Appeal from Recorder's Court of Detroit, George W. Crockett, Jr., J.
Leave to appeal applied for.
M. F. Cavanagh, P. J., and R. B. Burns and F. C. Ziem,* JJ.
1. -- Trial -- New Trial -- Trial Judge -- Disqualification.
A trial Judge's expression of his belief in a defendant's guilt will not cause the trial Judge to be disqualified upon retrial of the defendant.
2. Trial -- Trial Judge -- Prejudice -- Bias -- Disqualification.
Any alleged prejudice or bias of a trial Judge must in fact be shown before it can be the basis for the disqualification of the trial Judge, and the fact that the trial court has previously ruled against the party seeking the disqualification cannot be alleged to show prejudice; where the statements made by a trial Judge and relied on by the people for his alleged prejudice or bias were all given during the course of legal proceedings in a case, either at sentencing or at hearings on the various motions, and there was no allegation that they were made in bad faith or based on anything other than the trial court's perception of the evidence presented by the people, the people have failed to show that the trial Judge was "personally biased or prejudiced for or against any party or attorney". (GCR 1963, 405.1).
3. -- Trial -- New Trial -- Trial Judge -- Order of Dismissal.
A Supreme Court decision upholding a trial Judge's order granting a new trial did not take away from the trial Judge the power to enter an order of dismissal for the defendants at the new trial, where the same Judge presided over both the old and the new trial and had entered the order for the new trial, following a jury verdict of guilty at the first trial, because he felt that some of the testimony presented by the prosecution at the first trial was not worthy of belief and where the prosecution has conceded that no new evidence will be forthcoming at the new trial.
The opinion of the court was delivered by: Ziem
Rayford Johnson and Cicero Love, Jr., were convicted of first-degree murder. Defendants' motion for a new trial was granted and the people appealed. The Court of Appeals reversed the trial court's grant of a new trial and reinstated the jury's verdict, 52 Mich App 385 (1974). The Supreme Court reversed the Court of Appeals and remanded to the trial court for a new trial, 391 Mich 834 (1974). The people's motion for disqualification of the trial Judge was denied and each defendant's motion for dismissal was granted. The people appeal.
This case has been in process for several years. It has previously been before this Court and the Supreme Court. It began with the killing of an off-duty police officer, Alonzo Marshall, during the course of a robbery on September 1, 1971.
These defendants were eventually arrested and tried for first-degree murder under a felony murder theory. MCLA 750.316; MSA 28.548. Defendant Johnson's first trial resulted in a hung jury and declaration of mistrial May 5, 1972, before Recorders Court Judge Evans. Subsequently, a prosecution motion to consolidate these cases for trial was granted on June 14, 1972.
At Johnson's second trial, Love's first, the jury returned a verdict of guilty of murder in the first degree. The verdict was returned on July 28, 1972, after 17 days of testimony and deliberation. ...