People of Michigan v. Kyle Jermaine Buchanan ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 22, 2024
Plaintiff-Appellee,
v No. 365557
Ingham Circuit Court
KYLE JERMAINE BUCHANAN, LC No. 19-000501-FH
Defendant-Appellant.
Before: REDFORD, P.J., and GADOLA, C.J., and RIORDAN, J.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of two counts of third-degree
criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) (sexual penetration accomplished by
force or coercion), and one count of fourth-degree criminal sexual conduct (CSC-IV), MCL
750.520e(1)(b) (sexual contact accomplished by force or coercion). Defendant was sentenced to
serve concurrent terms of 180 to 270 months’ imprisonment for each CSC-III conviction and 24
to 36 months’ imprisonment for his CSC-IV conviction. We affirm.
I. BACKGROUND
This case arises from defendant’s sexual assault of the minor victim, who was 16 years old
at the time of the assault. The victim testified that defendant, who is his godfather, invited him
over to his house to help fix an air conditioner. Defendant then purchased video games for the
victim and watched movies with him before the victim fell asleep. The victim woke up to
defendant sexually assaulting him. The victim described aspects of the assault, which included
defendant touching the victim’s penis, defendant using the victim’s hand to touch the victim’s
penis, defendant using a sex toy on the victim, defendant putting the victim’s penis in his mouth,
and defendant attempting to have the victim’s penis penetrate defendant’s anus. After the assault,
defendant gave the victim money, which the victim believed to be a bribe. Defendant drove the
victim home and the victim disclosed the assault to his mother, who reported the incident to the
police.
At trial, the prosecution also relied on the testimony of two men who described similar
conduct from an incident approximately 30 years earlier. Defendant denied sexually assaulting
-1-
the victim and argued that the victim fabricated his allegations to prevent defendant from
disclosing the victim’s substance use and sexual activity. The jury convicted defendant as noted.
Defendant now appeals.
II. SPEEDY TRIAL
On appeal, defendant argues that he was denied his right to a speedy trial. We disagree.
The determination whether a defendant was denied a speedy trial is a mixed question of
fact and law. People v Gilmore, 222 Mich App 442, 459; 564 NW2d 158 (1997). We review the
trial court’s factual findings for clear error, but evaluate constitutional questions de novo. Id.“Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake
has been made.” People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008) (quotation marks
and citation omitted).
Both the United States Constitution and the Michigan Constitution guarantee criminal
defendants the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. “[A] defendant’s
right to a speedy trial is not violated after a fixed number of days.” People v Williams, 475 Mich
245, 261, 716 NW2d 208 (2006). Rather, the court reviewing a defendant’s speedy-trial claim
must balance the four Barker1 factors: “(1) the length of delay, (2) the reason for delay, (3) the
defendant’s assertion of the right, and (4) the prejudice to the defendant.” Id. at 261-262.
“Following a delay of eighteen months or more, prejudice is presumed, and the burden shifts to
the prosecution to show that there was no injury.” Id. at 262. “Under the Barker test, a
presumptively prejudicial delay triggers an inquiry into the other factors to be considered in the
balancing of the competing interests to determine whether a defendant has been deprived of the
right to a speedy trial.” Id. (quotation marks and citation omitted). A violation of a defendant’s
constitutional right to a speedy trial requires “dismissal of the charge with prejudice.” MCR
6.004(A).
We begin first with the length of the delay. “The time for judging whether the right to a
speedy trial has been violated runs from the date of the defendant’s arrest.” Williams, 475 Mich
at 261. In this case, defendant was arrested for sexually assaulting the victim on June 15, 2019,
and his trial began on December 2, 2022. Accordingly, the length of the delay between defendant’s
arrest and trial was over 41 months. Prejudice to defendant is presumed and the burden shifts to
the prosecution. See id. at 262.
