State of Michigan v Lewis Clifton Henderson

Citation: 
State of Michigan v Lewis Clifton Henderson
Case Summary: 

State of Michigan v LEWIS CLIFTON HENDERSON

No. 299790

Michigan Court of Appeals

May 3, 2011, Decided

Subsequent case developments: Appeal dismissed by People v Henderson, 802 NW2d 606 (Mich, 2011) Subsequent appeal at, Decision reached on appeal by People v Henderson (Mich Ct App, Mar. 12, 2013)

Prior case history: Midland Circuit Court. LC No. 10-004389-FH.

Before: SAWYER, P.J., and WHITBECK and WILDER, JJ.

OPINION

     Per Curiam.

     Defendant appeals by leave granted from an order denying defendant's motion to disqualify the trial judge, which followed de novo review of the trial judge's denial of such a motion. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).

     Defendant is charged as a fourth habitual offender with operating a motor vehicle while under the influence of marijuana causing death, contrary to MCL 257.625(4)(a). While a Cobbs 1 agreement was being discussed in chambers, defense counsel understood the judge to say that defendant would be sentenced to ten years in prison under a Cobbs agreement but would be sentenced to 19 years in prison if he proceeded to trial. The judge took offense at counsel's accusation that such a statement had been made. Defense counsel claimed that the judge became enraged and screamed "screw you . . . get out . . . you'll get your trial . . . this hearing is over . . . get out."

     Defendant moved to disqualify the judge and set the motion for hearing for six days later, when other motions were scheduled to be heard. However, the judge scheduled the hearing for 4:30 p.m. on the following day. Defense counsel advised the court that he had other commitments, but the court proceeded with the hearing. The judge explained why he needed to decide the motion expeditiously because he was to hear other motions six days later, he was to preside over the trial that was to take place in approximately two weeks, and, if the motion were denied, it would be subject to review by a judge appointed by the State Court Administrative Office, which would take time. The judge noted that it had counsel's affidavit with the pertinent allegations, and therefore proceeded without oral argument. The judge acknowledged having made the statement, and expressed regret.

     The motion was denied, and on subsequent review by an appointed judge, it was again denied. The reviewing judge noted that it was an isolated remark, and concluded it did not establish actual bias or prejudice or the appearance of bias or prejudice.

     "When this Court reviews a decision on a motion to disqualify a judge, the trial court's findings of fact are reviewed for an abuse of discretion, while the application of the facts to the relevant law is reviewed de novo." People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999).

     MCR 2.003(C)(1)(b) provides:

     (1) Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:

     * * *

     (b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey,     US    ; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.

In Caperton, 129 S Ct at 2255, the Court stated that an appearance of impropriety exists if "the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." Canon 2B provides: A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person's race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. [Emphasis added].

     Defendant first argues that expediting the hearing reflected actual bias based on Caperton. We disagree. The judge gave a reasonable explanation for holding a hearing immediately. The decision to go forward with an expedited hearing under the circumstances did not create a perception that the judge's ability to carry out his responsibilities would in any way be impaired.

     Regarding the interplay between the court rule and Canon 2, the question is whether any breach of Canon 2, however slight, would "warrant" disqualification. The interpretation and application of a court rule is reviewed de novo. Pellegrino v Ampco Sys Parking, 486 Mich 330, 338; 785 NW2d 45 (2010). "When construing a court rule, we begin with its plain language; when that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation." People v Williams, 483 Mich 226, 232; 769 NW2d 605 (2009). However, "when reasonable minds can differ on the meaning of the language of the rule, then judicial construction is appropriate." Wilcoxon v Wayne Co Neighborhood Legal Servs, 252 Mich App 549, 553; 652 NW2d 851 (2002). Dictionary definitions can be consulted when necessary. People v Buie, 285 Mich App 401, 416; 775 NW2d 817 (2009).

     Resolution of this issue turns on whether "warranted" is defined as "authorized" or "required." Black's Law Dictionary (8th ed) defines warrant, in pertinent part, as follows: "4. To justify
." Similarly, The American Heritage Dictionary (2nd college ed) defines "warrant", in pertinent part, as follows: "2. Justification for an action; grounds." These definitions indicate that a breach of Canon 2 would justify or authorize disqualification. They do not indicate that a breach would require disqualification. Under the facts of this case, the reviewing judge properly held that disqualification was not warranted based on the fleeting breach of courtesy, followed by an acknowledgement of regret.

     Affirmed.

     /s/ David H. Sawyer

     /s/ Kurtis T. Wilder

DISSENT BY: William C. Whitbeck

DISSENT

     WHITBECK, J. (dissenting).

     The majority concludes that disqualification of the trial judge for yelling "screw you" at defense counsel is not warranted. The majority relies on a determination that the comment was a fleeting breach of courtesy that was followed by an acknowledgement of regret. I respectfully disagree. Rather, I believe that the trial judge's conduct was so inappropriate as to require disqualification. Accordingly, I would reverse.

