Argued March 11, 2015.
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Adam B. Stevens was convicted of second-degree murder, MCL 750.317, and second-degree child abuse, MCL 750.136b(3), following a jury trial in the Jackson Circuit Court, John G. McBain, J. The charges stemmed from the death of defendant's three-month-old son, Kian Stevens. The prosecution alleged that defendant caused Kian's death by either shaking him or slamming him against an object. Defendant alleged that he tripped and fell while holding Kian, and that as he fell, he lost control of Kian, who fell to the floor. Defendant denied shaking or slamming Kian. Defendant appealed his convictions and sentences. In an unpublished opinion per curiam, the Court of Appeals, METER, P.J., and RIORDAN, J. (SERVITTO, J., dissenting), affirmed. Defendant sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the application or take other peremptory action. 497 Mich. 898, 855 N.W.2d 752 (2014) .
Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein.
[498 Mich. 164] BEFORE THE ENTIRE BENCH
Richard H. Bernstein, J.
This case requires us to address the appropriate standard for determining when a trial judge's conduct in front of a jury has deprived a party of a fair and impartial trial, and whether that standard was met in this case.
A trial judge's conduct deprives a party of a fair trial if the conduct pierces the veil of judicial impartiality. 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. In evaluating the totality of the circumstances, the reviewing court should inquire into a variety of factors including, but not limited to, 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. When the issue is preserved and a reviewing court determines that the trial judge's conduct pierced the veil of judicial impartiality, the court may not apply harmless-error review. Rather, the judgment must be reversed and the case remanded for a new trial.
In this case, the trial judge's conduct with respect to defendant's expert witness pierced the veil of judicial [498 Mich. 165] impartiality, depriving defendant of the right to a fair trial. As a result, the judgment of the Court of Appeals is reversed and the case is remanded for a new trial before a different judge.
I. FACTS AND PROCEDURAL HISTORY
On August 19, 2010, three-month-old Kian Stevens died. Defendant, Kian's father, was eventually charged with first-degree felony murder, MCL 750.316(1)(b), and first-degree child abuse, MCL 750.136b(2), in connection with Kian's death. A jury trial was held over the course of eight days. The prosecution's theory was that defendant caused Kian's death either by shaking him or by slamming him against an object. Kian's mother, Crystal Anderson, testified that defendant had been living with her for about a year when Kian died. On August 19, at around 12:30 a.m., Anderson was awakened by the sound of Kian crying. Upon entering the living room, she found defendant holding Kian upside down. Soon after, the child stopped breathing. While Anderson called 911, defendant performed CPR. Kian was placed on life support at a local hospital and then flown to Mott Children's Hospital. At Mott, Kian was declared brain dead, having suffered hemorrhaging to the brain. Dr. Bethany Mohr, the director of the child protection team at Mott, testified for the prosecution as an expert in pediatric child abuse. Mohr opined that Kian's injuries suggested that Kian had suffered head trauma caused by physical abuse. Dr. Jeffrey Jentzen, a medical examiner who performed the autopsy on Kian, testified for the prosecution as an expert in forensic pathology. He testified that Kian died from abusive head trauma and that the cause of death was homicide. Jentzen was also called as a rebuttal witness.
[498 Mich. 166] Defendant testified on his own behalf. Defendant stated that, on the morning in question, he had gotten out of bed to get a drink of water when he noticed Kian moving around in his bassinet. When he picked Kian up to comfort him, defendant tripped on a toy truck lying on the floor and fell forward. As defendant fell, he lost control of Kian, who fell to the floor. Defendant denied shaking or slamming Kian. Defendant admitted that he did not tell Anderson until several weeks after the incident that he had dropped Kian. Defendant further testified that, during an interview with police detectives, he denied dropping Kian because he felt intimidated.
Dr. Mark Shuman, an associate medical examiner for Miami-Dade County in Florida, testified for the defense as an expert in forensic pathology. Shuman testified that it was possible that Kian died from injuries
sustained in a short fall from defendant's arms to the floor. Shuman stated that he did not believe a baby could die from being shaken vigorously, but also testified that forensic pathologists were generally divided on the issue. Shuman noted that even if shaking could cause death, Kian did not show signs of any neck injury, trauma that would be present if vigorous shaking had occurred. However, Shuman acknowledged that the cause of death could be homicide if one believed certain testimony offered by the prosecution's witnesses.
Ultimately, defendant was acquitted of the first-degree charges but was convicted of two lesser charges: second-degree murder, MCL 750.317, and second-degree child abuse, MCL 750.136b(3). The trial judge sentenced defendant to concurrent prison [498 Mich. 167] terms of 25 to 50 years for the murder conviction and 32 to 48 months for the child abuse conviction.
