                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 24, 2015
              Plaintiff-Appellee,

v                                                                  No. 321570
                                                                   Wayne Circuit Court
GIANDRE ROOSEVELT BURNS,                                           LC No. 13-000751-FC

              Defendant-Appellant.


Before: GADOLA, P.J., and JANSEN and BECKERING, JJ.

PER CURIAM.

        Defendant, Giandre Burns, appeals as of right his jury trial convictions of assault with
intent to do great bodily harm less than murder, MCL 750.84, felon in possession of a firearm,
MCL 750.224f, carrying a concealed weapon, MCL 750.227, and possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced
defendant, as a second habitual offender, MCL 769.10, to 5 to 15 years’ imprisonment for his
assault with intent to do great bodily harm less than murder conviction, 5 to 7-1/2 years’
imprisonment for his felon in possession and carrying a concealed weapon convictions, and two
years’ imprisonment for his felony-firearm conviction. We affirm defendant’s convictions, but
remand for resentencing.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Defendant’s convictions arise from the shooting of Shatara Ayers. At the time of the
shooting, defendant was dating Leslie Johnson, Shatara’s sister. On or about January 5, 2013,
defendant and Johnson drove to Shatara’s house to pick up their children, who had been babysat
by Shatara and other family members. When Johnson went to the door to pick up the children,
Shatara asked her for a hug; Johnson declined. Johnson then waited outside until the children
were ready. A few moments later, the children emerged, along with Shatara, her son, Damien
Jones, as well as Darrius Robinson, Jones’s cousin, and two of Jones’s friends, DeJohn Hall and
Jermaine Berry. Kevin Miller, Shatara’s friend, stood in the doorway as the group approached
defendant, who was sitting in his car. According to prosecution witnesses, the group carried
bags containing clothes, bottles, and food for the children.

       While various individuals were attempting to assist the children into the car, Shatara
approached defendant at the front passenger side of the car and asked him “how long he was
gone [sic] keep disrespecting [her] mother[?]” This question was in relation to an incident a few
                                               -1-
weeks prior when defendant refused to give Shatara’s mother, who walked with the assistance of
a cane, a ride home from the hospital. According to Shatara, defendant used profanity and told
her to get “away from my car,” then pulled out a handgun and fired two shots with a .22-caliber
revolver at her. One of the bullets struck Shatara in the arm, passing through her arm and into
her torso. Defendant got out of the car and fired more shots, causing everyone to scatter.

        Defendant testified on his own behalf. He admitted to firing shots, but contended that he
did so in self-defense. He testified that he was sitting in his car at Shatara’s house when
suddenly he looked up and saw 10 “people running outside surrounding [his] car.” He placed the
handgun on his lap for “intimidation purposes” because he was afraid. According to defendant,
Shatara walked up to the car and said “You’re gonna have to use that” in reference to the gun.
After Shatara leaned into the car, defendant told her to “get away from [his] car.” Shatara leaned
in, and, according to defendant, had her right hand behind her back. Defendant felt that Shatara
was close enough to him that “if she had a weapon,” he could have been “seriously injured.”
According to defendant, he fired one shot at Shatara inside the car and fired another after he
stepped outside the vehicle.

      A jury acquitted defendant of the more serious charge of assault with intent to commit
murder and convicted him as noted above.

                                       II. JUDICIAL BIAS

        Defendant first argues that the trial court “irreparably tainted” the jury by engaging in
“repeated, excessive, and manifestly one-sided questioning of the primary witnesses in the case.”
In particular, defendant argues that the trial court’s questioning of Johnson and of defendant
crossed the line and demonstrated judicial bias.

                                 A. STANDARD OF REVIEW

        When preserved, this issue presents a question of constitutional law that we review de
novo. People v Stevens, __ Mich __; __ NW2d __ (Docket No. 149380, issued July 23, 2015),
slip op at 5. However, where, as here, defendant failed to object to any of the alleged instances
of judicial misconduct, our review is for plain error affecting substantial rights. People v
Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011).

                        B. THE VEIL OF JUDICIAL IMPARTIALITY

        The record reveals that after the prosecutor and defense counsel finished questioning
witnesses, the trial court questioned nearly all of the witnesses in this case—both prosecution
and defense witnesses. A trial judge has broad, but not unlimited, discretion when controlling
the proceedings, and can question witnesses. MRE 614(b); People v Taylor, 252 Mich App 519,
522; 652 NW2d 526 (2002). The overriding principle is that a judge’s actions are not to pierce
the veil of judicial impartiality. People v Davis, 216 Mich App 47, 50; 549 NW2d 1 (1996).

