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UNPUBLISHED

January 11, 2024

v No. 352874

Wayne Circuit Court

BRADLEY NOLAN CLARK, LC No. 18-008627-02-FH

Defendant-Appellant.

ON REMAND

Before: BOONSTRA, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

In a 2-1 opinion, we reversed Detroit Police Officer Bradley Nolan Clark’s convictions of 

common-law misconduct in office and breaking and entering without permission. People v Clark, 

unpublished per curiam opinion of the Court of Appeals, issued July 21, 2022 (Docket No. 352874) 

(opinion by GLEICHER, J.) (Clark I). The prosecution sought leave to appeal in the Michigan 

Supreme Court and Clark filed a cross-application for leave to appeal. In lieu of granting leave, 

the Court reversed this Court’s conclusion that insufficient evidence supported Officer Clark’s 

convictions and vacated this Court’s determination that the trial judge exhibited improper bias in 

interrogating a witness. The Supreme Court directed this Court to reconsider the judicial 

misconduct claim and to consider the appellate claims we did not reach in Clark I. People v Clark, 

511 Mich 897; 986 NW2d 602 (2023) (Clark II). We now affirm Officer Clark’s convictions and 

sentences. 

I. BACKGROUND

The factual background of this case was outlined in detail in Clark I, unpub op at 1-3. 

Briefly, Officer Clark went to 22554 Pembroke in Detroit with Officer Justin Lyons and Sergeant 

Paul Glaza to find Michael Hopkins, a suspect in a domestic violence and stalking case. The victim

identified 22554 Pembroke as the home of Hopkins’ mother and the Secretary of State listed the 

address as Hopkins’ residence. The victim also described Hopkins as driving a rental white SUV 

with out-of-state plates.
-2-

On January 22, 2018, the officers observed a white SUV with out-of-state plates in the 

driveway of 22554 Pembroke. “Officer Clark approached the front door, while Sergeant Glaza 

stood to the side in the front yard and Officer Lyons stood at the back corner of the house where 

he could see the home’s side door and backyard.” Id. at 2. “[C]ertain Hopkins was inside,” the 

officers knocked on the door and encountered Tashar Cornelius, the true owner of 22554 

Pembroke. Id. The officers claimed to hear voices inside and someone barricading the side door, 

supporting their belief that Hopkins was inside with Cornelius. 

Cornelius attempted to shut the door, but Officer Clark put his foot in the doorway. 

He claimed to observe Cornelius put his hand behind his back, as if reaching for a 

weapon. When Cornelius successfully moved Officer Clark’s foot and shut the 

door, Sergeant Glaza stated, “foot, foot, foot.” Officer Clark understood this as an 

instruction to kick the door open. Officer Clark did so and ordered Cornelius to the 

ground. [Id.]

The officers extensively searched the small home, including the basement and attic, but 

found no one else. Later investigation established that Hopkins’ mother had not lived at the 

address for five years and Cornelius was the sole owner of the home. Hopkins was located and 

arrested later on the day of the search, at the home of a friend with his white rented SUV with outof-state plates.

Approximately 10 months later, Officer Clark was charged with several 

crimes related to his involvement in the entry and search at the Pembroke address. 

Officers Clark and Lyons both testified at trial, and the bodycam footage from all 

three officers was presented. . . . [T]he jury acquitted Officer Clark of second and 

third-degree home invasion and malicious destruction of property, but convicted 

him of common-law misconduct in office and breaking and entering without 

permission. The trial court sentenced Officer Clark to one year of nonreporting 

probation. [Id. at 2-3 (footnotes omitted).]

In Clark I, unpub op at 3-5, we unanimously rejected Officer Clark’s claim that the 

prosecution abused its charging discretion. We also agreed that Officer Clark’s position that the 

common-law offense of misconduct in office was unconstitutionally vague lacked merit. Id. at 5-

6. While the majority held “that the prosecution presented insufficient evidence to support the 

corrupt intent element of the misconduct-in-office charge,” id., Judge LETICA (and the Supreme 

Court) disagreed. Clark I, unpub op at 16 (LETICA, J., concurring in part and dissenting in part); 

Clark II, 511 Mich at 897. That issue is now settled and we may not revisit it.

