Opinion
No. 352056
01-13-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee/Cross-Appellant, v. Daniel Albert LOEW, Defendant-Appellant/Cross-Appellee.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Myrene K. Koch, Prosecuting Attorney, and Molly S. Schikora, Assistant Prosecuting Attorney, for the people. Springstead Bartish Borgula & Lynch, PLLC (by Heath M. Lynch, Laura J. Helderop, and Kathryn M. Springstead) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Myrene K. Koch, Prosecuting Attorney, and Molly S. Schikora, Assistant Prosecuting Attorney, for the people.
Springstead Bartish Borgula & Lynch, PLLC (by Heath M. Lynch, Laura J. Helderop, and Kathryn M. Springstead) for defendant.
Before: Murray, P.J., and Markey and Riordan, JJ.
Murray, P.J. Following a jury trial, defendant was found guilty of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (defendant engages in sexual penetration, causes personal injury to the victim, and uses force or coercion); one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(f) (defendant causes personal injury to the victim and uses force or coercion to accomplish sexual contact); one count of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration involving victim at least 13 years of age and under 16 years of age); and one count of CSC-III, MCL 750.520d(1)(b) (penetration by force or coercion). Defendant was sentenced as a third-offense habitual offender, MCL 769.11, to 240 to 480 months’ imprisonment for the CSC-I convictions and to 240 to 360 months’ imprisonment for the CSC-II and CSC-III convictions. Defendant appealed his convictions and sentences to this Court. He also moved for a new trial in the trial court on the basis of judicial misconduct, ineffective assistance of counsel, and prosecutorial misconduct. The prosecution filed a cross-appeal after the trial court granted defendant a new trial on the basis of judicial misconduct. For the reasons set forth in this opinion, we reverse the trial court's order granting defendant a new trial.
I. BASIC FACTS
The relevant events began in December 2015, when the victim was 13 years old. At the time, defendant and the victim's cousin, Brouke Loew, were dating. Defendant, Brouke, and their infant son lived with Brouke's parents, Jane and Scott Heppe, at the Heppes’ rural Allegan County home. Near the end of December 2015, Brouke's parents hosted a wedding reception for the victim's father and his new wife. The reception was held in a detached garage, and wedding guests did not have access to the Heppes’ house.
Sometime during the evening, Brouke asked the victim to go to the house to help defendant unload groceries. The victim was in the kitchen when defendant called the victim to the bathroom so he could "show [her] something." The victim went to the bathroom where defendant closed and locked the door. According to the victim, defendant undressed her and forced her to engage in penile-vaginal sex on the bathroom floor. Defendant ejaculated on the floor before exiting the bathroom. The victim remained in the bathroom where she felt cramping in her stomach and had vaginal bleeding. After the victim's father was incarcerated in early 2016, Jane volunteered to take the victim and her sisters to see their father on the weekends. The victim and her sisters would usually stay Friday evenings at the Heppes’ house and would get up early Saturday mornings to travel to the prison for the visits. On those weekends, the victim and her younger sister would sleep on the living room couches. After everyone was asleep, the victim would wake up to defendant "touching me, my thighs, my boobs, my butt, everywhere, all over my body." Defendant would walk the victim to the bathroom where he would make her engage in penile-vaginal sex. The victim described that defendant would ejaculate on the floor or on the bathroom rugs. During one encounter, the victim stated defendant grabbed her by the hair and "pushed [her] head to the ground with his hand," causing the victim's eyes to become swollen and irritated.
The assaults mostly occurred in the bathroom at the Heppes’ house; however, the victim also recounted one episode of penile-vaginal sex at the home she once shared with her father and another incident when defendant forced the victim to perform fellatio in his pickup truck. After completing the fellatio, the victim asked defendant when he would stop forcing himself on her, to which defendant replied: "If you tell anyone, you don't want to know what happens." Nevertheless, the victim disclosed the abuse to her father during a prison visit in January 2018. The victim's older sister learned of the disclosure and reported it to the Michigan State Police (MSP).
After the MSP investigated the circumstances of the crimes, defendant was charged, convicted, and sentenced as noted. This appeal followed. Before this Court could consider defendant's appeal, however, defendant learned of e-mails between the trial judge and the Allegan County elected prosecutor, who was not the trial prosecutor. The dates and times of the e-mail exchanges indicated the e-mails were sent and received while defendant's trial was ongoing. Consequently, defendant moved the trial court for a new trial, alleging judicial misconduct arising from the e-mail exchanges. Defendant alternatively argued a new trial was warranted because defense counsel was ineffective and because the prosecutor committed misconduct by eliciting perjured testimony. The trial court granted defendant a new trial on the basis that the e-mail communications created the appearance of impropriety but denied the motion on the bases of ineffective assistance of counsel and prosecutorial misconduct. The prosecution filed a cross-appeal in this Court contesting the trial court's grant of a new trial. We now turn to a review of that challenge.
On defendant's motion, the case was reassigned to a different trial court judge. For purposes of this opinion, we will refer to the judge who presided over the trial as the "trial judge" and the judge who decided the motion for new trial as the "trial court."
This was defendant's second motion for a new trial. Defendant's first motion was denied by the trial judge.
II. ANALYSIS
A. JUDICIAL MISCONDUCT
The prosecution contends that the trial court abused its discretion in granting defendant a new trial because the e-mails between the trial judge and the elected prosecutor did not violate the Code of Judicial Conduct, Canons 2 and 3(A)(4) ; did not cause defendant any prejudice; and therefore did not violate his right to due process of law. Under MCR 6.431(B), a trial court "may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice." We review a trial court's decision to grant a new trial for an abuse of discretion. People v. Jones , 236 Mich.App. 396, 404, 600 N.W.2d 652 (1999). Our review "examine[s] the reasons given by the trial court for granting a new trial. This Court will find an abuse of discretion if the reasons given by the trial court do not provide a legally recognized basis for relief." Id. (citations omitted). "The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court reviews de novo." People v. Stevens , 498 Mich. 162, 168, 869 N.W.2d 233 (2015).
Before addressing the legal merits of this argument, we set out below the factual underpinnings for the argument. As noted, this issue arises from e-mail exchanges between the trial judge and the elected prosecutor (who, again, was not handling the trial), which took place during two of the three days of defendant's trial. Before the first e-mail exchange took place, the assistant prosecutor made her opening statement and put the jury on notice that the investigation, by an MSP trooper, was somewhat flawed:
And we will hear, unfortunately, that there is no D.N.A. evidence. [The victim] will testify that ... she made her aunt aware, she made law enforcement aware of blue bath mats that she last remembered the Defendant ejaculating on. And you will hear from [MSP] Trooper [Eric] Desch that aunt met him in the middle of the night at a gas station with a garbage bag full of bath mats that were green, white, and blue. Those bath mats were never taken and shown to the victim. Those bath mats were not seized
personally by law enforcement. But Aunt Janie turned those over and those obviously didn't have any D.N.A on them.
