COA 370438 PEOPLE OF MI V STEPHEN ALLEN KYLES Opinion - Per Curiam - Unpublished 4/13/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
-1-
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
April 13, 2026
9:06 AM
v No. 370438
Berrien Circuit Court
STEPHEN ALLEN KYLES, LC No. 2022-002890-FH
Defendant-Appellant.
Before: O’BRIEN, P.J., and FEENEY and WALLACE, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial conviction of operating while intoxicated
(OWI), third offense, MCL 257.625(1)(b) and (9)(c). We affirm.
I. BACKGROUND
Officer Jacob Michael Clark with the Benton Harbor Department of Public Safety testified
that he was working in the early morning hours of September 11, 2022, when a call came in at
2:21 a.m. asking for officers to respond to an accident. When Clark arrived at the scene, he “saw
a GMC Terrain flipped up onto a[n] embankment” on its passenger side. Clark made his way to
the vehicle and found Shurrone Richmond inside. It appeared to Clark that Richmond was stuck
in the vehicle near the passenger side. A “windshield saw” was eventually used to “cut out the
windshield,” and Richmond was pulled “through the front windshield of the vehicle.” Defendant
was outside of the vehicle all this time—according to Clark, when he arrived at the scene,
defendant was behind the vehicle.
Clark testified that, while Richmond was being removed from the vehicle and loaded onto
a stretcher, Clark heard defendant mention that Richmond was “his girl.” This led Clark to ask
defendant if he was the driver of the vehicle, and defendant said that he was. Clark believed that
defendant was intoxicated because defendant’s speech was slurred, and he smelled of alcohol, but
defendant denied to Clark that he had any alcohol that night.
Clark testified that he had defendant perform several field sobriety tests, all of which
defendant failed, so Clark took defendant into custody. While being taken to Clark’s police

-- 1 of 10 --

-2-
vehicle, defendant made several incriminating statements, including “I’m going to jail for drinking
and driving, I have to accept that,” and “I fucked up.” Defendant also said that someone turned in
front of him and he tried to avoid it.
Clark placed defendant into the vehicle, and defendant’s conduct in the vehicle was
captured by an in-car camera. This entire video was entered into evidence, but only parts of it
were played during trial. During one part of the video that was played for the jury, defendant says,
“I ain’t gonna lie to you bro, I know I fucked up because I still got behind a wheel and I’m still
drinking.” Defendant also again mentioned that someone turned in front of him, and he had to
“avoid” hitting them. According to Clark, once at the station, officers used a DataMaster to test
defendant’s blood alcohol level, and the result of those tests were a 0.16 and 0.15. Clark testified
that defendant never denied that he was the driver or said that he was not the driver. Clark also
testified that he interviewed Richmond over the phone the day after defendant was arrested and
interviewed her in person 15 days later.
Richmond was supposed to testify on defendant’s behalf at his trial, but she passed away
before the trial took place. Richmond had previously testified at defendant’s preliminary
examination, however, and the parties agreed to admit Richmond’s testimony from the preliminary
examination with redactions. A video of Richmond’s preliminary examination testimony was
played for the jury, and that video has been provided to this Court on appeal.
Richmond testified that defendant was her boyfriend, and she was out with him celebrating
his birthday on the night he was arrested. According to Richmond, she and defendant were at a
bar together, but they “got into it a little bit” and left separately. Richmond testified that she left
first and got into defendant’s 2016 GMC Terrain, and she texted defendant to come out or she
would leave without him. Defendant, according to Richmond, believed that Richmond had in fact
left without him, so defendant left with someone else, and Richmond eventually met back up with
defendant at a nearby party store. Richmond testified that, at this party store, defendant got into
the passenger seat while Richmond remained in the driver’s seat.
After they left the party store together, they were involved in a car accident. According to
Richmond, something jumped in front of the car, and she hit the gas instead of the brakes, causing
the car to swerve and roll over. Defendant was able to crawl out the back, but Richmond remained
inside. She was still there when she made contact with police. By this time, according to
Richmond, she was near the center of the vehicle towards the passenger side because she had
managed to unbuckle her seatbelt, and the car was tipped towards the passenger side. Richmond
testified that she was eventually pulled out of the vehicle through the windshield. Thereafter, the
police never asked Richmond if she was the driver, so she never told them that she was. Richmond
testified that she spoke to police at a later date and told them that she was the driver that night
“because [she] was.” Richmond also said that she spoke to an officer on the phone and told him
that she was the driver. When asked why she did not tell officers sooner, Richmond explained that
officers never asked her, and she was hurt during the accident and was more concerned with getting
her injuries treated.
Upon questioning by the trial court, Richmond testified that, when she was taken to the
ambulance after being removed the car, she did not see defendant talk to police or get arrested.
Richmond reiterated that the police did not ask her anything—they merely got her out of the car

