PEOPLE OF MI V CHARKITA SHONTA SUDDETH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 29, 2009
Plaintiff-Appellee,
v
No. 280193
Jackson Circuit Court
LC No. 06-004325-FH
CHARKITA SHONTA SUDDETH,
Defendant-Appellant.
Before: Hoekstra, P.J., and Fitzgerald and Zahra, JJ.
PER CURIAM.
Defendant was found guilty by a jury of third-degree fleeing and eluding, MCL 750.602a,
resisting and obstructing a police officer, MCL 750.81d(1), and driving with a suspended license,
MCL 257.904(1). He was sentenced as a third habitual offender, MCL 769.11, to concurrent
terms of 34 to 120 months’ imprisonment for the fleeing and eluding conviction, 18 to 48
months’ imprisonment for the resisting and obstructing a police officer conviction, and 5 days
for the driving with a suspended license conviction, with credit for 5 days served.1 As part of the
judgment of sentence, the trial court ordered defendant to pay the county $472 for the cost of his
court appointed attorney. Defendant appeals as of right. We affirm defendant’s convictions and
sentences, but vacate that part of the judgment of sentence requiring him to pay appointed
attorney costs and remand for further proceedings. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
First, defendant argues that the trial court, by asking him leading questions prefaced with
the statements, “when the police stopped your car” and “there’s a police car behind you initiating
a stop…,” unambiguously conveyed its belief that the police had in fact signaled defendant to
stop and that defendant saw and heard those signals, which were key issues. Thus, defendant
contends the trial court improperly invaded the prosecutor’s role and his convictions should
therefore be reversed.
Because defendant did not raise this issue at trial, the issue is unpreserved. This Court’s
review of an unpreserved issue is limited to determining whether the defendant demonstrated a
1
Defendant was also charged with but acquitted of a drug possession charge.
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plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).
This Court has recognized that a trial court has wide discretion and power in the matter of
trial conduct. Its discretion and authority, however, are not unlimited. People v Paquette, 214
Mich App 336, 340; 543 NW2d 342 (1995). Specifically, the trial court may question a witness,
MRE 614(b), but it must do so in a manner as to “avoid any invasion of the prosecutor’s role and
exercise caution so that its questions will not be intimidating, argumentative, prejudicial, unfair,
or partial.” People v Sterling, 154 Mich App 223, 228; 397 NW2d 182 (1986). “If the trial
court’s conduct pierces the veil of judicial impartiality, a defendant’s conviction must be
reversed.” People v Collier, 168 Mich App 687, 698; 425 NW2d 118 (1988).
In determining whether the trial court’s conduct pierced the veil of judicial impartiality,
the appropriate test is whether its conduct or comments unduly influenced the jury and thereby
deprived the defendant of a fair and impartial trial. Paquette, supra at 340. “Portions of the
record should not be taken out of context in order to show trial court bias against defendant;
rather the record should be reviewed as a whole.” Id.
The trial court’s questions must be limited in scope, material to the issues in the case, and
posed in a neutral manner. People v Davis, 216 Mich App 47, 50; 549 NW2d 1 (1996). The fact
that testimony elicited by a trial court’s questions damaged a defendant’s case does not
demonstrate that the trial court improperly assumed the role of surrogate prosecutor. Id. at 51.
“As long as the questions would be appropriate if asked by either party and, further, do not give
the appearance of partiality,… a trial court is free to ask questions of witnesses that assist in the
search for truth.” Id. at 52.
Upon review of the transcript references cited by defendant, the trial court’s conduct can
be deemed simply as an effort by the court to clarify testimony or elicit additional relevant
information. Furthermore, the record reveals that the testimony that formed the basis for the
verdict was elicited by the prosecutor before the court questioned defendant. Moreover,
considering the overwhelming evidence of defendant’s guilt, defendant has failed to demonstrate
a plain error affecting his substantial rights. Carines, supra.
Finally, considering the limited and isolated nature of the trial court’s remarks, any
perceived prejudice was alleviated by the court’s instructions to the jury that its comments,
rulings, questions, and instructions were not evidence, and were not intended to influence the
jury or express the judge’s personal opinion. Davis, supra. Accordingly, the trial court did not
pierce the veil of judicial impartiality by questioning defendant.
Defendant also argues on appeal that because the trial court made no inquiry or findings
about his current or future ability to pay $472 for his court-appointed attorney, this Court should
vacate the order of attorney fees.
As this Court recently explained in People v Trapp, 280 Mich App 598, 600; ___ NW2d
___ (2008), citing People v Dunbar, 264 Mich App 240, 251-255; 690 NW2d 476 (2004):
A person who was afforded appointed counsel might be ordered to reimburse the
county for the costs of that representation, if such reimbursement can be made
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without substantial hardship. A court need not make specific findings on the
record regarding the defendant’s ability to pay, but must provide some indication
that it considered the defendant’s financial situation prior to ordering
reimbursement. The amount to be reimbursed must be related to the defendant’s
present and future ability to pay. A court must afford the defendant notice and an
opportunity to be heard prior to ordering repayment for appointed counsel
expenses. [___ Mich App ___ (slip op, 1).]
The trial court’s discretion to impose the costs of court-appointed counsel is codified in
MCL 769.1k, which became effective on January 1, 2006. However, this codification “does not
eliminate the requirement, set forth in Dunbar, supra, that the trial court consider a defendant’s
ability to pay prior to ordering reimbursement of appointed counsel costs.” Trapp, supra. A
review of the sentencing transcript shows that the trial court gave no indication that it considered
defendant’s ability to pay prior to ordering reimbursement. Therefore, a remand for further
proceedings is necessary. Dunbar, supra at 251-255.
The trial court may rely on an updated report from the probation department on remand;
an evidentiary hearing is not required. Trapp, supra; Dunbar, supra at 255 n 14. Here, as in
Trapp, “[i]f the trial court concludes that the reimbursement requirement should be eliminated or
modified, it should enter an amended judgment of sentence to that effect.”
We affirm defendant’s convictions and sentences but vacate the assessment of courtappointed attorney costs and remand for further proceedings consistent with this opinion. We do
not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Brian K. Zahra
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