People of Michigan v. Douglas Floyd Hill

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 10, 2020
Plaintiff-Appellee,
v No. 347009
Clinton Circuit Court
DOUGLAS FLOYD HILL, LC No. 2017-009966-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of seven counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (sexual penetration with a person under the
age of 13), and four counts of second-degree criminal sexual conduct (CSC-II),
MCL 750.520c(1)(a) (sexual contact with a person under the age of 13). The trial court sentenced
defendant to prison terms of 25 to 50 years for each CSC-I conviction and 9 to 15 years for each
CSC-II conviction, to be served concurrently. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant was convicted of sexually molesting his nieces, AH and SH, who were 12 and
9 years old, respectively, at the time of trial. AH and SH testified that the abuse occurred at the
home of defendant and his wife while they were babysitting the girls. AH also testified that
defendant had taken pictures of her with his tablet computer while she was naked, and had stored
them in a special “vault” on the device, which she showed police how to access. Police discovered
an application on the tablet computer that contained a hidden photo or document vault, but were
unable to locate any photographs of AH other than one that she had taken as a demonstration.
However, a forensic computer examiner discovered 336 deleted images of child pornography on
a home computer that belonged to defendant’s son, NH. Ten of these images were shown to the
jury; they depicted sexual acts between adult males and prepubescent girls. The examiner was not
able to tell when the images were downloaded or last accessed, or who was using the computer
when the images were downloaded. The examiner testified that he also interviewed NH, who
stated that his computer was password-protected, but that he would sometimes leave the computer
-1-
unlocked. According to the examiner, NH denied downloading or viewing the images. NH did
not testify. Defendant testified and denied committing any sexual abuse, taking nude pictures, or
downloading child pornography.
The jury convicted defendant as described. This appeal followed.
II. OTHER-ACTS EVIDENCE
Defendant argues that the trial court erred by admitting into evidence images of child
pornography that were found on a computer in the bedroom of defendant’s son. “[W]e review a
trial court’s decision to admit evidence 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). We review de novo questions of statutory
interpretation. People v Watkins, 491 Mich. 450, 467; 818 NW2d 296 (2012). “A trial court abuses
its discretion when its decision falls outside the range of reasonable and principled outcomes.”
People v Courser, 326 Mich. App. 298, 305; 926 NW2d 299 (2018).
The trial court admitted the photographs under MCL 768.27a(1). MCL 768.27a(1)
provides that “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.” Possession
of child pornography is a listed offense, as are CSC-I and CSC-II committed against minors. See
MCL 768.27a(2)(a); MCL 28.722(l), (s)(i), (t)(x), and (w)(iv).
“Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.’ ” Watkins, 491 Mich. at 470, quoting MRE 401. “A defendant’s propensity
to commit criminal sexual behavior can be relevant and admissible under [MCL 768.27a] to
demonstrate the likelihood of the defendant committing criminal sexual behavior toward another
minor.” People v Brown, 294 Mich. App. 377, 386; 811 NW2d 531 (2011), quoting People v Petri,
279 Mich. App. 407, 411; 760 NW2d 882 (2008). See also Watkins, 491 Mich. at 470.
Even when other-acts evidence is relevant and admissible under MCL 768.27a, a trial court
“must still employ the balancing test of MRE 403.” Brown, 294 Mich. App. at 386. Under
MRE 403, otherwise relevant evidence may be excluded if, among other considerations, “its
probative value is substantially outweighed by the danger of unfair prejudice.” “Propensity
evidence is prejudicial by nature,” which is why it is normally precluded under MRE 404(b)(1).
Watkins, 491 Mich. at 486. To effectuate the Legislature’s intent in enacting MCL 768.27a, “when
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.
Other-acts evidence under these circumstances “may not be excluded . . . as overly prejudicial
merely because it allows a jury to draw a propensity inference.” Id.
This does not mean, however, that other-acts evidence admissible under
MCL 768.27a may never be excluded under MRE 403 as overly prejudicial. There
are several considerations that may lead a court to exclude such evidence. These
considerations include (1) the dissimilarity between the other acts and the charged
-2-
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.