Then, during the direct exam of the MSP trooper, which commenced at 3:11 p.m., the trial prosecutor questioned the trooper about the investigation and how he did not ideally handle the collection of the mats, and what he would have done differently had the investigation been conducted correctly. The trooper's trial testimony, after cross-examination, concluded just prior to 3:47 p.m.
The first e-mail from the trial judge to the elected prosecutor occurred at 3:41 p.m. and stated:
This [MSP] trooper didn't do a very good investigation. Don't they have detectives with MSP anymore?
The elected prosecutor did not immediately respond, as her responding e-mail was sent at 8:47 a.m. the next day, and stated:
They do but not typically for CSC's [sic]. This trooper has been given additional personal training since this investigation.[ ]
The judge's questions apparently arose from a concern regarding the investigation by MSP Trooper Desch. Trooper Desch reported that he collected the bathroom rugs where the sexual assaults occurred during a 1:00 a.m. meeting with Jane at a gas station. The trooper admitted during questioning that he never confirmed with the victim that these were the rugs from the subject bathroom. Trooper Desch also stated that he never took pictures of the subject bathroom until several months after the victim first disclosed the abuse, nor did he attempt to interview defendant or Brouke.
At 8:50 a.m. that same day, the trial judge responded with another question on a different subject:
One more question .... this victim was not referred for a medical, do you know why?
The unspaced ellipsis was in the original e-mail.
Twelve minutes later the elected prosecutor responded, and the following exchange occurred:
[Elected Prosecutor ]: Yes, because the prior [assistant prosecuting attorney] assigned to the case did not catch that it was missed nor did anyone else who touched the file. As a result, there will now be a checklist for CSC's [sic] in files.
[Trial Judge ]: I thought Safe Harbor would catch it.
[Elected Prosecutor ]: Unfortunately, no. The forensic interviewer is supposed to check that before case review but the list often is given to interns. I noticed it after the fact at case review but by then not clear on if the victim had much support.
According to defendant and the trial court, defendant's due-process right to a fair trial was violated because the questions the trial judge e-mailed to the elected prosecutor were ex parte communications that exhibited at least the appearance of impropriety, contrary to the Code of Judicial Conduct, and caused him prejudice.
The Fourteenth Amendment to the United States Constitution provides that states may not "deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const., Am. XIV ; see also Const. 1963, art. 1, § 17 ("No person shall ... be deprived of life, liberty or property, without due process of law."). A person is entitled to due process of law prior to being deprived of their liberty, which "in a criminal trial [includes] ... a neutral and detached magistrate." People v. Cheeks , 216 Mich.App. 470, 480, 549 N.W.2d 584 (1996). " ‘Due process requires that an unbiased and impartial decision-maker hear and decide a case.’ " TT v. KL , 334 Mich.App. 413, 431, 965 N.W.2d 101 (2020) (citation omitted). Consequently, a judge should act neither as an advocate nor an adversary in any criminal proceeding, as the hallmark of the judiciary is impartiality. See e.g., Stevens , 498 Mich. at 179, 869 N.W.2d 233 ("The right to an impartial judge is so fundamental that without this basic protection, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.") (quotation marks, citations, and alteration omitted). A judge is presumed unbiased, and "[a] defendant claiming judicial bias must overcome a heavy presumption of judicial impartiality." People v. Jackson , 292 Mich.App. 583, 598, 808 N.W.2d 541 (2011) (quotation marks and citation omitted).
We first turn to the two canons raised by the parties, Code of Judicial Conduct Canons 2 and 3(A)(4), and consider whether the communications violated either canon. Because a violation of the judicial canons alone cannot constitute a constitutional violation, if we conclude a violation of either canon occurred, we will then turn to whether defendant was prejudiced by those communications. See People v. Aceval , 282 Mich.App. 379, 390, 764 N.W.2d 285 (2009), and Estate of Trentadue ex rel Aguilar v. United States , 397 F.3d 840, 865 (C.A. 10, 2005) ("[N]ot all ex parte proceedings violate due process or even raise a serious constitutional issue."), citing Simer v. Rios , 661 F.2d 655, 679 (C.A. 7, 1981) (alteration omitted), and Alexander Shokai, Inc v. Comm'r of Internal Revenue Serv. , 34 F.3d 1480, 1484-1485 (C.A. 9, 1994) (holding that there was no due-process violation where ex parte communications did not unfairly prejudice party). 1. EX PARTE COMMUNICATIONS
Ex parte communications by judges are specifically addressed by the Code of Judicial Conduct, which states:
(4) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows:
(a) A judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided:
(i ) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii ) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.[ ] [ Code of Judicial Conduct, Canon 3(A)(4).]
Likewise, the Michigan Rules of Professional Conduct restrict a lawyer's ability to communicate with others, stating: "A lawyer shall not ... communicate ex parte with such a person concerning a pending matter, unless authorized to do so by law or court order[.]" MRPC 3.5(b).
Here, it is undisputed that the trial judge initiated ex parte communications with the elected prosecutor during defendant's trial. We conclude that the e-mail questions from the judge to the elected prosecutor were clearly ex parte because the e-mails did not include defense counsel (nor, for that matter, the trial prosecutor). However, under Canon 3(A)(4)(a), ex parte communications that relate to administrative matters are not prohibited. Here, we hold that the e-mails relate to administrative matters because neither related to nor bore on substantive matters in defendant's trial. Rather, they involved matters of administrative process that did not concern defendant's trial. This is clear from the context of the e-mails, as the judge sought clarification of the MSP's process for investigating allegations of sexual assault—specifically, whether the MSP continued to utilize detectives for this type of investigation. The prosecutor's response the following day reveals that she, too, considered the inquiry to be process-orientated, as she explained that the MSP did not use detectives on these types of cases, and the trooper had received follow-up training. The same holds true for the second inquiry, regarding the process of referring victims of sexual assault for medical examinations. Again, the prosecutor's response explained both why no referral occurred for this victim and the process put in place to ensure no missed referrals occur in the future. These communications did not relate to or bear on any substantive issue in defendant's proceeding, but instead related to larger issues of process. Admittedly, the concerns were tangential to defendant's trial because the general concerns arose during the MSP trooper's testimony, yet the nature of the questions focused more globally on investigatory processes and not on issues specific to the trial itself. Therefore, the communications were not prohibited ex parte communications violative of Canon 3(A)(4).
