                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 10, 2015
               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.


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

SHAPIRO, P.J. (concurring in part and dissenting in part)

      I concur in the majority’s affirmance of defendants’ trespass convictions. I would,
however, reverse the resisting and obstructing convictions for the reasons stated below.

        These cases arise from defendants’ protest at an Enbridge Energy (Enbridge) pipeline
construction site located at Grimes Road and Dexter Trail in Stockbridge, Michigan. On July 22,
2013, defendants Vickie Hamlin and Barbara Carter, along with numerous additional protestors,
went to the pipeline construction site to protest against the Enbridge project. Ingham County
Sheriff’s Office Detective Ryan Cramer testified that when he arrived on scene around 6:00 a.m.
he observed about 40 individuals on the property. He stated that he was approached by someone
claiming to be a negotiator for the group, who told him she did not have permission to be on the
property. He testified that when he activated the overhead lights on his vehicle several
individuals scattered.




                                               -1-
       Cramer testified that he initially arrested eight people for trespassing and that, after that,
four people remained on the property, attached to separate pieces of machinery on separate
portions of the property. It is undisputed that defendant Carter and Lisa Leggio1 fastened
themselves to each other and a front end loader using a device known as a “sleeping dragon.”2
Further, at a separate location along the pipeline, defendant Hamlin and William Lawrence3
fastened themselves to each other and to an excavator using a similar device. Cramer testified
that he told them that they were trespassing and asked them to remove themselves from the
equipment and leave the property, but they did not leave. Ingham County Sheriff’s Office
Sergeant Melissa Brown responded to the scene following Cramer’s call for backup. She also
spoke with defendants, but they did not release themselves, so the Michigan State Police cut
team was called to remove them from the machinery. Defendants were then taken into police
custody.

                             I. SUFFICIENCY OF THE EVIDENCE

        Defendants argue that there was insufficient evidence to support their convictions for
resisting and obstructing a police officer.

        MCL 750.81d(1) provides that an individual is guilty of resisting and obstructing if she
“assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual
knows or has reason to know is performing his or her duties.” The word “obstruct” is statutorily
defined to include “the use or threatened use of physical interference or force or a knowing
failure to comply with a lawful command.” MCL 750.81d(7)(a). In this case, the only theory
presented to the jury was whether defendants failed to comply with a lawful command from a
police officer.4 Thus, the question on appeal is whether Brown issued a “command” to
defendants.



1
  Leggio was also convicted of trespass and resisting and obstructing a police officer during the
same trial. She has not appealed.
2
 The device consisted of a tube covered in duct tape, chicken wire, and tar. Defendant Carter
and Leggio both had an arm in the tube and were secured to each other by a loop of rope or cord.
The device was further secured to construction equipment on the property.
3
    The charges against Lawrence were apparently resolved by plea agreement.
4
   Although the jury was instructed on the full definition of “obstruct,” the verdict form only
allowed for a conviction based on the failure to obey a lawful command and that was the only
theory the prosecutor presented. Further, the jury specifically inquired whether they could
consider if there was a “physical interference” and was instructed that they were not to consider
it. The prosecution agreed with the judge’s instructions to that effect. Defendants’ actions in
securing themselves to machinery and refusing to release themselves may have constituted a
physical interference with the police officer’s ability to effectuate the arrest for criminal trespass.
However, whether or not the jury could have convicted on this basis is not before this Court
given the prosecution’s express waiver of it and the court’s instructions.



                                                 -2-
       The word “command” is not statutorily defined and caselaw provides no elucidation as to
its meaning. “When statutory terms are undefined, we interpret the terms according to their plain
and ordinary meaning, and may consult dictionary definitions to accomplish this task.” People v
Juntikka, ___ Mich App ___, ___; ___ NW2d ___ (2015); slip op at 2. As defined in relevant
part by Random House Webster’s College Dictionary (2001), “command” means (1) “to direct
with specific authority; order;” (2) to “require authoritatively; demand;” and (3) to “issue an
order or orders.” It is also defined as “an order given by one in authority.” Id. Similarly,
Black’s Law Dictionary (10th ed) defines “command” as “[a]n order; a directive.” An “order” is
defined in relevant part as “an authoritative direction or instruction; command.” Random House
Webster’s College Dictionary (2001). Thus, a police officer must specifically direct or order an
individual to take a specified action before the officer’s statements will constitute a command for
purposes of MCL 750.81d.