Judge LETICA also dissented from the majority’s conclusion that the trial judge engaged in 

misconduct in questioning Officer Lyons. Clark I, unpub op at 19-20 (LETICA, J., concurring in 

part and dissenting in part). The Supreme Court vacated, rather than reversed, that portion of Clark 

I, ordering:

The Court of Appeals majority did not undertake a complete analysis of the 

totality-of-the-circumstances test set forth in People v Stevens, 498 Mich 162, 171-

172[; 869 NW2d 233] (2015), but instead relied upon its erroneous finding of 

insufficient evidence as proof that the trial judge must have improperly influenced 
-3-

the jury. We therefore REMAND this case to the Court of Appeals for 

reconsideration of this issue. . . . [Clark II, 511 Mich at 897.]

The Supreme Court also remanded “for consideration of the issues raised by [Officer Clark] but 

not addressed by that court during its initial review of this case.” Id.

II. JUDICIAL MISCONDUCT

Officer Clark continues to contend that the trial judge displayed bias during her questioning 

of Officer Lyons. We review de novo whether Officer Clark was denied a fair trial due to judicial 

misconduct. Stevens, 498 Mich at 168. “A trial judge’s conduct deprives a party of a fair trial if 

[that] conduct pierces the veil of judicial impartiality.” Id. at 170. This happens “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.” Id. at 171. This is “a fact-specific analysis.” Id.

A single inappropriate act does not necessarily give the appearance of advocacy or 

partiality, but a single instance of misconduct may be so egregious that it pierces 

the veil of impartiality. Ultimately, the reviewing court should not evaluate errors 

standing alone, but rather consider the cumulative effect of the errors. 

These errors must be considered within the context of a given case, i.e., the 

totality of the circumstances, to determine whether the judge demonstrated the 

appearance of advocacy or partiality on the whole. In evaluating the totality of the 

circumstances, the reviewing court should inquire into a variety of factors, 

including the nature of the judicial conduct, the tone and demeanor of the trial 

judge, the scope of the judicial conduct in the context of the length and complexity 

of the trial and issues therein, the extent to which the judge’s conduct was directed 

at one side more than the other, and the presence of any curative instructions. This 

list of factors is not intended to be exhaustive. Reviewing courts may consider 

additional factors if they are relevant to the determination of partiality in a particular 

case. Moreover, the aggrieved party need not establish that each factor weighs in 

favor of the conclusion that the judge demonstrated the appearance of partiality for 

the reviewing court to hold that there is a reasonable likelihood that the judge’s 

conduct improperly influenced the jury. The reviewing court must consider the 

relevance and weigh the significance of each factor under the totality of the 

circumstances of the case. [Id. at 171-172 (citations omitted).]

“Judicial misconduct may come in myriad forms, including belittling of counsel, 

inappropriate questioning of witnesses, providing improper strategic advice to a particular side, 

biased commentary in front of the jury, or a variety of other inappropriate actions.” Id. at 172-173 

(emphasis added).

Identifying the nature of the conduct provides the starting point to evaluate 

whether the conduct overstepped the line of judicial impartiality. For instance, 

when evaluating a judge’s questioning of witnesses, a reviewing court must first 

bear in mind that such interrogation is generally appropriate under MRE 614(b).
-4-

This Court has stated that the central object of judicial questioning should be to 

clarify. Therefore, it is appropriate for a judge to question witnesses to produce 

fuller and more exact testimony or elicit additional relevant information. Judicial 

questioning, nevertheless, has boundaries. [Stevens, 498 Mich at 173-174 (citations 

omitted).]

The Supreme Court noted: “It is inappropriate for a judge to exhibit disbelief of a witness, 

intentionally or unintentionally,” and “[i]t is essential that the judge not permit his own views on 

disputed issues of fact to become apparent to the jury.” Id. at 174 (quotation marks and citations 

omitted). The Court also cautioned reviewing courts to “consider the tone and demeanor the trial 

judge displayed in front of the jury.” Id.

