            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       March 5, 2020
                Plaintiff-Appellee,

 v                                                                     No. 344740
                                                                       Wayne Circuit Court
 MAURICE DARNELL ELLIOT, JR.,                                          LC No. 18-000776-01-FC

                Defendant-Appellant.


Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions by a jury of felony murder, MCL 750.316,
armed robbery, MCL 750.529, unlawful killing or torturing of animals, MCL 750.506, and
possession of a firearm during the commission of a dangerous felony (felony-firearm), MCL
750.227b. The trial court sentenced defendant to life imprisonment for felony murder, 15 to 30
years’ imprisonment for armed robbery, one year of probation for unlawful killing or torturing of
animals, and a consecutive two years’ imprisonment for felony-firearm. Because of improper
questioning of witnesses by the trial court, we reverse and remand the case for a new trial.

                                 I. FACTUAL BACKGROUND

        This case arises from the robbery and murder of Clarence Reynolds at his home on
Promenade Street in Detroit and the killing of his dog. On the morning of December 28, 2017,
two of Reynolds’s friends arrived at his house to go out for breakfast and found his front door
open, its glass shattered, blood on the door, and the victim’s body lying nearby on the floor. Police
investigated the scene and collected forensic evidence that proved inconclusive. Police later found
a red Dodge Caravan, the same make, model, and color of Reynolds’s vehicle, burned, and
although police recovered a video surveillance camera recording showing a man igniting the
vehicle’s interior, investigators were unable to determine who set the fire. Police did not recover
a murder weapon. They did not find Reynolds’s cellphone at the scene so they obtained and
analyzed his phone records which indicated that Reynolds’s phone contacted Armonee Felder five
times after Reynolds’s death. Reynolds’s phone had never previously contacted Felder.




                                                -1-
        Police later took Felder into custody for questioning and he ultimately told them that
defendant committed the robbery and murder. The prosecutor subpoenaed Felder and interviewed
him regarding the statement he gave to the police. Felder revised some details of his statement but
told the prosecutor that defendant told him he robbed and killed a man for a phone, a van, and
some marijuana. The police arrested defendant and held him in the Detroit Detention Center.

        At defendant’s trial, Felder testified that, early on the morning of Reynolds’s murder,
defendant called him from an unfamiliar number. Felder left his girlfriend’s house and returned
home to find defendant and other friends there. One of them asked defendant where he got two
phones. Felder testified that defendant responded that they should watch the news. Defendant
also stated, “I caught a body.” Felder explained that the expression meant that he killed someone.
Defendant, Felder, and their friends watched a television news report about Reynolds’s murder.
Felder testified that defendant told him that he robbed someone for his phone, some money, and a
van, and he shot the man. Felder also testified that defendant drove to Felder’s house in a red
Dodge van.

        After defense counsel cross-examined Felder, the prosecution inquired regarding
differences in Felder’s written statement to police and changes he made to that statement after the
prosecutor subpoenaed him. Felder explained that defendant told him the sequence of events
involving the robbery and shooting. During further cross-examination, defense counsel challenged
Felder regarding his statements and his identification of defendant as the perpetrator of Reynolds’s
murder in an attempt to establish that the police suggested to Felder that he identify defendant.
When defense counsel concluded, the trial court inquired whether the jury had any questions and
they indicated they did not.

        The trial court then proceeded to ask a number of questions about a variety of topics. The
trial court first asked Felder questions regarding a picture about which the prosecution and defense
counsel had asked him questions. Felder affirmed that the police obtained the picture from social
media, that it had been posted the day of Reynolds’s murder, and that it depicted Felder, defendant,
and their friends. Felder confirmed that the police showed him that picture when they interviewed
him.

       The trial court next asked the following questions:

               Q. You’ve known [defendant] for like nine years.

               A. More than ten.

               Q. Okay. And you’re how old?

               A. Twenty.

               Q. So would it be fair to say that you know him since elementary school?

               A. Yes, I played football with him my whole life.

               Q. Okay. Now, are you guys from the same neighborhood?


                                                -2-
              A. Yes.