This list of considerations is meant to be illustrative rather than exhaustive.
[Watkins, 491 Mich. at 487-488 (citation omitted).]
A. RELEVANCE
Defendant first argues that the child pornography images found on the computer in his
home were not relevant to whether he had sexually assaulted the victims. We disagree.
The images depicted explicit sexual acts between adult men and prepubescent girls. The
evidence was admissible under MCL 768.27a to show defendant’s propensity for sexual attraction
to prepubescent girls. Brown, 294 Mich. App. at 386. In determining relevance, the trial court was
to consider the evidence’s materiality and probative value. See People v Henry, 315 Mich. App.
130, 144; 889 NW2d 1 (2016). The photographs were material to a matter at issue in the case,
because they could be used to demonstrate the likelihood that defendant had committed other
criminal sexual acts involving a minor. Brown, 294 Mich. App. at 386. And they were probative
for the same reason, as they tended to make it more probable that defendant had committed the
crimes charged. Watkins, 491 Mich. at 470. Moreover, because AH had testified that defendant
took nude pictures of her and stored them on his tablet computer, an electronic device, defendant’s
possession of similar images stored on an electronic device would enhance her credibility, which
is almost always relevant. See People v Mills, 450 Mich. 61, 72; 537 NW2d 909 (1995), mod in
part on other grounds, 450 Mich. 1212 (1995).
Defendant argues that the pictures were not relevant because there was a lack of evidence
linking him to the computer on which the images were found. But his argument on this issue goes
to the weight of the evidence, not its admissibility. See Mitchell v Kalamazoo Anesthesiology, PC,
321 Mich. App. 144, 154; 908 NW2d 319 (2017). Moreover, we disagree with defendant’s
underlying premise that no evidence linked him to the child pornography images. The computer
was found in defendant’s home. Although it was located in NH’s bedroom, and NH told the police
that the computer was his and that it was generally password-protected, NH denied that he had
accessed the pornography and he stated that he sometimes would just leave the computer on and
unprotected. With this information, the jury could have reasonably inferred that defendant had
access to the computer and had downloaded the images. Although there was evidence in support
of the opposite conclusion as well, this conflicting evidence went to the evidence’s weight, not its
admissibility. See People v Barrera, 451 Mich. 261, 289; 547 NW2d 280 (1996).
B. MRE 403
Defendant also argues that, even if the images were marginally relevant, they should have
been excluded under MRE 403 because their relevance was substantially outweighed by the danger
of unfair prejudice. We disagree.
Although the act of downloading child pornography is not the same act as the charged
crimes of CSC-I and CSC-II, the acts are similar because the images depicted acts of sexual
-3-
penetration of prepubescent girls and defendant was charged with acts of digital and oral
penetration of prepubescent girls. Watkins, 491 Mich. at 487-488. In addition, the pornography
is substantially similar to the uncharged acts of taking nude pictures of AH. And given that both
AH and SH had complained of repeated acts of abuse over several years, the trial court could
properly find that there was a relatively close temporal proximity between the charged acts and the
acts of downloading the child pornography, even though the evidence did not show when the
images were downloaded. Id. Such a finding would also be appropriate with regard to the
uncharged acts of taking pictures of AH while naked, because both the computer and the tablet
were found during the search of the home. Moreover, as discussed, the jury could have concluded
that the images had been downloaded or stored on the computer by defendant. Finally, because
there was no physical evidence of the alleged sexual abuse and defendant denied that any abuse
had occurred, evidence beyond the testimony of AH and SH was not unnecessary. Id. The relevant
Watkins factors therefore support the trial court’s decision to admit evidence that defendant had
possessed images of child pornography.
Whether 10 of the 336 images should have been shown to the jury, rather than introducing
evidence of the images in some other way, is a closer call. Defendant argues that the images should
have been excluded because of their inherent prejudicial effect, given that the images were
particularly heinous and shocking. But “[g]ruesomeness alone need not cause exclusion. The
proper inquiry is always whether the probative value of the photographs is substantially
outweighed by unfair prejudice.” People v Mills, 450 Mich. 61, 76; 537 NW2d 909 (1995).
