                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 20, 2018
               Plaintiff-Appellee,

v                                                                    No. 336269
                                                                     Wayne Circuit Court
ERIC LAMOTHE THOMAS,                                                 LC No. 16-005648-01-FH

               Defendant-Appellant.


Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

       A jury convicted defendant of one count of third-degree criminal sexual conduct (CSC-
3), MCL 750.520d(1)(a), and one count of accosting a child for immoral purposes, MCL
750.145a, for sexually assaulting his 14-year-old neighbor. Defendant contends that his trial
counsel was ineffective in failing to present into evidence the victim’s forensic interview records.
Defendant further accuses the trial judge of bias during the proceedings. We affirm defendant’s
convictions and sentences, but remand for the ministerial correction of his judgment of sentence.

                                       I. BACKGROUND

        The victim testified that her family had been close with defendant for several years.
Defendant had a key to the victim’s house and often picked her and her siblings up from school.
On the day in question, the victim was at home because she had been suspended from school for
uniform violations. Defendant promised to keep an eye on her. Instead, he entered the victim’s
home and asked her a series of inappropriate sexual questions. After defendant left, the victim
locked the doors and took a shower, forgetting that defendant could use his key to reenter. As
the victim dressed in her bedroom, she heard the television turn on in the living room. She
discovered that defendant had returned.

       The victim described that defendant ordered her to remove her pants and she refused.
The victim tried to avoid defendant by going into her mother’s bedroom. Defendant followed
her, however, and tackled her on her mother’s bed. The victim testified that defendant forcefully
removed her pants and penetrated her vagina with his penis. The victim was fearful and told no
one of defendant’s attack for several weeks. As a result, no physical evidence remained.




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                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

       During cross-examination at trial, defense counsel impeached the victim with comments
she made while being interviewed at Kids Talk, a children’s trauma advocacy center. Defendant
contends that his attorney should have sought to present the entire Kids Talk record into
evidence. The failure to present the Kids Talk record into evidence was prejudicial, defendant
contends, as the jury requested to view it during deliberations and the request had to be denied.

        Defendant failed to preserve his challenge by moving for a new trial or a Ginther1
hearing in the trial court and our review is therefore “limited to mistakes apparent on the record.”
People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). “[I]t has long been recognized
that the right to counsel is the right to the effective assistance of counsel.” United States v
Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), quoting McMann v
Richardson, 397 US 759, 777 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). In Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the United States
Supreme Court held that a defendant’s ineffective assistance claim includes two components:
“First, the defendant must show that counsel’s performance was deficient. . . . Second, the
defendant must show that the deficient performance prejudiced the defense.” To establish the
first component, a defendant must show that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms. People v Solomonson, 261
Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice aspect, the defendant
must demonstrate a reasonable probability that but for counsel’s errors the result of the
proceedings would have differed. Id. at 663-664. The defendant must overcome the strong
presumptions that his “counsel’s conduct falls within the wide range of professional assistance,”
and that his counsel’s actions represented “sound trial strategy.” Strickland, 466 US at 689
(quotation marks and citation omitted).

         Counsel’s failure to present certain evidence “will only constitute ineffective assistance . .
. if it deprived defendant of a substantial defense.” People v Dunigan, 299 Mich App 579, 589;
831 NW2d 243 (2013). When a case represents “a close credibility contest” with little or no
physical evidence, “[d]efense counsel’s failure to have admitted evidence critical to the issue of
the credibility of the complainant” may be constitutionally deficient. People v Dixon, 263 Mich
App 393, 397-398; 688 NW2d 308 (2004).

        That said, defendant bears the burden of establishing the “factual predicate” for his
ineffective assistance claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

                 A convicted person who attacks the adequacy of the representation he
         received at his trial must prove his claim. To the extent his claim depends on
         facts not of record, it is incumbent on him to make a testimonial record at the trial
         court level in connection with a motion for a new trial which evidentially supports
         his claim and which excludes hypotheses consistent with the view that his trial



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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       lawyer represented him adequately. [People v Hoag, 460 Mich 1, 6; 594 NW2d
       57 (1999) (quotation marks and citation omitted).]

        Here, defendant failed to request a hearing in the lower court so that the Kids Talk
documents could be placed on the record. Defendant has not presented the Kids Talk documents
on appeal or requested permission to expand the record to do so. As a result, we have no
grounds to find the subject evidence was “critical to the issue of credibility of the complainant.”
It is just as likely that the remainder of the Kids Talk record further inculpated defendant or
bolstered the victim’s credibility. As we must presume that counsel employed sound trial
strategy, it is reasonable to infer that defense counsel reviewed the entirety of the Kids Talk
record and employed the useful portions to discredit the victim. We may also infer that counsel
declined to place the entire record into evidence because the remainder would damage the
defense. Based on this record, we cannot find counsel’s performance deficient.