               Q. Now, let me ask you this. Do people–what do they call people that talk
       to the police in your neighborhood?

              A. Snitches.

              Q. And is it a good thing to be known as a snitch?

              A. No.

              Q. So how does that make you feel to be here testifying?

              A. Like a snitch.

              Q. Is that something that you want to be?

              A. No.

               Q. Has anyone–have the police threatened you or did [the prosecutor]
       threaten you to get you to testify?

              A. No.

             Q. Did anybody tell you to make something up against a person you’ve
       known since you were a little kid?

               A. No, I just know the system and when someone involve you in something
       it’s hard to get out.

              Q. And who is it that involved you in something?

              A. [Defendant].

              Q. And what did he do that makes you say he involved you in something.

              A. Called my phone off a dead person’s phone.

       The next witness called at trial, after Felder’s testimony was completed, was Lorenzo
McCray. He stated that, on January 5, 2018, while an inmate waiting in the detention center, he
and another inmate struck up a conversation with defendant. The other inmate asked defendant
why he was being held. McCray testified that defendant said the word homicide. The other inmate
asked defendant if he committed the crime to which McCray heard defendant answer affirmatively
and explain that he burned the vehicle and used the dead man’s phone. After defense counsel
cross-examined McCray, the trial court asked McCray numerous questions regarding his testimony
to which he responded by repeating his testimony and providing greater detail and additional
information. The trial court’s questions included:



                                              -3-
              Q. So the defendant said–so the other Pit says, “What evidence they got?”
       The defendant says, “They don’t got no evidence, we burnt up the car,” or what
       else?

               A. They said–he said they got me using the dead man’s phone.

               Q. They got me using the dead man’s phone, we burnt up the car?

               A. Yeah.

               Q. Did he ever say the name of who it was he killed?

               A. No.

               Q. Did he ever say the address of who it was he killed?

               A. No.

        Following the testimony of three additional prosecution witnesses, defense counsel moved
for a mistrial on the ground that the trial court’s questioning of Felder regarding feeling like a
snitch and yet coming forward to testify inappropriately bolstered his credibility. The trial court
responded that it had the right to ask questions about anything, especially things it felt had not
been fully explored and explained that it asked questions about other matters for clarification and
had not advocated for either party. The trial court denied the motion but stated that it would
provide the jury a curative instruction.

        After the parties’ respective closing arguments, during final instructions to the jury, the
trial court included the following instructions:

               The fact that the defendant is charged with a crime and is on trial is not
       evidence. The lawyers’ statements and arguments and comments are not evidence.
       They’re only meant to help you understand the evidence and each side’s legal
       theories. You should only accept things the lawyers say that are supported by the
       evidence or by your own common sense and general knowledge. The lawyers’
       questions to the witnesses, your questions to the witnesses, and my questions to the
       witnesses are also not evidence. You should consider these questions only as they
       give meaning to the witnesses’ answers.

               My comments, rulings, questions, and instructions are also not evidence. It
       is my duty to see to it that the trial is conducted according to the law, and to tell you
       the law that applies to this case. However, 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. Also, when I ask questions I’m not trying to influence or express
       an opinion about the case. You should not give greater weight to any testimony
       merely because it came in response to a question that was asked by me. If you
       believe that I have an opinion about how you should decide this case, you must pay
       no attention to that opinion. You are the only judges of the facts, and you should
       decide this case based on the evidence.

                                                 -4-
       The jury found defendant guilty of all charged offenses. This appeal followed.

                                         II. ANALYSES

                 A. THE TRIAL JUDGE’S QUESTIONING OF WITNESSES

      Defendant argues the trial court denied him due process and violated his right to a fair trial
by impermissibly bolstering Felder’s credibility in favor of the prosecution. We agree.