“[O]therwise admissible [photographs] . . . are not rendered inadmissible merely because they
bring vividly to the jurors the details of a gruesome or shocking . . . crime, even though they may
tend to arouse the passion or prejudice of the jurors.” Id. at 77 (citations and quotation marks
omitted). Nonetheless, “[p]hotographs that are merely calculated to arouse the sympathies or
prejudices of the jury are properly excluded, particularly if they are not substantially necessary or
instructive to show material facts or conditions.” Id. (citations and quotation marks omitted).
Images of this type are undoubtedly shocking, and we are mindful of the risk that they may
have aroused the jury’s passion or prejudice against defendant. However, viewing the totality of
the circumstances, we conclude that the trial court acted within the range of principled outcomes.
Courser, 326 Mich. App. at 305. Of the 336 child pornography images recovered, only 10 were
shown to the jury. As discussed, the evidence was highly relevant to defendant’s propensity to
commit criminal sexual acts involving a minor. And the trial court extensively instructed the jury
concerning this evidence, informing the jury that it was first required to find that defendant had
possessed the photographs before it was permitted to consider that evidence in determining
defendant’s guilt, and further instructing the jury that it “must not convict the Defendant here
solely because you think he’s guilty of having that child pornography. The evidence must convince
you beyond a reasonable doubt that the Defendant committed one or more of the crimes
alleged . . . .” A proper limiting instruction may “cushion the prejudicial effect” of admitted
evidence. See People v Crawford, 458 Mich. 376, 380, 385; 582 NW2d 785 (1998)(citation
omitted).
For these reasons, we conclude that the trial court did not abuse its discretion by permitting
the prosecution to introduce 10 images of the child pornography found on the computer in
defendant’s home. Courser, 326 Mich. App. at 305; see also People v Blackston, 481 Mich. 451,
467; 751 NW2d 408 (2008) (noting that a trial court’s decision on a close evidentiary question is
-4-
generally not an abuse of discretion). We also note that the remaining evidence against defendant
was strong; even if the trial court admitted this evidence in error, we are not convinced, in light of
the weight of the properly admitted evidence, that the error undermined the reliability of the
verdict. See People v Snyder (After Remand), 301 Mich. App. 99, 111-112; 835 NW2d 608 (2013);
MCR 2.613(A).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that his trial counsel was ineffective in not objecting to hearsay
testimony by the forensic computer examiner regarding statements made by NH, during his
interview, concerning the computer that was found in his room and the child pornography images
found on it. We disagree. Because no Ginther1 hearing was held, our review of this issue “is
limited to errors apparent on the record.” People v Horn, 279 Mich. App. 31, 38; 755 NW2d 212
(2008); see also People v Payne, 285 Mich. App. 181, 188; 774 NW2d 714 (2009).
Whether a defendant has been denied the effective assistance of counsel is a mixed question
of fact and constitutional law. People v Jordan, 275 Mich. App. 659, 667; 739 NW2d 706 (2007).
To establish ineffective assistance of counsel, a defendant must show that: (1) counsel’s
representation “fell below an objective standard of reasonableness”; and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome of the proceeding would
have been different. People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012), citing
Strickland v Washington, 466 U.S. 668, 688-694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Defendant must “overcome the strong presumption that counsel’s
performance was born from a sound trial strategy.” People v Trakhtenberg, 493 Mich. 38, 52; 826
NW2d 136 (2012). “Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of establishing the factual
predicate for his claim.” People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001). Decisions
regarding what evidence to present and whether to call or question witnesses are presumed to be
matters of trial strategy, which we will not second-guess with the benefit of hindsight. People v
Dixon, 263 Mich. App. 393, 398; 688 NW2d 308 (2004).
Defendant did not object to the testimony in question; therefore, to the extent that the trial
court’s admission of the testimony is challenged on appeal, we review that challenge for plain error
affecting substantial rights. See People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
An error is plain when it is clear or obvious, and that error affects a defendant’s substantial rights
defendant can show prejudice, i.e., that the error affected the outcome of the proceedings against
him. Id.