The Supreme Court relied on Stevens in finding judicial bias requiring a new trial in People 

v Swilley, 504 Mich 350; 934 NW2d 771 (2019). In doing so, the Court reasoned a trial judge may 

“ask questions of a witness that are designed to make clearer otherwise unclear, vague, or 

confusing testimony,” “[b]ut it is not the role of the court to impeach a witness or undermine a 

witness’s general credibility.” Id. at 373 (quotation marks and citations omitted). Moreover, “[a]

judge’s responsibilities do not include emphasizing or exposing potential weaknesses in a 

witness’s testimony or conveying the judge’s personal view on whether a witness should be 

believed.” Id. 

[I]n an adversarial system, it is the litigants’ job to demonstrate to the jury, through 

questioning or other means, that the testimony of a particular witness is incredible, 

unsubstantiated, or contradictory. Questions from a judge that are designed to 

emphasize or expose incredible, unsubstantiated, or contradictory aspects of a 

witness’s testimony are impermissible. [Id. at 174.]

This Court subsequently articulated in People v Boshell, 337 Mich App 322, 347-350; 975 

NW2d 72 (2021):

A trial judge has broad, but not unlimited, discretion when controlling the 

court’s proceedings. The overriding principle is that a court’s actions cannot pierce 

the veil of judicial impartiality. Invading the prosecutor’s role is a clear violation 

of this tenet. The trial court, pursuant to MRE 614(b), may question witnesses in 

order to clarify testimony or elicit additional relevant information. However, the 

trial court must exercise caution and restraint to ensure that its questions are not 

intimidating, argumentative, prejudicial, unfair, or partial. The test to determine 

whether a trial judge’s conduct pierces the veil of impartiality, thereby violating the 

constitutional guarantee of a fair trial, is whether, 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. 

This inquiry requires a fact-specific analysis. A single inappropriate act 

does not necessarily give the appearance of advocacy or partiality, but a 

single instance of misconduct may be so egregious that it pierces the veil of 
-5-

impartiality. Ultimately, the reviewing court should not evaluate errors 

standing alone, but rather consider the cumulative effect of the errors. 

Because a reviewing court is to look at the totality of the circumstances,

the reviewing court should inquire into a variety of factors, including [(1)] 

the nature of the judicial conduct, [(2)] the tone and demeanor of the trial 

judge, [(3)] the scope of the judicial conduct in the context of the length and 

complexity of the trial and issues therein, [(4)] the extent to which the judge's 

conduct was directed at one side more than the other, and [(5)] the presence 

of any curative instructions. [Quotation marks and citations omitted.]

This Court described the challenged testimony and questions in Clark I, unpub op at 10-

11, as follows:

Officer Lyons testified at Officer Clark’s trial with a promise of immunity. 

Officer Lyons explained on direct examination that he was on patrol when Sergeant 

Glaza contacted him for assistance with “a knock and talk.” The purpose of the 

“knock and talk” was to “knock at a suspect’s known address, attempt to speak with 

that suspect, and attempt to make . . . an arrest.” Officer Lyons was aware that they 

were looking for Michael Hopkins. Officer Lyons further described how he kept 

watch at the home’s side door. From his position, he heard a “thump” when the 

door was barricaded and then heard parts of a conversation, leading him to believe 

that two people were inside. Officer Lyons “inform[ed] Sergeant Glaza” based on 

this activity “that there was becoming a heightened sense . . . of a threat.”

During cross-examination, Officer Lyons admitted that “if you are able to 

make an arrest, hopefully, there’s a warrant issued.” On redirect, the prosecutor 

inquired whether the officers had an arrest warrant. Officer Lyons replied that they 

did not because “there was . . . probable cause.” He also conceded that they had no 

search warrant, but explained that he did not expect a search to occur given the 

small size of the team. But Officer Lyons admitted that at one point he checked to 

see if the side door was locked.

