People of Michigan v. Terrance Demon-Jordan Thomas Jr ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 18, 2020
Plaintiff-Appellee,
v No. 325313
Saginaw Circuit Court
JOHN HENRY GRANDERSON, LC No. 14-039760-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 325530
Saginaw Circuit Court
TERRANCE DEMON-JORDAN THOMAS, JR., LC No. 14-039757
Defendant-Appellant.
ON REMAND
Before: JANSEN, P.J., and MARKEY and K. F. KELLY, JJ.
PER CURIAM.
These cases return to this Court on remand from the Michigan Supreme Court, which has
directed that the appeals of two codefendants, John Henry Granderson and Terrance Demon-
Jordan Thomas, Jr., be reconsidered in light of our Supreme Court’s decision in People v Swilley,
504 Mich. 350; 934 NW2d 771 (2019), to grant a new trial to a third codefendant, Kareem Amid
Swilley, Jr. See People v Granderson, ___ Mich ___; 935 NW2d 359 (2019) (Docket No.
325313); People v Thomas, ___ Mich ___; 935 NW2d 359 (2019) (Docket No. 325530). On
remand, in Docket No. 325313, we reverse Granderson’s convictions and sentences, and remand
to the trial court for a new trial. Likewise, in Docket No. 325530, we reverse Thomas’ convictions
and sentences, and remand to the trial court for a new trial.
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I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the shooting death of DaVarion Galvin. Galvin was shot around
2:30 p.m. on November 21, 2012, while walking down a sidewalk with three other men: Willie
Youngblood, Joshua Colley, and Marcus Lively. In Swilley, 504 Mich. at 356, our Supreme Court
explained:
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 . . . Granderson.
The issue presently before this Court involves the trial court’s extensive questioning of
witnesses during trial. Relevant here is the trial court’s questioning of Colley. Id. at 360-370. Our
Supreme Court characterized the trial court’s questioning as follows:
During its case-in-chief, the prosecution also called Colley, who had been
with Galvin when Galvin was shot. More than two months after the shooting,
Colley was interviewed by the police about what had occurred on that day. Colley
provided a statement describing the vehicle and its approach. Colley indicated that
he saw three people with guns lean out the window, and he described what
happened as bullets were flying. But Colley told the police that he was unable to
identify any of the people in the vehicle. Colley was shown a photo array
containing images of [Swilley, Granderson, and Thomas], but he did not make an
identification.
During direct examination at trial, Colley changed his account. Contrary to
his earlier statement, Colley testified that he, in fact, never saw the car from which
shots were fired. He instead claimed that he was texting on his phone when he
heard gun shots, hit the ground, and then “blacked out.” When the prosecutor
confronted Colley with his earlier statement, Colley claimed that he could not
remember the details contained within the statement because he was high on drugs
at the time of the shooting. He claimed that the information in the statement was
based on what others had told him. Colley also testified that neither he nor
Youngblood knew who the shooters were: “I told him I don’t know. I said I asked
him. He said he didn’t know. So he never – he never seen no faces, man.” After
direct examination, cross-examination by all of the defense attorneys, redirect
examination, recross-examination, and a second redirect examination by the
prosecutor, the judge indicated that he too had some questions.
First, the judge sought to confirm with one of the attorneys the length of
Colley’s statement. After being informed that it was 38 pages long, the judge
confronted Colley:
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The Court. Thirty-eight pages. So you talked to these police officers for
38 pages, and they’ve asked you about all these questions and answers that you
gave, and you’re saying now none of that is correct?
[Colley]. I don’t remember none of that, sir. Like I said, I told you all what
I remember. I was high from Promethazine, Codeine, marijuana and Xanax. That
cause some blackouts.
The Court. But one of your dear friends, your home boys as you called him,
was murdered that day in front of you –
[Colley]. Right.
The Court. – laying [sic] on the ground bleeding to death, and you believe
it’s important to talk to the police after and let them know what you know
happened?
