PEOPLE OF MI V KENTAL JUDAN MOSS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 17, 2008
Plaintiff-Appellee,
v
No. 278535
Wayne Circuit Court
LC No. 07-004496-01
KENTAL JUDAN MOSS,
Defendant-Appellant.
Before: Saad, P.J., and Fort Hood and Borrello, JJ.
PER CURIAM.
Defendant was convicted at a bench trial of two counts of armed robbery, MCL 750.529,
but was acquitted of carjacking, MCL 750.529a. Defendant was sentenced to concurrent prison
terms of 51 months to 16 years. Defendant appeals as of right. We affirm. This case has been
decided without oral argument under MCR 7.214(E).
Defendant first argues the trial judge denied him a fair trial and due process “by not
observing the presumption of innocence.” While this issue is somewhat awkwardly phrased by
defendant, it can only reasonably be considered as amounting to a claim of error requiring
reversal based on inappropriate remarks by the trial judge that evinced improper bias against
defendant and for the prosecution. Because this issue is unpreserved, review is for plain error
that affected defendant’s substantial rights. People v McCuller, 479 Mich 672, 681; 739 NW2d
563 (2007). Further, because this case involves a bench trial, “concern over the effect of the
judge’s comments and conduct did not exist,” but a trial judge’s comments and conduct during a
bench trial “can indicate a possible bias.” In re Forfeiture of $1,159,420, 194 Mich App 134,
153; 486 NW2d 326 (1992). However, there is “a heavy presumption of judicial impartiality.”
People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999).
Defendant asserts that remarks by the trial judge during defense counsel’s opening
statement indicated a “dubious attitude.” While the trial judge’s references to Howard Woodard
“just” being with defendant the next day and to this being a “case of coincidence” in the course
of defense counsel’s opening statement might raise concern as to whether he was prematurely
discounting the defense theory, it is not plain that this is the import of those remarks. Rather, it
is reasonably conceivable that the trial judge wanted to be sure for purposes of his role as the
fact-finder at the bench trial that he accurately understood the defense theory as to where
defendant was at the relevant times and why he was there. Further, even if the trial court’s
remarks are taken as reflecting skepticism about the defense theory, “[w]here a judge forms
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opinions during the course of the trial process on the basis of facts introduced or events that
occur during the proceedings, such opinions do not constitute bias or partiality unless there is a
deep-seated favoritism or antagonism such that the exercise of fair judgment is impossible.”
Wells, supra at 391. It is not plain that any initial skepticism the trial judge had about the
defense theory was so great that he was tainted by a deep-seated favoritism or antagonism that
rendered fair judgment impossible, particularly in light of the fact he ultimately acquitted
defendant of the carjacking charge.
Defendant next asserts his trial testimony was continually interrupted by questions from
the trial judge “which contain the mocking tone of cross-examination.” Defendant’s first
example occurred after he testified, “I don’t really drive because, you know what I’m saying, I
ain’t got no license,” the trial court asked him, “Don’t really drive means that sometimes you
do?,” to which defendant replied, “Because I used to.” A trial court may question a witness to
clarify testimony. People v Weathersby, 204 Mich App 98, 109; 514 NW2d 493 (1994).
Defendant’s testimony that he did not “really drive” was vague because it could reasonably be
taken either as he did not drive at all or as meaning that he did not commonly drive.
Accordingly, it was not plainly inappropriate for the trial court to inquire whether defendant
meant he sometimes drove in an effort to clarify his testimony.
Defendant also refers to the trial judge as having “interrupted” when he testified about his
pastor helping him lead a law-abiding life. However, defendant provides only selective portions
of the record. Apart from the full context, the trial judge’s reference to defendant testifying to
the effect that religion changed his life might appear as a sarcastic remark. But in context, the
trial judge’s initial observation that he thought he understood what defendant was saying seems
to be a reasonable, and even helpful, matter to point out to defense counsel who expressed
concern the judge did not know what defendant was saying. It is also not plain the trial judge’s
synopsis of defendant’s testimony that he had a prior shoplifting charge in Oakland County, that
religion changed his life, and that defendant’s minister helped get him a job reflected bias or
antagonism toward defendant. Rather, the trial judge could have intended this substantially
accurate summary of defendant’s testimony as illustrating that he understood defendant despite
defendant’s repeated use of the phrase “you know what I’m saying,” which apparently concerned
defense counsel that it may have distracted or confused the judge.
