                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 26, 2016
               Plaintiff-Appellee,

v                                                                     No. 326216
                                                                      Wayne Circuit Court
JAMES PATRICK AUVIL,                                                  LC No. 14-008690-FH

               Defendant-Appellant.


Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of one count of malicious destruction of
property between $1,000 and $20,000, MCL 750.377a(1)(b)(1). He was sentenced to three
years’ probation. Defendant now appeals as of right. For the reasons set forth in this opinion,
we affirm defendant’s convictions and sentence.

                                        I. BACKGROUND

         This appeal arises from an incident which occurred between two neighbors, defendant
and Ryan McLeod in Redford Township on December 5, 2013. On that evening the two
neighbors had been drinking and near midnight, the two were arguing over a negative remark
about a girlfriend and cigarettes when they began to fight. Although the alleged victim’s
testimony was seemingly in a state of flux as to the particulars as to what was said, or if
defendant had a gun, or how the fight actually began, the alleged victim was consistent in stating
that the fight culminated in defendant striking McLeod’s vehicle with a wrench and kicking out
the taillight. According to McLeod, the total damage to the vehicle was approximately $4,200.

         After the first day of trial, Juror 11 disclosed that he realized throughout the first day of
trial that he may have been involved in a heated incident with defendant in 2006, during which
defendant deliberately ran him off the road and the police were called. Juror 11 was not certain
that defendant was the person involved in the incident, but agreed that the situation was in the
back of his mind and might affect his decision-making. When asked whether he spoke to any
other jurors about his possible confrontation with defendant, Juror 11 admitted that he told Juror
12 that defendant might be an individual he had a confrontation with in the past. The court
excused Juror 11 from the jury.



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        The court then questioned Juror 12. Juror 12 stated that Juror 11 told him that he might
have recognized defendant from a prior incident during which defendant ran him off the road.
Juror 12 stated that, given the information he received from Juror 11, he “[a]bsolutely” could be
fair and impartial and could decide the case based only on the evidence presented in court. Both
the prosecutor and defense counsel agreed that trial should not continue with only 11 jurors,
however, defense counsel moved for a mistrial, noting that, in this case where defendant was
alleged to have damaged a car after losing his temper, Juror 12 had been exposed to information
that defendant may have been involved in a road rage incident in the past. The court denied
defense counsel’s motion for a mistrial on the basis of Juror 12’s “affirmative statement that he
can base this case only upon the evidence.” The court then questioned each juror with respect to
whether he or she overheard anything regarding one of the jurors knowing defendant. A few
jurors indicated that they had heard that one of the jurors might have known defendant, but
indicated that they did not know any details regarding how the juror knew defendant. Defendant
was subsequently convicted and sentenced as indicated above.

                                          II. JUROR BIAS

        On appeal, defendant first argues that his due process rights were violated because the
trial court failed to excuse a juror after the juror was exposed to extrinsic facts that were likely to
prejudice the juror against defendant. This Court reviews de novo a claim of an extraneous
influence on the jury. See People v Budzyn, 456 Mich 77, 88-100; 566 NW2d 229 (1997);
People v Fletcher, 260 Mich App 531, 540-541; 679 NW2d 127 (2004).

        During deliberations, jurors may only consider evidence presented to them in open court.
Budzyn, 456 Mich at 88. To establish that an extrinsic influence on a juror requires reversal, a
defendant must show (1) that a juror was exposed to an extraneous influence, and (2) that there
was a real and substantial possibility that the extraneous influence could have affected the jury’s
verdict. Id. at 89. To demonstrate such a “real and substantial possibility,” the defendant should
demonstrate that the extraneous influence is substantially related to a material aspect of the case
and that there is a direct connection between the extrinsic material and the adverse verdict. Id. If
the defendant establishes this initial burden, the burden then shifts to the prosecutor to show that
the error was harmless beyond a reasonable doubt by showing that either the extraneous
influence was duplicative of evidence produced at trial or the evidence of guilt was
overwhelming. Id. at 89-90.

