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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RAYMOND LEON CARR, Defendant-Appellant.

UNPUBLISHED July 9, 1996

No. 168303 LC No. 92-011768

Before: Bandstra, P.J., and Markman and M. D. Schwartz,* JJ. PER CURIAM. Defendant appeals by right his 1993 jury trial conviction for first-degree murder, MCL 750.316; MSA 28.548, and felony firearm, MCL 750.227b: MSA 28.424(2). We affirm. The victim was found dead at a coin-operated car wash. Part of a bullet and a shell casing were found near his body. The police found a Mac-11 nine millimeter assault rifle at the home where defendant was living. Its bullets matched those found at the crime scene. At trial, an acquaintance of defendant's testified that defendant telephoned him and stated that he had wanted the victim's 1979 white Chevrolet Malibu, that the victim pulled a gun on him when he attempted to steal it, and that defendant then shot the victim seven times with his Mac-11. On appeal, defendant first argues that comments made by the trial court during voir dire and at trial deprived him of a fair and impartial trial. A trial court has wide, but not unlimited, discretion and power in the matter of trial conduct. Portions of the record should not be taken out of context in order to show trial court bias against defendant; rather the record should be reviewed as a whole. A trial court's conduct pierces the veil of judicial impartiality where its conduct or comments unduly influence the jury and thereby deprive the defendant of a fair and

* Circuit judge, sitting on the Court of Appeals by assignment. -1

impartial trial. [People v Pacquette, 214 Mich App 336, 340; 543 NW2d 342 (1995); citations omitted.] Comments by the court are subject to a harmless error test. People v Weathersby, 204 Mich App 98, 110; 514 NW2d 493 (1994). Here, defendant did not object below to the comments at issue. This Court accordingly will review the matter only if manifest injustice would result from the failure to do so. People v Weatherford, 193 Mich App 115, 121; 483 NW2d 924 (1992). Defendant makes several claims of error relating to comments made by the trial court during voir dire. The court stated, "There's no real question here that a person . . . was shot and killed in the process of somebody trying to take his car." Defendant contends that this comment indicated that there was already a prima facie case against defendant that had to be overcome and thereby lessened the prosecution's burden of proof. This comment was made in the context of a discussion with a prospective juror about a defendant's right not to testify. It provided background information about the case and did not shift the burden of proof to defendant or convey any belief that defendant had committed the crime. Further, the trial judge gave appropriate preliminary instructions, including the following: Following the prosecutor's presentation of evidence the defense attorney may, if he wishes, present evidence, but he is not required to do so. The law does not require the defendant to prove his innocence, or to produce any evidence." The present case is distinguishable from People v Clark , 340 Mich 411, 417-418; 65 NW2d 717 (1954), cited by defendant, in which a judge stated that "there was bound to be a prima facie case." Here, unlike in Clark , the jury could not have construed the judge's comment as an inference that defendant was guilty unless evidence overcame that inference. Defendant's next claim relates to the following comment by the judge: This is what is called, in the law, felony murder. It's first degree murder. It's a situation where the law says that if one commits a robbery, or some offense, and in the process someone is killed that that raises that to first degree murder. Defendant argues that this comment, in connection with the first disputed comment, may have erroneously led the jury to believe that if defendant was the perpetrator, their verdict had to first-degree murder, regardless of defendant's state of mind. He contends that these comments effectively removed the only disputed issue

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