                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                              UNPUBLISHED
                                                              August 15, 2017
              Plaintiff-Appellee,

v                                                             No. 321352
                                                              Ingham Circuit Court
VICKIE ROSE HAMLIN,                                           LC No. 13-000924-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                             No. 322207
                                                              Ingham Circuit Court
BARBARA ELLEN CARTER,                                         LC No. 13-000917-FH

              Defendant-Appellant.


                                      ON REMAND

Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

       We affirmed defendants’ convictions in our original decision. People v Hamlin,
unpublished opinion per curiam (Docket Nos. 321352 & 322207, decided December 10, 2015).
Thereafter, the Supreme Court, in lieu of granting leave, remanded the matter to us for
reconsideration in light of People v Stevens, 498 Mich 162; 869 NW2d 233 (2015). People v
Hamlin, ___ Mich ___; ___ NW2d ____ (No. 153128, issued May 10, 2017). On remand, we
again affirm.

       At issue is whether the following questioning of defendant Carter by the trial judge
pierced the veil of judicial impartiality:

               Court. Ma’am, [Brown] asked you politely to stop this behavior and
       leave, was that what you said?

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              Defendant Carter. I’m sorry?

              Trial Court. Didn’t you say she asked you to leave?

              Defendant Carter. She asked me if I would detach myself.

              Trial Court. Did you do that?

              Defendant Carter. No, I did not.

              Trial Court. What is the difference between asking you and commanding
       you? Does someone have to say the word, I command, in order for you to
       understand the police officer is directing you to do something?

              Defendant Carter. Well, I mean—

              Trial Court. That’s what you’ve said here.

              Defendant Carter. I was just saying it was a question.

              Trial Court. It was a question? Did you answer the question?

              Defendant Carter. I did answer the question.

              Trial Court. What did you say?

              Defendant Carter. I said that I wouldn’t detach.

              Trial Court. All right. So she asked you politely, and the question was, I
       guess, you say to leave, and you said you would not do that, and you think that
       she needed to command further?

              Defendant Carter. I politely told her that I was staying.

              Trial Court. You think - -

              Defendant Carter. For reasons.

              Trial Court: You think she needed to command you further to leave?
       What did she need to do beyond asking you politely to leave? I’m just asking
       because you sit here and told this jury you weren’t commanded anything, and I
       thought maybe you had some distinction I am not aware of.

               Defendant: Well, my only point was that it was a question, and I
       responded to her that I, that morally I could not detach myself because I was there
       for a purpose. I was . . . there because I believed in what I was doing.

In our original opinion, we concluded that the trial court’s questions “did not evidence a deep-
seated favoritism or antagonism that would make judgment impossible” and that, in any event,

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any prejudice was cured by the jury instructions. People v Hamlin, slip op at 7. We did not,
however, explicitly discuss the application of Stevens.

       “[W]hether judicial misconduct denied defendant a fair trial is a question of constitutional
law that this Court reviews de novo.” Stevens, 498 Mich at 168. In Stevens, the Michigan
Supreme Court described the following principles regarding claims of judicial misconduct:

               A trial judge’s conduct deprives a party of a fair trial if the conduct pierces
       the veil of judicial impartiality. 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. In evaluating the totality of the circumstances, the reviewing court should
       inquire into a variety of factors including, but not limited to, the nature of the trial
       judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
       conduct in the context of the length and complexity of the trial and issues therein,
       the extent to which the judge’s conduct was directed at one side more than the
       other, and the presence of any curative instructions, either at the time of an
       inappropriate occurrence or at the end of trial. [Id. at 164.]

        This case presents a close question. Certainly some factors weigh in favor of defendants,
at least to some degree. The trial court’s questions did not particularly elicit overly useful
information and, while difficult to evauluate from a written record, the trial judge’s tone and
demeanor at some points is somewhat troubling. But, on the other hand, the questions to
defendant Carter did seek to clarify an important point—the difference between a request and a
command. And, even if the trial judge’s comments in this area may have suggested some
impartiality, the jury’s request during deliberations for clarification on what constituted a lawful
command indicates that the jury sought to seek a fair evaluation of that question. In response to
the inquiry, the trial court, after consultation with the parties, gave the following instruction:

       Well, I don’t know how much help I can be to you. Remember, I am going to
       give you the definition as best I can of the term lawful command, and please
       remember, as mentioned by counsel, words are construed in their normal,
       ordinary, common, accepted definitions under our laws. That’s normally what it
       is unless a legislative intent is stated somewhat differently in the law, and it isn’t
       in this one. So it’s pretty clear that the term lawful, that word, means legal,
       warranted or authorized by the law. The word command means an order or a
       directive. A lawful command is an order or directive warranted or authorized by
       the law . . . .