Second, we consider the reason for the delay. Although the inherent delays and docket
congestion of the court system are “technically attributable to the prosecution, they are given a
neutral tint and are assigned only minimal weight in determining whether a defendant was denied
a speedy trial.” People v Smith, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket
No. 362114); slip op at 3 (quotation marks and citation omitted). Further, the minimal weight
1
Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; L Ed 2d 101 (1972). The Barker factors were
first adopted by the Michigan Supreme Court in People v Grimmett, 388 Mich 590, 602-606; 202
NW2d 278 (1972), overruled on other grounds by People v White, 390 Mich 245, 258; 212 NW2d
222 (1973).
-2-
assigned to the prosecution for docket congestion may be given even less weight if the congestion
and delay was “generally explained and excusable.” People v Lown, 488 Mich 242, 259; 794
NW2d 9 (2011). We have previously addressed how delays related to the COVID-19 pandemic
should be evaluated under Barker and held that “delays caused by the COVID-19 pandemic are
not attributable to the prosecution for purposes of a speedy-trial claim.” Smith, ___ Mich App at
___; slip op at 5.
It is undisputed that the COVID-19 pandemic was largely responsible for the delay in this
case. At the start of this case, both parties worked toward a trial date for eight months before the
emergence of the COVID-19 pandemic, with minor delays attributable to the parties’ motions or
scheduling conflicts. The trial was originally scheduled for January 2020, and was adjourned for
older cases to take priority that week. The trial was rescheduled for March 30, 2020; however, the
onset of the COVID-19 pandemic intervened and the trial was again delayed. The short delay
caused by docket congestion before the onset of the COVID-19 pandemic was technically
attributable to the prosecution but with a neutral tint. See id. at ___; slip op at 3. The remaining
delay was the emergence and continuance of the COVID-19 pandemic, which included the
suspension of jury trials and accumulation of cases awaiting trial.2 This was the reason for nearly
all delay in this case. Neither the trial court nor the prosecution was responsible for the docket
congestion and delays caused by the state’s COVID-19 safety protocols, which were outside the
control of the parties and the court. See id. at ___; slip op at 5. Therefore, the over 41-month
delay in defendant’s case cannot be attributed to the prosecution to support defendant’s claim.
Third, we consider defendant’s assertion of the right to a speedy trial. This factor only
weighs slightly in defendant’s favor. Review of the record suggests that defendant was
unconcerned about whether he received a speedy trial. Defendant moved once to dismiss his case
for a violation of his speedy-trial right in April 2021. Defendant, out on bond and represented by
counsel, waited 22 months after his arrest to assert his right to a speedy trial at a time that the trial
court could not conduct jury trials. During the hearing on defendant’s motion, the trial court noted
that defendant’s case would be heard as soon as the court was able, but explained that priority
would be given to defendants who had been incarcerated longer than defendant’s case had been
pending. Following this motion, defendant did not renew his motion to dismiss his case on speedy-
trial grounds in the remaining 18 months before trial, including when the trial courts started
conducting jury trials again. Accordingly, defendant’s decision to wait to assert his speedy-trial
right and failure to renew that assertion does not weigh strongly in his favor. Cf. People v Cain,
238 Mich App 95, 113-114; 605 NW2d 28 (1999) (“[W]e cannot ignore the fact that Cain waited
eighteen months to assert her right to a speedy trial and that her trial commenced within nine
months of when she asserted that right.”).
2
Beginning in March 2020, the Michigan Supreme Court adopted emergency procedures in the
state’s court facilities. See Administrative Order No. 2020-1, 505 Mich xcix (2020). The Supreme
Court later imposed limits on trial court proceedings and limited courtroom access to no more than
10 persons. Administrative Order No. 2020-2, 505 Mich cii (2020). On April 23, 2020, the
Supreme Court delayed all jury trials until June 22, 2020, or until further order of the Court. See
Administrative Order No. 2020-10, 505 Mich cxxxix.
