People v. Swilley, Docket No. 154684

• Court: Supreme Court of Michigan
• Citation: 504 Mich. 350,934 N.W.2d 771
• Docket Number: Docket No. 154684
• Parties: PEOPLE of Michigan, Plaintiff-Appellee, v. Kareem Amid SWILLEY, Jr., Defendant-Appellant.
• Decision Date: 17 July 2019

504 Mich. 350
934 N.W.2d 771

PEOPLE of Michigan, Plaintiff-Appellee,
v.
Kareem Amid SWILLEY, Jr., Defendant-Appellant.

Docket No. 154684

Supreme Court of Michigan.

Argued on application for leave to appeal March 7, 2019
Decided July 17, 2019

Bernstein, J.

504 Mich. 355

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,

934 N.W.2d 778

we conclude that it was reasonably likely that

504 Mich. 356

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 (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.

504 Mich. 357

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

934 N.W.2d 779

questioning, Youngblood suddenly named defendant and his codefendants as the perpetrators of the November 2012 shooting. Youngblood repeated these claims at the preliminary examination

504 Mich. 358

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 was also in 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

504 Mich. 359

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), 2016 WL 4770002.³ The Court of Appeals affirmed defendant’s convictions but remanded the case for a correction of defendant’s

934 N.W.2d 780

sentence for conspiracy to commit murder.⁴

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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, 917 N.W.2d 405 (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

504 Mich. 361

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...