Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  March 9, 2018                                                                       Stephen J. Markman,
                                                                                                 Chief Justice

                                                                                            Brian K. Zahra
                                                                                    Bridget M. McCormack
  155184                                                                                  David F. Viviano
                                                                                      Richard H. Bernstein
                                                                                           Kurtis T. Wilder
                                                                                     Elizabeth T. Clement,
                                                                                                      Justices
  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellant,
  v                                                        SC: 155184
                                                           COA: 328246
                                                           Wayne CC: 15-000181-FC
  RYAN LASHAWN CHATMAN,
           Defendant-Appellee.

  _________________________________________/

         On January 11, 2018, the Court heard oral argument on the application for leave to
  appeal the December 6, 2016 judgment of the Court of Appeals. On order of the Court,
  the application is again considered, and it is DENIED, because we are not persuaded that
  the question presented should be reviewed by this Court.

         MARKMAN, C.J. (dissenting).

         I respectfully dissent from this Court’s order denying leave to appeal. I instead
  would reverse the Court of Appeals’ judgment because I believe that the Court of
  Appeals erred by holding that the trial judge’s questioning of three witnesses exhibited
  bias against defendant, denying defendant a fair trial.

          “A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct
  pierces the veil of judicial impartiality.” People v Stevens, 498 Mich 162, 170 (2015).
  “A judge’s conduct pierces this veil and violates the constitutional guarantee of a fair trial
  when, considering the totality of the circumstances, it is reasonably likely that the judge’s
  conduct improperly influenced the jury by creating the appearance of advocacy or
  partiality against a party.” Id. at 171. “In evaluating the totality of the circumstances, the
  reviewing court should inquire into a variety of factors, including the nature of the
  judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial
  conduct in the context of the length and complexity of the trial and issues therein, the
                                                                                             2

extent to which the judge’s conduct was directed at one side more than the other, and the
presence of any curative instructions.” Id. at 172. As this Court has explained:

                 Identifying the nature of the conduct provides the starting point to
         evaluate whether the conduct overstepped the line of judicial impartiality.
         For instance, when evaluating a judge’s questioning of witnesses, a
         reviewing court must first bear in mind that such interrogation is generally
         appropriate under MRE 614(b).[1] This Court has stated that the central
         object of judicial questioning should be to clarify. Therefore, it is
         appropriate for a judge to question witnesses to produce fuller and more
         exact testimony or elicit additional relevant information. [Id. at 173
         (citations omitted).]

        In this case, it is undisputed that defendant shot the victim. The only issue at trial
was whether defendant shot the victim in self-defense or by accident. The victim
testified that defendant was playing with his gun, and the victim asked him to put his gun
away. The victim also testified that he did not have a weapon and they were 10 feet apart
when defendant shot him. Defendant, on the other hand, testified that he was not playing
with his gun. Instead, defendant stated that the victim had asked him for money and,
when he refused, the victim, who was highly intoxicated, became angry, shoved
defendant, and threw a chair at him. Defendant testified that he pulled out his gun when
the victim charged him with the chair and that he accidentally pulled the trigger during a
subsequent struggle for the gun.

       The Court of Appeals held that the trial court’s questions worked to highlight the
prosecutor’s theory of the case. For example, the court asked the victim whether he had a
weapon, even though the victim had already testified that he was weaponless, and the
court inquired of the victim how far apart he and the defendant had been when they were
arguing, even though the victim had already testified that they were about 10 feet apart.2
The trial court also asked Reverend Lumsie Fisher, who was in the house during the
incident, whether he saw the victim with a weapon, which, according to the Court of
Appeals, only “reinforced [the victim’s] status as an unarmed victim.” 3 People v
Chatman, unpublished per curiam opinion of the Court of Appeals, issued December 6,
2016 (Docket No. 328246), p 5. Finally, the trial court questioned Detective Nicole
Bock, the fingerprint analyst who matched defendant’s fingerprints to those on the gun.
Bock testified that the matched fingerprint card indicated the name of Ryan Reynolds.

1
 MRE 614(b) provides: “The court may interrogate witnesses, whether called by itself or
by a party.”
2
 As the Court of Appeals acknowledged, “[t]he tone of the judge with this witness could
not be gauged from the transcript.” Chatman, unpub op at 7.
3
    As the Court of Appeals recognized, the judge’s questioning of Fisher was “brief.” Id.
                                                                                            3

The trial court asked Bock whether the fingerprints also matched defendant’s (Ryan
Chatman’s) fingerprints or whether the name of “Ryan Reynolds” was synonymous with
that of Ryan Chatman. Bock did not directly answer the court’s questions but instead
stated that it was not her job to make that determination. A different officer later testified
that Ryan Reynolds and Ryan Chatman were indeed the same person.

        I do not believe that the trial court’s questions of the witnesses demonstrated any
bias. The fact that some of the questions were repetitive of the prosecutor’s questions
hardly demonstrates a bias. There is nothing inappropriate about a judge repeating
questions to ensure that he or she understands the facts of a case correctly. The issue in
this case was whether the shooting was the result of self-defense or an accident, and
therefore it was critical to ensure that the judge and the jury understood who exactly
possessed a weapon and who did not. Furthermore, there was nothing inappropriate
about asking Fisher whether the victim was armed. Even though the victim had already
testified that he was not armed, it was helpful to confirm that collaborating testimony had
been presented on this issue.