-3-
Finally, evaluating the fourth factor, the record does not establish that defendant was
prejudiced by the delay. We consider the two types of prejudice a defendant may experience,
“prejudice to his person and prejudice to the defense.” Williams, 475 Mich at 264 (quotation marks
and citation omitted). “Prejudice to the defense is the more serious concern, because the inability
of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.(quotation marks and citation omitted). General allegations of prejudice are insufficient to
establish that a defendant was denied his right to a speedy trial or that prejudice was suffered as a
result of the delay. See, e.g., Gilmore, 222 Mich App at 462. The death of witnesses or loss of
memory caused by a delay can prejudice a defendant, but “in considering prejudice, a reviewing
court should look for examples about how the delay between arrest and trial harmed the
defendant’s ability to defend against the charges.” Smith, ___ Mich App at ___; slip op at 6.
In the present case, prejudice is presumed because of the lengthy delay between arrest and
trial. Defendant generally argues that he personally “endured over three years of anxiety and
concern which accompanied the public accusation that he committed sexual assaults.” Although
an appropriate factor to consider, standing alone anxiety is not sufficient to establish prejudice.
See id. (providing that “while anxiety caused by a lengthy delay can occur, anxiety alone cannot
establish a speedy-trial violation”). We acknowledge that the pending charges understandably
caused defendant to experience stress and anxiety while awaiting trial. However, defendant was
out on bond for all but the first 21 days following his arrest. Personal prejudice to defendant was
minimized in light of the fact that defendant was out on bond for most of the time he awaited trial.
Addressing the more significant form of prejudice, prejudice to his defense, defendant only
generally asserts that time may have weakened witnesses’ memories. A lapse in time may make
presenting a defense more difficult, but defendant does not provide any specific allegations or
examples of how his ability to defend against the charges had been hindered by weakened
memories. See id. Likewise, defendant did not assert some other prejudice to his defense such as
an inability to secure witnesses or evidence for trial due to the delay. Accordingly, defendant has
failed to demonstrate that his defense suffered prejudice by the delay.
In sum, although the delay in bringing defendant to trial was substantial, the record shows
that most of the delay was attributable to the COVID-19 pandemic, which is not held against the
prosecutor. Defendant only asserted his right to a speedy trial once at a time when the trial court
could not hold jury trials. Further, because defendant was out on bond during almost all of the
period of delay, any prejudice to his person was minimal, and there is no indication that the delay
prejudiced his ability to present a defense against the charges. Balancing these factors, defendant
has not established a violation of his right to a speedy trial.
III. OTHER-ACTS EVIDENCE
Next, defendant argues that the trial court erred by allowing the prosecutor to present other-
acts testimony from two witnesses, the first of whom defendant tried to sexually assault 30 years
ago, and the second of whom defendant sexually assaulted 30 years ago. Defendant contends that
this evidence constituted impermissible propensity evidence that was irrelevant and more
prejudicial than probative. We disagree.
-4-
We review preserved evidentiary challenges “for an abuse of discretion, but review de novo
preliminary questions of law, such as whether a rule of evidence precludes admissibility.” People
v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014). “The decision to admit evidence is
within the trial court’s discretion and will not be disturbed unless that decision falls outside the
range of principled outcomes.” People v Thorpe, 504 Mich 230, 251-252; 934 NW2d 693 (2019)
(quotation marks and citations omitted). “A decision on a close evidentiary question ordinarily
cannot be an abuse of discretion.” Id.At the time of defendant’s trial, MRE 404(b)(1) provided, in relevant part, that “[e]vidence
of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith.”3 MCL 768.27a provides an exception to MRE 404(b)(1)’s
general prohibition of propensity evidence in cases involving the sexual abuse of minors. People
v Muniz, 343 Mich App 437, 457; 997 NW2d 325 (2022). MCL 768.27a provides, in relevant
part:
(1) Notwithstanding [MCL 768.274], in a criminal case in which the
defendant is accused of committing a listed offense against a minor, evidence that
the defendant committed another listed offense against a minor is admissible and
may be considered for its bearing on any matter to which it is relevant.