This conclusion is consistent with decisions from our sister states that have concluded ex parte communications between a sitting judge and a prosecutor do not warrant a new trial so long as the communications focus on administrative or procedural (i.e., nonsubstantive) matters. For example, the North Carolina Supreme Court rejected a defendant's argument that he was entitled to a new trial, in part, because the trial court judge had impermissibly communicated with the prosecutor regarding the oath taken by jurors. State v. McNeill , 349 N.C. 634, 642, 652-653, 509 S.E.2d 415 (1998). The court determined the defendant was not entitled to a new trial on this basis because the communication "relate[d] only to the administrative functioning of the judicial system...." Id. , at 653, 509 S.E.2d 415. See also Rodriguez v. State , 919 So.2d 1252, 1274-1275 (Fla, 2005) (holding that ex parte communications regarding the subject of the defendant's upcoming hearing did not violate the defendant's due-process rights because the communications were purely administrative in nature).
We recognize the danger that ex parte communications can have on a pending case, and/or on the integrity of the judiciary:
Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge ‘may be incomplete or inaccurate, the problem can be incorrectly stated.’ At the very least, participation in ex parte communications will expose the judge to one-sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communication is an invitation to improper influence if not outright corruption. [ Grievance Administrator v. Lopatin , 462 Mich. 235, 262-263, 612 N.W.2d 120 (2000), quoting Shaman, Lubet & Alfini, Judicial Conduct and Ethics (3d ed.), § 5.01, pp. 159–160.]
None of these concerns is present here. The communications did not relate to a substantive matter that was to be resolved in defendant's trial; rather, the communications related exclusively to how investigations are conducted and when and how victims are referred for medical treatment. We likewise reject the notion that the communications can be read as an attempt by the trial judge to "tip-off" the prosecutor about deficiencies in the case. The e-mails reflect three direct questions about processes, with the answers revealing that the prosecutor perceived the questions as solely relating to processes. That these e-mails do not squarely address scheduling or other such administrative matters does not take these e-mails out of that category, as they did not relate to substantive matters in defendant's trial.
Had the trial judge asked these questions to the prosecutor in the hallway at the end of the first day of trial, rather than asking them in an e-mail from the bench, there would be little to discuss. After all, there is no prohibition on a judge asking the elected prosecutor about processes used in criminal investigations, and questions like this predictably arise during trials.
Even though the ex parte communications were not related to the merits of defendant's case, the trial judge was still required to comply with Subsections (a)(i) and (ii) of Canon 3(A)(4). The record supports the inference that the trial judge did not consider the e-mails to be advantageous to either party, but the record also supports the conclusion that the trial judge did not disclose the e-mails to the parties, as required by Subsection (a)(ii). Thus, the trial judge did not comply with the disclosure requirements of Canon 3(A)(4)(a)(ii).
2. THE APPEARANCE OF IMPROPRIETY
This leaves us with the question of whether, as the trial court found, the trial judge's communications created the appearance of impropriety. The Code of Judicial Conduct, Canon 2A, provides that "[a] judge must avoid all impropriety and appearance of impropriety." There can be no doubt that "there may be situations in which the appearance of impropriety on the part of a judge ... is so strong as to rise to the level of a due process violation," Cain v. Dep't of Corrections , 451 Mich. 470, 513 n. 48, 548 N.W.2d 210 (1996), and that a showing of actual bias is not necessary "where ‘experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ " Crampton v. Dep't of State , 395 Mich. 347, 351, 235 N.W.2d 352 (1975), quoting Withrow v. Larkin , 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). We hold that even if there was an appearance of impropriety in the e-mail exchange initiated from the bench, defendant has not established prejudice.
We first question whether Canon 2 can even be considered, as the Supreme Court has repeatedly held that the "appearance of impropriety" standard does not govern when specific court rules or canons pertain to a subject. In re Haley , 476 Mich. 180, 194-195, 720 N.W.2d 246 (2006) ("We decline to allow general allegations of impropriety that might overlap specifically authorized or prohibited behavior and conduct to supersede canons that specifically apply to the conduct in question."). See also Adair v. Michigan , 474 Mich. 1027, 1039, 709 N.W.2d 567 (2006) ("The ‘appearance of impropriety’ standard is relevant not where there are specific court rules or canons that pertain to a subject, such as judicial disqualification, but where there are no specific court rules or canons that pertain to a subject and that delineate what is permitted and prohibited judicial conduct."). Under In re Haley and Adair , the "appearance of impropriety" standard does not govern because the specific prohibition in Canon 3(A)(4) controls. The challenged actions relate exclusively to the ex parte communications between the trial judge and elected prosecutor, and Canon 3(A)(4) specifically covers that topic. Nevertheless, we will resolve the issue because it was the sole basis for the trial court's decision and it is a large part of the dissent's focus. We accept for purposes of discussion that the trial judge's e-mail communications created an appearance of impropriety, contrary to Canon 2, because the e-mail communications occurred during the trial and did not include defense counsel. As the trial court noted, members of the public may perceive some gamesmanship when a trial judge communicates with the head prosecutor while a criminal trial is underway and the communications spawned from testimony in the trial. That perception is legally questionable but one that we accept for purposes of resolving this matter.
Even accepting that the trial judge's communications created the appearance of impropriety, defendant was still not entitled to a new trial because the trial judge's conduct did not "influence[ ] the jury" in any way. Stevens , 498 Mich. at 171, 869 N.W.2d 233. A defendant must overcome a significant hurdle to show judicial bias when the alleged misconduct occurred outside the presence of a jury. United States v. Morrow , 977 F.2d 222, 225 (C.A. 6, 1992) (finding that the threat of prejudice is diminished when an otherwise inappropriate judicial act or remark is made outside of the jury's presence); United States v. Smith , 706 F.Appx. 241, 253-254 (C.A. 6, 2017).