         In Stevens, __ Mich at __, slip op at 8, our Supreme Court recently clarified the inquiry a
reviewing court is to undertake in determining whether a judge’s conduct pierces the veil of
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

                                                -2-
judge’s conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.” Id. The requisite inquiry is fact-specific and considers the cumulative
effect of any alleged errors, “within the context of a given case.” Id. at 9.

       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 extent to which the
       judge’s conduct was directed at one side more than the other, and the presence of
       any curative instructions. [Id.]

                      1. THE NATURE OF THE JUDICIAL CONDUCT

        “As an initial matter” explained the Court in Stevens, we are required to look at the nature
or type of judicial conduct at issue. Id. at 10. This provides “the starting point to evaluate
whether the conduct overstepped the line of judicial impartiality.” Id. At this starting point, we
acknowledge that the conduct at issue in this case, questioning witnesses, is generally
permissible under MRE 614(b). Id. To this end, “it is appropriate for a judge to question
witnesses to produce fuller and more exact testimony or elicit additional relevant information.”
Id. at 11. Yet, a judge’s ability to question witnesses is not without limitations. Id. See also
Taylor, 252 Mich App at 522. For instance, it “is inappropriate for a judge to exhibit disbelief of
a witness, intentionally or unintentionally.” Stevens, __ Mich at __, slip op at 11.

       In Stevens, the trial court judge engaged in “repeated questioning” of the defendant’s
expert witness, including targeting the doctor’s qualifications, questioning his medical
conclusions, and questioning the doctor’s motivation for testifying on defendant’s behalf. Id. at
18-21. The trial judge’s use of the word “allegedly” when questioning the expert—and the fact
that the judge did not use that word when questioning any other witnesses’ testimony or
conclusions—demonstrated the judge’s disbelief of the testimony. Id. at 22-23. Overall,
reasoned our Supreme Court, given the trial court’s repeated questioning, which did not clarify
any information but essentially amounted to a spirited cross-examination of the defendant’s
expert witness, the judge’s conduct “weigh[ed] in favor of finding it reasonably likely that the
judge improperly influenced the jury by creating the appearance of advocacy or partiality against
defendant.” Id. at 21.

                  2. THE TONE AND DEMEANOR OF THE TRIAL JUDGE

        The next step in reviewing the challenged conduct requires us to “consider the tone and
demeanor the trial judge displayed in front of the jury.” Id. at 12. “It will often be the case that
analysis under this factor will dovetail with analysis of the nature and type of judicial conduct;
the manner in which the judge’s inquiry is made will affect how the jury perceives the conduct.”
Id. at 24. If the judge’s opinions about the case are plainly exhibited to the jury through tone and
demeanor, the judge can deprive the defendant of a fair trial. Id. at 12. Thus, “[t]o ensure an
appearance of impartiality, a judge should not only be mindful of the substance of his or her
words, but also the manner in which they are said.” Id. When a judge undertakes to question
witnesses, he or she “should avoid questions that are intimidating, argumentative, or skeptical.”


                                                -3-
Id. In Stevens, the trial court’s tone and demeanor, along with the sequence of questioning,
“projected incredulity, bias, and hostility” towards defendant. Id. at 23.

        When engaging in this step of the inquiry, a reviewing court is to be mindful that the tone
and demeanor of a trial judge’s comments can be difficult to gauge from a transcript. Id. at 13.
“However, in certain circumstances, the very nature of the words used by the judge can exhibit
hostility, bias, or incredulity.” Id.1

                        3. THE SCOPE OF THE JUDICIAL CONDUCT

        The third step of the inquiry articulated in Stevens requires us to consider the scope of the
challenged judicial action within the context of the trial, including the length of the trial and the
complexity, or lack thereof, of the issues presented. Id. For instance, where the issues are
confusing, it may be appropriate for a judge to ask questions that clarify confusing testimony.
Id. at 13-14.

              4. AT WHICH SIDE THE JUDGE’S CONDUCT WAS DIRECTED

        “Fourth, and in conjunction with the third factor, a reviewing court should consider the
extent to which a judge’s comments or questions were directed at one side more than the other.”
Id. at 14. Where it appears that a trial judge intervenes more on behalf of one side or the other,
the intervention may demonstrate partiality. Id. For instance, where the judge’s comments in
Stevens were directed against defendant and served to undermine the defendant’s expert witness,
the imbalanced nature of the judge’s questioning suggested partiality. Id. at 26-27. In particular,
the judge in Stevens engaged in “aggressive” cross-examination of the defendant’s expert
witness. Id. at 26-27. The judge’s questions also built upon one another in such a manner so as
to build up the prosecution’s case and to point out flaws in defendant’s case. Id. In contrast, the
judge did not subject any prosecution witnesses “to such hostile intervention.” Id. at 27.

