                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 25, 2018
               Plaintiff-Appellee,

v                                                                   No. 338868
                                                                    Saginaw Circuit Court
SCOTT ODELL CLARK,                                                  LC No. 16-042278-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

        The Michigan Rules of Evidence permit a judge to question trial witnesses. MRE 614(b).
A judge exercising this option must scrupulously avoid advocacy. People v Stevens, 498 Mich
162, 174; 869 NW2d 233 (2015). The goal of judicial questioning should be to help the jury by
clarifying testimonial ambiguities. Id. at 173.

        Defendant challenges the trial court’s questioning of Kyle McGraw, an undercover
officer and the daughter of the trial court’s colleague, Judge Patrick McGraw. During McGraw’s
direct testimony she recounted the circumstances of a controlled drug buy that took place in an
unmarked police car. The prosecutor’s questioning of McGraw was lengthy and detailed.
McGraw provided considerable information about the appearance of the man she believed to
have been defendant and his location in relation to her car. She also described her fellow
officer’s quick action to disarm the passenger. Defense counsel covered some of this same
ground during his cross-examination.

        I respectfully disagree with my colleagues’ characterization of the trial judge’s questions
of McGraw as benign clarification. In my view, the judge’s questions emphasized facts
damaging to defendant and bolstered the prosecution’s case. The trial court instructed defense
counsel to cooperate in a brief role-playing exercise with McGraw to show the jury how the
passenger was relieved of his weapon. This had nothing to do with defendant’s alleged presence
outside the car. It was unnecessary, unfair to defense counsel, and designed to enhance
McGraw’s credibility as a brave undercover agent. Like the judge’s comment regarding
McGraw’s appearance noted by the majority (see footnote 1 of the majority opinion), I believe
that the court’s questions of McGraw would have been better left unasked.

      Nevertheless, the role-playing and judicial interrogation of McGraw were brief.
Considering the totality of the evidence presented at trial, in which eight prosecution witnesses
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inculpated defendant, it is not reasonably likely that the judge’s conduct improperly influenced
the jury. See id. at 171. Accordingly, I concur in the affirmance of defendant’s conviction.



                                                           /s/ Elizabeth L. Gleicher




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