People v. Cocuzza ( 1982 )

Per Curiam.

The issue before us in this case is whether a trial judge, who presided over prior incomplete guilty plea proceedings involving a defendant, must sua sponte disqualify himself from conducting that defendant’s bench trial. The Court of Appeals concluded that the trial judge erred in failing to so disqualify himself. We disagree and we reverse the judgment of the Court of Appeals.

I

The defendant was charged with breaking and entering a business establishment with intent to commit larceny contrary to MCL 750.110; MSA 28.305. On April 3, 1979, he appeared before Wayne Circuit Judge Thomas J. Brennan to plead guilty to the charge. Judge Brennan explained the defendant’s rights to him and elicited a factual basis for the charge. However,, the defendant changed his mind about pleading guilty and the plea was not accepted.

Thereafter the defendant filed a waiver of his right to trial by jury and a bench trial was conducted by Judge Brennan. No motion to disqualify Judge Brennan was filed at any time in the proceedings below. Judge Brennan found the defendant guilty but mentally ill of larceny in a building.¹ MCL 750.360; MSA 28.592, MCL 768.36; MSA 28.1059.

The defendant appealed to the Court of Appeals. The Court reversed the defendant’s conviction, Judge Kelly dissenting. 105 Mich App 761; 307 NW2d 414 (1981).

II

In reversing the defendant’s conviction, the Court of Appeals majority ruled:

"Considering the totality of circumstances surrounding the instant case, we are persuaded that there is merit to defendant’s contention that the trial court committed error requiring reversal by failing to disqualify itself as the trier of fact or, alternatively, by failing to inform the defendant of his right to have a different judge sit as the trier of fact, even though it appears that the defendant wouldn’t have known the difference.

"While we have found no Michigan cases directly on point, we find * * * the policy announced in People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971), and People v Frazier Walker, 385 Mich 596; 189 NW2d 41 (1971), to be applicable and controlling. In Ramsey, the trial court was deemed disqualified as trier of fact because it 'glanced’ at a preliminary examination transcript. In Walker, the trial court was deemed disqualified as trier of fact because it knew the defendant had failed a lie detector test. In both cases, the Court recognized that a defendant has the same right to be heard by an impartial trial judge when sitting as trier of fact as when a jury is impanelled to determine the facts. The same standards of impartiality must apply to both.

"In the instant case, the potential effects on the impartiality of the trial court having first elicited sufficient facts from the defendant to establish a factual basis for the defendant’s guilt are too great for this Court to ignore or discount. People v Gibson (On Remand), 90 Mich App 792; 282 NW2d 483 (1979), lv den 408 Mich 868 (1980), People v George, 69 Mich App 403; 245 NW2d 65 (1976), lv den 399 Mich 857 (1977).” 105 Mich App 761, 764-765.

Judge Kelly, in dissent, observed:

"The majority reverses on this issue, holding that the trial judge committed error requiring reversal by failing to disqualify himself sua sponte, from presiding over the bench trial after having heard an attempted guilty plea wherein defendant recited a sufficient factual basis. I would hold that this issue has not been preserved for appellate review. Failure to move to disqualify a trial judge in the trial court below precludes consideration of the issue on appeal in all but the most exceptional situations. People v Dixson, 403 Mich 106; 267 NW2d 423 (1978), People v Gibson (On Remand), 90 Mich App 792; 282 NW2d 483 (1979). It certainly cannot be said that in the case at bar the basis for disqualification urged on appeal was unknown to trial counsel. The fact is, trial counsel participated in both proceedings, and it is apparent that she did not raise the issue below because she wanted the particular trial judge to whom she had been assigned. There certainly is no claimed, actual bias or prejudice, and none is supported by the record. In fact, it is fairly common in trial practice for a plea proceeding to abort, and if such a proceeding would at all times require the disqualification by the judge, sua sponte, the consequences could be vastly more significant than contemplated for the rule of law offered here on the basis of this very meager factual setting.” 105 Mich App 761, 766-767.

Ill

We disagree with the conclusion of the Court of Appeals majority that the trial judge was obligated to either sua sponte disqualify himself or inform the defendant of his right to have a different judge sit as the trier of fact.

In reaching the conclusion which it did, the Court of Appeals relied upon our decisions in People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971), and in People v Frazier Walker, 385 Mich 596; 189 NW2d 41 (1971). In Ramsey we ruled that

"as an absolute rule it is reversible error for the trial court sitting without a jury to refer to the transcript of testimony taken at the preliminary examination except under the exceptions provided by statute. A jury, if impanelled, would not be aware of the testimony taken at a preliminary examination except under the provisions of the statute. A trial judge, sitting as the trier of the facts, can assume no greater prerogatives than a jury if a jury were impanelled to determine the facts.” 385 Mich 221, 225-226.

In Walker we affirmed a decision of the Court of Appeals that a trial judge who interrogated witnesses in conjunction with a motion for a continuance, when a jury trial was anticipated, should have disqualified herself, on her own motion, when jury trial was later waived and she was to sit as trier of fact.

Ramsey is distinguishable and we limit Walker to its facts. In Ramsey the matter which was subsequently urged as justifying disqualification (reading of the preliminary transcript) occurred after the decision was made to waive a jury trial. In the instant case, the ground which was urged as a basis for disqualification (presiding over an aborted guilty plea) took place before the jury trial waiver was made. If the complained-of activity of the trial judge occurs before a jury waiver is made, the failure of the defendant to move to disqualify obviously has much more weight.

In Walker the matter which gave rise to the complaint on appeal concerning disqualification did occur before the jury trial waiver was made. However, the record clearly revealed that the trial judge had developed a bias against the accused which did not comport with the obligation to conduct a fair and impartial trial.²

We perceive no evidence of bias on the part of the trial judge in the instant case. It is true that the trial judge had previously heard the defendant proffer a factual basis for the charge of which he was ultimately convicted. However, we decline to impose upon a trial judge the duty to sua sponte raise the question of his disqualification in such circumstances. With full knowledge of the trial judge’s prior involvement in this matter, defendant, who was represented by counsel, elected to proceed with a bench trial before that judge. We will not reward the failure to move for disqualification, with assertion of the basis reserved for appellate purposes, by sanctioning a reversal of the defendant’s conviction.

The defendant, in his appeal to the Court of Appeals, raised several other issues. In light of its disposition of the disqualification issue, the Court of Appeals majority did not reach those other issues. Consequently, on remand the Court of Appeals should address those issues.

Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and we remand the case to the Court of Appeals for consideration of the other issues raised by the defendant in his appeal.

Coleman, C.J., and Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.

1 The prosecutor’s motion to add a count of larceny in a building was granted by the trial judge.

2 For instance, the trial judge stated, at a hearing on a motion to adjourn:

" 'But I also didn’t realize, and maybe you [defense counsel] didn’t know before you stepped into the picture, that your client took a lie detector test. Did you know that? And he failed it.’ ” 24 Mich App 360, 361; 180 NW2d 193 (1970).