                     5. THE PRESENCE OF CURATIVE INSTRUCTIONS

         “Lastly, the presence or absence of a curative instruction is a factor in determining
whether a court displayed the appearance of advocacy or partiality.” Id. at 14. Jurors are
presumed to follow their instructions, and “[d]epending on the circumstances, an immediate
curative instruction may further alleviate any appearance of advocacy or partiality by the judge.”
Id. However, when a judge’s conduct is so far beyond what is proper and strongly suggests
partiality, a curative instruction may not be enough to undo the damage done. Id. at 15. In
Stevens, the Court concluded that although the presence of a “general curative instruction”
weighed against finding that the judge’s comments pierced the veil of impartiality, “the totality-
of-the-circumstances test requires that this factor be considered alongside the others” and the
instruction was not enough to cure the damage done by the judge’s conduct in that case. Id. at
27.


1
  Although defendant did not raise any objections in this case, an objection can be useful to note
the inappropriate tenor of a judge’s comments. Stevens, __ Mich at __, slip op at 13.


                                                -4-
                                        C. APPLICATION

                          1. NATURE OF THE JUDICIAL CONDUCT

                             a. QUESTIONS POSED TO JOHNSON

        The first inquiry in this case draws our attention to the nature of the judicial intervention.
Defendant first notes that the trial court engaged in an extensive examination of Johnson after the
prosecutor and defense counsel finished questioning her. The record reveals that the judge began
his examination by clarifying some basic information about Johnson and Shatara and their
familial relationship. The judge’s questioning then took a somewhat upsetting turn, focusing on
a matter that had previously been undisputed—that defendant had a previous felony conviction
and thus was prohibited from possessing a firearm at the time of the shooting:

              Q. Did you know that [defendant] had a gun in his car [on the day of the
       shooting?]

               A. No.

               Q. You never saw that gun before?

               A. I mean, I knew [he] had a gun. But I didn’t know it was in the car.

               Q. You knew he had a gun?

               A. Yes.

               Q. But you knew he had been convicted of a felony before too, didn’t
       you?

               A. Yes.

               Q. Yeah. And you knew that he shouldn’t have a gun then, right?

               A. Yes.

               Q. Oh, but that was okay with you?

               A. No.

               Q. So did you tell him, you shouldn’t be having a gun in this car?

               A. I didn’t know it was in the car?

               Q. Oh, you didn’t know it was in the car?

               A. No.



                                                 -5-
        This line of questioning gives us cause for concern. The judge’s questions did not clarify
any complicated issues or resolve any matters that were unclear from previous testimony. At the
time the judge asked the questions, it was undisputed that defendant had a gun and was ineligible
to possess that weapon, given his previous felony conviction. Whether his possession of that gun
was “okay with” Johnson or whether she told him “you shouldn’t be having a gun in this car”
was not something that was in issue, and had little relevance to the case. We agree with
defendant that this line of questioning could have had the appearance of being adversarial in its
nature.

       Thereafter, the judge continued questioning Johnson, this time bringing up questions
about why she had not hugged Shatara when she went to the door. Earlier, Johnson testified she
did not hug Shatara because she was in a hurry. The trial court questioned her about this as
follows:

               Q. And where you in such a hurry to go to [sic] that you couldn’t give
       your sister a hug that afternoon?

             A. I just had to go home. I was just in a rush to get home. I just been
       movin’ that day. And I was tired.

               Q. Whoa. And that prevented you from giving your sister a hug?

               A. Yep.

             Q. How long do you think it would take someone to give a hug to
       somebody else? A long time, right?

               A. No.

               Q. How long?

               A. A quick second.

               Q. Oh, okay.

        While not rising to the level of the inappropriate conduct in Stevens, we agree that this
type of questioning was unwarranted. Indeed, although the judge did not question Johnson’s
motivation for testifying or challenging the accuracy of her testimony as did the trial judge in
Stevens, __ Mich at __, slip op at 18-20, we nevertheless find that the judge’s questions
approached and may have even crossed the line of what was and was not appropriate. The judge
essentially cross-examined Johnson about a minor point in her testimony and, with apparent
sarcasm, questioned how she could be so busy she would not stop to give her sister a hug,
something that would likely take only a “quick second.”

       Thereafter, the judge delved into Johnson’s testimony that Shatara and other individuals
“surrounded” defendant’s car when they brought out the children. The judge began by asking
whether Johnson saw any weapons, such as bricks, guns, knives, or baseball bats in the hands of


                                               -6-
the individuals who approached the car; Johnson answered in the negative to each question. The
trial court continued:

              Q. But then you said, that they came out and they surrounded the car.
       What did you mean by the term surrounded? That reminds me of the Indians you
       know, surrounding a wagon wheel, a stage coach or something out in the old
       west, okay. Were these people surrounding this car and pounding on the car[?]
       Were they doing that?