-- 2 of 10 --

-3-
and helped her get to the ambulance. Richmond testified that she found out that defendant had
been taken to jail while she was in the hospital. Richmond found out when she saw defendant the
next day that he had been arrested for drunk driving, and she “asked him how did he go to jail for
drunk driving and I was driving.” The court then asked Richmond why she did not then call the
police and tell them that she was the one driving, and Richmond said, “I don’t know.” Richmond
explained that she did talk to them on the phone, but she could not explain why she did not call
them and tell them that she was the driver.
Defendant also took the stand in his defense. Defendant testified that, on the night he was
arrested, he and Richmond were out celebrating defendant’s birthday. According to defendant,
Richmond agreed to go “to a club” with him, but when they got there, Richmond decided that she
did not want to go in, so defendant went in by himself. When he came out, his car was gone and
he assumed Richmond had left, so he texted her and asked her to pick him up at a nearby party
store. Defendant testified that, when Richmond came to pick him up, he got into the passenger
seat of the car with Richmond driving, and the crash occurred “maybe two blocks” from the party
store. Defendant managed to crawl out “the back hatch” while Richmond was still suspended in
the driver’s seat.
According to defendant, when Officer Clark first approached the car, “he was playing on
his phone,” and defendant told him that someone was trapped in the car, in response to which Clark
said, “Well, who was driving,” and defendant responded, “Is that really important right now?
Someone stuck in the car.” When the officer persisted, defendant said, “I was driving if that’s
going to help you get her out of the car.” When asked about the statements that he made in the
back of the police car, defendant explained that “[he] actually thought [he] was the driver” because
he usually drove when he was with Richmond, and he only realized that he was not the driver
when Richmond told him the following day. Defendant acknowledged that the statements
immediately following the accident were “untrue” and explained that he made those “untrue”
statements because he was “discombobulated” as a result of the crash. Defendant testified that,
after realizing that Richmond was the driver, he tried to contact Clark to clarify that Richmond—
not defendant—was driving at the time of the crash, and when Clark did not respond, defendant
reached out to the deputy chief, who then had Clark contact defendant.
Defendant was eventually charged and convicted by a jury of OWI, third offense.
Defendant was sentenced to jail for time served (176 days) and 36 months’ probation.
On October 24, 2024, defendant moved for a Ginther1 hearing, arguing that his trial counsel
was ineffective for not introducing a portion of Richmond’s medical records showing that she told
the ambulance technician on the night of the accident that she was the driver. Defendant argued
that this evidence “was crucial” to his defense because the prosecution argued during closing that
Richmond only told the doctors that she was the driver after she found out that defendant was in
jail, and evidence that Richmond told the ambulance technician would have established that
Richmond said that she was the driver before she heard that defendant was in jail.
1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