Because the judge's questions to the elected prosecutor did not relate to or bear on any substantive matter at trial, nor was the jury ever aware of the e-mails, we conclude the judge's e-mail questions to the elected prosecutor did not influence the jury in any way. Moreover, defendant's arguments in the motion for new trial, which were premised on conjecture that the trial prosecutor received an unfair tactical advantage from these e-mails, provided no specific instance or actual evidence showing defendant was prejudiced by the judge's conduct. While defendant argues that the prosecution received an unfair tactical advantage because the communications could have altered the prosecution's theory of the case, that argument is difficult to accept because the trial prosecutor raised the problems with the MSP investigation during opening statements, which occurred before the first e-mail was sent. So, too, did the trooper's testimony concerning some of the problems with the investigation. The prosecution's opening statement was consistent with its closing arguments, in which the trial prosecutor again acknowledged the inadequacies of the investigation. The record does not support even an inference that the e-mails provided any advantage or altered any tactics by the prosecution. It cannot be said that the communications evidenced anything more than inquiries regarding the investigation process, and there is nothing beyond rank speculation that the communications caused defendant any prejudice. Consequently, the trial judge's e-mail exchange with the elected prosecutor did not violate defendant's due-process rights, and the trial court abused its discretion in granting the motion for new trial.
Our divergence with the dissent comes down to several disagreements. First, we simply do not read into these short e-mails an intent by the judge to assist the prosecution in presenting its case, and nor did the trial court. To read these e-mails in such a way is unreasonable given the actual language of the e-mails and the responses from the elected prosecutor, which reveal an understanding that the questions related to administrative processes in general, not to how the case itself was proceeding. Additionally, to read these e-mails in the way the dissent does gives no credence to the presumption of impartiality, as the dissent places the worst possible gloss onto the meaning of the e-mails. Second, the dissent overlooks the fact that the trial prosecutor had already raised the issue of the trooper's partially deficient investigation, as well as the trooper's testimony, before the first e-mail was sent. Indeed, the dissent concedes that it is merely speculating about whether the trial prosecutor altered her strategy in light of the e-mails, yet the record unequivocally shows that this was not the case. Third, we see no possibility of prejudice to defendant when neither the trial prosecutor nor the jury knew of the e-mails.
We cannot accept the legal conclusion that questions sent from a trial judge to an elected prosecutor about how certain aspects of a criminal investigation are handled—questions that neither the trial prosecutor, defense attorney, nor jury were aware of—necessitate a new trial because the e-mails were sent during trial. We agree that the timing was poor, but other than the timing, nothing within the e-mails or that actually occurred at trial warrants the conclusion that a new trial was merited.
Because judicial misconduct was not a proper basis on which to grant defendant a new trial, we must address defendant's remaining arguments that he was entitled to a new trial on the basis of ineffective assistance of counsel and prosecutorial misconduct.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues he was denied the effective assistance of counsel because his trial attorney failed to adequately investigate and challenge the case against him.
The question of whether a defendant was denied the effective assistance of counsel is a mixed question of fact and constitutional law. People v. LeBlanc , 465 Mich. 575, 579, 640 N.W.2d 246 (2002). Questions of fact are reviewed for clear error and questions of constitutional law are reviewed de novo. Id. To the extent we must engage in statutory interpretation, our review is de novo. People v. Cannon , 206 Mich.App. 653, 654-655, 522 N.W.2d 716 (1994).
A fundamental rule of statutory interpretation is to determine the purpose and intent of the Legislature in enacting a provision. The Legislature is presumed to have intended the meaning it plainly expressed. Where the language of a statute is clear, there is no need for interpretation and the statute must be applied as written. [ Id. at 655, 522 N.W.2d 716 (citations omitted).]
Trial counsel is presumed effective, and defendant must overcome a strong presumption that a trial counsel's performance was sound trial strategy. Leblanc , 465 Mich. at 578, 640 N.W.2d 246. To succeed on an ineffective assistance of counsel argument, a defendant must show (1) "that counsel's representation fell below an objective standard of reasonableness" and (2) "that he was prejudiced by counsel's performance...." People v. Cooper , 309 Mich.App. 74, 80, 867 N.W.2d 452 (2015) (quotation marks and citations omitted). This second prong requires defendant to show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quotation marks and citation omitted). This Court will not "substitute [its] judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel's competence." People v. Unger , 278 Mich.App. 210, 242-243, 749 N.W.2d 272 (2008).
"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 N.W.2d 884 (2001). A trial counsel's failure to conduct a reasonable investigation may constitute ineffective assistance of counsel. People v. Trakhtenberg , 493 Mich. 38, 52-55, 826 N.W.2d 136 (2012). "Counsel always retains the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 52, 826 N.W.2d 136 (quotation marks and citation omitted). "The failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." People v. Grant , 470 Mich. 477, 493, 684 N.W.2d 686 (2004).
Defendant's motion for new trial argued there were two reasons he was denied effective assistance of counsel—first, because defense counsel failed to investigate the victim's assertions of fact regarding the color scheme of the bathroom where the sexual assaults occurred, and second, because counsel failed to investigate and present evidence of the victim's prior allegation of sexual assault by another individual. According to defendant, information about the victim's prior sexual assault allegation was essential to impeach the victim's credibility. We address each argument in turn.
1. COLOR SCHEME OF THE BATHROOM
Defendant's first argument arises from the victim's testimony regarding the color scheme of the bathroom where the sexual assaults took place. During trial, the victim testified defendant first sexually assaulted her on the evening of her father's wedding in December 2015. In describing the bathroom on that day, the victim said, "the walls were orange. And there was an orange shower curtain. And there was flowers, it was a flower[-]themed bathroom .... There was ... an orange rug in front of ... the toilet." As discussed, the sexual assaults resumed when the victim began her Friday night ritual of sleeping over at the Heppes’ home, some months after the first sexual assault. By this time, the victim reported the bathroom décor had changed to "a peacock theme, it was ... blue." The victim described the new bathroom rugs as "[l]ight blue ... with ... yarn on top."
Defense counsel made several challenges to the victim's description of the bathroom. For instance, on cross-examination, defense counsel asked the victim to confirm the bathroom rugs given to Trooper Desch by Jane "were absolutely never in [the] bathroom." Defense counsel also called witnesses whose descriptions of the bathroom differed from the victim's. For example, Jane testified the décor was changed from orange- to blue-themed in "like 2012, 2013, somewhere in there," before the December 2015 sexual assault. Brouke also testified the color scheme changed from orange to "teal-y blue" in about 2013.