The court then interjected its own questions:

The Court: [Officer] Lyons, why did you try to open the side door?

The Witness: I was trying to see if it was locked, if the door was locked.

The Court: Why?

The Witness: Just as . . . a potential entry point had we needed to make entry.

The Court: Without a warrant, okay.

The Witness: Well, I’m not saying that I was - -
-6-

The Court: Without a warrant.

The Witness: I’m sorry, your Honor. Well, in case we had to get a warrant or 

to see if it was unlocked.

The Court: Okay, but, you did not get a warrant in this particular case,

correct?

The Witness: Correct, we did not get a warrant.

The Court: With regard to the white vehicle that was in the parking lot [sic],

did you have the capacity to run that vehicle?

The Witness: No, Your Honor, not at that point.

The Court: Your scout car did not have any computer in the car to run the

vehicle?

The Witness: Correct.

The Court: But, you ran Mr. Cornelius’s name to determine whether or not

he had a record, you were able to do that, correct?

The Witness: I don’t know if that was a phone call made after, or prior to.

The Court: But, a phone call could have been made to run the vehicle that

was in the driveway, correct?

The Witness: Yes, but in - -

The Court: Yes, thank you. [Defense counsel]?

In relation to the first Stevens factor—the nature of the judicial conduct—the parties 

disagree whether the trial judge was clarifying complicated or unresolved testimony or merely 

injecting her personal beliefs into the trial. Officer Clark emphasizes that it was undisputed the 

officers did not have a warrant so the issue did not need clarification. He further argues the judge’s 

question regarding running the SUV’s license plate actually caused more confusion. The 

prosecution, on the other hand, asserts the judge’s questioning did not reflect hostility toward 

Officer Clark and whether the officers ran the license plate was a very minor detail.

The judge’s questions went beyond what was necessary to clarify Officer Lyons’s 

testimony. The judge also injected her belief that the officers required a warrant before Officer 

Lyons tried to open the side door and that the officers should have run the SUV’s license plate. 

However, as Officer Clark admits, whether the officers had a warrant or checked the license plate 

were not disputed issues of fact. In Stevens, 498 Mich at 174, the Court stated that a judge should 

not display his or her views “on disputed issues of fact,” but did not so limit questions on 

undisputed issues. (Quotation marks and citation omitted, emphasis added.) Further, these issues 

were not particularly relevant to the dispositive issue at trial—whether Officer Clark’s subsequent 
-7-

entry through the front door was proper because he was either instructed to do so by a supervising 

officer or because exigent circumstances existed at that time. Nonetheless, the judge clearly 

emphasized the lack of a warrant and failure to run the license plate, which suggested her general 

belief that the officers acted improperly. Thus, this factor weighs slightly in favor of finding bias.

Further, the trial judge’s tone was argumentative and hostile; some of her “questions” were 

actually comments and she interrupted Officer Lyons. The judge’s tone, as best it can be discerned 

through a transcript, conveyed disdain and disapproval. The prosecution does not deny this, but 

minimalizes the judicial impropriety as a small part of the trial record. This does not overcome 

the fact that the trial judge’s tone during this instance was inappropriate. However, the judge’s 

tone was directed at Officer Lyons or the officers collectively, but was not expressly hostile toward 

Officer Clark or his particular actions. Therefore, this factor weighs only slightly in favor of 

finding bias.

We next consider “the scope of the judicial conduct in the context of the length and 

complexity of the trial and issues therein.” Stevens, 498 Mich at 171-172. In Swilley, 504 Mich 

at 387, the Supreme Court explained that the question is not just whether the trial as a whole was 

long or complicated; “A reviewing court must also evaluate the complexity of the particular issues

that were subject to judicial inquiry.” Id.

The exchange between the trial judge and Officer Lyons was brief, but so was the trial. 

The specific issues on which the trial judge intervened—whether Officer Lyons had a warrant and 

whether the officers ran the SUV’s license plate—were not complicated. There was no dispute 

the officers did not have a warrant and neither of the judge’s comments related to the dispositive 

issues at trial. Thus, the scope of the judge’s intervention in the context of the trial was minimal. 