         The record shows that Brown never actually directed defendants to release themselves
from the machinery. With regard to defendant Hamlin and Lawrence, Brown testified that when
she arrived she “asked . . . if they were aware that they were on private property.” She said that
they smiled politely, but did not answer. In response, she said she “informed them that they were
on private property and that they had the opportunity to leave without being arrested.” She said
that they conferred, but decided not to leave. At that point, another individual who had been
standing by defendant Hamlin and Lawrence decided to leave. He was not arrested. Brown
testified that after that person left, she “advised them that they were going to be arrested for
trespassing.” Subsequently, when asked if she gave additional “commands” to Hamlin and
Lawrence, Brown testified that when it became clear that a specialty team was going to have to
cut them from the machinery, she:

       gave them the opportunity to say, you are only under arrest for trespassing right
       now. If you release yourself from the device that you have yourself attached to,
       you will only receive the trespassing charge. If you do not remove yourself from
       your device you will be charged additionally with resisting and obstructing.

Brown testified that defendant Hamlin’s response was to ask if they could confer with each
other. Brown allowed them to confer. When they were done, she testified she “asked them what
their decision was, if they were going to let go.” She said that Lawrence advised her that they
had decided they were not going to let go.

       Brown testified that her final statements to defendants were recorded on the cut team’s
video. On the video, Brown engaged in the following colloquy with defendant Carter and
Leggio:

               Brown: I know you saw me earlier, but I’ve not had the chance to come
       and speak with you. I’ve not met you ladies yet, Sergeant Brown, Ingham County
       Sheriff’s Office. You guys have already been told that you are under arrest for
       trespassing, correct?

               Leggio: Uh . . . no . . . I’ve never been told that I am under arrest for
       trespassing.



                                                -3-
               Brown: Well, I am going to tell you right now that you are under arrest
       for trespassing; however, if you guys, um, will willingly detach yourself from the
       piece, no additional charges will occur.

              Leggio: Okay.

              Brown: You will just get the mere trespassing, if not, additional charges
       such as resisting/obstructing the police officer . . . will be charged.

              Leggio: Understood.

               Brown: I am going to give you guys one opportunity to tell me yes or no,
       right but I just need to know what you intend to do you whether you need to be cut
       by a special team that will come out or if you guys are going to release and let go.

              Leggio: Cut it up.

              Carter: (nodding)

              Brown: Okay, cut it. [emphasis added.]

The video also shows that Brown similarly addressed defendant Hamlin and Lawrence:

               Brown: Sergeant Melissa Brown, Ingham County Sheriff’s Office,
       [We’re] going to give you one more opportunity to let go, or you’re going to be
       cut out, the cut team is here, they’re ready to go, if you refuse to do that there’s
       going to be the additional charge of resisting and obstructing, are you
       understanding? You two, can I have your last decision? Are you guys willing to
       let go and peacefully let go, or do you need to be cut out?

              Hamlin: We’re staying.

              Brown: You’re staying?

              Lawrence: I’m staying.

              Brown: You’re staying? Ok. [emphasis added.]

        When viewed in the light most favorable to the prosecution, there was insufficient
evidence for a jury to convict defendants of obstructing Brown. The evidence was that they were
told they were under arrest for trespassing, that they were asked to voluntarily release
themselves, and that they were warned that if they did not comply they would be charged with
resisting and obstructing a police officer. Brown’s testimony further establishes that when she
was asking them to voluntarily release themselves from the machinery she was hoping to
negotiate an agreement whereby defendants would voluntarily release themselves.

        There is a fundamental distinction between a command and a question or request. That
distinction is often a critical one. Questions—even questions asked by uniformed police


                                               -4-
officers—are not equivalent to a command or an order directing an individual to take a specified
action. If an officer asks the driver of a vehicle if he or she will open his or her trunk, or asks a
homeowner to open his or her front door and the person does so, that is considered a voluntary
action, not a response to a command.5 Similarly, although a person in police custody may
request an attorney, we have held that the right to counsel is not implicated by mere ambiguous
or equivocal references to an attorney and that in such a case police officers may continue
questioning the detainee. People v Adams, 245 Mich App 226, 237-238; 627 NW2d 623 (2001)
(holding that the statement, “Can I talk to him [a lawyer] right now?” was an “utterance . . . not
sufficient to invoke the right to counsel and cut off all further questioning” because the context
indicated that the defendant was seeking clarification regarding if and when he could speak to a
lawyer).