According to defendant, his counsel should have more vigorously investigated the victim's report that the bathroom was orange-themed in December 2015 when the first sexual assault took place. Specifically, defendant pointed out that Brouke had pictures on her laptop "complete with electronic date and time stamp" showing the bathroom was blue-themed in December 2015, and his counsel dismissed the importance of the photographs and refused to offer them into evidence. Counsel proceeded in this manner even though, defendant argues, the photographs were essential to his case because counsel could have used them to impeach the victim's testimony, resulting in a "domino effect" to the victim's credibility. The trial court disagreed with defendant's position, noting there were a number of issues with the photographs, including regarding their admissibility and foundation.
We conclude that defense counsel's actions neither fell below an objective standard of reasonableness nor prejudiced defendant. As noted, defense counsel recognized the discrepancies in the victim's testimony regarding the color scheme of the bathroom and not only challenged the victim regarding her description of the bathroom, but also called two witnesses who testified the bathroom redecoration predated the December 2015 sexual assault. Because defense counsel attempted to counter the victim's description of the bathroom, defendant's argument that defense counsel should have also sought to introduce photographic evidence of the bathroom décor impermissibly asks us to apply the "benefit of hindsight" and second-guess counsel's trial strategy—something this Court will not do. Unger , 278 Mich.App. at 242-243, 749 N.W.2d 272.
In furtherance of this conclusion, we note that while defendant's arguments focus heavily on the discrepancies in witness testimony, they do not account for the consistencies amongst the witnesses. While the victim testified that the first sexual assault took place when the bathroom was orange, she also testified many other assaults took place when the bathroom was blue. The victim's description that the bathroom was eventually changed to "a peacock theme, it was ... blue" is largely consistent with the testimony from Jane and Brouke, each of whom testified the bathroom had a blue, peacock theme. Though there were discrepancies in the testimony, counsel was not ineffective because he in fact highlighted the discrepancies. "[I]t is the role of the jury, not this Court, to determine the weight of the evidence or the credibility of witnesses." People v. Eisen , 296 Mich.App. 326, 331, 820 N.W.2d 229 (2012) (quotation marks and citation omitted). On this record, it appears the jury either concluded that the discrepancies concerning the bathroom décor did not exist or did not detract from the other evidence indicating defendant's guilt. Therefore, the trial court correctly rejected this argument.
2. PRIOR SEXUAL ASSAULT ALLEGATIONS
We next address defendant's argument that he was denied effective assistance of counsel because of defense counsel's failure to investigate and enter into evidence a prior allegation by the victim of a sexual assault by another individual. According to defendant, evidence of this prior allegation was critical because it showed the victim was not a virgin before the alleged sexual assaults and because it was evidence the victim suffered from anxiety and depression before the alleged assaults by defendant. By failing to admit this evidence, defendant argues, his counsel was unable to effectively impeach several prosecution witnesses. The trial court disagreed, concluding that the evidence was inadmissible because "[defense counsel] might have thought that it might have been detrimental to the ... interests of the defendant."
Defendant's argument on this point holds no merit. Michigan's rape-shield law states:
(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim's past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. [ MCL 750.520j.]
The evidence at issue—the victim's allegation of sexual assault by another individual—does not fall under either of the statutory exceptions to the statute. By the statute's plain language, evidence of the victim's prior allegations of sexual assault was inadmissible at trial. "Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless motion." People v. Riley (After Remand) , 468 Mich. 135, 142, 659 N.W.2d 611 (2003). Consequently, defense counsel was not ineffective for failing to offer into evidence the victim's prior allegation of sexual assault.
C. PROSECUTORIAL MISCONDUCT
Defendant also argues the prosecutor committed misconduct when the prosecutor elicited "false and misleading" testimony from witnesses. "We review de novo claims of prosecutorial misconduct to determine whether [a] defendant was denied a fair and impartial trial." People v. Cox , 268 Mich.App. 440, 450-451, 709 N.W.2d 152 (2005).
While "we recognize that the phrase ‘prosecutorial misconduct’ has become a term of art in criminal appeals, we agree that the term ‘misconduct’ is more appropriately applied to those extreme—and thankfully rare—instances where a prosecutor's conduct violates the rules of professional conduct or constitutes illegal conduct." Cooper , 309 Mich.App. at 87-88, 867 N.W.2d 452. The arguments here, which allege that the prosecutor garnered false testimony, would under Cooper be an argument for a finding of prosecutorial misconduct (as opposed to error), for if true, the prosecutor would be acting contrary to ethical rules. See MRPC 3.3(a)(3).
When reviewing a claim of prosecutorial misconduct, we examine the pertinent portion of the record and evaluate a prosecutor's remarks in context. Further, the propriety of a prosecutor's remarks depends on the particular facts of each case. Prosecutors are free to argue the evidence and any reasonable inferences arising from the evidence, and need not confine argument to the blandest of all possible terms[.] [ Id. at 451, 709 N.W.2d 152 (quotation marks and citations omitted).]
"It is well settled that a conviction obtained through the knowing use of perjured testimony offends a defendant's due process protections guaranteed under the Fourteenth Amendment." Aceval , 282 Mich App at 389, 764 N.W.2d 285. The focus of this inquiry looks to whether the testimony affected the outcome of the trial and not to the "blameworthiness of the prosecutor." Id. at 390, 764 N.W.2d 285.
Defendant's arguments are premised on the same set of facts as his second argument alleging ineffective assistance of counsel. That is, defendant contends (1) the prosecutor knew about the prior allegations of sexual assault by the victim and proceeded to garner false testimony that the victim was a virgin at the time of the first sexual assault, and (2) the prosecutor sought false testimony that the victim suffered mental health conditions resulting from the sexual assaults by defendant. According to defendant, the victim's mental health conditions arose after the other sexual assault and not from any sexual assault by defendant. We reject these arguments.
First, defendant erroneously alleges prosecutorial misconduct because the prosecutor told the jury the victim lost her virginity on the night of the first sexual assault. This is a meritless argument because the victim's virginity is not a critical element of the charged offenses. Accordingly, it does not matter whether jury members believed whether the victim was a virgin because that question was not outcome-determinative. See Aceval , 282 Mich.App. at 389, 764 N.W.2d 285. Further, there was no testimony or evidence presented that the victim was a virgin before the alleged assault. Indeed, the only time the jury heard a report that the victim was a virgin was during the prosecution's opening and closing arguments, but, as stated, the trial court instructed the jury that the lawyers’ statements and arguments are not evidence. Juries are presumed to follow instructions, and we discern no error on this basis. People v. Graves , 458 Mich. 476, 486, 581 N.W.2d 229 (1998).