I. FACTS

     Henderson was charged as a fourth habitual offender with operating a motor vehicle while under the influence of marijuana causing death. 1 At the request of defense counsel, on August 11, 2010, the trial judge held a Cobbs 2 hearing in his chambers. In a supporting affidavit filed with his motion for disqualification, defense counsel attested that, at this hearing, the trial judge initially made statements speculating that if Henderson had been sentenced to prison instead of felony probation, he would not have been driving and the victim would still be alive. Defense counsel further attested that the following exchange occurred:

     [The trial judge] then said to me that it would be a sentence of 10-years minimum or "he can have is [sic] trial and it's 19." I replied to the judge "so I'm clear and so when I explain to my client, it's 10-years if he pleads as charged and if he exercises his right to a trial you're going to punish him and it's 19." [The trial judge] immediately became enraged screaming at me "SCREW YOU . . . GET OUT . . . YOU'LL GET YOUR TRIAL . . . THIS HEARING [SIC] OVER . . . GET OUT."

     Defense counsel moved to disqualify the trial judge on Thursday, August 12, 2010, and noticed the motion hearing for Wednesday, August 18, 2010. However, the trial judge scheduled the hearing for 4:30 p.m. the following day, Friday, August 13, 2010. Defense counsel could not attend the hearing due to previous commitments and informed the trial judge accordingly. Following the trial judge's request, defense counsel submitted a letter via fax detailing his scheduling conflicts. Defense counsel attests that the trial judge received his faxed letter and acknowledged that counsel could not be in court at 4:30 p.m. Defense counsel attests that the trial court never informed his office that it would conduct the hearing regardless of his presence.

     The motion hearing did not actually start until 5:24 p.m. The trial judge explained that the motion needed to be decided expeditiously because several unrelated motions were pending on August 18, 2010, and trial on this matter was scheduled for August 30, 2010. The trial judge reasoned that when he denied the motion, a judge appointed by the State Court Administrative Office could review the decision, which could take an unknown amount of time.

     At the hearing, the trial judge noted that the court received counsel's affidavit, and that MCR 2.003(D)(2) mandated that all grounds on which the motion was based must be supported by an affidavit. He went on to state that under the court rule no additional assertions could be considered and that he would decide the motion without oral argument. Additionally, he believed that counsel's affidavit provided sufficient information to rule on the motion without the attorneys present.

     The trial judge went on to recap the history of the case and his version of what transpired in his chambers. The trial judge said he told counsel "that his client had a choice to make and that the minimum sentence, should the case proceed to trial, could be as high as 19 years." He denied saying that Henderson would get 19 years if he exercised his constitutional right to a trial. The trial judge stated that defense counsel then said in a disrespectful tone, "you're going to punish him for having a trial." The trial judge said he took great offense at the accusation that he was depriving Henderson the right to a fair trial. He then acknowledged that in the course of the exchange, he said, "Screw you, and get out of my office." The trial judge denied yelling, but expressed regret. Further, he acknowledged that the comment was unprofessional but saw it as proportional to the accusation of unethical conduct.

     On Thursday, August 19, 2010, the reviewing judge conducted a de novo review hearing of the trial judge's decision. This hearing was limited to the court record, specifically the transcript from the disqualification hearing. For purposes of the review hearing, the reviewing judge accepted all the allegations in defense counsel's affidavit as true, including the allegations concerning the trial judge's statements quoted above. The reviewing judge acknowledged that the trial judge "became enraged and screamed" the comments at defense counsel. The reviewing judge went on to find that the statement--"he can have his trial and it's 19" -- was ambiguous. The reviewing judge found that the record reflected that defense counsel tried to clarify the ambiguity by asking if Henderson would get 19 years if he went to trial. The reviewing judge also noted that the trial judge presumably screamed at defense counsel "because he was upset that the defense attorney had innocently or deliberately misconstrued what he was saying and cast what he was saying in a sinister light."

II. ANALYSIS

A. STANDARD OF REVIEW

     When reviewing a motion to disqualify, the Court "asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is 'likely' to be neutral, or whether there is an unconstitutional 'potential for bias.'" 3 A judge's own inquiry into actual bias "is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief." 4

B. LEGAL STANDARDS

     MCR 2.003(C) provides, in part:

     (C) Grounds.

     (1) Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:

     (a) The judge is biased or prejudiced for or against a party or attorney.

     (b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey,     US    ; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.

C. APPLYING THE STANDARDS

     Regarding bias, "[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is 'likely' to be neutral, or whether there is an unconstitutional 'potential for bias.'" 5 Following a trial judge screaming "Screw you" at counsel during a court proceeding, an objective and reasonable attorney would perceive that his client's right to due process was likely at serious risk of being infringed. 6 Accordingly, defense counsel had reason to believe that his client could not likely receive a fair trial. 7

     There was, in my opinion, a serious risk of actual bias implicating Henderson's due process rights in contravention of the Fifth and Fourteenth Amendment. The trial judge's conduct was therefore at odds with the MCR 2.003(C) and warranted his disqualification in this matter. I would reverse.

     /s/ William C. Whitbeck