PEOPLE OF MI V GARY GOINES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 20, 2002
Plaintiff-Appellee,
v
No. 240475
Recorder’s Court
LC No. 90-001521
GARY GOINES,
Defendant-Appellant.
Before: Cooper, P.J., and Hoekstra and Markey, JJ.
COOPER, P.J. (concurring).
While I ultimately agree with the decision reached by my colleagues, I write separately
because I feel compelled to comment on the unusual turn of events that occurred in the middle of
defendant’s trial.
In the instant case, trial court Judge Ziolkowski ordered that defendant’s trial be severed
from his codefendant wife in the middle of the trial being held before trial court Judge Sapala.
The order indicates that Judge Ziolkowski severed the trial due to possible antagonistic defenses.
Apparently the transcript of the hearing before Judge Ziolkowski is missing and consequently we
may never know the thought process behind that decision. Judge Sapala continued and
completed both of the trials. He made different findings of fact for each codefendant. While he
convicted defendant, he acquitted defendant’s wife on the basis of duress, which is an
antagonistic defense.
A trial court has discretion to determine whether separate trials are required for
codefendants. People v Cadle (On Remand), 209 Mich App 467, 469; 531 NW2d 761 (1995). It
is important to note that “[w]hen a judge sits as the trier of fact, his verdict is presumed to be the
result of a correct application of the law to the evidence presented.” People v Beard, 171 Mich
App 538, 543-544; 431 NW2d 232 (1988). Because trial judges are reputedly able to focus on
the task of fact-finding, as opposed to improper considerations that a jury might find compelling,
it is generally assumed that error is less likely to require reversal in a bench trial. People v
Edwards, 171 Mich App 613, 619; 431 NW2d 83 (1988).
In the case at bar, it seems inappropriate that the trial court continued to make findings of
fact and conclusions of law while the codefendant’s case, which had previously been severed
from this case, was also pending before the trial court. Rather, prudence would seem to dictate
that a reasonable alternative would have been to permit one or both of the defendants to continue
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his or her trial before a different judge. See generally MCR 6.440(B); People v Hicks, 447 Mich
819, 840-841, 844; 528 NW2d 136 (1994).
While I find that Judge Sapala did an admirable job throughout the trial, there is an
appearance of impropriety. In fact, I find that the missing transcript is likely the result of the
twelve year delay in providing defendant his right to appeal which the federal court found
inexcusable. As a result, there is an unexplained severance in the middle of trial.
Reversal in this case would not be mandated given the overwhelming evidence of
defendant’s guilt. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). However,
were it not for Carines, supra, I would vote to reverse.
/s/ Jessica R. Cooper
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