        Review of the record leads us to conclude that Juror 12 was exposed to an extraneous
influence when another juror told him that defendant might have run him off the road in the past.
Because the offense for which defendant was being tried and the extraneous information both
related to defendant acting violently after becoming angry, there appears to be a real and
substantial possibility that the extraneous information could have affected the verdict. Budzyn,
456 Mich at 89. The trial court erred in not making such a finding. However, such a finding
does not end our inquiry of the issue. Next, we must determine whether the evidence against
defendant was overwhelming. We therefore turn to the record to determine whether the evidence
of defendant’s guilt was overwhelming such that it rendered the trial court’s error harmless
beyond a reasonable doubt. Budzyn, 456 Mich at 89-90.



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         The record reveals that Ryan McLeod presented clear testimony that, during an argument,
defendant damaged the windshield and roof of McLeod’s car with wrenches and kicked out the
taillight. While McLeod was the only eyewitness to the incident, there was evidence that Officer
Ditzhazy observed wrenches in the driveway and damage to the vehicle when he arrived on the
scene, that defendant returned home after the incident “yelling and screaming,” and that
defendant bought a new taillight for the car and offered to pay for the damages after the incident.
Given this overwhelming evidence as to whether defendant violated MCL 750.377a(1)(b)(1), we
conclude that any error caused by Juror 12’s exposure to an extraneous influence was harmless
beyond a reasonable doubt.

                                          III. ADJOURNMENT

        Defendant next argues that the trial court erred in denying his motion to adjourn trial
because Officer Daniel Bailey, the officer in charge of the case, was unavailable due to
emergency surgery. This Court reviews a trial court’s decision to grant or deny an adjournment
for an abuse of discretion. People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000).

        MCR 2.503(C)(2) provides that “[a]n adjournment may be granted on the ground of
unavailability of a witness or evidence only if the court finds that the evidence is material and
that diligent efforts have been made to produce the witness or evidence.” Similarly, this Court
has stated that an adjournment will be granted on the ground of unavailability of a witness only
for good cause shown and if diligent efforts have been made to produce the witness. People v
Coy, 258 Mich App 1, 18-19; 669 NW2d 831 (2003); MCL 768.2. To determine whether a
defendant had good cause for an adjournment, a court should consider whether defendant (1)
asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been
negligent, and (4) had requested previous adjournments. Coy, 258 Mich App at 18. “Even with
good cause and due diligence, the trial court’s denial of a request for an adjournment or
continuance is not grounds for reversal unless the defendant demonstrates prejudice as a result of
the abuse of discretion.” Id. at 18-19.

       We conclude that defendant is not entitled to reversal on the basis of the trial court’s
denial of an adjournment due to Officer Bailey’s unavailability where, even assuming the trial
court erred in denying the adjournment,1 defendant has not shown prejudice from the denial.




1
  To the extent the trial court ruled that Bailey’s testimony was impeachment for a collateral
matter, the trial court appears to have erred. A fact is not collateral if it “consists of any part of
the witness’s account of the background and circumstances of a material transaction which as a
matter of human experience he would not have been mistaken about if his story were true.”
People v Guy, 121 Mich App 592, 604; 329 NW2d 435 (1982). Even though defendant was not
charged with felonious assault, testimony regarding whether defendant hit McLeod with a
wrench during the incident provides “the background and circumstances” of the damage to the
car, which “as a matter of human experience he would not have been mistaken about if his story
were true.” Id. Therefore, whether defendant hit McLeod with a wrench during the incident


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Before defendant requested the adjournment, defense counsel thoroughly cross-examined
McLeod with respect to whether defendant hit him with a wrench. Further testimony regarding
that issue would have been merely cumulative. Furthermore, given defense counsel’s
impeachment of McLeod on other issues, defendant was not prejudiced by his inability to further
impeach McLeod’s credibility with respect to whether he spoke to Officer Bailey about the
amount of damage to the car. Because defendant has not shown prejudice from the denial of the
adjournment, we conclude that he is not entitled to reversal on the basis of this issue. Id.

                                      IV. JUDICIAL BIAS

        Defendant next argues that he is entitled to a new trial because the trial court pierced the
veil of judicial impartiality by making a negative comment about the defense in front of the jury.
The question whether judicial misconduct denied a defendant a fair trial is a question of
constitutional law that this Court reviews de novo. People v Stevens, 498 Mich 162, 168; 869
NW2d 233 (2015). Because defense counsel did not object to the trial court’s comment,
however, this issue was not preserved for review. Therefore, the issue is reviewed for plain error
that affected defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999).