        We review de novo the question of constitutional law whether a judge’s conduct denied
defendant a fair trial. People v Swilley, 504 Mich 350, 370; 934 NW2d 771 (2019). If we
determine that the trial judge’s conduct pierced the veil of judicial impartiality and that judicial
misconduct denied defendant a fair trial, we must conclude that a structural error occurred
requiring automatic reversal. Id.

        In Swilley, our Supreme Court explained that a reviewing court must consider the totality
of the circumstances to determine whether “it is reasonably likely that the judge’s conduct
improperly influenced the jury by creating the appearance of advocacy or partiality against a
party.” Id. (citation omitted). The Court instructed that we may consider several nonexhaustive
factors including: (1) the nature of the judge’s conduct, (2) the tone and demeanor of the judge,
(3) the scope of the judge’s conduct within the context of the length of the trial and the complexity
of the issues, (4) whether the judge directed the conduct at one side more than the other, (5) the
presence of a curative instruction at the time of misconduct or the end of the trial, and (6) other
relevant factors relevant to the determination whether the conduct indicated partiality. Id. at 371.
We must “consider the relevance and weigh the significance of each factor under the totality of
the circumstances of the case” and “consider the cumulative effect of the errors.” Id. (quotation
marks and citations omitted).

        Trial judges may ask witnesses questions to clarify unclear, vague, or confusing testimony.
Id. at 372, 373. They may also “elicit additional relevant information” and “intervene in a trial to
expedite matters, prevent unnecessary waste of time, or clear up an obscurity.” Id. at 372
(quotation marks and citations omitted). “A judge’s responsibilities do not include emphasizing
or exposing potential weaknesses in a witness’s testimony or conveying the judge’s personal view
on whether a witness should be believed.” Id. at 373. “A judge’s conduct pierces this veil and
violates the constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by
creating the appearance of advocacy or partiality against a party.” People v Stevens, 498 Mich
162, 171; 869 NW2d 233 (2015).

         In this case, the record reflects that the trial court asked Felder questions following the
prosecution and defense counsel’s examinations regarding his interview with and statement to the
police, his later statement to the prosecutor, his testimony at defendant’s preliminary examination,
and defense counsel’s challenge to Felder regarding his identification of defendant and whether
the police influenced his identification by showing him a photograph. The record is not clear why
the trial court considered it necessary to inquire in this regard because the prosecution thoroughly
examined Felder and defense counsel correspondingly cross-examined him exposing variances in
his testimony. The parties presented the jury evidence from which they could consider whether

                                                -5-
Felder testified credibly at trial. Nevertheless, the record reflects that the trial court’s questioning
in this regard provided some clarification of relevant facts and did not indicate partiality or bias
against defendant.

        The trial court, however, then inquired further eliciting testimony from Felder that
elaborated that Felder and defendant were long-standing friends, that Felder’s community
considered a person who talked to the police a snitch, and that he felt like a snitch. This testimony
suggested that Felder faced being known in his community as a snitch, and although reluctant to
testify against his friend, he did so at his own peril. A reasonable likelihood exists that jurors
hearing this testimony would conclude that Felder’s testimony deserved greater regard because his
situation and feelings warranted finding him credible despite the variances in his statements and
testimony.

         While the record reflects that the trial court only briefly questioned Felder on this topic,
we do not find that the trial court’s inquiry regarding Felder feeling like a snitch appropriately
sought clarification of any facts relevant to the case or sought to elicit additional facts relevant for
the jury’s consideration of defendant’s guilt or innocence. On the contrary, that line of questioning
served to bolster Felder’s credibility by exposing that he testified against his emotional, social, and
personal safety interests, and therefore, must have testified truthfully. A trial court must avoid
even the mere appearance of partiality and should refrain from participating in the examination of
witnesses to influence the jury’s ascertainment of truth. Stevens, 498 Mich at 174. We find nothing
in the trial court’s inquiry that clarified unclear testimony or aided the jury in understanding the
facts of this case. Id. at 183.

