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People v. Swilley

Supreme Court of Michigan

July 17, 2019

PEOPLE OF MICHIGAN, Plaintiff-Appellee,
v.
AREEM AMID SWILLEY, JR., Defendant-Appellant.

          Argued on application for leave to appeal March 7, 2019.

          Chief Justice: Bridget M. McCormack, Chief Justice Pro Tem: David F. Viviano, Justices: Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh.

         Kareem A. Swilley, Jr., was convicted following a jury trial in the Saginaw Circuit Court of first-degree premeditated murder, MCL 750.316(1)(a); conspiracy to commit murder, MCL 750.157a; three counts of assault with intent to commit murder, MCL 750.83; carrying a dangerous weapon with unlawful intent, MCL 750.226; and six counts of possession of a firearm during the commission of a felony, MCL 750.227b, in connection with the drive-by shooting death of DaVarion Galvin. Defendant asserted an alibi defense, stating that he was at city hall at the time of the shooting with his grandmother Alesha Lee, Lee's fiancé Philip Taylor, and defendant's sister. Taylor and Lee corroborated defendant's testimony at trial, and texts between defendant and one of his codefendants around the time Galvin was shot appeared to suggest that defendant was not with the codefendant at that time. Over defense objection, the court, Frederick L. Borchard, J., extensively questioned Taylor, Lee, and Joshua Colley (a witness who was present when Galvin was shot). The jury found defendant guilty of all charges. Defendant appealed in the Court of Appeals, arguing that the trial judge's questioning of witnesses pierced the veil of judicial impartiality and denied him a fair and impartial trial under People v Stevens, 498 Mich. 162 (2015). In an unpublished per curiam opinion of the Court of Appeals, issued September 13, 2016 (Docket Nos. 323313, 325530, and 325806), the Court of Appeals (Talbot, C.J., and O'Connell and Owens, JJ.), affirmed defendant's convictions but remanded the case for correction of defendant's sentence for conspiracy to commit murder. Defendant sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 503 Mich. 868 (2018).

         In an opinion by Justice Bernstein, joined by Chief Justice McCormack, and Justices Viviano, Clement, and Cavanagh, the Supreme Court, in lieu of granting leave to appeal, held:

         The judge's improper questioning of Taylor, a key alibi witness for defendant, pierced the veil of judicial impartiality and violated defendant's constitutional right to a fair trial under Stevens.

         1. Under MRE 614(b), a trial judge is generally permitted to ask questions of witnesses; however, the central object of judicial questioning should be to clarify. In that regard, a trial judge may question witnesses to produce fuller and more exact testimony or elicit additional relevant information, and the judge may intervene in a trial to expedite matters, prevent unnecessary waste of time, or clear up an obscurity. Judicial questioning might be more necessary when a difficult witness refuses to answer questions or provides unclear answers. Conversely, judicial intervention is less justified when a witness's answers are clear and responsive. Undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on the judge's part toward a witness may tend to prevent the proper presentation of the cause or the determination of the truth. For that reason, a judge should avoid questions that are intimidating, argumentative, or skeptical. It is not the role of the court to impeach a witness or undermine a witness's general credibility. Similarly, a judge should not emphasize or expose potential weaknesses in a witness's testimony or convey the judge's personal view on whether a witness should be believed. Questions from a judge that are designed to emphasize or expose incredible, unsubstantiated, or contradictory aspects of a witness's testimony are impermissible. In the context of judicial questioning, a judge is not tasked with making substantive points or arguments, and questions that, in essence, advocate are not within prescribed judicial authority. The credibility of a witness should be tested by cross-examination, not by judicial inquisition.