This single act was not so egregious that it pierced the veil of impartiality, particularly given that 

the questioning did not necessarily reflect on Officer Clark’s actions. This factor does not weigh 

in favor of finding judicial impartiality.

In considering whether judicial questioning was imbalanced, “a reviewing court must 

evaluate both the frequency of the questions and the manner in which they are asked.” Swilley, 

504 Mich at 388. As argued by Officer Clark, the prosecution has not identified any comments 

hostile toward the prosecution in the same manner the subject intervention was slightly hostile 

toward the defense. However, as this was the only intervention slightly hostile toward the defense, 

this factor weighs only slightly in favor of finding judicial impartiality.

Finally, while a curative instruction was not immediately given, the trial judge did instruct 

the jury at the end of the trial that “when I make a comment, or give an instruction, I am not trying 

to influence your vote, or express a personal opinion about the case. If you believe I have an 

opinion about how you should decide this case, you must pay no attention to that opinion.” The 

judge’s conduct here was not so egregious that a curative instruction could not have cured the 

error. Indeed, as the jury acquitted Officer Clark of the most serious charges, it appears unlikely 

that judicial bias improperly influenced the jury to his detriment. See People v Biddles, 316 Mich 

App 148, 156; 896 NW2d 461 (2016). This factor weighs against finding judicial bias.

In sum, the nature, tone, and one-sidedness of the trial judge’s intervention weigh in favor 

of finding judicial impartiality, but not strongly so. The scope of the intervention and presence of 
-8-

an instruction weigh against finding impartiality. Although more factors weigh in favor of finding 

partiality, “[t]he reviewing court must consider the relevance and weigh the significance of each 

factor under the totality of the circumstances of the case,” Stevens, 498 Mich at 172, not merely 

tally them up. Because the issues subject to the judicial intervention were not disputed and were 

not significant in the context of the trial as a whole, and the jury acquitted Officer Clark of more 

serious charges, it is not reasonably likely that the judge’s conduct improperly influenced the jury 

by creating the appearance of advocacy or partiality against one side. In Clark I, unpub op at 12, 

we concluded that the trial judge’s conduct standing alone would be insufficient to justify reversal. 

The scales tipped in favor of reversal because of the lack of evidence to support Officer’s Clark’s 

convictions. Absent this extra impetus, we discern no ground for relief.

III. SPECIFIC UNANIMITY INSTRUCTION

Officer Clark further contends the court was required to instruct the jury that to support his 

misconduct-in-office conviction it had to agree on the act supporting that conviction—unlawfully 

entering the home or lying in his police report—and that his trial counsel was ineffective in failing 

to request this instruction.

We review for plain error an unpreserved challenge to the jury instructions. People v 

Miller, 326 Mich App 719, 725; 929 NW2d 821 (2019). Officer Clark conceded that remand for 

an evidentiary hearing on his claim of ineffective assistance was unnecessary because the issue 

could be reviewed on the existing record. To establish the right to a new trial based on the

ineffective assistance of counsel, a defendant must satisfy two components: “First, the defendant 

must show that counsel’s performance was deficient. . . . Second, the defendant must show that 

the deficient performance prejudiced the defense.” Strickland v Washington, 466 US 668, 687; 

104 S Ct 2052; 80 L Ed 2d 674 (1984). To establish that counsel’s performance was deficient, a 

defendant must show that counsel’s performance fell below an objective standard of 

reasonableness under prevailing professional norms. People v Solmonson, 261 Mich App 657, 

663; 683 NW2d 761 (2004). To establish prejudice, the defendant must demonstrate a reasonable 

probability that, but for counsel’s errors, the result of the proceedings would have differed. Id. at 

663-664.