Again, defendant was convicted of one count of CSC-I, MCL 750.520b(1)(f), under which "an actor may be found guilty ... if the actor (1) causes personal injury to the victim, (2) engages in sexual penetration with the victim, and (3) uses force or coercion to accomplish the sexual penetration." People v. Nickens , 470 Mich. 622, 629, 685 N.W.2d 657 (2004). Defendant was also convicted of one count of CSC-II under MCL 750.520c(1)(f), which provides:
"(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:
* * *
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i ) to (v )." [People v. Alter , 255 Mich.App. 194, 202, 659 N.W.2d 667 (2003), quoting MCL 750.520c(1)(f).]
Defendant also received two convictions of CSC-III under MCL 750.520d(1)(a) and (b). Under MCL 750.520d(1)(a), " ‘[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist: (a) That other person is at least 13 years of age and under 16 years of age.’ " In re Tiemann , 297 Mich.App. 250, 262, 823 N.W.2d 440 (2012), quoting MCL 750.520d(1)(a) (emphasis omitted). "The required elements [of MCL 750.520d(1)(b) ] are: (1) defendant engaged in sexual penetration with the victim, and (2) ‘force or coercion is used to accomplish the sexual penetration.’ " Eisen , 296 Mich.App. at 333, 820 N.W.2d 229, quoting MCL 750.520d(1)(b) (alteration omitted).
We also reject defendant's argument that the prosecutor committed misconduct by eliciting perjured testimony about the victim's mental health. Specifically, defendant alleges the prosecutor sought false testimony from several witnesses who testified the victim suffered from mental health conditions for a period of time after the sexual assaults by defendant ended. Perjury has been defined as "a willfully false statement regarding any matter or thing, if an oath is authorized or required." People v. Lively , 470 Mich. 248, 253, 680 N.W.2d 878 (2004) (emphasis omitted). As noted, a prosecutor's "knowing use of perjured testimony offends a defendant's due process protections guaranteed under the Fourteenth Amendment." Aceval , 282 Mich.App. at 389, 764 N.W.2d 285. Thus, to prove prosecutorial misconduct on the basis of perjury, a defendant must show two things—first, that a witness knowingly made a false statement, and second, that the prosecutor knowingly elicited the false statement. Defendant's argument fails on each of these requirements. Indeed, defendant makes no assertion that the witnesses themselves made "willfully false statement[s]" to the trial court. Lively , 470 Mich. at 253, 680 N.W.2d 878. Moreover, defendant does not present any evidence that the prosecutor knowingly sought false testimony. Aceval , 282 Mich.App. at 389, 764 N.W.2d 285. While defendant surmises that "the prosecutor's office possessed information ... that directly contradicted the testimony of its most important witness," defendant presents no evidence to this effect. There is simply nothing on this record from which we could conclude the prosecutor suborned perjury amounting to prosecutorial misconduct. Thus, we reject defendant's argument on this basis.
III. CONCLUSION
The trial court's order granting defendant a new trial is reversed.
Markey, J., concurred with Murray, P.J.
Riordan, J. (dissenting). I respectfully dissent.
"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Thus, "the Due Process Clause clearly requires ... a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy v. Gramley , 520 U.S. 899, 904-905, 117 S.Ct. 1793, 138 L.Ed. 2d 97 (1997). The Due Process Clause is therefore violated when the judge is actually biased against the defendant. See id. The Due Process Clause is also violated when "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 872, 129 S.Ct. 2252, 173 L.Ed. 2d 1208 (2009) (quotation marks and citation omitted).
Relatedly, MCR 2.003(C)(1) provides, in relevant part, as follows:
Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:
(a) The judge is biased or prejudiced for or against a party or attorney.
(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in
Caperton v. Massey , , 129 S.Ct. 2252, 173 L.Ed. 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.
Additionally, Canon 2(A) of the Michigan Code of Judicial Conduct provides, in relevant part, that "[a] judge must avoid all impropriety and appearance of impropriety."
An appearance of impropriety by a presiding trial judge, i.e., a violation of Canon 2, does not necessarily result in a violation of due process. See Cain v. Dep't of Corrections , 451 Mich. 470, 513 n 48, 548 N.W.2d 210 (1996) ("We acknowledge there may be situations in which the appearance of impropriety on the part of a judge or decisionmaker is so strong as to rise to the level of a due process violation. However, this case does not present such a situation."). Consequently, while a defendant is automatically entitled to relief regardless of prejudice when the judge was actually biased, see Arizona v. Fulminante , 499 U.S. 279, 290, 294, 111 S.Ct. 1246, 113 L.Ed. 2d 302 (1991) (White, J., dissenting), or when the circumstances suggested "the probability of actual bias ris[ing] to an unconstitutional level," see Caperton , 556 U.S. at 887, 129 S.Ct. 2252, a defendant is not automatically entitled to relief for the mere appearance of impropriety, see Cain , 451 Mich. at 513 n. 48, 548 N.W.2d 210. See also In re Bergeron , 636 F.3d 882, 883 (C.A. 7, 2011) ("Actual bias would entitle the losing party to a new trial, but the mere appearance of bias would not[.]").
Of course, those trial judges who have created an appearance of impropriety are required to disqualify themselves before or during trial. See MCR 2.003(C)(1)(b). But that is a separate question from whether a defendant is entitled to relief following a conviction before a trial judge with an appearance of impropriety, which is the issue before us now.
In People v. Stevens , 498 Mich. 162, 869 N.W.2d 233 (2015), our Supreme Court created an intermediate principle under which the appearance of bias before the jury is tantamount to an "actual bias" structural error under cases such as Fulminante . See id . at 190-191, 869 N.W.2d 233. Stevens does not govern here because the e-mail communications were not presented to the jury.
In this case, the trial court apparently granted defendant a new trial on the basis that the original trial judge violated the Canon 2 admonition to avoid an appearance of impropriety. I agree with the trial court that the original trial judge's e-mail communications created an appearance of impropriety. "An appearance of impropriety may arise when the conduct of a judge would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." TT v. KL , 334 Mich.App. 413, 433, 965 N.W.2d 101 (2020) (quotation marks and citation omitted). The e-mail communications occurred between the trial judge and the county prosecutor (the official in charge of the prosecutor's office) after the second witness in the trial testified and were critical of certain weaknesses in the investigation that could conceivably lead to an acquittal. While the prosecutor may argue that this was not the trial judge's intent, a reasonable mind, upon reviewing the e-mails, may conclude that the trial judge was partial in favor of the prosecution, did not want to see weaknesses in its case exploited, and was actively attempting to assist the prosecution's case. Moreover, because the e-mail communications occurred during the trial, a reasonable mind could conclude that the trial judge would not, and could not, otherwise set aside her partiality until the proceedings were concluded. Thus, these facts show that the e-mail communications created an appearance of impropriety by the trial judge, contrary to Canon 2.