-- 3 of 10 --

-4-
Attached to this motion was an excerpt from Richmond’s medical records that contained
the following “Narrative History” from the ambulance technician:
Arrive to pt suburban on its side in a wood fence. Pt states she was driver, but it
was proven while on scene that she was not. We arrive to fd taking off windshield
in order to get pt out of vehicle. She was standing and conscious. Once she
ambulated out of vehicle, she was walked around to gate and that’s where we met
her. We got her on cot and to the ambulance. . . .
Also attached to defendant’s motion was an affidavit signed by his trial counsel, Jennifer E. Fields,
in which she averred that she was not aware that Richmond’s medical records documented that
Richmond told the ambulance technician that Richmond had been driving before the accident.
Fields further averred that she would have presented this evidence had she known about it because
it was “very important” to defendant’s defense.
The trial court granted defendant’s request for a Ginther hearing. At that hearing, Fields
testified that, during closing, the prosecution “made a big deal” about the fact that Richmond could
have found out that defendant was in jail before she told hospital staff that she was the driver.
With respect to Richmond’s statement to the ambulance technician, Fields testified that she
received Richmond’s medical records but must have “overlooked” the relevant document. Fields
agreed that this was “simply an oversight.” According to Fields, this document reflected that
“Richmond told EMT workers that she was the driver.”
In a ruling from the bench, the court denied defendant’s motion for a new trial. The court
opined that Fields’ failure to present the relevant portion of the ambulance records could not be
considered trial strategy because Fields admitted that it “was an omission rather than a decision to
not pursue a certain avenue of defense.” But the court concluded that defendant was not prejudiced
by his trial counsel’s omission in part because the ambulance technician’s report was not all
favorable to defendant—in it, Richmond told the ambulance technician that Richmond was the
driver, but the report then states that this was disproven while on the scene. The court did not see
a way in which the helpful statement could come in while excluding the harmful statement. The
court also noted that the jury heard from both Richmond and defendant that Richmond was the
driver, and the jury had to compare that to the videos from the night of the accident in which
defendant made “incriminating statements” implicating that he was driving. The court concluded
that, on this record, the failure to admit the ambulance technician’s report did not prejudice
defendant.
This appeal followed.
II. STANDARD OF REVIEW
“[W]hether a defendant has been denied effective assistance of counsel is a mixed question
of fact and law—the trial court’s factual findings supporting its decision are reviewed for clear
error, while the court’s determination of whether those facts violated the defendant’s right to the
effective assistance of counsel is reviewed de novo.” People v Haynes, 338 Mich App 392, 429;
980 NW2d 66 (2021).

-- 4 of 10 --

-5-
III. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on an ineffective assistance claim, “a defendant must show that (1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different.”
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). When judging the
reasonableness of trial counsel’s performance, this Court must consider whether it was the result
of trial strategy. See People v Bass, 317 Mich App 241, 278; 893 NW2d 140 (2016). If so, the
defendant’s ineffective-assistance claim becomes more difficult to prove because trial counsel is
given “wide discretion” when it comes to matters of trial strategy, id. (quotation marks and citation
omitted), “and this Court will not substitute its judgment for that of counsel” on such matters,
People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002), nor will it assess the
reasonableness of a chosen strategy using the “benefit of hindsight,” People v Unger, 278 Mich
App 210, 243; 749 NW2d 272 (2008).
Deciding what evidence to present is generally considered a matter of trial strategy, see
Davis, 250 Mich App at 368, but this is not always true. A trial strategy is reasonable only to the
extent that it is supported by professional judgment. Trakhtenberg, 493 Mich at 52. If counsel
does not present certain evidence because they did not know about the evidence due to their failure
to conduct a reasonable investigation, then the decision to not present the evidence cannot have
been the result of sound trial strategy. See id. at 53-54. And this Court’s deference to matters of
trial strategy does not apply to strategies that are not in fact sound because doing so would allow
an unreasonable performance to be insulated under the guise of “calling it trial strategy.” People
v Douglas, 496 Mich 557, 585; 852 NW2d 587 (2014) (quotation marks and citation omitted).
Here, Fields admitted that she did not present Richmond’s favorable statement in the
ambulance technician’s report because she did not know about it. Fields had the records in her
possession, and it appears that she simply failed to review them carefully and locate Richmond’s
statement. Given Fields’ admission that she simply did not know about the beneficial statement,
her failure to move for its admission cannot be said to have been the result of reasonable trial
strategy. Fields apparently conducted a less-than-full investigation of the report and missed
Richmond’s statement, so her “decision” to not admit it was not the result of trial strategy. We
accordingly conclude that it was objectively unreasonable for Fields to not discover Richmond’s
beneficial statement in Richmond’s medical records and move for the statement’s admission.
Still, Fields’ performance cannot be deemed unreasonable if Richmond’s statement in her
medical records was not, in fact, admissible because counsel cannot be deemed ineffective for
failing to take “meritless or futile” positions. People v Putman, 309 Mich App 240, 245; 870
NW2d 593 (2015). So, the question becomes whether this statement was admissible. Defendant
concedes that Richmond’s statement in the ambulance technician’s report is hearsay, and hearsay
is inadmissible absent an exception. MRE 802. Defendant contends that Richmond’s statement
in the ambulance technician’s report is admissible as an exception to the bar against hearsay as
either a present sense impression under MRE 803(1) or an excited utterance under MRE 803(2).
But, later in his brief, defendant contends that the statement in the report that was harmful to
defendant—that “it was proven while on scene that [Richmond] was not” the driver—would not
be admissible because it “is pure hearsay” without an exception. Defendant is correct insofar as
every statement that the ambulance technician made in her report is hearsay. But the portion of