               A. No.

               Q. Were they hitting up the car with bricks or something like that?

               A. No.

               Q. Were they shooting at the car?

               A. No.

               Q. Were they spitting at the car?

               A. No.

               Q. Were they even talking?

               A. I’m not sure.

               Q. Why did you use the term surrounded?

               A. Because everybody was around the car.

               Q. Oh, around the car?

               A. Yes.

        Again, this type of questioning certainly looks like cross-examination. A cross-
examination, we might add, that, in certain instances, can be described as boorish with regard to
its mention of “Indians” surrounding a stagecoach. Yet, we note that the question about how
defendant’s car was “surrounded” gave some insight into Johnson’s use of the term and served to
clarify some of her earlier testimony. Still, while not rising to the level of overt hostility or
disbelief that was present in the trial judge’s questioning in Stevens, __ Mich at __, slip op at 20-
23, the questioning nevertheless gives us pause.

       The judge continued his inquiry into Johnson’s testimony, eliciting testimony that she did
not see all of the events that unfolded because she was strapping one of her children into a car
seat. He also asked her if she was fearful after the shooting, asking her why she drove off
instead of making sure her family members were safe, cutting her off when she attempted to
explain why she drove off with defendant, explaining “I didn’t ask you why . . . .” In addition,
the judge asked how she knew defendant was scared, posing the following question: “And before
                                                -7-
the shooting erupted, you said, well, the defendant was scared. Mr. Burns was scared ‘cause the
car was surrounded. And these people rushed out of the house. Well, how was he scared? Was
he, his eyes were bulging out of his head[?] Was he saying, oh, I’m scared. What was he
saying?”

       While we are not as concerned with these inquiries as is defendant, we question the
relevance of some of the questions. Again, not all of the questioning appeared to elicit
information on contested issues. Also, the questions pertaining to whether Johnson was able to
see some of the events clearly because she was strapping a child into a car seat sound more like
cross-examination than a balanced inquiry into the facts.

        In sum, as it pertains to Johnson, we are concerned that the extent and nature of the
questioning could be viewed as indicating a disbelief of Johnson. Although it may not have been
the trial court’s intent to do so, the length of the questioning and the nature of some of the
questions asked tended to reflect a somewhat negative view of Johnson—who, we might add,
was one of defendant’s key witnesses. Indeed, the trial court appeared to respond to some of
Johnson’s testimony with sarcasm and he engaged her in cross-examination in several aspects,
including aspects of her testimony that were only marginally probative. This factor weighs in
favor of finding it was reasonably likely that the judge improperly influenced the jury by creating
the appearance of partiality against defendant. See id. at 21.

         Yet, we note that the nature of the questioning in this case was not as indicative of
partiality as was the questioning in Stevens. In that case, the judge’s questions served to
undermine defendant’s expert witness in a number of ways; this was significant because expert
testimony was critical to the issue of the defendant’s guilt or innocence in that case. See id. at
18-23. In addition, the judge overtly injected his opinion about the expert’s testimony by
questioning the expert with the phrase “you would agree with me . . . .” Id. at 18. Here, by
contrast, while some of the judge’s comments could be construed as indicative of a disbelief of
some of Johnson’s testimony, such as her assertion that she was too tired to give her sister a hug,
the disbelief was more benign in nature, and not directed at issues that were critical to
defendant’s guilt or innocence. The questions in this case suggested less of a disbelief of
defendant’s case as they did a level of aggravation with Johnson. This fact distinguishes the
instant matter from a case defendant cites, People v Redfern, 71 Mich App 452, 456-457; 248
NW2d 582 (1976), where the trial judge questioned the defendant in a way that undermined the
defendant’s only defense and called into question the defendant’s credibility in regard to that
defense. Essentially, in Redfern, a case that involved prosecution for the defendant’s receipt of
money, the trial judge asked questions that contained facts that directly contradicted the
defendant’s innocent explanation for having the money—that he won it at a racetrack—by
stating in one of the questions that the racetrack was not open at the time defendant claimed to
have received the money. Id. This type of questioning not only showed bias but it significantly
harmed defendant’s only defense. Here, while the judge’s questioning of Johnson is troubling, it
was not nearly as pointed or damaging as the questioning in Redfern.