[Colley]. Right.
The Court. And you did talk to them and you heard what you told them at
that time.
[Colley]. But I was going on what somebody else had told me.
The Court. Did you at any time in that statement tell them, I don’t – that I
don’t know what happened?
[Colley]. No.
The Court. You didn’t say hey, I don’t know, I don’t know, I don’t know,
I don’t know. You gave these other answers, correct?
[Colley]. I told you, man. I was high off Promethazine, Codeine, marijuana
and Xanax.
Not finished, the judge then asked the prosecutor directly, “Did anyone in
that statement . . . did he – did he give a response, I don’t know, I was high [?]”
Defense counsel for . . . Granderson interjected that he did not believe it was
procedurally correct to ask the prosecutor such a question, but the judge insisted
that he could ask questions to “shorten this up.” The judge returned to Colley,
stating “Are you saying that when these questions were asked of you at [sic] the
officer back at the time you gave the statement you said, I don’t know, I was high?”
Colley began, “Listen, I –” but was interrupted by the judge as follows: “That
wasn’t your answer was it?” Colley said, “No, I was going on what somebody else
told me.” The judge replied, “Did you tell them that?” Colley admitted that he had
not.
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Next, the judge inquired into gang associations, first asking whether Colley
was friends with [Swilley, Granderson, and Thomas]. Colley responded that they
were not and that it had surprised him that [Swilley, Granderson, and Thomas] were
charged because no one had known the identifies of the shooters. The judge then
asked, “So, you have no problem if Ranger – excuse me, if Officer Shaft, excuse
me, were to put you in cells with [Swilley’s rival gang]?” Colley answered that he
would not have a problem. The judge instructed the prosecutor to redisplay a
photograph that allegedly showed several individuals making gang signs. Defense
counsel [for Swilley] objected: “Your Honor, with all respect, I’ve got to object to
this. It appears to me as though the judge is taking the role of the prosecutor.” The
judge replied: “Not at all. I have no interest in this case and the outcome. I’ve
instructed you on that before, I’m instructing you again, and the Court is entitled to
ask questions. I’m entitled to summarize the evidence if I want, and I’m not doing
that.” The judge proceeded to ask Colley what his friends were doing with their
hands in the photographs, and Colley answered that they were just making signals.
The judge concluded, “I don’t have anything further.” [Swilley, 504 Mich. at 367-
370.]
Ultimately, Granderson was convicted of one count of first-degree premeditated murder,
MCL 750.316, one count of conspiracy to commit premediated murder, MCL 750.157a, three
counts of assault with intent to murder (AWIM), MCL 750.83, one count of carrying a dangerous
weapon with unlawful intent, MCL 750.225, and six counts of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Granderson was sentenced, as a second-
offense habitual offender, MCL 769.10, to life without parole for the murder conviction, life with
parole for the conspiracy to commit murder conviction, 46 to 69 years’ imprisonment for each
AWIM conviction, and 36 to 90 months’ imprisonment for carrying a dangerous weapon, to be
served consecutively to six concurrent terms of two years’ imprisonment for each felony-firearm
conviction.
Thomas was also convicted of first-degree premeditated murder, conspiracy to commit
first-degree premeditated murder, three counts of AWIM, one count of carrying a dangerous
weapon with unlawful intent, one count of possession of a firearm by a felon (felon-in-possession),
MCL 750.224f, and seven counts of felony-firearm. Thomas was sentenced to life without parole
for conspiracy to commit murder and first-degree murder convictions, 29 to 45 years’
imprisonment for each AWIM conviction, and 60 to 90 months’ imprisonment for carrying a
dangerous weapon with unlawful intent and felon-in-possession convictions. The foregoing
sentences were to be served consecutively to seven concurrent terms of two years’ imprisonment
for each of Thomas’ felony-firearm convictions.