-- 5 of 10 --

-6-
the report that defendant wants admitted is the ambulance technician’s statement about what
Richmond said, making Richmond’s statements hearsay within hearsay.
“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hearsay rule provided in these rules.”
MRE 805.2 Defendant has proffered an explanation for why Richmond’s statement in the report
would be admissible, but he never explains why the ambulance technician’s statement about what
Richmond said would be admissible. This puts defendant in a catch-22—either the ambulance
technician’s statements in her report fit within a hearsay exception, and Richmond’s hearsay
statements within the report may therefore be admissible (as defendant contends) as hearsay within
hearsay, or the ambulance technician’s statements in her report do not fit within any hearsay
exception (as defendant contends), so Richmond’s hearsay statements within the report are not
admissible. Because defendant’s appeal hinges on Richmond’s statements being admissible, we
will assume that the entire report was admissible—both the portion of the statement beneficial to
defendant and the portion that is harmful.
With the assumption that Fields could have had Richmond’s beneficial statement admitted,
we conclude that Fields’ failure to locate the statement in Richmond’s medical records and have
the statement admitted constituted objectively unreasonable performance. Evidence clearly
establishing that Richmond told others that she was the driver of the crashed vehicle immediately
after the crash bolstered Richmond’s testimony that she was, in fact, the driver. This in turn went
to the heart of defendant’s defense—that he was not driving the vehicle while intoxicated. The
question then becomes whether defendant was prejudiced by Fields’ performance. We conclude
that he was not.
Defendant emphasizes that Richmond’s statement that she was the driver in the ambulance
technician’s report was significant because it showed that Richmond claimed to be the driver
before she learned that defendant had been arrested. This timing is significant to defendant because
it would have countered the prosecution’s rebuttal argument about why the jury should not be
persuaded by Richmond’s medical records showing that she told doctors at the hospital that she
was the driver. During rebuttal, the prosecution argued in relevant part:
Medical records, I’ll explain that for you. We know, based upon Shurrone
Richmond’s testimony, you saw the video, you’ll get a copy of her testimony to
take back into chambers if you want—or into the jury room. I can explain that.
“One of his friends called me when I was in the emergency room in the hospital.”
She knew Stephen Kyles was in jail that night, so that’s pretty easy to explain that.
She can tell—easily tell that to the doctor, that she was the driver, because she knew
Stephen had been arrested that night.
Defendant is correct that Richmond’s medical records showing that she claimed to be the driver
when speaking with the ambulance technician would rebut this argument.
2 This was the version of MRE 805 in effect at the time of defendant’s trial. It has since been
amended, though the changes were not substantive.

-- 6 of 10 --

-7-
But the jury already heard that Richmond told “the ambulance drivers” that she was the
driver—she testified to this at the preliminary hearing in the following exchange:
Q. Did you take any steps to let PSO Clark know that you were driving
prior to him coming to you??
A. I think at one point, yeah, I talked to him on the phone and I told him I
was driving. I don’t remember exactly when.
Q. When was that?
A. I don’t remember exactly when.
Q. Okay.
A. But I informed the ambulance drivers and the—and the hospital of the
accident what happened, because they asked me what happened.
While Richmond’s statement could be clearer, the substance of the testimony in context is clearly
that Richmond told “the ambulance drivers” that she was the driver. Given that the jury already
heard this testimony, it is unclear how the jury hearing the same evidence in the form of the
ambulance technician’s report would have likely changed the outcome at defendant’s trial. In
other words, in light of Richmond’s above testimony, defendant cannot establish that he was
prejudiced by Fields’ failure to admit the ambulance technician’s report.
Even if the jury did not interpret the above testimony as Richmond claiming that she told
“the ambulance drivers” that she was the driver, admitting Richmond’s statement in the ambulance
technician’s report would not have made a difference at defendant’s trial. It is unlikely that
convincing the jury that defendant was not the driver of the vehicle hinged on clarifying precisely
when Richmond first claimed that she was the driver. Rather, convincing the jury that defendant
was not the driver hinged first and foremost on convincing the jury to disregard defendant’s
numerous acknowledgements on the night of the accident that he was the driver. The jury saw
video of defendant’s numerous incriminating statements on the night of the crash, including
defendant saying “I’m going to jail for drinking and driving, I have to accept that,” “I fucked up”
several times, and “I ain’t gonna lie to you bro, I know I fucked up because I still got behind a
wheel and I’m still drinking.” The jury also heard defendant repeatedly say that he crashed the car
because another car turned in front of him and he had to avoid hitting it.
At his trial, defendant attempted to explain away these incriminating statements, testifying
that, on the night of the crash, he truly believed that he was the driver because he was
“discombobulated,” and he only realized that he was not the driver after talking to Richmond the
following day. The jury clearly did not believe this testimony—or Richmond’s testimony that she
was the driver—because it found defendant guilty.
There is simply not a reasonable probability that this would have changed if the jury had
seen the ambulance technician’s report in which Richmond claimed to be the driver before being
transported to the hospital. Hearing this may have slightly bolstered Richmond’s testimony
because it would have countered the prosecution’s argument that Richmond only claimed to be the