The parties agree that the testimony by the examiner regarding NH’s statements was
hearsay. MRE 401. The trial court therefore plainly erred by permitting that testimony;
nonetheless, we find that error harmless in light of the fact that many of NH’s statements (to which
the examiner testified) were helpful to defendant’s case, and defendant has not shown that the
1
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
-5-
testimony was outcome determinative. See Carines, 460 Mich. at 763, Snyder (After Remand), 301
Mich. App. at 111-112. Indeed, defendant does not argue that the reversal is required under the
plain-error rule, instead , defendant argues only that his trial counsel was ineffective for failing to
object to the examiner’s testimony regarding NH’s hearsay statements.2 We conclude that
defendant has not established that he is entitled to relief.
The challenged testimony regarding NH’s statements provided a number of pieces of
information for the jury, much of it to defendant’s benefit. First, NH had admitted that the
computer was his. Second, the computer was found in NH’s bedroom. Third, NH had the
computer password-protected (although also that it was not always left “locked” by NH). Fourth,
NH told the police that he had not downloaded the images and did not know anything about them.
And fifth, NH had never seen defendant use the computer.
Reviewing the testimony regarding NH’s statements in its entirety, defendant has not
overcome the presumption that counsel’s decision not to object was a matter of trial strategy. The
trial court had already ruled that the images were admissible under MCL 768.27a. Without any of
NH’s statements, the prosecution still would have presented evidence that deleted pornographic
images were found on a computer in defendant’s home. The officer’s testimony regarding NH’s
statements, specifically that NH had admitted that the computer was his and that it was password-
protected, coupled with the evidence that no other child pornography images were found on any
of the other electronic devices or in any other form, enabled trial counsel to make the argument
that NH had downloaded the images without defendant’s knowledge. Given these strategic
considerations, defendant has failed to rebut the presumption that counsel’s decision not to object
was objectively reasonable, notwithstanding that the strategy was unsuccessful. Dixon, 263 Mich
App at 398. For the same reason, defendant cannot show prejudice when many of the statements
inured to his benefit and the testimony about the statements as a whole allowed defense counsel to
elaborate on his argument that defendant was not the one that downloaded, stored, or viewed the
images. Vaughn, 491 Mich. at 670. Defendant has therefore not shown that his counsel was
ineffective.
IV. JUDICIAL BIAS
Defendant also argues that he was denied his right to a trial conducted by a fair and
impartial judge. We disagree. Defendant concedes that he did not preserve this issue with an
appropriate objection. People v Jackson, 292 Mich. App. 583, 597; 808 NW2d 541 (2011).
Therefore, we review defendant’s claims of judicial bias and partiality for plain error affecting his
substantial rights. People v Shenoskey, 320 Mich. App. 80, 82; 903 NW2d 212 (2017); see also
Carines, 460 Mich. at 763.
A defendant must overcome a heavy presumption of judicial impartiality when claiming
judicial bias. Jackson, 292 Mich. App. at 598. In determining whether a trial judge’s comments or
conduct deprived a defendant of a fair trial, this Court considers whether the “trial judge’s conduct
2
Defendant argues that if trial counsel had objected to the examiner’s testimony, the prosecution
would have had to elicit testimony at trial directly from NH.
-6-
pierces the veil of judicial impartiality.” People v Stevens, 498 Mich. 162, 164; 869 NW2d 233
(2015). “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.” Id. at 171. This is a fact-specific inquiry to be considered in the context of a given case.
Id. at 171-172. It does not depend on whether the evidence supports the conviction or whether the
conduct actually contributed to the verdict. Id. at 171 n 3. “Rather, in considering improper
influence, the reviewing court must determine whether the judge’s conduct was sufficiently severe
and clear so as to create the appearance of bias against the aggrieved party.” Id. (emphasis added.)
We also consider the “cumulative effect” of any errors. Id. at 171-172.