Without providing further detail, defendant claims the trial court continually interrupted
his “direct testimony with cross-examination which demonstrates the presumption of innocence
was not being applied” and then refers to certain pages of the trial transcript, which actually
transcribed part of the redirect examination by defense counsel. This argument, with such a
vague reference to five pages of trial transcript, is so amorphous and lacking in detail that we
view it as being abandoned based on inadequate argument. See People v Harris, 261 Mich App
44, 50; 680 NW2d 17 (2004) (“An appellant’s failure to properly address the merits of his
assertion of error constitutes abandonment of the issue.”). Regardless, in the referenced
questioning, the trial court essentially questioned defendant about discrepancies between his trial
testimony and his statements or alleged statements to Sergeant Joseph Turner, Jr., including why
defendant admittedly told the sergeant he was at home when he claimed in his trial testimony
that he was actually at church. A trial judge has more discretion in questioning witnesses at a
bench trial than during a jury trial. In re Forfeiture of $1,159,420, supra at 153. Given that the
trial judge was the fact-finder at the bench trial and as such was fundamentally concerned with
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ascertaining the truth as to whether defendant was a perpetrator in the incident, it seems
reasonable for the judge to have pointedly questioned defendant about these matters in an effort
to assess his credibility. It is not plain that this questioning involved impropriety or bias.
Defendant also indicates that certain questions the trial judge asked of Pastor Rico
Johnson were inappropriate. First, we conclude there was no plain error in the trial judge asking
Johnson about whether the uniform he believed defendant was wearing during the church service
was a Wendy’s uniform because Johnson’s testimony on that point may have seemed unclear.
Further, given a trial judge’s greater discretion in questioning witnesses at a bench trial, In re
Forfeiture of $1,159,420, supra at 153, there was no plain error in the trial judge asking
questions to clarify that Johnson did not have personal knowledge that a driver took defendant to
his grandmother’s residence after the church service and to expressly ascertain that Johnson did
not have personal knowledge of defendant’s whereabouts at the time of the robbery incident.
Defendant asserts the trial judge showed “unjustified impatience” with defense counsel
during two brief exchanges related to the possible failure of defense counsel to provide a witness
list. However, given that there is no indication of the trial judge imposing any sanction on the
defense in this regard and that comments critical of counsel are ordinarily not supportive of
finding bias, Wells, supra at 391, we conclude that these remarks do not support a finding of
bias.
Defendant claims the trial judge “interjected” during the cross-examination of Kenneth
Moss that defendant “never goes to church in that suit, no.” However, defendant’s insinuation
that the trial judge simply interjected that comment is misleading. During the prosecutor’s crossexamination of Kenneth, she asked him if defendant wore his Wendy’s uniform when he went to
church, to which Kenneth replied, “Not that I can remember. I don’t think he went to church—
he don’t never go to church in that, so no.” At that point defense counsel interjected, “I’m
sorry?” In reply to this apparent indication that defense counsel did not hear or understand the
testimony, the trial court stated, “He never goes to church in that suit, no.” Thus, rather than
simply interjecting a remark, the judge merely responded to defense counsel’s unusual
interjection during the prosecutor’s cross-examination of a witness with an accurate statement
about the testimony of the witness. This does not plainly reflect any bias by the trial judge.
Defendant also claims that comments by the trial judge regarding certain members of his
family not being allowed in the courtroom “revealed [the judge’s] attitude towards the defense.”
The trial judge stated the family members were not being permitted in the courtroom “[b]ecause
of court security concerns brought to the court’s attention by the deputies.” Defense counsel
then referred to defendant’s father waiting to hear from her because he wanted to know if he
could be there, and the trial judge replied, “Well, if you don’t go out, obviously he can’t be. All
right.” This does not plainly reflect bias by the trial judge to overcome the presumption of
judicial impartiality. Rather, it could reasonably be understood as merely expressing that the
trial judge did not believe it was necessary to delay the proceedings for defense counsel to leave
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the courtroom to tell defendant’s father he would not be allowed in the courtroom when that
should have quickly become apparent to him if defense counsel did not leave the courtroom.1
Keith Moss, defendant’s brother, testified he was with defendant on the night of the
incident from around 9:15 or 9:30 p.m. after defendant arrived home from church. Keith
indicated that defendant had his Wendy’s uniform on at the time. The trial judge asked Keith,
“So he must have gone from work right to church then, right?” Defendant includes this as an
example of the trial judge engaging in “prosecution-styled cross examination.” That question
may not have been necessary or appropriate because it was essentially the role of the trial judge,
as fact-finder, to draw conclusions from witness testimony. Nevertheless, it is not plain that this
question, which amounts to noting an obvious inference from Keith’s testimony, i.e., that
defendant apparently went from work to church without changing clothes, is reflective of bias.