                          b. QUESTIONS POSED TO DEFENDANT

       We note that Johnson was far from the only witness the trial judge questioned. As
defendant notes, the judge also questioned him after defense counsel passed on re-direct

                                                -8-
examination. The judge asked defendant about such matters as to whether “a 22[-]caliber bullet
[can] kill somebody,” the amount of pressure it took to pull the trigger on his gun, whether
defendant had to continue pulling the trigger in order to fire more shots, and whether the gun
kicked after he fired it. We do not believe that these questions were of the same ilk as those
posed to Johnson. The questions pertained to defendant’s intent and were not indicative of any
disbelief that the trial court might have harbored in regard to defendant’s testimony. Nor was the
judge argumentative when he questioned defendant. On the whole, the judge’s questions were
directed at defendant’s knowledge and about his actions when he began shooting. These
questions were relevant to the question of self-defense, and the judge was permitted to engage in
this type of inquiry with defendant. See Davis, 216 Mich App at 51-52 (explaining that a judge
was permitted to question the defendant about matters that were relevant to his theory of self-
defense).

                                 2. TONE AND DEMEANOR

         Our analysis into the judge’s tone and demeanor ties in with our analysis of the nature of
the judge’s interventions. As stated above, some of the judge’s questions in this case are
concerning, particularly the sarcastic nature in which he posed some of the questions to Johnson.
Nevertheless, Johnson was not the only witness whom the trial court engaged in sarcastic and
sometimes colorful questioning. As will be discussed in more detail below, the trial court
questioned nearly all of the prosecution’s witnesses in this case. For instance, when questioning
Shatara, the judge asked her about whether she had been angry when she walked out to
defendant’s car, asking if she acted with a “huff and a puff and anger” when she approached
defendant before the shooting began. In addition, while another prosecution witness, Dominique
Ayers, was testifying, the judge told her to speak louder. The judge continued “I mean, if you
want them [the jury] to hear you [speak up.] If you don’t want them to hear you[,] whisper.”
This could be viewed as an assessment by the judge that, if Ayers had testimony she wanted the
jury to hear, i.e., testimony that was harmful to defendant, who was accused of shooting at her
aunt, Shatara, she should speak louder. Given that the judge treated both defense and
prosecution witnesses with sarcasm at times, we do not find that this factor weighs in favor of
finding it was reasonably likely that the judge created the appearance of partiality against
defendant. Cf. Stevens, __ Mich at __, slip op at 24 (finding partiality in the trial court’s
demeanor when the court used the words “alleged” and “allegedly” when questioning a defense
witness but did not use such words when questioning any other witnesses). In addition, while
evaluating this factor, as did the Court in Stevens, we acknowledge that a judge’s tone and
demeanor can be difficult to ascertain from a transcript, particularly where, as was the case here,
defendant did not object to the trial court’s conduct. See id. at 13. Given these difficulties, we
decline to read too much into the trial court’s tone and demeanor. In addition, we note that the
trial judge appeared to treat all witnesses equally and did not overtly express a tone of disbelief
toward them. While some of the judge’s questions, particularly some of his questions posed to
Johnson, were a bit colorful and unorthodox, there was not anything particularly troubling, from




                                                -9-
our review of the transcript, about the judge’s tone or demeanor.2 This again distinguishes the
judge’s conduct from the conduct at issue in Stevens. Cf. id. at 22 (finding partiality in the
judge’s tone and demeanor when, in that case, the judge dismissed the testimony of the
defendant’s expert by remarking “that’s just your opinion.”).

        In evaluating tone and demeanor, we are aware that defendant highlights some of the
judge’s questioning of Johnson in which he responded to Johnson’s answers with “Oh, I see.”
Defendant’s argument suggests that these comments were indicative of disbelief of Johnson’s
testimony. However, the record reveals that the judge responded to both prosecution and defense
witnesses with “Oh, I see” and “I see” after they answered questions. Consequently, we do not
see on the record before us that the trial court’s tone or demeanor was particularly indicative of
bias or partiality toward either side. Cf. id. at 24 (finding partiality in the trial court’s demeanor
when the court used the words “alleged” and “allegedly” when questioning defendant but did not
use such words when questioning any other witnesses).

        3. SCOPE OF THE CONDUCT IN LIGHT OF THE COMPLEXITY OF TRIAL

        This was not a particularly complex trial. However, our review of the record reveals that
neither the prosecutor nor defense counsel engaged in extensive questioning of the witnesses.
This led to, in several instances, the trial judge eliciting pertinent information when he
questioned witnesses, thereby explaining, in part, the judge’s decision to question nearly every
witness in this case. We also note that defendant presented a self-defense theory at trial, which
required him to produce evidence that “he honestly and reasonably believe[d] that he [was] in
imminent danger of death or great bodily harm and that it [was] necessary for him to exercise
deadly force.” People v Riddle, 467 Mich 116, 119; 649 NW2d 30 (2002). The trial judge was
thereafter required to determine if defendant met his burden, and if he had, the judge was
required to instruct the jury on self-defense. See People v Rodriguez, 463 Mich 466, 472; 620
NW2d 13 (2000). See also Davis, 216 Mich App at 51-52. Many of the trial court’s questions in
this case were directed toward what defendant believed, such as his questioning of Johnson in
regard to whether defendant appeared afraid. Also, while we do not agree with the manner in
which the judge phrased his questions to Johnson about whether the car was indeed
“surrounded,” such questions could have had some relevance in regard to whether defendant
believed his life was in danger.

