Judicial interference; People v Stevens; People v Swilley; In re Harbin (Unpub); Plain error review; People v Davis; Other acts evidence; Distinguishing People v Bates & People v Figgures; MRE 403; Whether an error was outcome determinative; Ineffective assistance of counsel; Confidential informant (CI)

Applying the Stevens factors, the court held that a “judge can pierce the veil of impartiality outside the presence of the jury, and did so here, but” reversal was unwarranted where “the plain error did not affect the fairness, integrity, or public reputation of the trial.” It also found that other acts evidence was erroneously admitted but was not outcome determinative, and it rejected defendant-Plomb’s ineffective assistance of counsel claim. Thus, the court affirmed his conviction and sentence, which arose from his sale of meth to a CI. Addressing his judicial interference claim, it first noted “the factual uniqueness of” this case, given that the relevant case law has concerned instances where a “judge’s bad conduct occurred in front of the jury at a jury trial.” The court applied “the multi-factor inquiry on judicial impropriety to behavior that occurred outside the presence of the jury at a jury trial” and did so without utilizing “a presumption in favor of the trial court being unbiased as neither Stevens nor Swilley did so.” Considering the Stevens factors, the court concluded “the totality of the circumstances favor a finding that the judge here pierced the veil of judicial impartiality. And logically, that makes sense when we reflect back on the errors in Stevens and Swilley. It is difficult to distinguish the impact on a trial where a judge directly questions one party’s witness versus where a judge directs strategy for one of the parties in a way that results in the questioning of a key witness.” The trial court, outside the jury’s presence, “unnecessarily intervened in a manner that then clearly changed the prosecution’s strategy.” However, the error was unpreserved. Applying Davis, the court found that “the error was plain and obvious. The third prong—that the plain error affected substantial rights—is also met as this error is a structural one.” But as to the fourth prong, it concluded the prosecution overcame “the presumption that this error affected the fairness, integrity, or public reputation of judicial proceedings because it occurred outside the presence of the jury, involved substantively admissible evidence, and did not implicate the integrity of Plomb’s convictions.” The court noted that the evidence “was likely admissible” had the necessary steps been taken and a full analysis under MRE 403/404 been done. And the case “was simple: a single offense with overwhelming and nearly uncontroverted evidence of Plomb’s guilt.”