Rather, the question merely amount to a neutral articulation of the import of Keith’s testimony.
Defendant also indicates it was inappropriate cross-examination for the trial judge to ask
Keith with regard to checking on his grandmother’s apartment: “And you thought you would go
over there because your older brothers wouldn’t be able to take care of it?” In context, in
testifying as to where he was on the night of December 22, 2006, Keith referred to going to a
location “because my grandma, she’s very sick, so I constantly take care of her.” The trial judge
then observed, “Your grandma wasn’t even there.” Keith then said she was not there at the time
but she had called him and asked him to check on her apartment, which led to the trial judge’s
questions related to Keith’s brothers already being there. In light of a trial judge’s greater
discretion in questioning witnesses at a bench trial, In re Forfeiture of $1,159,420, supra, at 153,
it is not plain that this questioning, which appeared to be directed at understanding Keith’s
testimony expressing that he was going to a location because his grandmother was sick even
though she was not at that location, was reflective of bias.
Defendant argues that, in questioning Patricia Green, the trial judge demonstrated “his
lack of respect for the defense and his reliance on the earlier plea of Howard Woodard.” The
tenor of the trial judge’s questions may have reflected skepticism as to Green’s claim she was
unaware of the stolen car being in her garage. However, as noted above, “[w]here a judge forms
opinions during the course of the trial process on the basis of facts introduced or events that
occur during the proceedings, such opinions do not constitute bias or partiality unless there is a
deep-seated favoritism or antagonism such that the exercise of fair judgment is impossible.”
Wells, supra at 391. It was reasonable that the trial judge found it odd or untruthful for Green to
claim she was unaware of the presence of a vehicle in her own garage. Accordingly, this
impression based on her testimony was not indicative of bias. Further, the trial judge’s rather
extensive questioning of Green, rather than showing lack of respect for the defense, might have
been an attempt to ascertain whether there was a plausible explanation for her claimed lack of
knowledge that would address the trial judge’s skepticism. Such questioning was not plainly
inappropriate given a trial judge’s greater discretion to question witnesses at a bench trial. In re
Forfeiture of $1,159,420, supra at 153. With regard to the trial judge’s reference to Howard
1
Defendant has not raised an issue on appeal challenging the substance of the trial judge’s
decision to exclude certain members of his family from the courtroom.
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Woodard’s guilty plea, even assuming that consideration of that plea was improper, an improper
view of the law clearly is not necessarily indicative of bias. Moreover, there is no basis from
which to conclude that the trial judge’s consideration of Woodard’s guilty plea affected
defendant’s substantial rights. McCuller, supra at 681. Whether Woodard was involved in the
robbery at issue was not central to the defense. Defendant presented his own testimony and that
of other witnesses in support of an alibi defense. Thus, the critical issue at trial was whether
defendant was involved in the robbery, not whether Woodard was.
Defendant also faults the trial judge for attempting to block a permissible question from
defense counsel to Green asking if she had any discussion with anyone regarding the Pontiac.
Defense counsel asked Green if she had any direct information as to how the G-6 Pontiac got in
her garage, and Green replied, “No, it’s just hearsay.” The trial judge initially interjected that it
“would be hearsay” when defense counsel asked Green if she had any discussion with other
people, but, after defense counsel noted she was only asking Green if she had discussion and was
“not asking what the person said,” the trial judge ultimately allowed Green to answer the
question if she “had any discussions with someone regarding the car,” to which Green replied
yes. “A trial court has broad discretion in regard to controlling trial proceedings.” People v
Taylor, 252 Mich App 519, 522; 652 NW2d 526 (2002). Accordingly, it is not plain error for the
trial judge to initially restrict defense counsel’s question, which seemed directed at eliciting
inadmissible hearsay testimony, reflected bias, particularly as the trial judge ultimately allowed
the question after defense counsel made clear she was not seeking to elicit hearsay.