        In reviewing the totality of the circumstances of the trial, we also note the trial court
conducted extensive examination of Lorenzo McCray, the incarcerated individual who testified
that defendant made jailhouse admissions to him, conducting essentially an additional direct
examination of this witness as well as specifically asking McCray two questions about whether
defendant stated the name or address of “who it was he (defendant) killed.” The trial court also
asked numerous questions of James Loyd, a friend of defendant who drove defendant around the
day after the homicide of Clarence Reynolds.

     In examining the issue of judicial questioning in his concurring opinion in Swilley, Justice
MARKMAN wrote:

                Judicial questioning assists the jury in its search for the truth by
        “supplement[ing] the parties’ evidence” in at least three ways. Id. First, judicial
        questioning can clarify unclear or unresponsive testimony from a witness. Stevens,
        498 Mich at 175-176; see also, e.g., Ray v United States, 367 F2d 258, 261 (CA 8,
        1966) (“Where the testimony is confusing or not altogether clear the alleged
        ‘jeopardy’ to one side caused by the clarification of a witness’s statement is
        certainly outweighed by the desirability of factual understanding. The trial judge
        should strive toward verdicts of fact rather than verdicts of confusion.”). Second,
        judicial questioning can better enable the jury to connect the evidence presented
        and to organize that evidence into a comprehensive whole to create a logical
        narrative of the allegations and events at issue. Third, judicial questioning can
        uncover new information that was not brought to light by the parties, whether

                                                  -6-
intentionally or unintentionally. Stevens, 498 Mich at 173 (“[I]t is appropriate for
a judge to question witnesses to produce fuller and more exact testimony or elicit
additional relevant information.”). Because “the primary objective of criminal
procedure is to facilitate the ascertainment of truth,” Anstey, 476 Mich at 456
(quotation marks omitted), a trial judge should not hesitate to exercise his or her
authority to question witnesses in appropriate circumstances to assist the jury in its
search for the truth.

         Of course, as this Court has recognized, a trial judge’s authority to question
witnesses is not boundless or without reasonable limits. Central to the American
legal system is the proposition that the jury is the fact-finder in most criminal and
civil trials, not the judge. See Const 1963, art 1, § 14; US Const, Ams VI and VII;
see generally People v Lemmon, 456 Mich 625, 636-642; 576 NW2d 129 (1998).
Indeed, in large part, “the preservation of the jury by constitutional amendment was
designed as a limitation on judicial power.” Id. at 639. “[B]ecause judges wield
enormous influence over juries, judges may not ask questions that signal their belief
or disbelief of witnesses.” United States v Tilghman, 328 US App DC 258, 260-
261; 134 F3d 414 (1998). See also Stevens, 498 Mich at 176. For the same reason,
it is improper for judges to ask questions that signal their belief in the strength of
the evidence presented against or in favor of a particular party. See People v Bigge,
297 Mich 58, 72; 297 NW 70 (1941) (“Once the door is open for allowing the
opinion of the court to be impressed upon jurors that one charged with crime is
guilty of the offense, the fundamental right of trial by jury is impaired.”). Such
questioning is inappropriate because it corrodes the independence of the jury by
giving rise to the possibility that the jury’s verdict is essentially the product of the
judge’s attitudes concerning the evidence presented, rather than the jury’s
evaluation of the evidence. See United States v Perez-Melis, 882 F3d 161, 165
(C.A. 5, 2018) (“The jury cannot be regarded as having freely come to its own
conclusions about a witness’s credibility when the court has already indicated,
directly or indirectly, that it disbelieves his testimony.”).