         2. Under Stevens, a trial judge's conduct before a jury deprives a party of a fair and impartial trial when the conduct pierces the veil of judicial impartiality. The conduct violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party. Evaluating the totality of the circumstances is a fact-specific analysis that involves a consideration of various factors, including the nature of the trial judge's conduct, the tone and demeanor of the 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, either at the time of an inappropriate occurrence or at the end of the trial. The list of factors is nonexhaustive, and a reviewing court may consider additional factors if they are relevant to the determination of partiality in a particular case. Not every factor has to weigh in favor of the conclusion that the judge demonstrated the appearance of partiality; in other words, the cumulative effect of the errors, not the effect of each error standing alone, must be considered when making that determination. When the issue is preserved and a reviewing court determines that the trial judge's conduct pierced the veil of judicial impartiality, the court may not apply harmless-error review; a structural error has occurred and automatic reversal is required. When the judge's conduct involves judicial questioning, a witness's lack of memory is not equivalent to a lack of clarity, and a judge should let such unambiguous testimony stand. With regard to considering the scope of judicial intervention within the context of the length and complexity of the trial and issues therein, a court must evaluate both the length of the trial and the complexity of the particular issues that were subject to judicial inquiry. In a long and complicated trial, it may be more appropriate for a judge to intervene a greater number of times than in a shorter or more straightforward trial. A judge's inquiries may be more appropriate when a witness testifies about a topic that is convoluted, technical, scientific, or otherwise difficult for a jury to understand. In contrast, when a witness testifies on a clear or straightforward issue, judicial questioning is less warranted, even if the testimony occurs within the context of a lengthy trial, or one that involves other complex but unrelated matters. Said differently, when testimony deals with a particular issue or topic that is not complicated or complex, the utility of judge-led questioning is more limited. Accordingly, judicial partiality may be exhibited when an imbalance occurs with respect to either the frequency of the intervention or the manner of the conduct.

         3. In this case, the trial judge repeatedly challenged Taylor's clear, responsive testimony in a manner that closely resembled prosecutorial cross-examination. The questions cast suspicion on Taylor's testimony and his reasons for being on the stand, which impeached and undermined Taylor's general credibility. Moreover, the questioning did not clarify any of the issues or produce fuller testimony. Although the judge's questioning of Taylor alone weighed in favor a determination that the court pierced the veil of judicial impartiality, aspects of the judge's questioning of Lee and Colley were similarly problematic. The judge's questions impermissibly drilled into defendant's alibi defense and were inappropriately designed to assess the believability of witnesses presented in support of that defense. In addition, the judge's questions were imbalanced in both frequency and manner, decidedly in the prosecution's favor. In sum, the nature of the trial judge's questioning of defendant's key alibi witness, Taylor, the judge's tone and demeanor during the questioning, the scope of the intervention in light of the relatively straightforward testimony at issue, and the imbalanced direction of the intervention, all support the conclusion that the judge pierced the veil of judicial impartiality. Although the judge issued curative instructions to the jury, the judge's words repeatedly conflicted with his actions throughout the trial. Consequently, the curative instructions were not sufficient to overcome the partiality the judge exhibited against defendant. Considering the totality of the circumstances, it was reasonably likely that the judge's questioning of Taylor improperly influenced the jury by creating an appearance of advocacy or partiality against defendant. Accordingly, the judge's improper questioning of Taylor pierced the veil of judicial impartiality and violated defendant's constitutional right to a fair trial under Stevens.

         Reversed and remanded for a new trial.