In evaluating the totality of the circumstances, we consider a non-exhaustive list of factors,
including any inappropriate conduct by the trial court, such as belittling counsel, inappropriate
questioning of witnesses, inappropriate commentary, or providing inappropriate advice to either
side. Id. at 172-173. This Court also consider the tone and demeanor of the trial judge to the
extent we are able. Id. at 175-176. Further, we consider “the scope of judicial intervention within
the context of the length and complexity of the trial,” when a more complex issue may make it
more appropriate for the judge to intervene to a greater extent, and also whether “the comments or
questions were directed at one side more than the other.” Id. at 176-177. The existence of a
curative instruction, such as one informing the jury that the judge’s comments or questions are not
evidence, or one directed at conduct that could give rise to the appearance of bias “will often ensure
a fair trial despite minor or brief inappropriate conduct.” Id. at 177.
A. ACTIONS TOWARD DEFENSE COUNSEL
Defendant argues that the trial court exhibited bias and partiality when it twice “rebuked”
defense counsel during trial and did not allow counsel to properly cross-examine the victims’
mother. We disagree with defendant’s characterization of the trial court’s conduct. Before the
jury was dismissed for lunch on the second day of trial, the trial court remarked that it was “hoping
and directing” that defense counsel would conclude cross-examination in about half an hour after
the jury returned. The court also stated that it “want[ed] to give [defense counsel] a chance to
gather his notes, put his material together so we can conclude the cross-examination.” Defendant
argues that these remarks show that the court limited counsel’s cross-examination of a key witness
and implied that counsel was not prepared.
The record does not support defendant’s claim that the court’s remarks showed bias against
defendant or pierced the veil of impartiality. “The scope and duration of cross-examination is in
the trial court’s sound discretion.” Wischmeyer v Schanz, 449 Mich. 469, 474; 536 NW2d 760, 763
(1995). Trial courts “retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination because of concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Delaware v Van Arsdall, 475 U.S. 673, 679; 106 S. Ct. 1431;
89 L. Ed. 2d 674 (1986). Overall, “the Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.” Id. (quotation marks and citation omitted).
-7-
Defense counsel had already conducted extensive cross-examination of the victims’ mother
by the time the trial court halted the proceedings for lunch. When discussing its plans with the
jury, the trial court clearly expressed that it wished to avoid repetitive questioning while ensuring
that defendant had a chance to cover everything that might help the defense. The court’s stated
request or hope that defense counsel would finish his cross-examination within a certain time
period did not prevent defense counsel from conducting an effective cross-examination. With
respect to defendant’s claim that the court implied that counsel was not prepared, viewing the
court’s remarks in context, it is apparent that the trial court merely asked counsel to go over his
notes to see what he wanted to focus on when cross-examination continued. There is no reasonable
likelihood that the trial court’s remarks created an appearance of advocacy or partiality for or
against a party. Stevens, 498 Mich. at 171 & n 3.
Defendant also argues that the trial court showed favoritism when it “rebuked” defense
counsel during his closing argument. We again disagree. The record shows that the attorneys for
both parties made statements during the closing arguments regarding why the prosecution did not
cross-examine defendant, prompting the trial court to make the following statement:
See we’re not going to get into an argument between the attorneys about how they
view the case. These folks have a role to play, both of them, have a professional
obligation, but that doesn’t extend to offering you their opinions about the witnesses
or even their opinion about the other attorney. That isn’t helpful.
This remark cannot reasonably be viewed as showing bias against defendant and was clearly
directed at both attorneys. Stevens, 498 Mich. at 171.
B. LEADING QUESTIONS
Defendant also argues that the trial court was biased against the defense because it allowed
the prosecutor to ask leading questions of AH. We disagree. “Leading questions should not be
used on the direct examination of a witness except as may be necessary to develop the witness’
testimony.” MRE 611(d)(1). Whether to allow leading questions is within the trial court’s
discretion. In re Susser Estate, 254 Mich. App. 232, 239; 657 NW2d 147 (2002). Indeed,
MCL 768.24 provides that “[w]ithin the discretion of the court no question asked of a witness shall
be deemed objectionable solely because it is leading.” In this case, the questioning involved AH,
a child witness. As this Court has observed, “a considerable amount of leeway may be given to a
prosecutor to ask leading questions of child witnesses.” People v Watson, 245 Mich. App. 572,
587; 629 NW2d 411 (2001). Moreover, “to demonstrate that reversal is warranted for the
prosecution asking leading questions, it is necessary to show some prejudice or patterns of eliciting
inadmissible testimony.” People v Johnson, 315 Mich. App. 163, 200; 889 NW2d 513 (2016).