        I can see no reason why the same principle should not apply to charges that a person
disobeyed a police command. The record in this case clearly established that defendants were
asked if they would release themselves and were not given a direct unequivocal command.

       One may perhaps argue that defendants should not avoid prosecution because the officers
were polite enough to request, rather than command, compliance. However, commands can also
be given politely and in a free society saying “no” to a police request is not felonious. Indeed, if
someone may be charged on the basis of declining a request to take action, then defendants’
argument that the statute is unconstitutional cannot be so readily dismissed.

         Ultimately, this case, like every case, is about the application of facts and law, not about
whether we wish to support the law enforcement officers or whether these defendants acted
foolishly. Defendants’ behavior may have been unnecessarily provocative and worthy of
disapproval. However, the behavior of these particular defendants should not lead us to blur the
critical line between a police request and a police command. That line is essential to the rule of
law and the bedrock freedoms of our country, and it is the role of the judiciary to assure its
clarity and integrity.

                                    II. JUDICIAL IMPARTIALITY

      I also conclude that when the trial judge questioned defendant Carter at the end of cross-
examination, the judge pierced the veil of judicial impartiality.

         “The Sixth Amendment of the United States Constitution and article 1, § 20 of the
Michigan Constitution guarantee a defendant the right to a fair and impartial trial,” People v
Conley, 270 Mich App 301, 307; 715 NW2d 377 (2006), which includes a neutral and detached
magistrate, People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). “A judge’s
conduct pierces [the veil of judicial impartiality] 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.” People v Stevens, 498 Mich 162, 164; ___ NW2d ___ (2015).


5
    Providing, of course, that there are not other indicia of involuntariness.



                                                   -5-
       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. at 172.]

The inquiry into judicial impropriety is fact-specific and “a single instance of misconduct may be
so egregious that it pierces the veil of impartiality,” such as when a trial court’s colloquy with a
criminal defendant improperly invades the “province of the jury on the crucial issue which was
theirs to decide.” Id. at 171-172.

         Here, defendant Carter testified on her own behalf. At the end of cross-examination, the
trial judge asked Carter the following questions:

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

               Defendant: I’m sorry?

               Court: Didn’t you say she asked you to leave?

               Defendant: She asked me if I would detach myself.

               Court: Did you do that?

               Defendant: No, I did not.

               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: Well, I mean—

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

               Defendant: I was just saying it was a question.

               Court: It was a question? Did you answer the question?

               Defendant: I did answer the question.

               Court: What did you say?

               Defendant: I said that I wouldn’t detach.




                                                -6-
              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. I politely told her that I was staying.

               Court. You think—

               Defendant. For reasons.

               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, I was there because I believed in what I was doing.

        It is with this colloquy in mind that we must consider the Stevens factors. The first factor
requires us to consider the nature of the judicial intervention. Stevens, 498 Mich at 172. Here,
the broad nature of the judicial intervention—questioning of a witness by the trial court—is, of
course, not itself improper. See MRE 614(b) (permitting judicial questioning of witnesses).
Such questioning can “produce fuller and more exact testimony or elicit additional relevant
information.” Stevens, 498 Mich at 173. However, a judge’s ability to question a witness is not
unlimited. Id. at 174. The judge’s questioning in this case did not seek clarification of a fact, but
exhibited disbelief in defendant Carter’s legal defense, i.e. that the words spoken by the officer
were not a command. See id. (“It is inappropriate for a judge to exhibit disbelief of a witness,
intentionally or unintentionally.”).

        Moreover, the force of the judge’s questions was heightened because they were directed
to one of the defendants. See id. at 175 (“A judge must proceed with particular care when
engaging with a criminal defendant.”). The judge’s questioning telegraphed to the jury that he
personally disagreed with defendant Carter’s definition of “command.” See id. at 174 (holding
that a judge should “not permit his own views on disputed issues of fact to become apparent to
the jury”). The effect of this questioning was further compounded by the fact that the only
contested issue with regard to the resisting and obstructing charge was whether defendants failed
to obey a lawful command. The court’s questions, ultimately, “did not clarify a confusing point
or elicit additional relevant information.” Id. at 185. Instead, like the judge in Stevens, the
judge’s questioning in this case “inappropriately exhibited disbelief of the defendant.” Id.
Further, the questions undercut the defense theory on the resisting and obstructing charge that no
command had been given. The fact that the judge intervened in this matter at the end of
defendants’ proofs while questioning one of defendants on an issue that went to the heart of the
more serious charge is a further indication that the judge’s questioning was improper. This
factor weighs heavily in favor of a finding of judicial partiality.