       During defense counsel’s cross-examination of McLeod regarding whether defendant hit
him with a wrench during the incident, the following exchange occurred:

       WITNESS: I don’t remember him touching me with the wrench, that is correct.

       DEFENSE COUNSEL: But now you’re saying that he may have touched you in
       the arm with the wrench?

       WITNESS: I didn’t say that, sir. I said he had a wrench in his hand.

       DEFENSE COUNSEL: Okay. So your testimony today is he never touched you
       with a wrench in any way?

       WITNESS: No.

       DEFENSE COUNSEL: That’s not your testimony?

       WITNESS: Can you repeat the question, sir.

       PROSECUTOR: Objection. Argumentative. He said—

       COURT: Well, I think he’s confusing the jury.

       DEFENSE COUNSEL: I’m trying to clarify, your Honor. If I could clarify.


does not appear to be a collateral matter. Hence, for purposes of this appeal we presume error
and still find that defendant is not entitled to relief as he cannot show prejudice.


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       COURT: I think your question asks for a negative response. I didn’t understand
       the answer.

       DEFENSE COUNSEL: Okay.

         In Stevens, 498 Mich 162, our Supreme Court clarified the standard for evaluating
whether a trial court’s conduct before a jury deprives a defendant of a fair and impartial 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. Id. at 170. “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. When evaluating the totality of
the circumstances, a court should consider (1) the nature of the trial judge’s conduct, (2) the tone
and demeanor of the judge, (3) the scope of the judicial conduct in the context of the length and
complexity of the trial and issues therein, (4) the extent to which the judge’s conduct was
directed at one side more than the other, and (5) the presence of any curative instructions. Id. at
172-178.

        Having reviewed these factors, we are not persuaded that the trial court’s comment
denied defendant a fair and impartial trial. The comment was brief and isolated and did not
appear to belittle defense counsel or unfairly influence the jury. The trial court did not state that
defense counsel was deliberately confusing the jury, but merely indicated that defense counsel’s
questioning was confusing to the jury. Furthermore, the record did not reveal a pattern of
negativity against the defense. Under these circumstances, defendant has not shown plain error
that affected his substantial rights. Carines, 460 Mich at 763.

                                 V. PROSECUTORIAL ERROR

       Defendant next argues that he was denied a fair trial because the prosecutor belittled
defense counsel by stating in front of the jury that defense counsel’s questioning was
“disrespectful.” Because defendant failed to object to the prosecutor’s comment, this issue is
reviewed for plain error that affected defendant’s substantial rights. Carines, 460 Mich at 763.

       The prosecutor’s comment occurred during the following cross-examination of McLeod
by defense counsel with respect to whether defendant had any reason for damaging McLeod’s
car:

       DEFENSE COUNSEL: Isn’t it true that there really was no reason for my client
       to do this?

       PROSECUTOR: Objection. How can he ask that. And motive is not even—the
       People don’t have to prove motive, so how is that relevant? And how is this
       witness supposed to get in the mind of his client?

       COURT: Sustained.

       DEFENSE COUNSEL: Well, could I ask him if there was no objective reason?


                                                -5-
       COURT: No.

       DEFENSE COUNSEL: I’m not asking to get in my client’s mind.

       COURT: This is argument. You can’t ask that question, it’s not relevant. It’s
       speculative, and you can’t get in the mind of the defendant.

       DEFENSE COUNSEL: Okay.

       DEFENSE COUNSEL: So you have no idea why my client did this to you?

       PROSECUTOR: Is that not the same question.

       COURT: It is the same question.

       PROSECUTOR: It’s disrespectful.

       DEFENSE COUNSEL: Your Honor, it’s not disrespectful. This is a court of law,
       I’m trying to argue legally.

       COURT: Okay, I’m going to have you approach.

        The prosecutor’s comment that defense counsel’s question was “disrespectful” does not
appear to have denied defendant a fair trial. The comment was brief and isolated. Furthermore,
the jury heard defense counsel’s response that his question was not disrespectful, and that he was
merely attempting to “argue legally.” Defendant has not shown plain error that affected his
substantial rights. Carines, 460 Mich at 763.

       Affirmed.



                                                            /s/ Donald S. Owens
                                                            /s/ Stephen L. Borrello
                                                            /s/ Cynthia Diane Stephens




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