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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 10, 2015

v No. 318550 Chippewa Circuit Court BOBBY COOK, LC No. 12-001032-FH

Defendant-Appellant.

Before: F ORT H OOD , P.J., and J ANSEN and G ADOLA , JJ.

P ER C URIAM

. Defendant was found guilty of being a prisoner in possession o f a weapon, MCL 800.283(4), and was sentenced as a fourth habitual offender , MCL 769.12, to 58 months’ to 20 years’ imprisonment followi ng a bench trial. Defendant a ppeals as of right. We affirm.

On October 31, 2012, defendant, a prisoner serving his sixth f elony sentence, was involved in an incident at Kinross Correctional Facility that l ed to the current charge and conviction. On July 23, 2013, defendant signed a written waive r form relinquishin g his right to a jury trial.

At defendant’s bench trial, Corrections Officer Richard Little testified that he observed defendant from 50 feet away “making slashing motions” toward an other prisoner with a “metallic” and “shiny” object. Defendant was in the midst of a fight with other prisoners. When Little ordered the men to stop, defendant fled toward the facil ity’s softball fields. Corrections Officer Kim Miller testified that, from the control center, he watched defendant run toward the softball bleachers and saw him throw “something with his left h and” at the base of the bleachers. Corrections Officer David Crimin testified that he pursued defe ndant toward the softball bleachers and observed him throw an object under the bleachers. Crimin went “directly to the object” and found “a sharpe ned piece of metal . . . about 7 inc hes long.”

Over seven months after he was found guilty, defendant filed a motion for a new trial and to disqualify Chippewa Circuit Judge James P. Lambros, the judg e who presided at his bench trial. In an affidavit accompanying his motion, defendant stat ed the following:

On the day that I was convicted as charged by Judge Lambros, I heard one of the MDOC transport officers , Officer Storey, talking on the telephone about the verdict in my case.-2- I heard Officer Storey talking to someone about my case and I asked him who he was talking to and he told m e, Dave Crimin’s brother.

Officer Storey told me that Judge Lambros and Dave Crimin coac hed a hockey team together and that th ey also went to high school tog ether.

At the hearing on the motion, Judge Lambros addressed the issue of his alleged association with the Crimin family:

I have no social relationship with the Crimins. Yes I coached a hockey team 15 years ago with Mister Crimin’s brother. I’ve had no so cial connection with Dan Crimin, Dave Crimin or the Crimin family. I’m not eve n sure where they live at this point, what their family history is, if they have children, if they are married, if they are divorced . I wouldn’t know those thing s because we’re not social friends.

It’s not that I don’t like them ; I don’t even know them enough to say whether I do or I don’t and I’m s ure they would feel the same.

Judge Lambros denied both motions, and the motion to disqualify was referred to the chief judge of the circuit court , who also denied it.

Defendant first argues that the lower court erred in refusing to disqualify Judge Lambros. We disagree. We review defendant’s claim regarding judicial di squalification for plain error affecting substantial rights because defendant did not timely f ile his motion for disqualification within 14 days of discovering the possible grounds for disquali fication, and has not demonstrated good cause to excuse the time requirements of MCR 2.003(D)(1)(a ). 1 Kloian v Schwartz , 272 Mich App 232, 244; 725 NW2d 671 (2006); Kern v Blethen-Coluni , 240 Mich App 333, 336; 612 NW2d 838 (2000). “To avoid forfeiture under the plain erro r rule, three requirements must be met: 1) the error must have occurred, 2) the error was plai n, i.e., clear or obvious, 3) and the plain error affected s ubstantial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 120 (1999).

Under MCR 2.003(C), disqualification is only necessary when a judge cannot hear a case impartially. Cain v Dep’t of Corrections , 451 Mich 470, 494; 548 NW2d 210 (1996). MCR 2.003(C)(1) provides that disq ualification is warranted und er the following circumstances:

(a) The judge is biased or prej udiced for or against a party o r attorney.

1 Defendant argues that we should disregard the untimeliness of his motion because at the time he discovered the grounds for disqualification, he “had already been sentenced and was without counsel, waiting for the appointment of appellate counsel, and his appellate counsel raised the motion to disqualify within the time permitted under MCR 6.431( A) to file a motion for a new trial.” However, both defendant ’s affidavit and his motion to disqualify Judge Lambros indicate defendant learned of the possible grounds for disqualification on August 14, 2013. Defendant was represented by trial c ounsel until October 3, 2013.-3- (b) The judge, based on objec tive and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rig hts 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 s tandard set forth in Canon 2 of the Michigan Code of Judicial Conduct.

“A trial judge is presumed to be impartial and the party who as serts partiality has a heavy burden of overcoming that presumption.” In re MKK , 286 Mich App 546, 566; 781 NW2d 132 (2009). We generally require a showing that the source of improper prej udice or bias arose from events or information outside of the judicial proceedings. Cain , 451 Mich at 495.