Both Granderson and Thomas appealed to this Court. See People v Granderson,
unpublished per curiam opinion of the Court of Appeals, issued September 13, 2016 (Docket No.
325313). On direct appeal to this Court, Granderson argued: (1) the evidence was not sufficient
to support his convictions; (2) gang-related photographs were not admissible; (3) certain witnesses
should not have been permitted to testify as both fact witnesses and expert witnesses; (4) a video
of Youngblood’s statement to police was improperly admitted into evidence as a prior inconsistent
statement; (5) evidence concerning a drive-by shooting of Swilley’s home on December 25, 2012,
and subsequent events was erroneously admitted, (6) admission of a statement made by Lively at
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the scene of Galvin’s shooting violated Granderson’s right to confront the witnesses against him;
(7) various claims of instructional error; and (8) several claims of prosecutorial misconduct. This
Court concluded none of Granderson’s claims were meritorious, and affirmed his convictions and
sentences. Granderson, unpub op at 4-14.
Similarly, on direct appeal to this Court, Thomas argued through appellate counsel and a
Standard 4 Brief on Appeal: (1) Youngblood’s statement to police should not have been admitted
as a prior inconsistent statement; (2) the trial court admitted irrelevant evidence; (3) it was error to
sentence Thomas to life without parole for conspiracy to commit first-degree murder; (4) the
prosecutor knowingly presented false testimony from Youngblood at trial; (5) Thomas’
convictions were against the great weight of the evidence; (6) trial counsel was ineffective for
failing to seek separate trials; and (7) the trial court’s questioning of Colley and a police officer,
Detective John Beyerlein, pierced the veil of judicial impartiality. This Court concluded that only
the sentencing issue raised by Thomas had merit, reasoning that it was erroneous to sentence
Thomas to life without parole for conspiracy to commit murder pursuant to People v Jahner (After
Remand), 433 Mich. 490; 466 NW2d 151 (1989), and remanded for correction of Thomas’
sentence. Id. at 14-22.
Granderson and Thomas sought leave to appeal this Court’s decision to our Supreme Court.
In an order dated May 31, 2017, our Supreme Court granted leave. People v Granderson, ___
Mich ___; 895 NW2d 510 (2017). However, because only Thomas raised the issue of judicial
questioning of witnesses, the Saginaw County Prosecutor was only directed to respond to that issue
as it pertained to Thomas. Id. Apparently taking notice that our Supreme Court was concerned
about claims of judicial partiality in this case, Granderson filed a motion in our Supreme Court on
July 5, 2017, and for the first time asked to file a supplemental brief adding a claim that the trial
court’s questioning of Colley pierced the veil of judicial impartiality.
Meanwhile, codefendant Swilley had also filed an application for leave to appeal in our
Supreme Court, and on September 27, 2018, our Supreme Court entered an order directing
arguments to be held on the application. People v Swilley, 503 Mich. 868 (2018). That same day,
the Court entered orders holding the applications filed by Granderson and Thomas in abeyance
pending a decision in Swilley’s appeal. See People v Granderson, ___ Mich ___; 917 NW2d 407
(2018); People v Thomas, ___ Mich ___; 935 NW2d 359 (2018). The order in Granderson’s case
noted that his motion to file a supplemental brief remained pending. Granderson, ___ Mich at
___.
Our Supreme Court issued its decision in Swilley on July 17, 2019. Swilley, 504 Mich. at
350. The Court concluded that the trial court had pierced the veil of judicial impartiality through
its questioning of Philip Taylor, an alibi witness who testified on behalf of Swilley. Id. at 370-
393. Although the Swilley opinion discusses Colley’s testimony at length, our Supreme Court
explained in a footnote:
As detailed in this opinion, we conclude that the trial judge’s treatment of Taylor
created the appearance of advocacy or partiality against [Swilley]. To reach this
conclusion, we considered the totality of the circumstances, evaluating the judge’s
treatment of other witnesses, including . . . Colley. See [People v] Stevens, 498
Mich [162,] 164; 171-172[; 869 NW2d 233 (2015)]. However, because the judge’s
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treatment of Taylor is enough to satisfy defendant’s claim of judicial impartiality,
we need not determine whether the judge’s treatment of . . . Colley would have
served as [a] separate bas[is] for concluding that the judge pierced the veil of
judicial impartiality. [Swilley, 504 Mich. at 392 n 17.]