In its opinion from the bench, the trial court did not make a finding regarding bias—and in fact implied that the original trial judge was not consciously biased—but stated that it would grant a new trial "pursuant to this appearance—the breech [sic] of the appearance...." Given that the trial court had moments before referenced "the judicial canon of ethics" prohibiting "even the appearance of impropriety," the most reasonable conclusion is that the trial court ordered a new trial because the original trial judge violated the Canon 2 admonition to avoid an appearance of impropriety.
I acknowledge that the recipient of the e-mails was the county prosecutor, not the assistant prosecutor who was actually trying the case. However, I find this distinction to be largely irrelevant because "assistant prosecutors act on behalf of the elected county prosecutor and are supervised by him [or her.]" People v. Doyle , 159 Mich.App. 632, 644, 406 N.W.2d 893 (1987). See also MCL 49.42 ("Any such assistant prosecuting attorney shall hold his office during the pleasure of the prosecuting attorney appointing him, [and] perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney ...."). Indeed, the county prosecutor signed her name to the felony information against defendant. Further, the elected county prosecutor is listed as the prosecuting attorney of record on the Register of Actions in this matter.
Having concluded that the trial judge violated Canon 2 by creating an appearance of impropriety and, by logical extension, violated MCR 2.003(C)(1)(b) because she failed to disqualify herself for that reason, the next question is whether defendant is entitled to a new trial on this basis. In this regard, I am guided by the decision of the United States Supreme Court in Liljeberg v. Health Servs. Acquisition Corp. , 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed. 2d 855 (1988). In that case, a trial judge presided over a matter in which it was subsequently discovered that he possessed an indirect property interest. Id. at 850, 108 S Ct 2194. The issue before the Court was whether the trial judge violated 28 USC 455(a), which provides that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," and if so, whether the original judgment must be vacated. Liljeberg , 486 U.S. at 850, 108 S.Ct. 2194. The Court first concluded that the trial judge did violate the statute, id. at 861, 108 S.Ct. 2194, and then explained that the decision whether to vacate the original judgment should be determined by application of the following test:
Although 28 USC 455(a) does not expressly use the language "appearance of impropriety," the Court implied that the statute is essentially an "appearance of impropriety" statute. See Liljeberg , 486 US at 858, 108 S.Ct. 2194 ("We must first determine whether § 455(a) can be violated based on an appearance of partiality, even though the judge was not conscious of the circumstances creating the appearance of impropriety ....") (emphasis added).
We conclude that in determining whether a judgment should be vacated for a violation of § 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process. [ Id. at 864, 108 S.Ct. 2194.]
The Court ultimately concluded that the original judgment should be vacated and a new trial conducted. Id. at 862, 868-869, 108 S.Ct. 2194.
Particularly relevant to the case at hand, in United States v. Orr , 969 F.3d 732, 738 (C.A. 7, 2020), the defendant argued that he was "entitled to a new trial because the trial judge's ex parte communications with the prosecuting U.S. Attorney's Office violated 28 U.S.C. § 455(a), the judicial recusal statute." In response, the prosecution conceded that the trial judge violated 28 USC 455(a) but argued that any error was harmless. Orr , 969 F.3d at 738. The United States Court of Appeals for the Seventh Circuit set forth the following principles governing the case:
Not every violation of § 455(a) warrants a drastic remedy, like a new trial. Mere appearance of impropriety is not enough for reversal and remand—a party must show a
risk of harm. To determine whether Judge Bruce's violation is harmless, we consider the three factors announced in Liljeberg ...: (1) the risk of injustice to the parties in the particular case, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining the public's confidence in the judicial process. [ Id. (quotation marks and citations omitted).]
The court ultimately concluded that the first and third Liljeberg factors weighed in favor of a new trial and therefore vacated the defendant's conviction. Orr, 969 F.3d at 742. See also United States v. Williams , 949 F.3d 1056, 1058 (C.A. 7, 2020) (conducting a similar Liljeberg analysis when the defendant argued that he was entitled to a new trial because the trial judge "had engaged in ex parte communications with members of the United States Attorney's Office for the Central District of Illinois").
This Court may use federal caselaw interpreting federal statutes as persuasive authority when interpreting state-law analogues. See Garg v. Macomb Co. Community Mental Health Servs. , 472 Mich. 263, 283, 696 N.W.2d 646 (2005). Because 28 USC 455(a) is a federal analogue to MCR 2.003(C)(1)(b), and because Michigan apparently does not have any state caselaw bearing on the issue at hand, I believe that the Liljeberg framework is appropriate to apply here.
With regard to the first Liljeberg factor, there is some risk of injustice to defendant if a new trial is not ordered. The trial judge's improper communications with the county prosecutor concerned the procedures used by law enforcement, in particular the Michigan State Police, for investigating allegations of sexual assault. The communications also were relevant to the credibility of the officer who investigated the allegations at issue. In particular, after the second prosecution witness testified, the trial judge questioned why the victim was not medically examined and expressed her displeasure at certain stages of the State Police investigation. Conceivably, this may have led to the trial prosecutor addressing these weaknesses later in trial or during closing argument when she would not otherwise have done so. These facts tend to show injustice to defendant if a new trial is not ordered. On the other hand, I acknowledge that there is some prejudice to the prosecution if a new trial is ordered, namely, the fact that the victim and other witnesses would be required to testify again and the fact that the prosecution would have to undergo the expenses of a presumably multiday trial. On balance, I believe that the first Liljeberg factor is neutral.
With regard to the second Liljeberg factor, a denial of relief to defendant would tend to produce injustice in future cases. If defendant does not obtain a new trial in this case, other trial judges in future cases would not be deterred from engaging in ex parte communications with the prosecution during trial concerning the strengths and weaknesses of the prosecution's case. The general prohibition against ex parte communications is intended to discourage such favoritism. See Grievance Administrator v. Lopatin , 462 Mich. 235, 262, 612 N.W.2d 120 (2000) ("Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge.") (quotation marks and citation omitted). In other words, awarding defendant relief may prevent injustice in future cases. See United States v. Atwood , 941 F.3d 883, 885 (C.A. 7, 2019) ("As in Liljeberg , we think that enforcing § 455(a) in this case may prevent a substantive injustice in some future case—here, by encouraging judges to exercise caution in their communications.") (quotation marks and citation omitted).