         In summary, trial judges should bear in mind that the primary purpose
served by judicial questioning is to assist the jury in its search for the truth. This
search is indispensable to our justice system because “if the trial does not
effectively develop the facts and comprehensibly present them to the fact-finder,
trial justice is serendipitous,” rather than a reliable judgment of a party’s guilt or
innocence. Strier, Making Jury Trials More Truthful, 30 UC Davis L Rev 95, 99
(1996). However, it is equally important that the trial judge assist the fact-finder
without also signaling to the jury its personal views concerning the evidence
presented, as even such inadvertent signaling might unduly influence the jury and
thus undermine its role as an independent fact-finder. While there is undeniably a
tension between these competing judicial interests, I am confident that the trial
judges of this state will, subject to the imperfections that will inevitably arise in any
such balancing process, serve the critical interests of truth in the criminal-justice
process by exercising their questioning authority in a manner that facilitates this
purpose while also preserving and maintaining the integrity of the jury process.


                                          -7-
       [People v Swilley, 504 Mich 350, 397-399; 934 NW2d 771 (2019) (MARKMAN, J.,
       concurring in the judgment).]

         For our determination whether the trial court displayed the appearance of advocacy or
partiality, we must also consider the presence or absence of a curative instruction. Stevens, 498
Mich at 177. In Stevens, our Supreme Court explained:

       Because it is well established that jurors are presumed to follow their instructions,
       a curative instruction will often ensure a fair trial despite minor or brief
       inappropriate conduct. Depending on the circumstances, an immediate curative
       instruction may further alleviate any appearance of advocacy or partiality by the
       judge. That said, in some instances judicial conduct may so overstep its bounds
       that no instruction can erase the appearance of partiality. [Id. at 177-178 (quotation
       marks, citations, and alterations omitted).]

        The record reflects that defense counsel did not object to the trial court’s questioning of
Felder or request a curative instruction at the time of the trial court’s questioning. Later that same
day when defendant moved for a mistrial, the trial court promised to provide the jury a curative
instruction, but the trial court waited until it gave its final instructions to them. The late provision
of a curative instruction in this case unlikely cured the problem created by the trial court. In
questioning Felder as it did, the trial court pierced the veil of impartiality and violated the
constitutional guarantee of a fair trial because it is reasonably likely that the testimony elicited by
it influenced the jury by creating the appearance of advocacy or partiality against defendant,
thereby bolstering Felder’s credibility in favor of the prosecution. Id. at 171.

         This questioning, in conjunction with the trial court’s activist questioning of McCray and
Loyd, did not clarify unclear or unresponsive testimony nor did it enable the jury to connect or
organize testimony and evidence in a more logical and organized way. The trial court went beyond
the scope of its discretion under the Constitution and laws of this state. Contrary to the trial court’s
belief, a trial judge lacks the right to ask questions about anything that the judge feels has not been
fully explored. The prosecution’s case rested substantially on whether the jury believed Felder’s
testimony. The trial court’s questioning of Felder had the potential to improperly influence the
jury in this regard, and its later instruction could not suffice to cure the likely inappropriate effect
the testimony had on the jury. As a result, this exam of Felder, together with the other
examinations of witnesses, violated defendant’s right to a fair trial requiring reversal of
defendant’s convictions and remand to the trial court for a new trial.

                              B. PROSECUTORIAL MISCONDUCT

      Defendant also argues that he suffered prejudice because the prosecutor argued that Felder
and McCray were credible witnesses since they both knew facts that were not reported on the
news. We disagree.

       “Issues of prosecutorial misconduct are reviewed de novo to determine whether the
defendant was denied a fair and impartial trial.” People v Bennett, 290 Mich App 465, 475; 802
NW2d 627 (2010) (citation omitted). “Further, allegations of prosecutorial misconduct are
considered on a case-by-case basis, and the reviewing court must consider the prosecutor’s

                                                  -8-
remarks in context.” Id. (citation omitted). “A prosecutor may not make a statement of fact to the
jury that is unsupported by evidence, but she is free to argue the evidence and any reasonable
inferences that may arise from the evidence.” People v Ackerman, 257 Mich App 434, 450; 669
NW2d 818 (2003). The test of prosecutorial misconduct is whether the defendant was denied a
fair and impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).