Pursuant to MCR 2.003(C)(1)(a), a defendant must demonstrate t hat a judge is “actually biased against the defen dant or his attorney.” People v Aceval , 486 Mich 887, 888-889; 781 NW2d 779 (2010). Defendant argues that Judge Lambros demonstra ted actual bias because he did not make “any negative statements about the Crimin family” and therefore must have “had a high regard for that family” that bolstered the persuasive weig ht of Officer Crimin’s trial testimony. This argument is log ically invalid. It postulates false alternatives. Other alternatives exist, and indeed Judge Lambros provided one. Judge Lambros ex plained that he had no opinion of the Crimin family, and stated, “It’s not that I don’t like t hem; I don’t even know them enough to say whether I do or I don’t and I’m sure they would feel the same.” Therefore, defendant has not overcome the heavy presumption of judicial impartiality. In re MKK , 286 Mich App at 566.

The inquiry for judicial dis qualification under MCR 2.003(C)(1 )(b) is twofold, requiring us to consider “first, whether [a] defendant’s due process righ ts, as enunciated in Caperton
, [2] would be impaired by [a judge’s] participation in th[e] case, a nd second, whether there was an appearance of impropriety as set forth in Canon 2 of the Michig an Code of Judicial Conduct that would require . . . recusal.” Aceval , 486 Mich at 889. On appeal, de fendant does not argue that his due process rights were violated, leaving only the issue of whether there was an appearance of impropriety. To determine whether an appearance of impropri ety exists, we consider “ ‘whether the [judge’s] conduct would create in reasonable min ds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.’ ” Id. , quoting Caperton , 556 US at 888. This inquiry is framed through the perspective of a reasonable obser ver who is informed of all the surrounding facts and circumstances. Adair v Michigan , 474 Mich 1027, 1039; 709 NW2d 567 (2006).

Generally, “situations that arose in a judge’s past, and that give rise to a request to disqualify, cannot overcome the presumption of impartiality if their connection to the case at hand is too tenuous.” Armstrong v Ypsilanti Charter Twp
, 248 Mich App 573, 600; 640 NW2d 321 (2001). Thus, when there is not an ongoing relationship be tween the judge and a witness, attorney, or party, or an ongoi ng reason for possible prejudice , disqualification is unnecessary. Id. ; see also Anson v Barry Co Drain Comm’r , 210 Mich App 322, 327; 533 NW2d 19 (1995).

2 Caperton v AT Massey Coal Co , 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009).-4- In this case, Judge Lambros did not have an ongoing relationsh ip with Officer Crimin or the Crimin family that would create the appearance of improprie ty in the mind of an objective reasonable observer. Judge Lambros explained that 15 years had passed since he coached a hockey team with Officer Crimin’s brother, and that he had no o ngoing relationship with or knowledge about the Crimin family. Because defendant did not p roduce any evidence suggesting bias, judicial dis qualification was not required und er MCR 2.003(C)(1)(b).

Defendant next argues that he did not knowingly and voluntaril y waive his right to a jury trial because Judge Lambros did not disclose his past relations hip with Officer Crimin. We disagree. We review a lower court’s decision to deny a motion for a new trial for an abuse of discretion. People v Cress , 468 Mich 678, 691; 664 NW2d 174 (2003). An abuse of discreti on occurs “when the trial court chooses an outcome falling outside [the] principled range of outcomes.” People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003). We review a lower court’s finding that a defendant validly waived his right to a jury trial for clear error. People v Williams , 275 Mich App 194, 197; 737 NW2d 797 (2007). “Clear error exi sts if the reviewing court is left with a definite and firm conviction that a mistak e has been made.” People v Johnson , 466 Mich 491, 497-498; 647 NW2d 480 (2002).

A criminal defendant has a cons titutionally guara nteed right t o a jury determination that he is guilty of every element of a charged crime beyond a reaso nable doubt. People v Bearss
, 463 Mich 623, 629; 625 NW2d 10 (2001). However, a defendant ma y choose to waive his right to a jury trial with the consent of the prosecutor and the appr oval of the trial court. MCL 763.3. A decision to waive a jury trial must be knowing and voluntary. MCR 6.402(B); People v Godbold , 230 Mich App 508, 512; 585 NW2d 13 (1998). To uphold a jury waiver, a court need only find that the defendant understood he had a right to a jur y trial and voluntarily waived that right. People v Reddick , 187 Mich App 547, 550; 468 NW2d 278 (1991). When the trial c ourt complies with the court rules governing waiver of a jury trial, there is a presumption that a defendant’s waiver was knowing, voluntary, and intelligent. People v Mosly , 259 Mich App 90, 96; 672 NW2d 897 (2003).

In this case, defendant does not dispute that the lower court followed the procedural requirements to obtain a valid jury waiver. Rather, defendant argues that his waiver was not knowingly made because Judge Lambros did not disclose that he c oached hockey with Officer Crimin’s brother in 1999.

Knowledgeable waiver does not require insight regarding the ba ckground of a presiding judge, but rather asks whether a defendant “understood his righ t to have a jury trial.” People v Shields , 200 Mich App 554, 561; 504 NW2d 711 (1993). Defendant demons trated knowledge of his right to a jury trial by reque sting a jury trial at his pre trial hearing and later by signing a written waiver form that stated that he “voluntarily waive[d] a nd relinquish[ed] [his] right to a trial by jury.” The lower court did not clearly err in finding his waiver was valid, and did not abuse its discretion in refusi ng to grant defendant a new trial

.
Affirmed.

/s/ Karen M. Fort Hood /s/ Kathleen Jansen /s/ Michael F. Gadola