-- 7 of 10 --

-8-
driver after she heard that defendant was in jail. One could also argue that the more credible the
jury found Richmond, the more likely the jury was to credit defendant’s explanation for why he
claimed to be the driver on the night of the crash. That said, evidence that merely bolstered
Richmond’s testimony would have made little difference. The jury had already heard Richmond’s
testimony that she was the driver, and it heard defendant’s testimony confirming the same and
attempting to explain why he said something different on the night of the accident. The jury chose
not to credit any of this testimony, instead crediting defendant’s numerous statements from the
night of the accident in which he admitted that he was driving the vehicle when it crashed. Hearing
that Richmond claimed to be the driver earlier would have done little to convince the jury that
defendant was “discombobulated” when he repeatedly admitted to being the driver on the night of
the accident.
It also cannot be ignored that, if Richmond’s favorable statement in the report came into
evidence, the jury would have also heard the other portion of the report in which the ambulance
technician wrote that “it was proven while on scene that [Richmond] was not” the driver. The
report was therefore not entirely helpful to defendant, and in fact could have hurt defendant’s case.
Defendant emphasized during trial that none of the officers spoke to Richmond on the night of the
accident despite her claiming to be the driver, but the ambulance technician’s report explained why
that was—because “it was proven while on scene that [Richmond] was not” the driver.
In sum, to any extent that Richmond’s statement in the ambulance technician’s report was
not cumulative of her testimony at the preliminary examination, the statement, at most, only
slightly bolstered Richmond’s claim that she was the driver. That Richmond claimed to be the
driver was not new; the jury already heard Richmond’s testimony to that effect and found it not
credible. And hearing that Richmond made this claim earlier would do little to overcome the most
incriminating evidence against defendant—his repeated statements on the night of the crash that
he was the driver of the vehicle. We therefore conclude that, while Fields performed unreasonably
by failing to carefully review Richmond’s medical records and locate the bolstering statement in
the ambulance technician’s report, the failure to present this evidence at trial did not prejudice
defendant.
Defendant also contends that his trial counsel was ineffective because she did not request
that the trial court’s questioning of Richmond during the preliminary examination be redacted
“from the transcripts and video.” Defendant does not contest that the court’s questions and
Richmond’s answers were relevant, and they clearly were. The court’s questioning focused on
establishing a clear timeline of when Richmond learned that defendant had been arrested, which
led to the court questioning Richmond as to why she did not go to the police and tell them that she
was the driver as soon as she learned that defendant had been arrested and charged with OWI.
Defendant contends that his trial counsel should have moved to have this questioning
redacted because the “court asked multiple leading questions and then expressed skepticism and
doubt in Ms. Richmond’s answers.” This alleged conduct, defendant opines, breached the veil of
judicial impartiality, so Fields could have successfully objected to having the jury see it. We
conclude that the trial judge’s conduct did not pierce the veil of judicial impartiality, so Fields
could not move to have the video and transcript of the trial court’s questioning of Richmond
redacted on that ground.

