assistant medical examiner and defendant's expert in biomechanics demonstrated that the trial court had dropped the mantle of impartiality. Defendant then reasons that the jury was unduly influenced. Defendant did not preserve this issue for review, as no objection to the questioning was placed on the record. MRE 614 requires a party objecting to the court's interrogation of a witness to place an objection on the record at the time of the questioning or at the next available opportunity when the jury is not present. Defendant did not comply with MRE 614. In any event, we disagree with defendant's argument. After both parties examined and cross-examined Dr. Schmidt, the trial court questioned the witness as follows: The Court: Come on up here. And while they are doing that, just so that the jury understands I think what you're saying, you're saying I take it that within the realm of having a medically certain, that is, reasonably certain opinion, it is possible to examine injuries on live or dead bodies and draw an inference from the location of injuries in some cases that someone was the driver of a vehicle involved in an accident? The Witness: That's correct. The Court: Yeah, okay. What you're saying I take it is even though you did an autopsy on both Norman Cope and Debra Ann Berlin, at least with respect to Debra Ann Berlin you cannot come to any opinion as to whether she was the driver or not but there was one injury to the sternum that could have been caused by something like a steering column? The Witness: That's correct. The Court: Okay. But you're not -- but you're saying you simply don't have -- you don't have enough there to draw an inference she was the driver? The Witness: There were too many injuries to ascertain whether or not she was the driver.

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The Court: So you're telling me you don't have any opinion as to whether or not she was the driver because of the state of the body? The Witness: That's right. With respect to Begeman, defendant's expert, the following exchange, which occurred during the prosecution's cross-examination, is at issue: Q. You don't have an opinion as to who the driver was?

Mr. Wilson: Well I think he is saying he has an opinion but his opinion is that he could not determine who the driver was. That's his opinion. The Court: I know. I know what you're saying but that's being a little overly semantic. I don't think Mr. Heimbuch was trying to mislead the witness and I suspect the witness couldn't be mislead in any event. Your opinion is you can't determine from what you examined who the driver was? The Witness: That's correct. A trial court may interrogate a witness whether called by itself or by a party. MRE 614(b). The principal limitation on a court's discretion over matters of trial conduct is that it not pierce the veil of judicial impartiality. People v Davis, 216 Mich App 47, 50; 549 NW2d 1 (1996). If the trial court poses its questioning in a neutral manner and the trial court's comments and questions neither add to nor distort the evidence, the trial court has not engaged in misconduct. Id. We find that the questioning did not indicate judicial partiality so that the jury would be unduly influenced. In a few questions, the trial court helped to summarize the opinions of both experts succinctly. With respect to Schmidt, the trial court managed to highlight the prosecution's point, that the witness couldn't tell whether the other occupant of the car was the driver, and defendant's point, that the occupant's fractured sternum could have been caused by the steering wheel. With respect to Begeman, defendant had placed an objection on the record that the prosecutor was, essentially, mischaracterizing the expert's opinion. The trial court's question was directly responsive to defense counsel's objection, and the expert's answer illustrated the point that defendant was attempting to make. On the whole, the questioning was fairly balanced and summarized the opinions. Therefore, the trial court's questioning did not deprive defendant of a fair trial. E. Directions To Defense Counsel During defendant's cross-examination of a police officer witness, defense counsel attempted to extract from the witness the fact that in his report he did not indicate that the driver was male, but that he was testifying in this manner at trial. The trial court told defense counsel that he was being repetitive, that he had "made the point about 10 times" and "let's get on with it." Defense counsel explained to the trial court that his questioning was necessary because it was a crucial point. The trial court