Officer Clark correctly argues he had “the right to a unanimous verdict” and to have the 

jury instructed on the unanimity requirement. People v Waclawski, 286 Mich App 634, 679; 780 

NW2d 321 (2009). Usually, a general unanimity instruction suffices. Id. However:

“[T]he trial court must give a specific unanimity instruction where the state offers 

evidence of alternative acts allegedly committed by the defendant and 1) the 

alternative acts are materially distinct (where the acts themselves are conceptually 

distinct or where either party has offered materially distinct proofs regarding one 

of the alternatives), or 2) there is reason to believe the jurors might be confused or 

disagree about the factual basis of defendant’s guilt.” [Id., quoting People v Martin, 

271 Mich App 280, 338; 721 NW2d 815 (2006) (other quotation marks and 

citations omitted).]

As stated in People v Bailey, 310 Mich App 703, 719; 873 NW2d 855 (2015): 
-9-

[A] specific unanimity instruction is not required in all cases in which more than 

one act is presented as evidence of the actus reus of a single criminal offense. 

[W]here materially identical evidence is presented with respect to each act, and 

there is no juror confusion, a general unanimity instruction will suffice. [Second 

alteration in original, quotation marks and citations omitted).]

A specific unanimity instruction would be justified in this case because the prosecutor 

argued that either Officer Clark’s improper entry into the home or lying in his police report could 

support his misconduct-in-office conviction. The prosecution established two separate acts, which 

were very different from each other and were supported by very different facts. Defense counsel 

should have requested the specific unanimity instruction, which the trial court would have been 

required to give, and we discern no strategic reason not to make the request.

However, counsel’s failure only warrants relief if it prejudiced his client. Officer Clark 

argues he was prejudiced because there is reason to believe the jury did not unanimously agree on 

which act supported his misconduct-in-office conviction. The jury found Officer Clark guilty of 

breaking and entering, which permits a reasonable inference that the jury unanimously found the 

unlawful entry supported the misconduct-in-office conviction. On the other hand, as breaking and 

entering does not have a corrupt intent element, it is possible some of the jurors relied on Officer 

Clark’s lying in his report to support the misconduct-in-office conviction. We find this unlikely 

for two reasons.

First, the prosecution’s primary theory at trial was that Officer Clark committed 

misconduct in office based on the unlawful entry. The prosecution suggested that lying in the 

police report might have been an attempt to cover up the unlawful entry. Thus, it is unlikely the 

jury found Officer Clark lied in his report without also finding that his entry into the house was 

unlawful.

Moreover, the prosecution argues that the conviction of breaking and entering required a 

finding that Officer Clark entered the home unlawfully, thus satisfying the corrupt intent element 

of misconduct in office with that particular underlying actus reus. The instruction regarding the 

offense of breaking and entering provided that “this offense does not apply if the entering without 

the owner’s permission was committed by a police officer in the lawful performance of his duties.” 

In convicting Officer Clark of breaking and entering, the jury necessarily found he was acting 

unlawfully. This supports the conclusion that the jury unanimously found corrupt intent with 

regard to the unlawful entry. Officer Clark’s suggestion that the jury could have found him guilty 

of breaking and entering with a mens rea of recklessness is without merit. Officer Clark fails to 

explain how the facts of this case would support a finding that his entry into the house was done 

recklessly. Accordingly, there is little doubt that the jury unanimously found Officer Clark

unlawfully entered the home with corrupt intent.

For these reasons, it is more than likely that the jury unanimously agreed on Officer Clark’s

wrongful entry as the act underlying the misconduct-in-office conviction. Thus, Officer Clark fails 

to establish a reasonable probability that the specific unanimity instruction would have changed 

the outcome of his trial.
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IV. PROSECUTORIAL MISCONDUCT

Officer Clark contends the prosecutor made improper pleas to the jury’s sense of civic duty 

by arguing in closing that the jury should hold him accountable for violating his duty as a law 

enforcement duty, and that defense counsel was ineffective in failing to object. Specifically, the 

prosecutor argued:

[Y]ou would hope that that person that we trust to do this, would follow the law, 

would follow the Constitution of the United States[;]

We trust our police officers to know they cannot do certain things without a 

warrant. . . . [T]hey should be the first line of defense in making sure that our rights 

are not violated in some kind of way. . . . That’s not what we want from our police 

officers in our community. That’s not how we want to be policed. We want them 

to stop and think about the consequences. We want them to stop and protect the 

rights of all of the individuals. . . . [I]t is what we should want to weed out from 

our police officers. That is not the type of police officer that we want out in the 

field[;]

How long has he been operating this way?[; and]

[T]hey need to be responsible for it, which is why you must return a verdict of 

guilty[.]