        Furthermore, the trial court’s interventions were overall fairly limited. And some were
either neutral or of possible benefit to defendants. Because the trial court’s questioning was
limited and cut both ways, this factor weighs against finding it reasonably likely that the judge’s
conduct improperly influenced the jury by creating the appearance of advocacy or partiality
against a party.



                                                 -3-
         This then brings us to the basis upon which we originally decided this issue: whether any
potential prejudice was adequately addressed by curative instruction. In Stevens, the Supreme
Court directed reviewing courts to consider the presence or absence of curative instructions,
stating:

       Because “jurors are presumed to follow their instructions,” [People v ]Graves,
       458 Mich [476,] 486[; 581 NW2d 229 (2015)], the presence of a curative
       instruction does tend to cut against a finding of judicial bias. Despite this
       presumption, however, we note that a single, general instruction may not alleviate
       substantial judicial bias when judicial questioning of one party is excessive and
       imbalanced, as it was here. [Stevens, 498 Mich at 190.]

In Stevens, the jury was only instructed once at the close of trial with the general curative
instructions to the effect that the court’s questions and comments were not evidence, any judicial
intervention was not meant to reflect a personal opinion, and the jury could only decide the case
on the basis of the evidence. Id. The instructions here were more prevalent. The trial court
explained in its introductory instructions to the jury:

               As the Judge in this case I have to make sure you have a fair and
       efficiently run trial. I have to make decisions about evidence, and I instruct you
       on the law that applies to the case. Take the law as the Court gives it to you.

                Now, the things I say are not meant to reflect my opinion about the facts
       of this case. You are the jury. You decide the matter. Your responsibility as our
       jury is to decide what the facts are. It’s your job, no one else’s.

The court continued, “Very rarely, but once in a while I’ll ask a question or two myself. They
are not meant to reflect my opinion here. If I ask a question it would just be to cover something
that may not have been fully explored for your benefit.”

        Another instruction followed a comment made by one of the defense attorneys during
closing argument. The attorney stated:

       You’re going to get the jury instruction that says any comment from the court
       during the course of this trial, you have to disregard. If you think he’s trying to
       sway one way or the other or if you have the feeling that it’s designed that way, it
       doesn’t matter, and that’s what the law says, and I know the judge isn’t trying to
       sway anybody’s viewpoint here or his belief. He’s just doing his job. I’m just
       doing my job.

After discussion off the record, the court clarified defendant Hamlin’s closing argument about its
questions:

       Inadvertently, Mr. Gaecke may have led you to have the impression that when I
       ask questions you can’t consider any of that. The reality is that questions and
       answers that I get from witnesses are simply added by me to cover something that
       may need further explanation for your benefit. Do not think that because I ask
       questions, is what he’s trying to tell you, that I have an opinion on whether -- on

                                               -4-
       the case one way or another. I want you to have your own individual opinions
       and not mine or any of the rest of us. I know he said disregard everything I said.
       That’s not the way it works. It’s just don’t form an opinion by the fact that I ask
       questions.

And the issue was again addressed in the jury instructions:

               Questions put to witnesses are not evidence. My questions to witnesses
       are also not evidence. You should consider these questions only as they give
       meaning to the answers you receive. The answers of the witnesses supply the
       evidence, even on my questions.

               Now, my comments, rulings, questions, and instructions are not evidence
       and I have a duty to see that this trial is conducted under the law and to tell you
       the law that applies to this matter, but when I make a comment or give an
       instruction I’m not trying to influence your vote or express a personal opinion
       about the case. If you believe that I have an opinion about how you should decide
       this matter, pay no attention to that. You’re the judges of the facts and you should
       decide the case from the evidence that you receive.

Thus, unlike Stevens where the jury received an isolated instruction at the end of the trial, here
the jury was instructed about the trial court’s questioning of witnesses at the beginning of trial,
during the trial, and in the final jury instructions.

         Accordingly, we conclude that, while the other Stevens factors may weigh slightly for or
against finding judicial impartiality, the jury instructions themselves weigh heavily against the
conclusions that the trial judge pierced the veil of impartiality. Defendants were not deprived of
a fair trial.

       Affirmed.



                                                              /s/ David H. Sawyer
                                                              /s/ Michael J. Kelly




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