Our Supreme Court reversed Swilley’s convictions and sentences, and remanded the matter to the
trial court for a new trial. Id. at 392-393.
On November 27, 2019, the Court entered orders remanding Granderson’s and Thomas’
appeals to this Court “for reconsideration in light of Swilley.” Granderson, ___ Mich at ___; 935
NW2d at 359; Thomas, ___ Mich at ___; 935 NW2d at 359. Further, the Court granted
Granderson’s motion for leave to file a supplemental brief, and pursuant to MCR 7.305(H)(1), the
application was again considered and lieu of granting leave to appeal, the matter was remanded to
this Court for reconsideration in light of Swilley. Granderson, ___ Mich at ___; 935 NW2d at
359.
II. STANDARD OF REVIEW
The sole remaining issue in this case is whether the trial judge’s questioning of Colley
pieced the veil of judicial impropriety, thereby depriving Granderson and Thomas of a fair trial.
The question [of] whether a judge’s conduct has “denied a defendant a fair
trial is a question of constitutional law that this Court reviews de novo.” Stevens,
498 Mich. at 168. “When the issue is preserved [by objecting to the trial judge’s
questioning at trial] 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.” Id. at 164. Rather, “once a reviewing court has concluded that judicial
misconduct has denied the defendant a fair trial, a structural error has occurred and
automatic reversal is required.” Id. at 168, citing Arizona v Fulminate, 499 U.S. 279,
309; 111 S. Ct. 1246; 113 L. Ed. 2d 302 (1991). [Swilley, 504 Mich. at 370 (footnote
omitted).]
III. ANALYSIS
As directed by our Supreme Court, we reconsider the issue before us in light of Swilley,
and we now conclude that the trial judge did pierce the veil of judicial impropriety in questioning
Colley. According both Granderson and Thomas are entitled to new trials.
As the Supreme Court stated in Swilley:
In Stevens, this Court established the appropriate standard for determining
when a trial judge’s conduct in front of a jury has deprived a party of a fair and
impartial trial. “A trial judge’s conduct deprives a party of a fair trial if the conduct
pierces the veil of judicial impartiality.” Stevens, 498 Mich. at 164. “A judge’s
conduct pierces this veil and 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.” Id. at 171.
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Evaluating the totality of the circumstances is a fact-specific analysis that
involves a consideration of various factors. Id. at 171-172. The Stevens Court
instructed:
In evaluating the totality of the circumstances, the reviewing court
should inquire into a variety of factors including, but not limited to,
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 trial. [Id. at 164.]
Because this list of factors is nonexhaustive, a reviewing court “may consider
additional factors if they are relevant to the determination of partiality in a particular
case.” Id. at 172. “[T]he 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.” Id. “The reviewing court must consider
the relevance and weigh the significance of each factor under the totality of the
circumstances of the case.” Id. “Ultimately, the reviewing court should not
evaluate errors standing alone, but rather consider the cumulative effect of the
errors.” Id. at 171-172. [Swilley, 504 Mich. at 370-371.]
A. DOCKET NO. 325530
We begin our analysis of this issue by addressing the Thomas’ appeal in Docket No.
325530, as it is the simpler appeal to resolve. In this Court, Thomas argued that the trial court
pierced the veil of judicial impropriety through its questioning of two witnesses: Colley and
Detective Beyerlein. We only address the questioning of Colley, however, as it is sufficient to
resolve this appeal.