          Justice Markman, joined by Justice Zahra, concurring in the judgment, agreed with the majority that certain aspects of the trial judge's questioning were inappropriate and concluded that defendant was entitled to a new trial for the reasons stated in Justice ZAHRA's concurring opinion, which Justice Markman joined in full. Justice Markman wrote separately to emphasize that the goal of judicial questioning is to assist the jury in its truth-seeking function without compromising the jury's ability to independently render a verdict. Trial judges should not be reluctant, or even hesitant, to employ judicial questioning under MRE 614(b) in order to assist the jury in its truth-seeking function as long as the questioning does not signal to the jury the judge's personal opinion such that it erodes the jury's role as fact-finder. Judges have broad discretion to question witnesses within those boundaries, even if the questions touch on the credibility of the witness or reveal evidence that is damaging to a party's case. The key inquiry is whether the questioning signals to the jury the judge's personal opinion as to the veracity of the witness or as to the strength or weakness of a party's case, not whether the question itself touches upon issues of credibility or is intended to, or results in, harm to a particular party's case. Because trial judges are generally better positioned than appellate judges to determine whether additional questioning would best aid the jury, appellate courts should afford reasonable deference to a trial judge's decision to question witnesses. Moreover, notwithstanding references to the Code of Judicial Conduct in Stevens and the majority opinion in this case, improper questioning that entitles a party to a new trial should only rarely result in a judicial-disciplinary proceeding. Trial judges are entitled to a strong presumption that any improper judicial questioning was undertaken in good faith and does not more generally reflect on their fitness for the bench. Justice Markman wrote separately to express his concern that the majority's negative tone toward judicial questioning and overly aggressive appellate review, including its overly casual references to the Code of Judicial Conduct, could make members of the bench hesitant to use their authority under MRE 614(b) to interrogate witnesses and thereby further the truth-seeking function of the criminal trial.

          Justice Zahra, joined by Justice Markman, concurring in the judgment, agreed with the majority that defendant was entitled to a new trial but disagreed that the case should be resolved under Stevens. Courts should not reach constitutional issues in cases that can be resolved on nonconsitutional grounds, and this case could have been resolved on nonconstitutional grounds. Specifically, relief should have been granted because the trial judge abused his discretion under MRE 614(b) when he posed several of his questions to Taylor, a key alibi witness for defendant, and when he intervened extensively. Because Taylor's credibility and veracity were necessary to defendant's alibi defense, it was more probable than not that the jury would have acquitted defendant but for the judge's improper questioning.

         BEFORE THE ENTIRE BENCH

          OPINION

          BERNSTEIN, J.

         In this case, we consider whether the trial judge's conduct pierced the veil of judicial impartiality, depriving defendant of a fair trial. We conclude that it did. Considering the totality of the circumstances, we conclude that it was reasonably likely that the judge's questioning of defendant's alibi witness improperly influenced the jury by creating an appearance of advocacy or partiality against defendant, in violation of our decision in People v Stevens, 498 Mich. 162; 869 N.W.2d 233');">869 N.W.2d 233 (2015). Accordingly, we reverse the judgment of the Court of Appeals and remand this case for a new trial.

         I. FACTS AND PROCEDURAL HISTORY

         This case arises from the shooting death of DaVarion Galvin. Defendant, Kareem Amid Swilley, Jr., and his codefendants, John Henry Granderson, Terrance Demon-Jordan Thomas, Jr., and Derell Martin, were tried jointly on charges related to the shooting. A jury ultimately convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a); conspiracy to commit murder, MCL 750.157a; three counts of assault with intent to commit murder, MCL 750.83; carrying a dangerous weapon with unlawful intent, MCL 750.226; and six counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.[1]

         Galvin's shooting occurred on November 21, 2012. On that date, at approximately 2:30 p.m., Galvin, Willie Youngblood, Joshua Colley, and Marcus Lively were walking in the Bloomfield neighborhood in Saginaw, Michigan.[2] A dark-colored Saturn approached the group, and the occupants of the vehicle opened fire. Colley and Lively took cover, and they were not shot. Youngblood was struck once in the stomach but fled the scene and survived. Galvin was struck by multiple bullets and died in the hospital shortly thereafter. The police found nine-millimeter and .40-caliber shell casings at the location of the shooting. The car used in the drive-by shooting was later recovered, and a fingerprint on the vehicle matched that of codefendant Granderson.