Evidence of prior acts is relevant if the evidence has any tendency to make material facts or issues
more or less probable. MRE 401. “[E]vidence of similar misconduct is logically relevant to show
that the charged act occurred where the uncharged misconduct and the charged offense are
sufficiently similar to support an inference that they are manifestations of a common plan, scheme,
or system.” People v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000). “Logical
relevance is not limited to circumstances in which the charged and uncharged acts are part of a
single continuing conception or plot.” Id. at 64. “General similarity between the charged and
3
The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective
January 1, 2024. See ADM File No. 2021-10, 512 Mich lxiii (2023). MRE 404(b)(1) now
provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
character.” We apply the versions of court rules in effect at the time of trial.
4
MCL 768.27 states:
In any criminal case where the defendant’s motive, intent, the absence of,
mistake or accident on his part, or the defendant's scheme, plan or system in doing
an act, is material, any like acts or other acts of the defendant which may tend to
show his motive, intent, the absence of, mistake or accident on his part, or the
defendant’s scheme, plan or system in doing the act, in question, may be proved,
whether they are contemporaneous with or prior or subsequent thereto;
notwithstanding that such proof may show or tend to show the commission of
another or prior or subsequent crime by the defendant.
-5-
uncharged acts does not, however, by itself, establish a plan, scheme, or system used to commit
the acts.” Id.Defendant argues that the other-acts evidence was not relevant because it was the result of
a juvenile adjudication and the current case involves an adult sexually assaulting a minor. This
argument ignores the strong similarities between the circumstances of the juvenile adjudication
and the current conduct. The other-acts evidence had probative value because it tended to show
defendant’s propensity to sexually assault preadolescent and adolescent males to whom he had
access. See MRE 401. The first witness testified that defendant babysat him and his friends when
he was approximately 11 years old. While defendant babysat the witnesses, they watched a movie
and went to sleep, but the first witness woke up to find defendant attempting to grab the waistband
of his pants. The first witness watched defendant turn his attention to the second victim, who
defendant later sexually assaulted that night. The second witness testified that defendant was his
tae kwon do instructor and babysitter, and that defendant gave him special treatment as a child by
taking him to the mall and buying him gifts. The second witness explained that defendant invited
him to his home and touched the witness’s penis, rubbed his penis on the witness’s genitals, and
put his penis in the witness’s mouth after he went to bed on several occasions. Defendant told the
second witness not to disclose the assaults. The other-acts evidence of defendant’s prior sexual
assaults was extremely relevant to demonstrate that defendant purposefully gained the trust of his
victims through a close relationship, isolated his victims, assaulted them while they slept, and
attempted to keep the victims from disclosing what had happened. See Sabin, 463 Mich at 63.
We also conclude that this evidence was not unduly prejudicial. Relevant evidence
admissible under MCL 768.27a is still subject to exclusion under the MRE 4035 balancing test.
People v Watkins, 491 Mich 450, 486; 818 NW2d 296 (2012). “[W]hen applying MRE 403 to
evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of
the evidence’s probative value rather than its prejudicial effect.” Id. at 487. Courts may consider
the following nonexhaustive factors when considering whether propensity evidence is unduly
prejudicial:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony. [Id. at 487-488.]
Consideration of these factors does not indicate that admission of the other-acts evidence
was unduly prejudicial. As already noted, the other-acts evidence was similar to the charged
crimes. The other acts against the second witness resulted in a juvenile adjudication for defendant,
5
At the time of defendant’s trial, MRE 403 provided:
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
-6-
making them reliable. Although there was a 30-year gap between the other acts and the charged
conduct, we have previously noted that “MCL 768.27a does not contain a temporal limitation.”