Thomas preserved this issue by objecting to the trial judge’s questioning of Colley during
trial. Indeed, trial counsel for Thomas joined an objection first made by Swilley’s counsel, that
the trial judge’s questioning was prosecutorial in nature. Therefore, if error occurred, it is
automatic that Thomas will receive a new trial. Swilley, 405 Mich. at 370.
True, our Supreme Court in Swilley granted Swilley a new trial based on the trial court’s
questioning of Taylor. However, the Court examined Colley’s testimony, provided in relevant
part supra, in detail. Therefore, we rely on the Court’s analysis in reaching our conclusion that
the trial judge’s questioning was improper.
The first factor to be considered in our analysis is the nature of the trial court’s conduct.
Id. at 371. In this case,
several aspects of the judge’s examination of Colley were not clarifying in nature
but were, instead, argumentative, reflected skepticism, and undermined the
witness’s credibility. See Stevens, 498 Mich. at 174-175; [People v] Wilder, 383
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Mich [122,] 124[; 174 NW2d 562 (1970)]. Colley testified that he did not see the
vehicle approach, did not see the occupants inside the car, and did not remember
what happened during the shooting itself, all in contrast to details provided in his
prior statement. This could be considered a weakness in Colley’s trial testimony,
one that the prosecution indeed emphasized during its examination of the witness.
However, the judge inappropriately participated in the adversarial process
by engaging the witness in a way that further emphasized this potential weakness:
“So, you talked to these police officers for 38 pages, and they’ve asked you about
all these questions and answers that you gave, and you’re saying now none of that
is correct.” The judge then underscored his own disbelief of Colley’s explanation:
“But one of your dear friends, your home boys as you called him, was murdered
that day in front of you[.]” … [T]he judge’s subsequent inquiry employed
recognizable cross-examination techniques, with the judge posing leading
questions in a way that cast further doubt on Colley’s trial testimony. At one point,
the judge even invited the prosecutor to weigh-in, asking the prosecutor directly
whether Colley had ever told anyone that he was high at the time of the shooting.
The inappropriateness of this solicitation was immediately recognized and objected
to by … Granderson’s defense counsel.
And finally, as he had done with Taylor, the judge again targeted a witness’s
underlying motive for testifying in defendant’s favor. The trial judge implied that
Colley was scared of [Swilley, Granderson, and Taylor], posing his own subtle
threat to Colley to make this point: “So you have no problem if . . . Officer Shaft .
. . were to put you in cells with [defendant’s rival gang]?” This intimidating
question and severe attitude toward the witness was patently inappropriate. See
Stevens, 498 Mich. at 174-175; Wilder, 383 Mich. at 124; Canon 3(A)(12). As with
[other witnesses], it was the prosecution’s job to highlight any incredible,
unsubstantiated, or contradictory aspects of Colley’s testimony, but it was not
within the purview of the judge. See Stevens, 498 Mich. at 174-175. [Swilley, 504
Mich. at 379-380.]
We agree with our Supreme Court that the nature of the trial judge’s questioning of Colley weighs
in favor of judicial partiality.
The next factor to consider is the tone and demeanor of a trial judge. Id. at 371. Our
Supreme Court analyzed this factor with respect to the trial judge’s questioning of Colley as
follows:
[T]he [trial] court took an intimidating, threatening tone with Colley, asking
whether he would be willing to be placed in a cell with allegedly rival gang
members. In other places, the judge’s comments were obviously skeptical of
Colley’s testimony. As had been the case with Taylor, the judge posed several
leading questions, culminating with questions that revealed the judge’s personal
disbelief: “You didn’t say, hey, I don’t know, I don’t know, I don’t know, I don’t
know. You gave these other answers, correct?” On a few occasions, the judge
interrupted Colley to drive home a point—that Colley had not told anyone that he
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was high at the time of the shooting—but what these exchanges drive home to us
is the judge’s incorrect belief that his purview included witness impeachment. A
judge should avoid the interruption of attorneys or witnesses, except to clarify. See
Stevens, 498 Mich. at 174. In this case, the judge did not take such care. [Swilley,
504 Mich. at 385-386.]
We agree that the trial judge’s tone when questioning Colley was “hostile, argumentative, and
prosecutorial.” Id. at 386. This factor, too, weighs in favor of judicial partiality.