Prosecutors must not engage in improper conduct that denies defendants fair and impartial 

trials. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). To that end, “it is improper 

for a prosecutor to appeal to the jury’s civic duty by injecting issues broader than guilt or innocence 

or encouraging jurors to suspend their powers of judgment.” People v Thomas, 260 Mich App 

450, 455-456; 678 NW2d 631 (2004) (citation omitted). “This type of argument unfairly places 

issues into the trial that are more comprehensive than a defendant’s guilt or innocence and unfairly 

encourages jurors not to make reasoned judgments.” People v Abraham, 256 Mich App 265, 273; 

662 NW2d 836 (2003). However, when a prosecutor argues that the crime has been established 

beyond a reasonable doubt, such a remark does “not constitute an assertion of personal belief by 

the prosecutor in defendant’s guilt or an argument that the jury should convict the defendant 

regardless of the evidence.” People v Matuszak, 263 Mich App 42, 56; 687 NW2d 342 (2004).

Contrary to Officer Clark’s assertion, the prosecutor did not expressly argue the jury should 

convict him in order to hold law enforcement accountable and send a message to police officers. 

Rather, viewed as a whole and in context, the prosecutor argued that Officer Clark and the officers 

involved in this case should be held accountable for their specific conduct. Because the prosecutor 

expressly argued the jury should convict Officer Clark based on the evidence, his argument was 

proper. The prosecutor’s arguments also responded to the defense theory that Officer Clark was 

merely doing what any police officer would do. 

Furthermore, any prejudice was cured by the trial court’s instructions that the jury had to 

decide the case based on the evidence and that the attorneys’ arguments were not evidence. See 

Thomas, 260 Mich App at 456 (“Once again, to the extent that the prosecutor’s comments crossed 

the line into a civic duty argument, any minimal prejudice was cured by the trial court’s 
-11-

instructions that the jury had to decide the case on the evidence and that the remarks of counsel 

were not evidence.”). As the prosecutor’s comments were proper, any objection would have been 

futile. Counsel cannot be deemed ineffective for failing to raise meritless objections. Id. at 457.

V. NEW JURY INSTRUCTION CHALLENGE

Although not raised in his original appellate brief, Officer Clark addressed at oral argument 

whether trial counsel was ineffective for failing to request jury instructions about Fourth 

Amendment law regarding the lawfulness of the warrantless entry and the good-faith defense to 

the misconduct-in-office charge. We accepted Officer Clark’s supplemental briefing of this issue 

on remand. People v Clark, unpublished order of the Court of Appeals, entered July 12, 2023 

(Docket No. 352874).

Officer Clark argues that trial counsel should have ensured the jury was instructed on the 

difference between lawful and unlawful entries, exigent circumstances, and the good-faith 

defense.

1

 Officer Clark argues trial counsel should have requested jury instructions including the 

following principles:

(1) The Fourth Amendment protects against unreasonable intrusions into the 

home. 

(2) Generally, before entering a person’s home the police must obtain a warrant.

(3) Certain circumstances can excuse the warrant requirement. One wellrecognized exception applies when the exigencies of the situation make the 

needs of law enforcement so compelling that a warrantless search is 

objectively reasonable under the Fourth Amendment. Courts commonly 

refer to the exception as “exigent circumstances”.

(4) When officers have probable cause and exigent circumstances exist, it is 

reasonable under the Fourth Amendment for officers to enter a home 

without a warrant.