         On December 25, 2012, about a month after the November 2012 shooting, an unknown person fired shots at the home that defendant shared with his grandmother. Police went to the home and saw four men running. Three stopped: defendant, codefendant Thomas, and Jamar Swilley. Although the fourth man escaped, he was seen making a throwing motion near the rear of a house. Two rifles were later recovered from under the porch of that home. In a nearby parking lot, the police also found a loaded nine-millimeter handgun with casings that matched those found at the scene of the November 2012 shooting. DNA recovered from the handgun matched that of codefendant Thomas.

         In the days after the November 2012 shooting, the police interviewed Youngblood, who described the car used in the shooting as a black or blue midsize vehicle. The police showed Youngblood a photo array containing images of defendant and his codefendants, but Youngblood did not identify any of them as the perpetrators. However, Youngblood's account changed about a year later, after he was detained on a misdemeanor warrant. At the time, the police were also investigating Youngblood for possible involvement in a September 2013 shooting at the Cass River Market in Saginaw. During subsequent questioning, Youngblood suddenly named defendant and his codefendants as the perpetrators of the November 2012 shooting. Youngblood repeated these claims at the preliminary examination in this case, testifying that codefendant Granderson was the driver of the vehicle, that codefendant Thomas was in the front passenger seat, that defendant sat behind codefendant Thomas, and that a fourth man w as also i n the vehicle. He also testified that everyone in the vehicle had guns, except Granderson. Youngblood claimed that he had known defendant and codefendant Thomas before the shooting and that he had looked them up on Facebook to get their real names.

         At trial, Youngblood changed his story yet again. On direct examination, Youngblood claimed that when the car approached, he only saw guns and the men's hair styles but that he did not know the perpetrators' names or see defendant in the car. Youngblood acknowledged his contradictory preliminary-examination testimony, but he maintained that other people had told him that defendant and his codefendants were involved in the shooting and that he did not personally recognize any of the men on the day of the incident. Youngblood later conceded that he could not positively identify defendant as being in the car and that it would not surprise him if defendant had not actually been in the car. Youngblood also admitted that he grew up being told that he should not speak with the police or testify in court and that he was worried his family would be retaliated against for him doing so. He acknowledged that he was testifying in exchange for a cap on his sentence arising from the Cass River Market shooting.

         Defendant asserted an alibi defense, claiming that at the time of the shooting, he was at city hall with his grandmother, Alesha Lee, his grandmother's fiancé, Philip Taylor, and defendant's sister, Marcel Swilley. Both Taylor and Lee testified. Phone records from the day of the incident were also introduced at trial. The phone records showed that defendant received a text message from codefendant Thomas at 1:57 p.m., asking defendant to call him. At 2:35 p.m., defendant sent a text to an unidentified person asking, "[W]hat's up?" At 2:44 p.m., defendant texted another unidentified person, informing the person that he was going down to city hall to transfer property. At 2:48 p.m., Thomas texted defendant, "[B]ekupp." Defendant responded, asking, "[H]ow many down?" Thomas answered at 2:50 p.m., "[A]bout three."

         At the close of trial, defendant was convicted as noted above. The trial judge sentenced defendant to concurrent prison terms of life without parole for conspiracy to commit murder, 37 to 75 years for first-degree premeditated murder, 18 to 36 years for each count of assault with intent to commit murder, and 38 months to 5 years for carrying a dangerous weapon with unlawful intent. These sentences were to be served consecutively to six concurrent terms of 2 years in prison for the felony-firearm convictions.

         On appeal in the Court of Appeals, defendant raised several issues, including that the trial judge's questioning of witnesses denied him a fair and impartial trial. In an unpublished per curiam opinion, the Court of Appeals rejected that claim. People v Granderson, unpublished per curiam opinion of the Court of Appeals, issued September 13, 2016 (Docket Nos. 325313, 325530, and 325806).[3] The Court of Appeals affirmed defendant's convictions but remanded the case for a correction of defendant's sentence for conspiracy to commit murder.[4]

         Defendant filed an application for leave to appeal in this Court.[5] On September 27, 2018, we ordered oral argument on the application. People v Swilley, 503 Mich. 868 (2018).