                         4. DIRECTION OF THE JUDGE’S CONDUCT

        Although defendant contends that the trial judge directed his comments and questions in
a manner that undermined the defense, our review of the record does not support defendant’s
assertion. While we question the need for such extensive questioning as occurred in this case,
we find that the overall effect of the trial judge’s questions and comments were, when considered
in their entirety, rather neutral. The judge repeatedly questioned multiple witnesses, engaging


2
  In this regard, we note the lack of an objection from defense counsel at trial. Perhaps if a
record had been made of some of the comments, defendant could have a more compelling
argument. In the absence of such an objection, we will not speculate about tone or demeanor.


                                                -10-
prosecution and defense witnesses in what essentially appeared to be cross-examination. For
instance, Jones, a prosecution witness, volunteered an answer about what he perceived as
Shatara’s intent in approaching defendant’s car in response to a question posed by jurors about
where her body was positioned relative to defendant’s car. After sustaining an objection from
defense counsel that the answer was based on speculation, the trial judge jumped in and, in
essence, cross-examined Jones on his answer:

              THE COURT. The objection is sustained. How can you tell us what she
       was intending to do, if you haven’t spoken to her since this incident happened?

              [Jones]. I know my mother. She’s an adult. She not ‘bout to try to fight
       no young man. He ain’t –

                                                  * * *

Later, when questioning Robinson, another prosecution witness, about why he and his friends
were carrying items to defendant’s car along with the children, the judge appeared to question
Robinson’s motivations, asking whether he was “just trying to be helpful?” when he went out to
defendant’s car.

        In addition, the judge undertook a fairly lengthy examination of two law enforcement
officers in this case—officers who testified on behalf of the prosecution—with many of the
questions taking on the appearance of cross-examination. Notably, the judge engaged Shannon
Wright, a police officer, in a fairly extensive examination about firearms, most of which was not
pertinent to any matter at issue in this case. The judge also asked whether a larger-caliber bullet
would travel a shorter distance than a smaller-caliber bullet, asking “You don’t know that?”
when Wright testified she was unsure about which bullet would travel a greater distance. The
manner in which the judge asked the question could imply some disbelief that Wright would not
know as much.

       Similar to the manner in which the judge questioned Wright, the judge asked Sergeant
Todd Eby, a prosecution witness to whom virtually no questions were posed by either party,
about whether the police ever searched defendant’s home. He also asked whether the officers
recovered defendant’s car. Eby answered in the negative to each inquiry. Eby made no mention
of any searches before the judge’s questioning. In effect, the judge’s questions to Eby served to
highlight things the police did not do, thereby, at least to some extent, serving to undermine the
police investigation into this matter. In this respect, the judge’s questioning of Eby in this
manner could be viewed as helpful to defendant’s cause.

        In sum, while the judge pressed Johnson on several matters and toed the line of improper
questions, he also asked the several prosecution witnesses questions that could have suggested a
disbelief of their respective testimony. Notably, the judge questioned why Wright would not
know certain information, and asked questions to Eby about the thoroughness, or lack thereof, of
the police investigation. He also appeared to express disbelief with regard to Jones’s volunteered




                                               -11-
answer about what Shatara intended to do when she approached defendant’s car.3 Thus, on this
record, the judge at times stepped into the role of both the prosecutor and defense counsel in
some of his questions to witnesses. While we do not necessarily condone4 the extent of the
meddling in this case, we nevertheless do not believe that, when reviewing the entirety of the
judicial interventions in this case, the court’s comments and questions had the effect of favoring
one side or the other. Rather, the judge took equal opportunity to press both parties’ witnesses
on certain matters.