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acknowledged this and said, "but once the point has been made let's get on where [sic] we can make that point all day long." Although defense counsel took issue with the trial court's comments, at no time did he suggest that the trial court was partial, which is the issue being raised on appeal. Thus, this issue was not preserved. Nor would manifest injustice result if we declined to consider defendant's claim. In any event, however, we find that the trial court engaged in no misconduct. When the trial court told defense counsel to move on, it was after counsel had asked the same question five times. The trial court was attempting to keep control of the proceedings and keep the trial moving. MCL 768.29; MSA 28.1052. The trial court did not denigrate defense counsel or make disparaging remarks. In fact, the trial court highlighted the fact that defense counsel had successfully made the precise point he was attempting to make. We find no error. F. Comments During Testimony On direct examination, police officer James Robbins testified that defendant had bruising that would "possibly be caused by a steering wheel." He was then asked if he was telling the jury for sure whether defendant was driving the Mercury, to which Robbins responded, "[n]ot for sure." On redirect examination, Robbins was asked if he had an opinion as to whether defendant could have been the driver. At that point, defense counsel asked, "has he been declared to be an expert?" The trial court responded that it was going to allow a "lay opinion" from the witness. Defense counsel once again, objected. At that point, the trial court asked a series of questions eliciting Robbins' qualifications to testify. The trial court then ruled that it would take Robbins' opinion. The prosecution then asked the witness if, in his opinion, defendant could have been the driver, to which Robbins replied, "yes." This exchange followed: The Court: So what was there to object to? Mr. Wilson: Hey, people give their opinion all day, you know. The Court: If all you can ask is whether it's a possibility then we don't need to have him as an expert. Q. (By Mr. Heimbuch, continuing): Well you have already testified you don't know whether Mr. Friess was the driver right? A. Q. Yes, sir. Okay.

The Court: No, listen. I went through the trouble of getting him qualified as an expert. Here is the question for you: Can you say with a reasonable degree of certitude based simply on the injuries you see in that photograph that those injuries were caused to Mr. Friess because he was the driver of the vehicle in question?

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The Witness: I can say that, yes sir. The Court: Okay. Now your objection is reinstated, Mr. Wilson. Mr. Wilson: I don't know why people go to medical school. As a preliminary matter, we note that defense counsel did not place an objection on the record that the trial court was engaging in judicial misconduct. Instead, defense counsel objected on the ground that the witness was not qualified to testify. Therefore, the issue was not preserved. However, we review the issue to determine whether manifest injustice occurred. We find that in the foregoing exchange the trial court did not abandon the mantle of impartiality so that defendant was denied a fair and impartial trial. In Davis, supra at 49-50, this Court, citing with approval to the opinion in United States v Dandy, 998 F2d 1344, 1354 (CA 6, 1993), set forth the situations when a trial court has good reason to interject itself into the trial: (1) when the trial is lengthy and complex, (2) when attorneys are unprepared or obstreperous or if the facts become confused and neither side is able to resolve the confusion, and (3) when a witness is difficult or is not credible and the attorney fails to adequately probe the witness, or if a witness becomes confused. Id. In addition, we note that there might be situations in which attorneys for both sides avoid asking a witness a material question on the (traditional in some quarters) ground that counsel never asks a question without first knowing the answer. In these and other appropriate instances, the court may have good reason to question a witness in order to enhance the role of the criminal trial as a search for substantive truth. [Emphasis added.] Here, the trial court's conduct fell within the later category of cases highlighted in the above quote. The prosecution attempted to qualify the witness. It then asked several questions regarding injuries that were typical to the driver of a car. It asked if those same type of injuries were seen in defendant, to which the witness replied in the affirmative. The question the trial court asked of Robbins was the question that the prosecution appeared to be leading up to, and it would have been the logical next step, but the prosecution never actually asked it. The trial court did so, by asking a few more foundational questions, and then asking the ultimate question. We find that the trial court had a "good reason to question a witness in order to enhance the role of the criminal trial as a search for substantive truth." Id. G. Comments During Cross-Examination Police officer Clarkson took the first statement from defendant at approximately 3:00 a.m. on August 17, 1996. Defense counsel spent, relatively speaking, a considerable amount of time addressing whether defendant was given and waived his Miranda rights. At the conclusion of the testimony, the trial court instructed the jury: So the jury understands what your role is with respect to this, once again I don't know what the lawyers are doing here in terms of their arguing. No I don't. I don't know why -8

they are asking a lot of questions that they are asking but I want to tell you what your function is. I don't care whether he was ever advised of his Miranda Rights. I don't care anything about that and nor do you. That's my job outside this trial to determine admissibility of evidence, okay. Now I've determined that this evidence is admissible before you and can be considered by you in arriving at your verdict. Now what does that mean? That doesn't mean I am telling you that you believe everything. Do you understand what I'm saying? Here is what I'm telling you. Your job with respect

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