People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). Further, we have stated that
when other acts and a charged offense share significant similarity, “the temporal divide between
their occurrences, standing alone, does not preclude the evidence’s admission.” People v
Solloway, 316 Mich App 174, 195; 891 NW2d 255 (2016). The other-acts evidence and the
charged conduct are notably similar and weigh in favor of admission, despite the lack of temporal
proximity. With respect to the infrequency of the assaults and the intervention of 30 years, we
note that defendant was incarcerated for approximately 11 years during the 30-year gap, making
the infrequency and passage of time, while still marginally favorable toward defendant, less
noteworthy because of his inability to reoffend during his incarceration. Finally, the other-acts
evidence was necessary to rebut defendant’s attack on the victim’s credibility. Defendant’s theory
at trial was that the victim had fabricated his allegations to prevent defendant from disclosing his
substance use and sexual activity. There was no physical evidence in this case. The prosecution’s
case depended on the victim’s testimony regarding the assault, and the other-acts evidence was
needed to support the victim’s credibility.
Ultimately, the other-acts evidence was probative. Although the evidence was prejudicial
to defendant, it was not so prejudicial that we are convinced that the trial court’s decision to admit
the two witnesses’ testimony fell outside the range of reasonable outcomes.
IV. PRIVILEGED RECORDS
Defendant next argues that the trial court erred by denying his motion for in camera review
of the victim’s counseling records and school counseling, discipline, and attendance records. We
disagree.
We review discovery rulings for an abuse of discretion. People v Jack, 336 Mich App 316,
321; 970 NW2d 443 (2021). “The trial court abuses its discretion when its decision falls outside
the range of principled outcomes or when it erroneously interprets or applies the law.” Id. at 322
(quotation marks and citation omitted). “Discovery should be granted where the information
sought is necessary to a fair trial and a proper preparation of a defense.” People v Davis-Christian,
316 Mich App 204, 207; 891 NW2d 250 (2016) (quotation marks and citation omitted).
“Nevertheless, defendants generally have no right to discover privileged records absent certain
special procedures, such as an in camera review of the privileged information conducted by the
trial court.” Id. at 207-208.
When seeking privileged records, a defendant must establish a “good-faith belief, grounded
on some demonstrable fact, that there is a reasonable probability that the records are likely to
contain material information necessary to the defense.” People v Stanaway, 446 Mich 643, 677;
521 NW2d 557 (1994). Upon making the requisite showing, the trial court should conduct an in
camera inspection of the privileged records. Id. at 678-679. If the records contain evidence that
is reasonably necessary to the defense, the trial court must supply that evidence to the defendant.
Id. at 649-650. However, disclosure is inappropriate “when the record reflects that the party
seeking disclosure is on a fishing expedition to see what may turn up.” Id. at 680 (quotation marks
and citation omitted). “A defendant is fishing for information when he or she relies on generalized
assertions and fails to state any specific articulable fact that indicates the privileged records are
-7-
needed to prepare a defense.” Davis-Christian, 316 Mich App at 208 (quotation marks and citation
omitted).
The Stanaway Court applied these standards to discovery requests in two companion cases.
The first defendant, Stanaway, made only “a generalized assertion that the [victim’s] counseling
records may contain evidence useful for impeachment on cross-examination,” which was
insufficient to establish a reasonable probability that the records contained material information
for his defense and a need that could apply to every case involving criminal sexual conduct.
Stanaway, 446 Mich at 681. The second defendant, Caruso, however, alleged that the victim
“suffered sexual abuse by her biological father before this allegation of abuse, the nonresolution
of which produced a false accusation, and factual support for some sexually aggressive behavior,
namely, writing a letter to her mother’s live-in boyfriend inviting him to have sex with her in his
car.” Id. at 682-683. In camera review of privileged records may have been proper in Caruso’s
case given the particularized basis of the second defendant’s request. Id. at 683.
Defendant’s motion in this case bears a greater similarity to that of defendant Stanaway.