        Defendant also has not established that he was prejudiced by the absence of this
evidence. Because we cannot speculate that the omitted evidence would have been exculpatory
or discrediting, we cannot conclude that the jury likely would have acquitted had it seen the
records.

        In any event, defense counsel vigorously attacked the victim’s credibility. Not only did
counsel select helpful portions of the Kids Talk record to discredit the victim on cross-
examination, counsel also elicited testimony to suggest that the victim fabricated her accusations
out of revenge. Specifically, defense counsel presented evidence that defendant had recently
reported the victim for being alone in her home with a young male friend without her mother’s
knowledge. The victim had been disciplined as a result. “The fact that defense counsel’s
strategy was unsuccessful does not render him ineffective.” People v Solloway, 316 Mich App
174, 190; 891 NW2d 255 (2016). Accordingly, defendant is not entitled to a new trial.

                                       III. JUDICIAL BIAS

        Defendant further argues that he was denied the right to a fair trial as a result of the trial
judge’s bias. Defendant contends that the trial judge “pierced the veil of judicial impartiality” at
several points during the attorneys’ questioning of the victim’s mother, SC.

        Defendant failed to preserve his challenge by raising it below, and our review is limited
to plain error affecting defendant’s substantial rights. People v Jackson, 292 Mich App 583,
597; 808 NW2d 541 (2011). To merit relief, defendant must show that the trial judge’s
expressions of bias affected the trial’s outcome, led to the conviction of an innocent defendant,
or affected the “fairness, integrity, or public reputation” of the trial. People v Carines, 460 Mich
750, 763-764; 597 NW2d 130 (1999). “A defendant claiming judicial bias must overcome a
heavy presumption of judicial impartiality.” Jackson, 292 Mich App at 598. The Supreme Court
recently described “when a trial judge’s conduct in front of a jury [deprives] a party of a fair and
impartial trial.” People v Stevens, 498 Mich 162, 164; 869 NW2d 233 (2015).

               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

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       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.]

“This is a fact-specific inquiry, and this Court considers the ‘cumulative effect’ of any errors.”
People v Willis, ___ Mich App ___; ___ NW2d ___ (Docket No. 334398, issued January 11,
2018), slip op at 4, quoting Stevens, 498 Mich at 171-172.

       As noted in Willis, ___ Mich App at ___, slip op at 5:

               One form of judicial bias is biased commentary in front of the jury.
       Reversal is proper “when the trial judge’s . . . comments were such as to place his
       great influence on one side or the other in relation to issues which our law leaves
       to jury verdict.” In general, however, a trial judge’s comment that is critical of or
       hostile to a party or his counsel is not sufficient to pierce the veil of judicial
       impartiality. A trial judge’s rulings or opinions do not pierce the veil of judicial
       impartiality “unless there is a deep-seated favoritism or antagonism such that the
       exercise of fair judgment is impossible.” [Citations omitted.]

         We note that the prosecution’s first two witnesses, the victim and her teenage cousin,
often gave long, narrative answers that did not truly respond to the questions asked. The court
advised both young women to listen to the attorneys’ questions, answer the questions asked, and
not volunteer additional information. At the outset of SC’s testimony, her answers did not suffer
this infirmity. Following a hearsay objection, SC apparently felt she had done something wrong
and apologized on the stand. The court advised SC to speak only when the attorney asked a
question and offered, “And you’re doing great. When you listen, just listen carefully to the
question he ask[s]. And all answer [sic] that question. Don’t volunteer. Then they’ll ask you
another question. All right.”

       Defendant specifically complains of commentary made shortly thereafter. During direct
examination, the prosecutor inquired about defendant’s relationship with the family immediately
following the alleged assault, before the victim reported the event.

               Q. And when did this arrangement change?

             A. It just kinda fell apart. Like, I would get calls from my son saying
       nobody came—

               Mr. Blake [defense counsel]: Your Honor, I object to the user [sic].

               (Witness turns and faces Judge)


                                                 -4-
                A. Calls from my son from school.

                 The Court: No. That’s all right. I’m gonna overrule that. I don’t think
         there’s anything having to do with the truth or falsity of what was stated. It’s just
         what is in the mind of this witness. And why she was acting and doing what she
         did. So you may answer that question.