        In this regard, the instant case stands in significant contrast to the judge’s intervention in
Stevens. In that case, the judge asked questions of the prosecution’s witnesses in a manner that
built upon his previous questions and “often appeared to be designed to further weaken
defendant’s case.” Stevens, __ Mich at __, slip op at 26. The judge also questioned the
prosecution’s expert by having the witness reiterate that he was a “head medical examiner”; this
type of questioning appeared to work in tandem with the judge’s questioning of the defendant’s
expert witness, which focused on the fact that defendant’s expert was an assistant medical
examiner, thereby implying that the prosecution’s expert was more qualified. Id. at 26-27. And,
in that case, the judge only subjected defendant’s witnesses to a “hostile intervention” and did
not subject the prosecution’s witnesses to such questioning. “In other words,” explained the
Court, “not only was judicial questioning imbalanced in number but also in style.” Id. at 27.
Here, by contrast, the record does not reveal imbalanced intervention by the trial judge.

                                5. CURATIVE INSTRUCTIONS

         Unlike in Stevens, we find that the presence of curative instructions was enough to
alleviate the harm, if any, caused by the judge’s improper conduct in this case. Here, the judge
gave a general instruction that his comments, questions, and statements were not evidence, and
that if the jury “believe[d] that [he] had an opinion about how [it] should decide this case, [it]
must pay no attention to that opinion,” and it was to decide the case solely on the evidence
presented. Jurors are presumed to follow their instructions. People v Mahone, 294 Mich App
208, 212; 816 NW2d 436 (2011). Although we are troubled by some of the judge’s comments,
particularly some of his questions posed to Johnson, we do not find, based on the totality of the
circumstances, that the nature of the judicial intervention in this case was so problematic that it
could not be alleviated by jury instructions. Cf. Stevens, __ Mich at __, slip op at 27.


3
  We also note that the judge expressed considerable angst at the prosecutor when she attempted
to show a photograph to the jury without admitting the photograph and for using a projector-type
device to show the photograph. For instance, the court asked the prosecutor “What [the] heck is
going on here?” and admonished her to “[t]urn that thing off” before excusing the jury and
further chastising the prosecutor.
4
  In this regard, we would caution against such extensive questioning by trial judges as occurred
in this case. As this Court explained in People v Roby, 145 Mich App 138, 144; 377 NW2d 366
(1985), “[w]hen the court engages in extensive interrogation of witnesses, the probability of
asking questions improper in form or scope increases; yet, the attorneys are almost certainly
more reluctant to object to the court's improper questions than to an adversary’s.”


                                                -12-
Accordingly, we decline to find plain error affecting substantial rights, and reject defendant’s
claim that judicial bias entitled him to a new trial.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant asserts that he was denied the effective assistance of counsel when his trial
counsel failed to question Shatara regarding her alcohol consumption on the day of the shooting
and for counsel’s failure to “point out to the jury” during closing arguments that Shatara had a
blood alcohol-level that was slightly over the legal limit for driving an automobile. We disagree.

        When a defendant does not move for a Ginther5 hearing or a new trial in the trial court on
the basis of ineffective assistance of counsel, appellate review is limited to mistakes apparent on
the record. People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001). Defendant
did not move for a Ginther hearing or a new trial in the trial court on the basis of ineffective
assistance of counsel. Therefore, appellate review of this issue is limited to mistakes apparent on
the record. Id. Whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and constitutional law. People v Trakhtenberg, 493 Mich 38,
47; 826 NW2d 136 (2012). A trial court’s findings of fact, if any, are reviewed for clear error,
and questions of constitutional law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002).

        The United States and Michigan Constitutions guarantee a defendant the right to the
effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; Trakhtenberg, 493
Mich at 51. To establish ineffective assistance of counsel, the defendant must show that “(1)
defense counsel’s performance was so deficient that it fell below an objective standard of
reasonableness and (2) there is a reasonable probability that defense counsel’s deficient
performance prejudiced the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266
(2012). A defendant is prejudiced if, but for defense counsel’s errors, the result of the
proceeding would have been different. Id. at 81. “Effective assistance of counsel is presumed,
and the defendant bears a heavy burden of proving otherwise.” People v Eisen, 296 Mich App
326, 329; 820 NW2d 229 (2012), quoting People v Solmonson, 261 Mich App 657, 663; 683
NW2d 761 (2004). A defendant must overcome the strong presumption that counsel’s
performance constituted sound trial strategy. People v Toma, 462 Mich 281, 302; 613 NW2d
694 (2000). Decisions regarding what evidence to present, what evidence to highlight during
closing argument, whether to call witnesses, and how to question witnesses are presumed to be
matters of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). This
Court will not “second-guess counsel on matters of trial strategy, nor does it assess counsel’s
competence with the benefit of hindsight.” People v Russell, 297 Mich App 707, 716; 825
NW2d 623 (2012).

       Defendant contends that counsel was ineffective for failing to question Shatara regarding
her alcohol consumption on the day of the incident. However, decisions regarding how to
question a witness are presumed to be matters of trial strategy. Horn, 279 Mich App at 39.