Third, we consider the “scope of judicial intervention within the context of the length and
complexity of the trial, or any given issue therein.” Id. at 386 (quotation marks and citation
omitted). Our Supreme Court in Swilley expressly critiqued the conclusion previously reached by
this Court when applying this factor to the facts of this case. Indeed, the Court opined:
In applying this factor to this case, the Court of Appeals seems to have
misunderstood the full extent of our directive. The Court of Appeals concluded
that extensive judicial questioning was appropriate solely because this trial was a
“long and complex one” that spanned 18 days and involved eyewitness testimony,
expert witnesses, DNA evidence, and other scientific analysis. Granderson, unpub
op at 22. This is an incomplete application of our instruction in Stevens. In Stevens,
we did note that in a long or 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.” Stevens, 498 Mich. at 176. However, the focus is not solely
on whether the trial itself was long or complicated. The Stevens Court explained
that an appellate court must consider “the scope of the judicial conduct in the
context of the length and complexity of the trial, as well as the complexity of the
issues therein.” Id. at 187-188 (emphasis added). In other words, a reviewing court
should not simply evaluate whether the trial as a whole was long or involved
complicated issues. A reviewing court must also evaluate the complexity of the
particular issues that were subject to judicial inquiry. “[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.” Id. at 176
(emphasis added). 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.
Applying this factor correctly leads to a different result than that reached by
the Court of Appeals. [Swilley, 504 Mich. at 386-387 (footnote omitted).]
In light of the foregoing, we reconsider Colley’s testimony, and agree with our Supreme Court that
“. . . Colley’s testimony was [not] complex.” Id. at 387 n 15. Indeed,
Colley testified about factual matters in a way that arguably contradicted his prior
statement. The prosecution was well-positioned to challenge these relatively basic
inconsistencies, and the jury was fully able to come to its own conclusions on the
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matter, without judicial involvement. Nevertheless, the judge confronted Colley
repeatedly, in argumentative fashion. This, too, was unwarranted. [Id. at 387-388
n 15, citing Stevens, 498 Mich. at 176.]
Again, this factor weighs in favor of judicial partiality.
The fourth factor considers whether the trial judge’s comments or questions were one-
sided. Swilley, 504 Mich. at 388. Because judicial partiality is shown “when an imbalance occurs
with respect to either the frequency of the intervention or the manner of the conduct[,]” the
“inquiry is therefore twofold: in order to determine whether judicial questioning was imbalanced,
a reviewing court must evaluate both the frequency of the questions and the manner in which they
are asked.” Id. (citation and quotation marks omitted).
In addressing this factor, our Supreme Court noted that the trial judge’s “questions were
imbalanced in both frequency and manner.” Id. at 389-390. Indeed, the trial judge engaged Colley
in “a skeptical manner.” Id. In fact, when engaging with all defense witnesses, or “defendant-
friendly prosecution witnesses, the judge’s questioning was frequent, as well as combative, hostile,
and designed to impeach.” Id. Our Supreme Court went on to highlight,
[t]he prosecution’s side of the case, however, was not subjected to equal judicial
treatment. The judge asked a limited number of questions of prosecution-friendly
witnesses, and the questions asked were generally clarifying in nature. Of
particular note is the court’s treatment of Youngblood, a key witness for the
prosecution. Youngblood, like Colley, provided arguably inconsistent testimony,
making representations at trial that conflicted with his earlier statements. But in
contrast to the judicial barrage of questions aimed at Colley, who testified
favorably, . . .the judge did not ask a single question of Youngblood. This
discrepancy highlights the imbalance that occurred in this case. [Id. at 389.]