AH was 12 years old at the time of trial. Before the challenged questioning, she had already
testified about the acts of oral sex and other acts by defendant. The substance of the testimony
elicited by the prosecutor was admissible. The trial court’s decision to allow leading questions
despite defense counsel’s objection does not demonstrate that it was biased against defendant.
Adverse rulings do not establish actual bias unless they “display a deep-seated antagonism [by the
judge] that would make fair judgment impossible.” Cain v Dep’t of Corrections, 451 Mich. 470,
496, 548 NW2d 210 (1996), quoting Liteky v United States, 510 U.S. 540, 555; 114 S. Ct. 1147; 127
-8-
L Ed 2d 474 (1994). Nothing in the trial court’s discretionary decisions to allow some leading
questions of a child witness demonstrates that the court was biased against defendant.
C. MITIGATING INSTRUCTIONS
At the end of trial, the trial court specifically instructed the jury that its comments, rulings,
summary of the evidence, and instructions were not evidence. The court further stated:
The more inconspicuous I can be in a trial the happier I am, I’ve been a little more
engaged in this trial than I normally am, but none of that’s evidence, none of that
indicates any opinion as to how I think this case should be decided. If I’ve done
anything that’s left with you a conclusion that I have an opinion one way or another
how this case turned out, you’re asked to disregard your view in that regard because
you’re the ones who are the only judges of the facts and therefore the only ones
with the power and duty to decide the outcome of this case.
This instruction further mitigates against any finding that the trial court denied defendant a fair
trial by piercing the veil of judicial impartiality. Stevens, 498 Mich. at 177. Accordingly, defendant
has not established his claim of judicial bias. For that reason, defendant also cannot establish that
his counsel was ineffective for failing to raise an objection during trial based on judicial bias.
“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010).
V. VOIR DIRE
Finally, defendant argues that he was denied a fair trial because the trial court failed to ask
specific voir dire questions that defendant had requested, and did not sufficiently explore possible
juror bias. We disagree.
Before trial, the trial court informed the parties that it would conduct voir dire itself.
However, the court invited the parties to submit proposed questions for the jury and it also
informed the parties that they could ask to approach the bench if they wanted to request any follow-
up questions. Defendant submitted proposed questions, but the record does not indicate that he
requested any follow-up questioning of the jurors or otherwise objected to the scope of the trial
court’s voir dire. Accordingly, this issue is unpreserved, People v Metamora Water Serv, Inc, 276
Mich. App. 376, 382; 741 NW2d 61 (2007), and we review the issue for plain error affecting
defendant’s substantial rights, People v King, 297 Mich. App. 465, 472; 824 NW2d 258 (2012); see
also Carines, 460 Mich. at 763.
In People v Sawyer, 215 Mich. App. 183, 187; 545 NW2d 6 (1996), this Court explained:
A defendant who chooses to be tried by a jury has a right to a fair and
impartial trial. The function of voir dire is to elicit sufficient information from
prospective jurors to enable the trial court and counsel to determine who should be
disqualified from service on the basis of an inability to render decisions impartially.
In ensuring that voir dire effectively serves this function, the trial court has
considerable discretion in both the scope and conduct of voir dire. What constitutes
-9-
acceptable and unacceptable voir dire practice does not lend itself to hard and fast
rules. Rather, trial courts must be allowed wide discretion in the manner they
employ to achieve the goal of an impartial jury.
In reviewing the trial court’s conduct, this Court must determine whether
the trial court conducted a voir dire sufficiently probing to uncover potential juror
bias. [Quotations and citations omitted.]
“Nor is there a right to have the court ask questions submitted by counsel.” Id. at 191.