In his initial motion, defendant stated that he became aware of the victim consuming alcohol, using
marijuana, and having sex with a “peer-age female” on May 24, 2018, and he argued that the
victim fabricated sexual assault allegations to prevent him from disclosing information about the
victim. Defendant believed that the victim’s counseling records and school discipline, counseling,
and attendance records would contain evidence to support defendant’s theory, but he did not
provide evidence to support his belief in his motion or at the motion hearing. The only support for
defendant’s assertion was his knowledge that the victim attended counseling through Clinton
Eaton Ingham Community Mental Health and that the victim was a student in the Lansing School
District. Defendant has not demonstrated how his need for impeachment evidence differs from
that in any criminal sexual conduct case, and the fact that the victim attended counseling and school
was not a demonstrable fact that established a reasonable probability that the records are likely to
contain material information necessary to defendant. See id. at 677.
In consideration of the standards applied in Stanaway and the generalized assertions raised
by defendant, we conclude that the trial court did not abuse its discretion by denying defendant’s
motion for in camera review of the victim’s privileged records.
V. JUDICIAL BIAS
Lastly, defendant argues that he was denied a fair trial because the trial court’s questioning
of the victim pierced the veil of impartiality. We disagree.
We review unpreserved claims of judicial bias for plain error affecting defendant’s
substantial rights. People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011). “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred,
2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.”
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To satisfy the third element, the
defendant must show that the error “affected the outcome of the lower court proceedings.” Id.“Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually
innocent defendant or when an error seriously affected the fairness, integrity or public reputation
-8-
of judicial proceedings independent of the defendant’s innocence.” People v Allen, 507 Mich 597,
614; 968 NW2d 532 (2021) (quotation marks and citation omitted).
A criminal defendant is entitled to an unbiased decision maker, but a defendant must
overcome a “heavy presumption of judicial impartiality” when raising a claim of judicial bias.
Jackson, 292 Mich App at 597-598 (quotation marks and citation omitted). To determine whether
a trial court’s comments or conduct in the presence of the jury deprived a defendant of the right to
a fair trial, we consider whether the comments or conduct “pierces the veil of judicial impartiality,”
which occurs “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, 170-171; 869 NW2d 233 (2015). We
may consider various factors in evaluation claims of judicial bias:
the nature of the trial judge’s conduct, the tone and demeanor of the judge, the scope
of the judicial conduct in the context of the length and complexity of the trial and
issues therein, the extent to which the judge’s conduct was directed at one side more
than the other, and the presence of any curative instructions, either at the time of an
inappropriate occurrence or at the end of trial. [Id. at 164.]
The reviewing court should not “evaluate errors standing alone, but rather consider the cumulative
effect of the errors.” Id. at 171-172.
In the present case, defendant takes exception to the trial court’s questioning of the victim
at trial. Defendant asserts that the trial court assumed the role of the prosecutor by questioning the
victim, veered the testimony into a different topic, and asked the questions in a manner that
indicated the trial court believed the victim. A trial judge “is generally permitted to ask questions
of witnesses.” People v Swilley, 504 Mich 350, 372; 934 NW2d 771 (2019). See also MRE 614(b).
However, “the central object of judicial questioning should be to clarify. Therefore, it is
appropriate for a judge to question witnesses to produce fuller and more exact testimony or elicit
additional relevant information.” Stevens, 498 Mich at 173. “It is inappropriate for a judge to
exhibit disbelief of a witness, intentionally or unintentionally.” Id. at 174. The trial court may
“not permit his own views on disputed issues of fact to become apparent to the jury.” Id. (quotation
marks and citation omitted).
Review of the record shows that the trial court initiated questioning of the victim on redirect
examination after the victim became flustered and unable to answer the prosecution’s questions.