       During her closing argument, the prosecutor stated:

       And I want you to think about when you’re looking at Mr. Felder’s testimony and
       Mr. McCray’s testimony, the things that they knew that were not (inaudible). Think
       about that. Time of death. Now, (unintelligible) says he can’t determine time of
       death. Time of the robbery? There are no actual witnesses to the robbery alive to
       tell you what time it was. The van being burned, that was not disseminated on the
       news. The lack of a[n] actual murder weapon, that was not on the news.

Defense counsel objected regarding what the news covered. The court overruled defendant’s
objection and instructed, “The jurors are to rely on their own collective memories as to what the
evidence and testimony was.”

       The record reflects that Felder testified that defendant told him when the incident occurred
and other details about it. Felder also testified that defendant drove a red van to his house on the
morning of the murder and told him that he shot a man and took his van. Felder admitted that he
viewed a news report after defendant urged him to do so and learned the location of the murder.

       McCray denied that he watched the news. He testified that defendant told him that he
burned the van and used the dead man’s phone. McCray also testified that defendant told him
“there was no gun, no casings.” McCray stated that defendant told him that the police had no
evidence. A detective testified that the news did not cover the burned van.

         The record is unclear regarding the full extent of news coverage of the incident or whether
the news reported that the police had not recovered a murder weapon. The jury could properly
consider Felder’s and McCray’s testimonies and how they learned of facts relevant to the case.
The prosecutor did not improperly request that the jury consider the source of Felder’s and
McCray’s testimonies and whether they learned facts from the news or knew facts that were not
made public. The prosecutor’s remark that the news did not report the absence of a weapon may
have been incorrect but after defense counsel objected the trial court provided a contemporaneous
curative instruction to ameliorate the error. Further, in its final instructions to the jury, the trial
court instructed the jury that the lawyers’ statements, arguments, and comments were not evidence
and that they were to consider only the witnesses’ testimonies and other admitted evidence.
Defendant’s claim that the prosecution argued facts not in evidence during closing argument, even
if true, does not warrant relief. Defendant has failed to establish that he suffered prejudice by the
prosecutor’s remark.

        Based on the improper questioning of witnesses, principally witness Felder, the trial court
erred and this error requires reversal.

      We also hold that this case must be assigned to a different judge on remand. In determining
whether this case should be reassigned to a different judge, we have considered the factors
                                                 -9-
articulated by this Court in People v Hill, 221 Mich App 391, 398; 561 NW2d 862 (1997)
(quotation marks and citations omitted):

        (1) whether the original judge would reasonably be expected upon remand to have
        substantial difficulty in putting out of his or her mind previously-expressed views
        or findings determined to be erroneous or based on evidence that must be rejected,
        (2) whether reassignment is advisable to preserve the appearance of justice, and (3)
        whether reassignment would entail waste and duplication out of proportion to any
        gain in preserving the appearance of fairness.

        In this case, review of the trial transcript indicates that the trial court would have substantial
difficulty setting aside its previously-expressed views of defendant’s counsel and refraining from
involvement in interrogating witnesses during defendant’s new trial which compels us to reassign
this case to a new judge on remand. After the direct and cross-examinations of witnesses, the trial
court intervened and interrogated the witnesses for extended periods that likely impacted the jury’s
ability to fairly and objectively consider their testimonies for its decision regarding defendant’s
innocence or guilt on the charged offenses. Reassignment is necessary to preserve the appearance
of justice and to ensure the public’s confidence in the integrity of the judicial system.
Reassignment to a new judge will not cause waste or duplication disproportionate to the gain
obtained by preserving the appearance of fairness. Defendant, therefore, shall be retried before a
different judge.

                                            CONCLUSION

       We reverse defendant’s convictions and remand this case to the circuit court for a new trial
presided over by a different judge. We do not retain jurisdiction.

                                                                 /s/ James Robert Redford
                                                                 /s/ Mark J. Cavanagh
                                                                 /s/ Deborah A. Servitto




                                                  -10-