(5) Examples of exigent circumstances include, but are not limited to, hot 

pursuit of a suspected felon, the possibility that evidence may be removed 

or destroyed, and danger to the lives of officers or others. Exigent 

circumstances exist when an emergency leaves law enforcement with 

insufficient time to obtain a warrant.

 

1

In Clark I, unpub op at 8, we noted the trial court did not advise the jury of the standards of police 

conduct, including the need to make split-second decisions. Officer Clark does not argue that trial 

counsel was ineffective by failing to request instructions consistent with the law stated in this 

Court’s prior opinion. Such instructions might have been helpful given the defense theory that 

Officer Clark was following orders. As Officer Clark did not accept our invitation, we will not 

consider that angle of the instruction argument.
-12-

(6) In determining whether exigent circumstances existed, you must review the 

facts and information available to the officers at the time they took their 

actions and in making this determination consider the totality of the 

circumstances facing them.

In addition, Officer Clark argues the jury should have been instructed that misconduct in office 

“does not encompass erroneous acts done by officers in good faith or honest mistakes committed 

by an officer in the discharge of his duties.” 

Officer Clark must overcome the strong presumption of sound trial strategy. People v 

White, 331 Mich App 144, 149; 951 NW2d 106 (2020). There is no record explanation from trial 

counsel regarding why more specific instructions were not requested or given. However, the 

prosecution argues that the decision was strategic because, if Officer Clark’s proposed instructions 

were given, then several other instructions on Fourth Amendment law would have been required 

and there are plausible reasons trial counsel may have wanted to avoid those instructions. “Failing 

to request a particular jury instruction can be a matter of trial strategy.” People v Dunigan, 299 

Mich App 579, 584; 831 NW2d 243 (2013).

Trial counsel’s closing argument supports the conclusion that it was a strategic decision to 

keep the principles of Fourth Amendment law vague for the jury. Officer Clark admitted at trial 

that there was no emergency call and no reason to believe anyone was in danger. Accordingly, he 

conceded there were no exigent circumstances to enter without a warrant. Instead, the defense 

posited Officer Clark was ordered to kick in the door by a superior officer and was unaware of the 

impropriety of his actions. Defense counsel emphasized that searches are regularly invalidated by 

the judiciary without criminal charges being levied against the officers involved. Counsel even 

elicited testimony from Officer Clark regarding other instances in which he entered a home without 

a warrant. Counsel argued that whether the door was slammed on Officer Clark’s foot or not, “he 

was still waiting for instruction from his sergeant before he does anything.” 

While there has been significant discussion on appeal regarding the existence of exigent 

circumstances, this was not trial counsel’s theory.2 Instead, he argued that Officer Clark was 

following orders and those orders were not “obviously illegal” or “immoral,” such as taking 

advantage of a “13 year old girl we just picked up.” Because trial counsel’s theory was that Officer 

Clark did not know he was doing anything wrong and was merely following orders, instructing the 

jury on the intricacies of Fourth of Amendment law would not have been helpful. In fact, a 

reasonable attorney in trial counsel’s position could have believed detailed instructions on the 

Fourth Amendment, warrants, and exigent circumstances would have hurt the defense by 

clarifying there were no actual exigent circumstances. Trial counsel appears to have relied on the 

vagueness of the law presented to the jury to argue Officer Clark did not know he was doing 

anything wrong. Officer Clark fails to overcome the strong presumption that counsel’s conduct 

 

2

It was, however, part of the prosecution’s theory of the case that Officer Clark knew the order 

was illegal because the officers did not have a warrant and he admitted that none of the limited 

exceptions to the warrant requirement applied. Although, in hindsight, a better strategy might have 

been to expressly argue exigent circumstances existed under the law, trial counsel’s conduct must 

not be viewed with the benefit of hindsight. See White, 331 Mich App at 149.
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was the product of sound trial strategy. Absent ineffective assistance, we need not consider 

whether the absence of the subject instructions was prejudicial.

We affirm.

/s/ Mark T. Boonstra

/s/ Elizabeth L. Gleicher

/s/ Anica Letica