Defendant refers to the conflict between the trial judge and the defense reaching a
“zenith” with regard to warnings by the trial judge to defense witness Gabriel Woodard. Without
specifying what was wrong with the warnings, defendant concludes that they “went far beyond
any legal duties and again betrayed a bias against the defense.” Citing to several pages of trial
transcript, defendant asserts the trial judge “attempted to dissuade [Gabriel] Woodard from
testifying, accused [defense counsel] of an ethics violation and filed an Attorney Grievance
Commission complaint against her.” Notably, despite the trial court’s warnings, Gabriel
Woodard did testify to a version of events in which he and two other men—and not defendant—
were responsible for the robbery incident, including taking a white Pontiac to the location where
it was found by the police. While the trial judge effectively informed Gabriel Woodard that he
did not have to testify and that any incriminating testimony he provided could be used against
him, this was not improper or reflect bias against defendant. Rather, the trial judge acted
appropriately in warning Gabriel Woodard about his right against self-incrimination. See People
v Clark, 172 Mich App 407, 416; 432 NW2d 726 (1988) (referring to a trial court “reminding the
witness of her privilege against self-incrimination” as “a legitimate warning”). The trial judge
also referred to defense counsel having talked to Gabriel as an ethics violation and stated that he
“may be responsible for turning [that violation] into the Attorney Grievance Commission.”2
Gabriel Woodard was clearly in custody and represented by counsel with regard to some type of
criminal charges at the time of his contact with defendant’s counsel. The trial judge was
2
Contrary to defendant’s description, it is not clear the trial judge actually filed a complaint
against defense counsel with the Attorney Grievance Commission; rather, the judge only stated
he might have to do so.
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presumably referring to MRPC 4.2, which generally precludes a lawyer representing a client
from communicating with a party about a matter related to that representation where the party is
represented by another lawyer in the matter. Given that defendant’s counsel’s communication
with Gabriel Woodard reasonably raised concern as to a possible violation of MRPC 4.2 and that
comments critical of counsel are ordinarily not supportive of finding bias, Wells, supra at 391, it
is not plain that the trial judge’s remarks indicating that he believed an ethics violation may have
occurred reflected bias against defendant.
Defendant also faults the trial judge for certain seemingly sarcastic questions and a
remark during Gabriel Woodard’s testimony. While this may have been inappropriate, it merely
reflected that the trial judge did not find Gabriel Woodard’s testimony to be credible. Because
opinions formed during the course of the trial process on the basis of facts introduced generally
do not constitute bias, Wells, supra at 391, these questionable episodes do not plainly establish
that the trial judge was biased against defendant.
In view of a trial court’s greater discretion to question witnesses at a bench trial, In re
Forfeiture of $1,159,420, supra at 153, there was no plain error in the trial judge’s questioning of
Kenzetta Moss. The questions were aimed at assessing the credibility of her testimony about
defendant and other family members being together and eating a pizza when the robbery was
alleged to have occurred. Specifically, it was proper for the trial judge to question the
reasonableness of her claim that such a large number of people shared but a single pizza.
Defendant also argues that it was improper for the trial judge to question Moss about her
claim of not knowing that defendant had a prior shoplifting conviction. In this regard, Moss was
effectively attempting to offer positive character testimony about defendant by describing him as
“always going to church or working.” The trial judge’s questions, even if slightly sarcastic in
tone, reflected his belief that Moss was not sufficiently familiar with all aspects of defendant’s
life to opine on his character. Because opinions formed during the course of the trial process on
the basis of facts introduced generally do not constitute bias, Wells, supra at 391, it is not plain
that these questions reflected bias against defendant.
Finally, as to defendant’s argument related to the trial judge’s alleged bias, he faults the
judge for referring to matters not in evidence, specifically to Gabriel Woodard and two other
men being codefendants in a separate carjacking case and to other pending charges against
Gabriel Woodard. While these references may have been inappropriate, it is not plain that they
reflected bias against defendant or were relevant to the trial judge’s ultimate verdict in the case.
Defendant also argues there was insufficient evidence to support his convictions because
(1) the victim was initially equivocal in identifying defendant as one of the assailants, (2) the
alibi evidence presented by defendant, and (3) the evidence that Gabriel Woodard and two other
men were actually guilty of the offense. However, “[t]he credibility of identification testimony
is a question for the trier of fact that we do not resolve anew.” People v Davis, 241 Mich App
697, 700; 617 NW2d 381 (2000). Further, in determining whether sufficient evidence was
presented to support a conviction, the evidence is viewed in a light most favorable to the
prosecution. Id. Thus, the victim’s trial testimony identifying defendant with “no doubt” as the
man who pulled the gun on him during the incident was sufficient to support a determination that
defendant was one of the assailants.
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Affirmed.
/s/ Henry William Saad
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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