I concur in the judgment. Although I believe the conduct of the trial judge was intrusive and overbearing, it was not egregious enough to require reversal.
I concur separately because I believe we have a duty to assert the principle that each of the actors in the courtroom drama has a distinct part to play. It is the lawyer's role to present the case for his side as he sees fit. This court often decides cases based on the principles that a lawyer is presumed competent, and that his introduction or non-introduction of evidence, or his failure to object, are a matter of trial tactics. If we subscribe to the principle that a lawyer may choose best how to defend his client, then we must also insist that the trial courts allow trial counsel to try their cases and not to interfere. We can't have it both ways.
I object particularly to the language in the majority opinion indicating that this claim of error was not properly preserved in the record. The purpose of an objection is to preserve the claim of error so that a reviewing court may recognize what has transpired at the trial level. We are creating an impossible standard in this case.
There is no indication of personal hostility here, but we are requiring trial counsel who faces a hostile judge to continually object and object in the face of that hostility. It is bad enough to have to face such a judge. It is even worse to rule that when confronted with such inappropriate behavior from the judge, trial counsel may not make his objection, defer to inherent authority of the court and seek redress on appeal.
If counsel acts professionally with due respect for the trial court, if he bites his tongue and holds his anger, the majority would deny him his right to appeal. I cannot agree with that standard.
In this case, I do not agree with trial counsel's contention that the trial judge's actions constituted reversible error. I do believe, however, that counsel preserved that claim of error for this court.
Thus, I concur with the judgment of affirmance. *Page 458