         II. THE TRIAL JUDGE'S QUESTIONING OF WITNESSES

         In this appeal, defendant argues that the trial judge's questioning of witnesses pierced the veil of judicial impartiality, depriving him of a fair trial. Particularly at issue is the trial judge's questioning of three witnesses-Taylor, Lee, and Colley.

         We note that at the start of trial, the trial judge issued preliminary instructions with respect to the judge's questioning of witnesses: "I may ask some questions of the witnesses myself. These questions are not meant to reflect my opinion about the evidence. If I ask a question, my only reason would be to ask about things that may not have been fully explored." At the close of trial, during his final instructions to the jury, the trial judge explained that he did not intend to express any opinion on the case and that if the jurors believed such an opinion had been conveyed, they should disregard it.

         A. PHILIP TAYLOR

         Taylor's testimony was central to defendant's alibi defense. On direct examination by defense counsel, Taylor testified extensively about the time line of events on November 21, 2012, from his perspective. Taylor recalled that he, along with Lee, defendant, and defendant's sister, visited city hall to transfer a piece of property to defendant and defendant's sister. Taylor explained that the property, a home, had initially been in Lee's name but that it had since been transferred to Taylor's name. Lee wanted legal title transferred to defendant and defendant's sister because Lee had been diagnosed with cancer and wanted to ensure that the home went to her grandchildren. Taylor elaborated, stating that they

[w]ent down there to [city hall] that day and had the house signed over out of my name into [defendant's] and [defendant's sister's] name.
Must have left the house right around about 2:00. Got down there-I think about three departments down there. I might have paid my water bill and then went to sign-got their name signed off at the front desk up there. Everybody had to show their ID to get their name signed over. Then we left there, and we got it notarized.

         A quitclaim deed stamped November 21, 2012, was entered into evidence, bearing the signatures of defendant, defendant's sister, and Taylor, with Taylor's signature notarized.[6]Taylor further testified that at some point during the family's outing, defendant received a phone call. Taylor recalled that after receiving the call, defendant said that he was glad he was with Taylor "because something just went down, and they probably would try to blame it on me." After leaving city hall, the family went to Taylor's bank to get a printout of Taylor's account details. The family then went to a Chinese restaurant before returning home around 5:00 p.m.

         On cross-examination, the prosecution revisited the details of these events, questioning Taylor comprehensively about his testimony that defendant was with him on the afternoon of November 21, 2012. Among other details, Taylor indicated, as he had during direct examination, that he was unsure whether he had paid his water bill that day and reiterated that the main reason the family had gone to city hall was to transfer the property out of his name and into the names of defendant and defendant's sister. Taylor repeated that defendant had received a phone call and that afterward, defendant had commented that he was glad to be with Taylor because something had happened that might be blamed on defendant. Taylor also stated that he did not hear defendant's phone ring, possibly because defendant had the phone on vibrate.

         After direct examination, cross-examination, and redirect examination, the judge signaled that he had some questions for Taylor: "I have some questions. I want to stress to the jury, I have no preference, again, on-as a result of the questions I'm asking." The judge then proceeded to question Taylor extensively. The judge first asked Taylor to clarify whether the transferred property was in his name or in Lee's name. Taylor repeated his testimony that title had previously been transferred from Lee's name to his name and that Lee wanted him to transfer the property to the grandchildren's names because of her cancer diagnosis. The judge continued:

The Court: But wait a minute. I'm getting confused. Legally, who had the title to that house?
[Taylor]: [Defendant] and [defendant's sister] got it right now.
The Court: All right. Prior to November 21st, whose name was the house in?
[Taylor]: My name.
The Court: All right. Back to my point. If she got sick, was she on the title at all at that point?
[Taylor]: No.
The Court: When you say it was her house-I'm sorry. Are you married, or were you married to her at that time?
[Taylor]: No, we've just been going together.
The Court: That's where I am getting confused then.
[Taylor]: But it was-
The Court: How did you get the house if you say it was her house?
[Taylor]: It was-
[Defense Counsel]: Your Honor, I've got to object. That's been asked and answered. He said that she put the house in his name, and then she said that she wanted-after she found out that she was sick that she wanted the house in the kids' name, and that's what he did.
The Court: Well, that isn't what I'm hearing. On November 21st of 2012, was the house legally in your name at that point?

         Switching gears, the judge probed Taylor's account of the family's activities. The judge first asked how the family got to city hall and questioned defendant's whereabouts the night before. Despite the fact that Taylor had indicated on several occasions that he was unsure whether he had paid the water bill, the judge asked Taylor if he paid the water bill before the property transfer was made. Taylor repeated that he was not sure whether he had paid the water bill. But the judge pressed further, asking whether Taylor had received a receipt of payment, whether the receipt was timestamped, and whether Taylor had the receipt. Taylor replied, once again, that he did not know if he had even paid the bill on that day.

         The judge then quizzed Taylor regarding his testimony that the family went to the bank after leaving city hall. The judge asked where the bank was located and what Taylor did at the bank. Taylor responded, as before, that he went to get a printout of his account details. The judge then asked Taylor if he had a copy of that printout, which precipitated the following exchange:

[Defense Counsel]: Your Honor, I've got to object. It's-I don't know what you're doing here. I have documents that we've entered into evidence that shows that he was there.
The Court: You've alleged an alibi defense, and I want to-I'm going through-I want to know what this gentleman did. It's not clear in my mind whether he paid the bill that day. First he thought he paid it, now he didn't pay it, went to the bank, and I'm entitled to ask questions.
[Defense Counsel]: Your Honor, and I've got to object. I think you're being very prosecutorial in this-
The Court: Your objection is noted.

         Over defense counsel's objection, the judge continued to seek proof that Taylor went to the bank. The judge asked whether Taylor got a "sheet" from the bank, where the sheet was, whether there was a date on the sheet, and the name of the bank official he talked to while there.

         The judge next investigated Taylor's testimony that defendant had received a phone call while with Taylor. In response to the judge's question, Taylor repeated that he was not sure of the exact time defendant received the call. The judge then stated:

Okay. You don't remember the phone ringing-and I'm not being critical of you. I just want to understand what you're saying. You don't remember the phone ringing, you don't remember seeing [defendant] with the phone, but you do remember [defendant] saying he got a phone call and words to the effect, I'm glad I'm with you, because something happened or something went down?

         Taylor reiterated that he did not hear defendant's phone ring, positing again that defendant had it on vibrate. The judge proceeded with various questions concerning what exactly defendant had told Taylor after the phone call. At this point, Taylor paused, stating, "[W]ait a minute, you trying to confuse me." The judge pressed on, asking Taylor whether he had sought more information from defendant about the phone call: "Okay. Did you say what happened? Why? What do you mean, grandson? What are you talking about? Did you say anything like that?"

         The judge then targeted Taylor's response to learning that defendant was a suspect in the shooting. When Taylor confirmed that he had learned about a warrant for defendant's arrest about six months to a year after the incident, the judge asked whether Taylor did anything in response. When Taylor seemed confused by the question, the judge asked, "Did you talk to [the police officers] at all and say, hey, you got the wrong guy, my grandson was with me?" When Taylor answered that he had not, the judge replied, "Why not?" Taylor explained that the police had not contacted him, to which the judge retorted, "How would they know to call you?"

         Immediately after the judge's questioning of Taylor, the jurors indicated that they too had questions for Taylor. In essence, the jury submitted the following questions, largely echoing the judge's lines of inquiry:

. Do you know of any phone records of the call defendant received at ...

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