                                                -7-
        Next, a reviewing court should consider the judge’s tone and demeanor. Id. at 172.
Here, Hamlin’s trial counsel indicated that “when the court went over it again and again both in
frequency and in the tone, the raising of the voice on the word command overly emphasized that,
in essence, [the judge was] telling the jury that a request or a question is a command.”
Moreover, “the very words and sequence of questions employed” indicated that the judge
believed defendant Carter’s testimony lacked credibility. See id. at 186. The judge’s statement
“I’m just asking you 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,” clearly exhibits not only
disbelief of defendant Carter’s testimony, it also clearly indicates, as Hamlin’s trial counsel
pointed out, that the judge believed that a command had actually been given. Accordingly, this
factor also weighs in favor of a finding of judicial partiality.

         As the reviewing court we must also consider the scope of the conduct in light of the
trial’s complexity. Id. at 172. This was a two-day trial of three defendants before a single jury.
The witnesses consisted solely of lay witnesses, including defendants. The testimony of each
witness was fully developed by the prosecutor and the defense attorneys. Numerous questions
were asked of Brown and defendants as to whether a command was given and a video of the
final interaction between Brown and defendants was played for the jury. The judge’s questions,
although directed to the heart of the resisting and obstructing charge, were unnecessary in light
of the straightforward nature of the issues and the extensive questioning that had already
occurred. Accordingly, the information presented in this trial did not warrant judicial
intervention severely discrediting the defense to the resisting and obstructing charges. This
factor weighs in favor of a finding of judicial partiality.

        It is also appropriate to consider whether the judge’s intervention was directed at one side
more than the other. Id. at 172. Here, the judge questioned both defense and prosecution
witnesses. However, the court’s questioning of the prosecution witnesses was brief and served to
clarify issues that were not fully developed or to clarify testimony that was apparently not heard
clearly by the judge. In contrast, the questioning of defendant Carter challenged her credibility
and interjected the court’s own opinion that a command had been given. This factor, therefore,
weighs in favor of a finding of judicial partiality.

         The majority largely recognizes that the judge’s questioning was partial, but relies on the
curative effect of the standard instruction. The court, in response to defendants request for a
mistrial, stated that it would give the standard jury instruction on judicial questioning. The court,
in fact, gave the following instruction:

               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


                                                -8-
       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.

Jurors are presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581
NW2d 229 (1998). However, “in some instances judicial conduct may so overstep its bounds
that no instruction can erase the appearance of partiality.” Stevens, 498 Mich at 177-178
(emphasis added). Further, under the totality of the circumstances test set forth in Stevens, the
presence or absence of a curative instruction is only one factor that must “be considered
alongside the others.” Id. at 190. Accordingly, although the instructions given in this case cut
against a finding of judicial bias, in light of the totality of the circumstances, they were
insufficient to alleviate the appearance of advocacy and partiality exhibited by the judge when he
questioned defendant Carter. Moreover, this instruction is meant to assure that jurors will not
misinterpret a judge’s neutral rulings and comments as something they are not. In this case, the
judge’s comments and questions were not neutral; indeed, some jurors may have viewed them as
tantamount to a directed verdict against defendants. If this standard instruction was a magic cure
all, Stevens would not have been decided as it was.

       Accordingly, based on the totality of the circumstances, the judge’s questioning of
defendant Carter pierced the veil of judicial partiality and constituted a structural defect for
which reversal is required. See id. at 178-179. However, because there was insufficient
evidence to convict on the resisting and obstructing charges, I would vacate those convictions.
People v Mitchell, 301 Mich App 282, 294; 835 NW2d 615 (2013).6



                                                            /s/ Douglas B. Shapiro




6
  However, as noted at the outset of this opinion, I concur in the majority’s analysis of the
trespass charge. Further, I would not find that the court’s questioning showed judicial partiality
with respect to the charge of trespassing, which is distinct from the resisting and obstructing
charge. See Stevens, 498 Mich at 172 (holding that “[r]eviewing courts may consider additional
factors if they are relevant to the determination of partiality in a particular case”). Here, the
judge’s questions were improper because they served to improperly influence the jury on the key
issue pertaining to the resisting and obstructing charge. The questions did not cast any disbelief
on defendants’ theory with regard to the trespass charges. Accordingly, reversal of the
trespassing charge on the grounds of judicial partiality is not required.




                                               -9-