In this case, defendant argues that the trial court erred when it did not ask the specific
questions he submitted. These questions sought to explore the issue of juror bias in cases involving
allegations of criminal sexual conduct against children. Although the trial court may not have
asked the specific questions submitted by defense counsel, it had no obligation to do so, id., and
the record in any event discloses that the court explored the very subject raised by defendant by
asking voir dire questions such as the following:
Is there anybody here who is providing services or counseling to abused
children, whether sexually or otherwise abused? Is there anyone here who would
have any reservations about following the law as it is concerning a case such as
this? Is there anyone here who has had a close friend or a family member sexually
abused as a child?
The trial court’s questioning led to the dismissal of several jurors who had experiences with sexual
abuse, or who had friends or relatives who had been abused. The trial court also asked the
prospective jurors whether, “for any reason I haven’t touched on in my earlier questions think it
would be difficult for you to be fair and impartial and give both sides a fair shake and base your
verdict on the evidence and the law?” The trial court’s questions were reasonably designed to
elicit possible personal bias because of the nature and subject matter of the case, and did in fact
reveal actual or potential bias by several prospective jurors who were then dismissed. Trial counsel
had the opportunity to request more specific follow-up questions, but did not do so. Defendant
has not shown that the trial court’s questioning was inadequate to allow the court and the parties
to determine potential bias due to the nature and subject matter of the case, and has not shown
plain error. King, 297 Mich. App. at 472.
Defendant also argues that following comments by the trial court when discussing jury
duty generally were inappropriate:
With regard to this questioning process, there is a — a two-sided coin. First,
the last thing some people want to do is be stuck on jury . . . some people will . . .
come into court and they will make up reasons they can’t be a juror. They will
quite simply — and I don’t mean to be harsh — they will lie to me, but they’ll be
excused. They’ll walk out the door, none of the officers will be there to stop them
and nobody will go to their house, nobody will swear out a warrant for them,
they’ll . . .be fine, they’ll be off jury duty. And all they had to do to accomplish
that is trade in their integrity for a few days out of jury duty and some people are
willing to do that. Now there’s . . . the jury board, and that’s why you’re here and
-10-
they sent a notice to you to come in for jury duty. Fifty years ago, in 1968, there
was a different board, a draft board, sent notice out to people in Clinton County that
they . . . were being drafted, and they weren’t being asked. And most of the people
who were drafted went, and in 1968 a lot of them were sent to Southeast Asia and
most of them came back, but not all of them. So if you . . . walk down to Veteran’s
Memorial you’ll see carved on stone the names of those who didn’t come back.
And many of them who did come back were never the same . . . . That’s what we
in Clinton County . . . ask of our citizens and that’s what we got. Now you’re asked
to come in, sit in these leather chairs, air conditioning is on, nobody is going to hurt
you, and listen to evidence for six days. Not a bad deal really. Now some of you
might have done both . . . but it’s important to keep that in mind but the coin has
another side. We have people who want out of jury duty even at the expense of
their integrity. We also have people who won’t admit they may have a bias, they
may have a prejudice. There is something in their family history, something that’s
happened that would make it impossible for them to give both sides in the case such
as this a fair shake, and we understand that and if that’s the case you let me know
when I ask, and you’ll be excused. And if that happens the prosecutor will be
grateful, defense counsel will be grateful, the Court and the community will be
grateful for your honesty, and I won’t try and embarrass anybody by going into
great details because I’ll trust you, I’ll trust you to tell me the truth.
Defendant argues that these remarks “inevitably left jurors with the impression that the
court would have little tolerance for anyone who tried to be excused from jury duty without a clear
and articulable reason” and “created an environment that discouraged jurors from openly sharing
about biases that they held that were not a direct result of personal or professional experience.”
We disagree. The thrust of the trial court’s comments was that serving on a jury is part of a
citizen’s duty, and that potential jurors should not be dishonest to get out of jury duty. At the same
time, the court acknowledged that the personal circumstances of each prospective juror were
different and that some jurors may indeed have biases or prejudices. However, the court did not
discourage jurors from revealing any biases or prejudices. On the contrary, it encouraged them to
do so, and it attempted to allay any concerns jurors might have about revealing potentially
embarrassing information by assuring them that it would not question them about the underlying
reasons in great detail. We find no error in this statement. Id.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
/s/ James Robert Redford
-11-