        I also do not believe that all of the trial court’s questions were pro-prosecutor in
any coherent way. For example, the trial court asked the victim why the victim did not
just leave when he saw that defendant was playing with a gun. He also asked the victim
how the argument had escalated so quickly and whether he had said anything to
defendant to provoke him. Finally, the trial court asked the victim, immediately after the
victim indicated that the gun was a “nine millimeter,” whether he had ever fired a
handgun. In my judgment, it appears that the trial court asked this question not to suggest
that the victim must not have been the aggressor, but rather to question how the victim
would have known that the gun was a “nine millimeter” if he had not had any prior
experiences with handguns.

        I also believe that the trial court was genuinely confused about Bock’s testimony4
and was simply attempting to clarify the testimony given that Bock seemed to be
testifying that a different person’s fingerprints were found on the gun, even though all
previous testimony had indicated that the gun was indisputably defendant’s gun and that
defendant was the only person seen with a gun.5 See Stevens, 498 Mich at 175-176
(“Judicial questioning might be more necessary when a judge is confronted with a
difficult witness who refuses to answer questions posed by attorneys or repeatedly
responds to those questions with unclear answers . . . .”). The Court of Appeals held that

4
    At one point, the trial judge specifically acknowledged, “I don’t understand.”
5
   “Indeed, the judge’s questioning of prosecution witness Michigan State Police
Lieutenant Bock . . . might actually have been helpful to the defendant, as the witness
was unable to testify that the ‘state ID number’ on the fingerprint identification card
matched that of the defendant in this case.” Chatman, unpub op at 2 (GADOLA, J.,
dissenting in part).
                                                                                          4

“[t]he tone of this trial judge in questioning this witness appears argumentative.”
Chatman, unpub op at 9. To the extent that this is true, I believe that is so simply because
the trial court was justifiably confused by Bock’s testimony.

       In addition, the judge’s questioning of the three witnesses did not consume a
significant part of the three-day trial.6 The judge did not interrupt direct or cross-
examination, but held his questions until after the parties had finished and then allowed
further examination by the parties if they desired. Finally, the trial court instructed the
jury that the judge’s comments and questions were not evidence and that they were not
meant to influence their votes or express a personal opinion. “Because it is well
established that jurors are presumed to follow their instructions, a curative instruction
will often ensure a fair trial despite minor or brief inappropriate conduct.” Stevens, 498
Mich at 177 (quotation marks, citation, and brackets omitted).

        The instant case is distinguishable from Stevens, in which we held that the trial
judge’s questioning of witnesses “pierce[d] the veil of judicial impartiality,” depriving
defendant of the right to a fair trial. Id. at 170. To begin with, unlike in Stevens,
defendant did not object to any of the trial court’s questions. In addition, in Stevens, the
trial judge questioned defendant’s expert’s qualifications, even though the judge had
already endorsed him as an expert; several times asked questions that undermined the
expert’s credibility; and questioned the defendant in a manner that suggested disbelief of
the defendant. None of that (or anything remotely similar) occurred in this case. For
these reasons, I do not believe that the judge’s questioning pierced the veil of judicial
impartiality warranting reversal of defendant’s convictions and a new trial.




6
    As the Court of Appeals dissent explained:
                A review of the record reveals that the trial court asked a total of
         three questions in the course of a 3-day trial concerning the ultimate issue
         in dispute in this case, which concerned whether a physical struggle
         between the defendant and the victim led to the victim’s shooting. The
         court asked the victim: (1) “Did you ever grab anything . . . ?”; (2) “Do you
         remember ever grabbing a chair or anything?”; and (3) “Did you lay any
         hands on [defendant] at all?” These questions, while arguably unnecessary
         given the prosecution’s direct examination of the witness, were not hostile,
         as they were directed to the victim, and merely produced cumulative
         testimony concerning the events leading up to the shooting. [Chatman,
         unpub op at 2 (GADOLA, J., dissenting in part).]
                                                                                                               5


        Even assuming that there was error here (and I discern none), the error was hardly
plain, i.e., clear or obvious.7 Moreover, the alleged error could not reasonably be said to
have affected the outcome of the lower court proceeding. It was undisputed that
defendant had a gun, that the victim did not have a gun, and that defendant shot the
victim. The only issue at trial was whether defendant acted in self-defense or
accidentally. Therefore, the trial court’s questioning of the victim and Fisher about who
possessed a gun and its questioning of the detective concerning defendant’s fingerprints
on the gun could not possibly have affected the outcome of the proceeding. Finally,
defendant does not even argue that he was actually innocent and, for the reasons
explained above, the error did not in any way affect the fairness, integrity or public
reputation of any judicial proceedings. Therefore, in my judgment, defendant is not
entitled to relief and accordingly I would reverse the Court of Appeals’ judgment.




7
  This issue is unpreserved, so defendant has the burden of satisfying the plain-error
requirements of People v Carines, 460 Mich 750 (1999).



                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         March 9, 2018
       s0306
                                                                             Clerk