With regard to the third Liljeberg factor, there is a risk that the public's confidence in the judicial process will be undermined if defendant does not obtain relief. Although there is no question that judges may have personal relationships with some of the attorneys who appear before them, and may have judicial or legal interpretative philosophies which make certain outcomes seem more or less likely to those appearing before them, a trial judge unilaterally identifying the strengths and weaknesses of a case to one party, but not the other, creates a perception that the judge is not neutral and impartial. By awarding defendant relief in this case, the judiciary communicates to the public that such conduct by a judge is not acceptable. As the trial court explained when awarding defendant a new trial in the matter before us:
[I]t's a matter of the public perception of the ethical obligations entailed with the judicial office and I worry that as unintentional as this may be, it could do damage to that. And I think it's incumbent on us to really err on the side of making sure that all people understand themselves to be given that opportunity to a full and fair hearing before an impartial judiciary.
Accordingly, because the second and third Liljeberg factors weigh in favor of awarding defendant relief, I would affirm the trial court's grant of a new trial on the basis that the trial judge had an appearance of impropriety, in violation of Canon 2 and MCR 2.003(C)(1)(b), and that the error was not harmless.
I acknowledge that defendant did not argue in the trial court, and does not argue on appeal, that he is entitled to relief under MCR 2.003(C)(1)(b). However, given that the trial court awarded him a new trial because the trial judge violated Canon 2 by creating an appearance of impropriety, I believe that consideration of the court-rule analogue is appropriate and necessary for resolution of this appeal.
The parties and the majority place significant emphasis upon Canon 3 of the Code of Judicial Conduct, which generally prohibits ex parte communications that concern "substantive matters" but does not prohibit ex parte communications with "administrative purposes." I question whether the majority is correct to conclude that the e-mail communications were "administrative" in nature because they addressed the internal investigatory procedures of the Michigan State Police. In my view, an ordinary understanding of the word "administrative" in this context contemplates simple procedural matters concerning the judicial process itself, such as the orderly handling of motions. See, e.g., Adesanya v. Novartis Pharm. Corp. , 755 F.App'x. 154, 158 (C.A. 3, 2018) (explaining that ex parte communications did not violate Code of Conduct for U.S. Judges Canon 3 because "[t]he Magistrate Judge and Appellee's counsel were simply seeking a way to manage the numerous pro se discovery requests Appellants had filed"); Gerber v. Veltri , 702 F.App'x. 423, 432-433 (C.A. 6, 2017) (explaining that ex parte communications did not violate Code of Conduct for U.S. Judges Canon 3 because "[t]heir discussion concerned when, and how, the court should reschedule the appearance of witnesses slated to testify that day, particularly defendant's expert [witness]"). The trial judge's commentary to the county prosecutor regarding the internal investigatory procedures of the Michigan State Police, a law enforcement agency independent of the judicial branch of government, addressed the substance of the trial itself given that the comments directly implicated the plausibility of the victim's allegations. In other words, the weaknesses of the investigation might tend to weigh against a guilty verdict. This, I believe, means that the e-mail communications involved "substantive matters" and therefore violated Canon 3.
In any event, I find the discussion of Canon 3 to be largely irrelevant to the case at hand. Contrary to the majority, I do not read People v. Aceval , 282 Mich.App. 379, 764 N.W.2d 285 (2009), as standing for the proposition that a defendant may be entitled to relief if he or she shows any violation of the Code of Judicial Conduct and prejudice therefrom. Rather, Aceval stated that "[a]ssuming that the acts of the trial judge and the prosecutor in this case violated Michigan's Rules of Professional Conduct, MRPC 3.4, and Code of Judicial Conduct, Canon 3, and were clearly opprobrious, the remedy for their wrongs is accomplished in other forums, such as the Attorney Discipline Board and the Judicial Tenure Commission." Id. at 392, 764 N.W.2d 285. "These codes ... do not confer upon a defendant any type of constitutional right or remedy." Id. In other words, while a violation of the Code of Judicial Conduct might tend to show a violation of due process, a defendant cannot be entitled to relief solely for a violation of the Code of Judicial Conduct. Compare Treadaway v. State , 308 Ga. 882, 888-889, 843 S.E.2d 784 (2020) (explaining that even if the trial judge violated the Georgia Code of Judicial Conduct by an ex parte contact, the defendant was still not entitled to relief because he did not show that the process was "fundamentally unfair"). That is, a defendant cannot maintain a freestanding claim that the trial judge violated the Code of Judicial Conduct but instead must show that a substantive law was violated as well. Here, defendant's entitlement to relief does not specifically arise under the Code of Judicial Conduct, but under MCR 2.003(C)(1)(b).
The majority reasons that defendant cannot show prejudice for the alleged violation of Canon 3 because the trial prosecutor's opening statement acknowledged deficiencies in the police investigation, thus showing that the trial judge did not signal anything new to the prosecutor's office through the e-mails. I agree with the majority that the trial prosecutor noted the lack of DNA evidence and the questionable handling of the bathroom rugs by the detective in her opening statement. However, the majority's focus on this type of "prejudice" misses the mark. As explained herein, the proper "prejudice" analysis includes the prejudice not only to defendant but to other parties in future cases and the judiciary as a whole. See Orr , 969 F.3d at 738 ("To determine whether Judge Bruce's violation is harmless, we consider the three factors announced in Liljeberg ....").
The majority questions whether the general Canon 2 "appearance of impropriety" standard is even relevant here because Canon 3, concerning certain ex parte communications, is more specific to the case at hand. I respectfully disagree. While it is certainly true that, for example, a judge who violates Canon 3 may only be sanctioned for a violation of Canon 3 and not Canon 2 as well, see In re Haley , 476 Mich. 180, 194-195, 720 N.W.2d 246 (2006), that is not the question before us. Rather, the question before us is whether the trial judge violated MCR 2.003(C)(1)(b), and if so, whether defendant is entitled to relief. Indeed, Canon 3(C) provides that "[a] judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(C)."
In other words, if the general Canon 2 "appearance of impropriety" standard is not relevant here, then even a judge who violates Canon 3 by engaging in certain ex parte communications would not be required to recuse himself or herself unless that violation rises to the level of a due-process violation as otherwise outlined in MCR 2.003(C)(1)(a) and (b).
Accordingly, I respectfully dissent and would affirm the trial court's grant of a new trial.
Having concluded that defendant is entitled to a new trial because of the appearance of impropriety by the trial judge, I need not address his alternate arguments in favor of a new trial.