michigan supreme court lansing, michigan · pdf file 2019-07-18 · people v...

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    Docket No. 154684. Argued on application for leave to appeal March 7, 2019. Decided July 17, 2019. 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 In an unpublished per curiam opinion of the Court of Appeals, issued September 13, 2016 (Docket Nos. 323313, 325530, and 325806), the Court of Appeals (TALBOT, C.J., and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

    Michigan Supreme Court Lansing, Michigan


    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

    This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

    Reporter of Decisions: Kathryn L. Loomis

  • 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