5
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                               -13-
Here, counsel questioned Shatara in a manner that focused on whether her interactions with
defendant would have given rise to a reasonable belief of imminent harm to defendant. Whether
Shatara’s blood-alcohol content was above the limit for driving an automobile and whether this
influenced her behavior had little to do with whether it was reasonable for defendant to believe
that he was in imminent harm. Indeed, it was the reasonableness of defendant’s belief, not what
could have influenced Shatara’s behavior, that was relevant. Furthermore, we note that evidence
concerning Shatara’s blood-alcohol content was before the jury; her medical records, which
specifically identified her blood-alcohol level, were admitted into evidence. Therefore,
defendant cannot overcome the strong presumption that counsel’s performance constituted sound
trial strategy. Toma, 462 Mich at 302.

        We also reject defendant’s contention that trial counsel was ineffective for failing to
highlight during closing arguments that Shatara’s medical records indicate that her blood alcohol
content was slightly above the legal limit for driving an automobile. Where the evidence of
Shatara’s blood-alcohol content was, at best, marginally relevant, we will not fault trial counsel
for focusing on evidence that was more relevant to defendant’s claim of self-defense and the
perceived weaknesses in the prosecution’s case. And, again, we note that evidence of Shatara’s
blood-alcohol content was before the jury already. Thus, even to the extent counsel’s actions
could be perceived as objectively unreasonable, defendant would be unable to demonstrate the
requisite level of prejudice. See Heft, 299 Mich App at 81.

                                        IV. SENTENCING

       Lastly, defendant argues that he is entitled to resentencing as a result of the trial court’s
erroneous assessment of offense variable (OV) 4 and OV 12. We agree.

        The trial court’s factual determinations under the sentencing guidelines are reviewed for
clear error and must be supported by the preponderance of the evidence. People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.

        Initially, as to OV 12, the prosecution concedes error, and we agree that the trial court
erred by scoring the offense variable at 5 points. The offense variable should not have been
scored because any “contemporaneous felonious criminal acts” committed by defendant resulted
in separate convictions in this case. See MCL 777.42(2)(a)(ii).

        We also find that the facts in this case did not support a score of 10 points under OV 4.
OV 4 is psychological injury to a victim. MCL 777.34(1). OV 4 is properly assessed zero points
when no serious psychological injury requiring professional treatment occurred to a victim.
MCL 777.34(1)(b). OV 4 should be assessed 10 points if serious psychological injury requiring
professional treatment occurred to a victim. MCL 777.34(1)(a). In making this determination,
the fact that treatment has not been sought is not conclusive. MCL 777.34(2). “The trial court
may assess 10 points for OV 4 if the victim suffers, among other possible psychological effects,
personality changes, anger, fright, or feelings of being hurt, unsafe, or violated.” People v
Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014), citing People v Gibbs, 299 Mich
App 473, 493; 830 NW2d 821 (2013). However, there must be actual record evidence

                                                -14-
supporting a finding that the victim suffered psychological injury, and “[t]he trial court may not
simply assume that someone in the victim’s position would have suffered psychological harm
because MCL 777.34 requires that serious psychological injury “occurred to a victim.” People v
Lockett, 295 Mich App 165, 183; 814 NW2d 295 (2012).

         Here, there was no evidence of any kind that would satisfy a score of 10 points under OV
4. Although Shatara testified at trial, she never expressed any fear or any type of emotion that
could satisfy OV 4. Nor was there a victim’s impact statement detailing any type of emotional
reaction. While it seems likely that Shatara would have been afraid and that she suffered some
type of serious psychological injury, the record is completely void of such evidence, and we are
left to speculate as to whether a serious psychological injury occurred. Such speculation is not
appropriate. People v McChester, __ Mich App __; __ NW2d __ (Docket No. 318145, issued
May 5, 2015) (finding the trial court erred by scoring OV 4 at 10 points when, although there
was evidence that the victim of an unarmed robbery in which the defendant feigned holding a
gun was “visibly shaken,” “the record [was] essentially barren on the issue [of serious
psychological injury] and speculation cannot form the basis to affirm a 10-point score for OV
4.”). See also Lockett, 295 Mich App at 183.

       After subtracting the erroneously scored points from defendant’s OV level, his guidelines
range changes, requiring resentencing. See People v Thompson, __ Mich App __; __ NW2d __
(Docket No. 318128, issued August 25, 2015), slip op at 8.

       Affirmed in part and remanded for resentencing. We do not retain jurisdiction.



                                                            /s/ Michael F. Gadola
                                                            /s/ Kathleen Jansen
                                                            /s/ Jane M. Beckering




                                              -15-