On appeal, defendant argued that he was denied a fair trial because the trial judge, through his questioning of defendant and defendant's expert, demonstrated partiality in front of the jury. In a split opinion, the Court of Appeals rejected this claim and affirmed the convictions. The majority held that " [c]laims of judicial misconduct are reviewed to determine whether the trial court's comments or conduct evidenced partiality that could have influenced the jury to a party's detriment." People v Stevens, unpublished opinion per curiam of the Court of Appeals, issued April 10, 2014 (Docket No. 309481), p 3, citing People v Cheeks, 216 Mich.App. 470');">216 Mich.App. 470, 480; 549 N.W.2d 584 (1996). The majority stated that, while a judge may ask questions of witnesses, certain questions could indicate improper partiality:
The appropriate test to determine whether the trial court's comments or conduct pierced the veil of judicial impartiality is whether the trial court's conduct or comments were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial. [ Id., quoting People v Conley, 270 Mich.App. 301, 308; 715 N.W.2d 377 (2006) (quotation marks omitted).]
Applying this standard, the majority held that the trial judge's questions did not pierce the veil of judicial impartiality.
The dissent, however, applied a different standard and came to the opposite conclusion. The dissent stated that, to determine whether a judge's conduct pierced the veil of impartiality, a reviewing court must consider whether the conduct " ' may well have unjustifiably aroused suspicion in the mind of the jury as to a [498 Mich. 168] witness' credibility, . . . and whether partiality quite possibly could have influenced the jury to the detriment of defendant's case.'" Stevens (Servitto, J., dissenting), unpub op at 1, quoting People v Sterling, 154 Mich.App. 223, 228; 397 N.W.2d 182 (1986). The dissent determined that, on numerous occasions during the trial, the judge had inappropriately questioned defense witnesses, undermining the credibility of those witnesses and indicating judicial partiality. Consequently, the dissent concluded that the judge's conduct pierced the veil of impartiality, requiring reversal.
II. STANDARD OF REVIEW
The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court reviews de novo. People v Pipes,
475 Mich. 267, 274; 715 N.W.2d 290 (2006); In re Susser Estate, 254 Mich.App. 232, 236-237; 657 N.W.2d 147 (2002). As discussed in greater detail later in this opinion, once a reviewing court has concluded that judicial misconduct has denied the defendant a fair trial, a structural error has occurred and automatic reversal is required. Arizona v Fulminante, 499 U.S. 279, 309; 111 S.Ct. 1246; 113 L.Ed.2d 302 (1991).
III. APPROPRIATE STANDARD FOR DETERMINING JUDICIAL PARTIALITY
This Court has noted that " great care should be exercised that the court does not indicate its own opinion and does not lay undue stress upon particular features of a witness' testimony that might, in the eyes of the jury, tend to impeach [the witness]." Simpson v Burton, 328 Mich. 557, 564; 44 N.W.2d 178 (1950). However, there is no clear line of precedent establishing the appropriate test in this state to determine [498 Mich. 169] whether a trial judge's conduct pierced the veil of judicial impartiality. Indeed, the disagreement between the members of the Court of Appeals panel in this case illustrates the uncertainty that has arisen with respect to this issue. We take this opportunity to clarify and articulate the proper standard a reviewing court must apply.
A. PRIOR ARTICULATIONS OF THE STANDARD
The chain of cases cited by the Court of Appeals majority and dissent leads us back to Simpson. In that case, this Court stated that the judge's questions " in some instances may well have unjustifiably aroused suspicion in the mind of the jury as to defendant's credibility . . . ." Id. at 563-564 (emphasis added). Approximately seven years later, this Court articulated a similar standard: whether it " may well have created an atmosphere of prejudice which deprived defendant of a fair trial and contributed to his conviction." People v Cole, 349 Mich. 175, 200; 84 N.W.2d 711 (1957) (emphasis added). Numerous cases have since adopted the " may well have" standard.
Unfortunately, application of the standard set forth in Simpson and Cole has been inconsistent. In People v Young, 364 Mich. 554, 558; 111 N.W.2d 870 (1961), this Court cited Cole for the proposition that we have " not hesitated to reverse for new trial when the trial judge's questions or comments were such as to place his great influence on one side or the other in relation to issues which our law leaves to jury verdict." (Emphasis [498 Mich. 170] added.) In People v Wilson, 21 Mich.App. 36, 37; 174 N.W.2d 914 (1969), the Court of Appeals cited Cole in stating that the standard was " whether the trial judge's comments or questions were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial." (Emphasis added.) Neither the phrase " great influence" nor the phrase " unduly influence" appears anywhere in Cole ; Cole instead uses the " may well have" language.
B. NEW STANDARD
It appears that this early split explains the divide between the two formulations of the ...