After the victim declined the trial court’s offer to draw what had happened to him, the trial court
questioned the victim about whether his underwear was still on during the assault, whether his
penis was erect, and if his penis was inside or outside his underwear. The trial court further asked
the victim about defendant’s specific acts once he was on top of the victim, stating, “I just want to
make sure I get the body parts right.” Finally, the trial court clarified that the victim disclosed the
assault to his mother after defendant left their house, asking, “[D]o I have the sequencing right?”
Defense counsel did not object to any of the trial court’s questions.
After reviewing the record, we conclude that the trial court’s demeanor and tone in the
presence of the jury throughout the trial was not inappropriate. The trial court did not veer the
testimony into topics not previously discussed, and the trial court did not question the victim in a
-9-
manner so as to express its view of the credibility of the victim’s assertions. Rather, the trial
court’s questions were posed solely to clarify the victim’s previous testimony. See id. at 173. The
trial court asked the victim questions regarding his previous testimony, specifically that he told a
forensic interviewer his underwear was still up during the assault and that defendant had touched
his penis, put his mouth on the victim’s penis, and tried to have the victim’s penis penetrate
defendant’s anus. Because the nature of the sexual acts was an integral element of the charges
against defendant and because the victim’s testimony was unclear at times, it was not improper for
the trial court to clarify with the victim what had happened during the assault. The trial court also
withheld its questioning of the witness until the witness became emotional and was unable to
speak, making its interjection more appropriate. See Swilley, 504 Mich at 381 (noting that
“[j]udicial questioning might be more necessary when confronted with a difficult witness who
refuses to answer questions or provides unclear answers”).
Although the trial court questioned the victim more extensively than any other witness, we
note that the victim’s testimony was the longest of all the witnesses at trial. Defendant’s only
witness testified about forensic evidence that had been admitted by stipulation, giving the trial
court little to question. Moreover, throughout its questioning of the victim, the trial court conveyed
a tone that was professional, unemotional, and unbiased. Nothing about this exchange in which
the trial court sought to clarify previous testimony indicated the trial court’s opinion of the victim’s
veracity.
Further, the trial court instructed the jury twice that its comments and questions were not
evidence to be considered or indicative of the court’s opinion. The court’s closing instructions on
this issue were as follows:
My comments, rulings, questions, and instructions are also not evidence. It is my duty to
see 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 am not trying to
influence your vote or express a personal opinion about this case. If you believe 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 from the evidence.
We presume that the jury followed their instructions, and jury instructions are presumed to cure
most errors. See People v Zitka, 335 Mich App 324, 348; 966 NW2d 786 (2020). There is nothing
in the record to indicate that the trial court’s conduct was so inappropriate that its instructions to
the jury were insufficient. See Stevens, 498 Mich at 177-178 (stating that “in some instances
judicial conduct may so overstep its bounds that no instruction can erase the appearance of
partiality”).
In sum, the totality of the circumstances do not demonstrate a reasonable likelihood that
the trial court’s conduct during trial improperly influenced the jury by creating the appearance of
advocacy or partiality against defendant. See id. at 171. Further, even if defendant could establish
error, he could not establish plain error affecting his substantial rights. See Carines, 460 Mich
at 763. Defendant argues that the trial court’s questioning was outcome-determinative because the
prosecution seized on the opportunity to show that the trial court favored the prosecution during
closing argument.
-10-
After reviewing the prosecutor’s closing argument, we conclude that defendant’s argument
is without merit. The prosecutor’s argument merely highlighted that the victim was able to
overcome his emotions and testify clearly when questioned by the trial court. This argument
emphasized the trial court’s status as a neutral party in the proceedings rather than suggesting that
the trial court believed the victim. Outside of this argument, defendant does not argue how the
trial court’s questioning was outcome-determinative. Accordingly, the trial court did not pierce
the veil of judicial impartiality, and defendant was not denied a fair trial.
Affirmed.
/s/ James Robert Redford
/s/ Michael F. Gadola
/s/ Michael J. Riordan
-11-