       Shortly thereafter, SC testified that she did not know why defendant stopped driving her
children to and from school, and defendant once again argues that the trial judge’s interjected
commentary showed judicial bias:

                A. I can only ass - -, well, initially I didn’t know. But so I was just, they
         hadn’t been in close interactions with each [other] in that time period. Like, so it
         was kinda-I didn’t do [sic] know. Like at the time I didn’t know. But after the
         fact.

                Q. Okay.

                A. It made me think about it.

                 The Court: That’s a very good answer. If you don’t know the answer you
         say I do not know.

        On cross-examination, defense counsel asked SC if she “recall[ed] what kind of clothing
[the victim] had on” on the day of the assault. SC said, “No,” and explained that it was just a
regular day for her and so she did not take note of such details. The following conversation
between the court and the witness ensued:

                The Court. No, is a terrific answer.

                The Witness. I’m sorry.

                The Court. You don’t have to say why. I mean, as soon as you say
         because you’re going to f[a]r. Okay.

                The Witness. Yes, sir.

                The Court. No is a terrific answer. Or yes if the answer is yes.

                The Witness. Yes, sir.

                The Court. Or, I don’t know. Those are great answers. . . .

         Defendant also takes issue with the trial judge’s response to the testimony given shortly
after:

                 Q. Ma’am, it’s a simple question. I asked you did you receive
         instructions from the hospital as to what to do for being a rape victim?


                                                  -5-
               A. Yes. But they said nothing pertaining to clothing.

              Q. Okay. You answered my question. You said nothing pertaining to
       clothing—

               The Court: When you say yes that’s terrific. And then stop talking,
       okay[?] If Mr., if the Prosecutor wants you to expand it he, he’s a good attorney.
       So he’ll ask you. Okay[?]

               The Witness. Okay.[2]

       Again, briefly after this interaction, the court reminded SC to answer, “I do not know,” if
she was uncertain about something:

              Q. In fact, in her statement to the police [the victim] doesn’t even mention
       where in the house this assault took place; would you agree with that?

               A. Okay.

               Q. Are you agreeing with that?

               A. If you say so.

               Q. Well, I don’t want you to take my word?

               The Court. No. This is a perfect time to use that I don’t know if you don’t
       know.

               The Witness. Yeah. I don’t know. . . .

        We discern no hint of judicial bias in the court’s comments. Rather, the court patiently
(and repeatedly) guided the witnesses regarding the proper way to answer questions on the stand.
This is part of the court’s duty under MRE 611(a):

       The court shall exercise reasonable control over the mode and order of
       interrogating witnesses and presenting evidence so as to (1) make the
       interrogation and presentation effective for the ascertainment of the truth, (2)
       avoid needless consumption of time, and (3) protect witnesses from harassment or
       undue embarrassment.

Trial courts have “wide discretion and power in matters of trial conduct.” People v Conley, 270
Mich App 301, 307; 715 NW2d 377 (2006) (quotation marks and citation omitted). And a trial
judge may intervene in the questioning of a witness “ ‘to promote expedition, and prevent


2
 It appears that the court misspoke as this comment was made during cross-examination when
defense counsel was questioning the witness, not the prosecutor.


                                                -6-
unnecessary waste of time, or to clear up some obscurity.’ ” Stevens, 498 Mich at 174, quoting
Code of Judicial Conduct, Canon 3(A)(8). It was certainly in the court’s power to direct
witnesses to answer the question asked and to indicate when they did not know the answer. The
trial judge could have used blander language when directing SC, but the words chosen did not
imply to the jury that the judge favored the prosecution over the defense. Accordingly,
defendant is not entitled to relief.

      Defendant further asserts that defense counsel was ineffective in failing to object.
However, counsel is not ineffective for failing to raise a futile objection. People v Ericksen, 288
Mich App 192, 201; 793 NW2d 120 (2010).

                     IV. CORRECTION OF JUDGMENT OF SENTENCE

       During our review of this case, we noted that the trial court inadvertently listed on
defendant’s judgment of sentence that he was convicted of first-degree, rather than third-degree,
CSC. The court sentenced defendant relative to the correct offense so resentencing is not
required. However, we remand for the ministerial correction of the judgment of sentence.

        We affirm. We remand for the ministerial correction of the judgment of sentence. We do
not retain jurisdiction.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Stephen L. Borrello
                                                            /s/ Brock A. Swartzle




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