-- 8 of 10 --

-9-
A judge’s conduct pierces the veil of impartiality “and violates the constitutional guarantee
of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the
judge’s conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.” People v Stevens, 498 Mich 162, 171; 869 NW2d 233 (2015). A judge
can pierce the veil of judicial impartiality by improperly questioning witnesses, but “a reviewing
court must first bear in mind that such interrogation is generally appropriate under MRE 614(b).”
Stevens, 498 Mich at 173. Pursuant to this rule, it is proper “for a judge to question witnesses to
produce fuller and more exact testimony or elicit additional relevant information,” id., but it is
improper for a judge to ask questions “designed to emphasize or expose incredible,
unsubstantiated, or contradictory aspects of a witness’s testimony,” People v Swilley, 504 Mich
350, 374; 934 NW2d 771 (2019). A questioning judge must also carefully police their “tone and
demeanor” because jurors are highly susceptible to following a judge’s “bias or prejudice,” no
matter how slight. Stevens, 498 Mich at 174. A reviewing court should also “consider the scope
of judicial intervention” and “the extent to which a judge’s comments or questions were directed
at one side more than the other.” Id. at 176-177. Lastly, reviewing courts should consider what
effect “the presence or absence of a curative instruction” may have played in curing any potential
appearance of judicial impartiality. Id. at 177.
The trial court’s questioning of Richmond took place during a preliminary examination.
The examination of witnesses during a preliminary examination must be conducted “in accordance
with the Michigan Rules of Evidence,” MCR 6.110(C), and those rules allow trial courts to
“examine a witness,” MRE 614(b). Part of the court’s questioning of Richmond focused on
eliciting fuller and more exact testimony—the court sought to have Richmond clarify the timeline
of events on the night of the crash, with a particular focus on when Richmond found out that
defendant had been arrested. A different part of the court’s questioning focused on eliciting
additional relevant information—the court sought to have Richmond explain why she did not go
to police and tell them that she was the driver when she discovered the defendant had been charged
with OWI. The trial judge never sought to “emphasize or expose incredible, unsubstantiated, or
contradictory aspects of a witness’s testimony.” Swilley, 504 Mich at 374.
As for the trial judge’s tone and demeanor, our Supreme Court in Stevens recognized that
“appellate courts typically do not have the benefit of viewing a trial judge’s tone and demeanor,”
Stevens, 498 Mich at 176, but that is not true in this instance because this Court has the video of
the preliminary examination that the jury saw. Having reviewed that video, we discern nothing
improper about the trial judge’s general tone and demeanor. Defendant argues that the judge
“expressed skepticism and doubt in Ms. Richmond’s answers,” and the judge’s “tone and
demeanor was one of disbelief.” It is unclear to what defendant is referring, however, because he
does not identify where in the video or transcript the trial judge purportedly acted as defendant
claims. The only possible instance in which the trial judge expressed any doubt about Richmond’s
answers was when she testified that it took “[p]robably two or three minutes” to get her out of the
car and transport her to the ambulance. Notably, however, after the judge expressed its doubts
about this rather irrelevant testimony, Richmond agreed that it likely took longer than she initially
estimated. Other than that, however, the judge’s tone and demeanor were neutral.
Defendant also claims that the trial judge “dismissively waived his hand at Ms. Richmond
in disbelief at the conclusion of” his questioning, which is not a wholly unreasonable
characterization of the judge’s actions. That said, the trial judge did this at the end of his

-- 9 of 10 --

-10-
questioning of Richmond, and he could have just as easily been raising his hand as a way of
physically signaling that he was done with his questions as he said, “Okay. I’ve got nothing else.
Anything else [prosecutor]?” This is not to say that the trial judge’s conduct was necessarily
proper, only that it was open to interpretation.
Regardless, to any extent that the trial judge’s tone and demeanor could have slightly
crossed the line at times, the judge’s tone and demeanor were generally neutral, his questions were
proper, limited, and did not favor one side over the other, and the jury was instructed that it should
not interpret the court’s comments or questions as reflecting the judge’s opinion about the case.
During closing instructions, the court instructed the jury that it was the jury’s sole responsibility
to decide the facts of the case based on the admitted evidence, that the court’s “comments, rulings,
questions, and instructions are . . . not evidence,” and that, if the jury believed that the court had
“an opinion how [the jury] should decide this case, [the jury] must pay no attention to that opinion.”
On this record, considering the totality of the circumstances, it was not reasonably likely that the
trial judge’s “conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.” Stevens, 498 Mich at 171. The trial judge therefore did not pierce the
veil of judicial impartiality, and it was not objectively unreasonable for Fields to not ask that the
court’s questioning of Richmond be redacted on that ground because the failure to raise a meritless
objection cannot constitute ineffective assistance. Putman, 309 Mich App at 245.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Kathleen A. Feeney
/s/ Randy J. Wallace

-- 10 of 10 --