We agree with our Supreme Court that the trial judge’s questioning was imbalanced in favor of
the prosecution in both in frequency and in manner, which supports a conclusion of judicial
partiality. Id. at 390.
Finally, we must consider whether the trial court’s curative instructions nonetheless
ensured that Thomas received a fair trial. Id. We conclude that they did not. As explained by our
Supreme Court:
On the facts of this case, these instructions cannot cure the judicial bias that
was shown throughout the trial. Although the preliminary instruction indicated that
the judge would limit his inquiry to clarifying questions, the judge did not follow
through on this assurance. As already described, the judge repeatedly challenged
defendant’s favorable witnesses in a manner that was not clarifying but, instead,
combative and prosecutorial. This gave little meaning to the judge’s preliminary
and final instructions that he did not intend to express an opinion.
Even the judge’s instructions during witness testimony could not right the
ship given the extent and inappropriate nature of the questioning. . . . [D]uring
Colley’s testimony . . . the judge stated that he had no interest in the case’s outcome,
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[yet] the judge engaged Colley in an impermissible fashion that suggested that the
judge did indeed have an opinion on several aspects of Colley’s testimony. The
judge’s comment during Colley’s testimony that he was entitled to ask questions
resembled more of a rebuke of defense counsel and a declaration of judicial
authority, rather than a curative instruction. Indeed, such language was eerily
similar to the language we criticized in Stevens, 498 Mich. at 182, wherein the judge
declared, “ ‘[Defense counsel], if I have a question I can ask a question, all right?’
” The judge’s statement during Lee’s testimony also resembled more of a curt retort
than a curative action when the judge declared that he was “entitled to ask
questions” and that he “could care less” about the outcome of the case.
In essence, the judge’s words repeatedly conflicted with his actions.
Therefore, the judge’s instructions did not cure his impermissible conduct. See
Stevens, 498 Mich. at 177-179; In re Parkside, 290 Mich [582,] 599-600[; 287 N.W.
571 (1939).] [Swilley, 504 Mich. at 390-392.]
As we hope the foregoing analysis makes abundantly clear, the trial judge, in questioning
Colley, not only pierced, but tore to shreds the veil of judicial impartiality. This structural error
entitles Thomas to a new trial. Accordingly, we reverse Thomas’ convictions and sentences, and
remand to the trial court for a new trial.
B. DEFENDANT GRANDERSON
Although the foregoing analysis regarding whether the trial judge’s questioning pierced the
veil of judicial impartiality also applies completely to Granderson, the resolution of the issue in
this appeal is not as clear cut. True, defense counsel for Granderson joined in the objection to the
trial court’s questioning of Colley during trial, and therefore this issue is preserved for appellate
review. Swilley, 405 Mich. at 370. However, Granderson raised this issue for the very first time
in our Supreme Court in a motion to file a supplemental brief adding a claim that the trial court’s
questioning of Colley pierced the veil of judicial impartiality. To be clear, despite having ample
opportunity to do so, Granderson never raised this issue in this Court.
This Court has a practice of not deciding issues that have not been raised on appeal. Tingly
v Kortz, 262 Mich. App. 583, 588; 688 NW2d 291 (2004). See also People v Greene, 477 Mich.
1129, 1131 (CORRIGAN, J., concurring in part and dissenting in part) (citing Tingly for the premise
that “[g]enerally, an appellate court does not address issues that were not raised . . . on appeal.”
“However, this Court possess the discretion to review a legal issue not raised by the parties.”
Tingley, 262 Mich. App. at 588, citing Mack v Detroit, 467 Mich. 186, 206-209; 649 NW2d 47
(2002) (stating that “[t]he jurisprudence of Michigan cannot be, and is not, dependent upon
whether individual parties accurately identify and elucidate controlling legal questions”).
In light of our Supreme Court’s directive on remand, as well as the clearly substantive and
dispositive legal issue before us, we choose to exercise that discretion here. Because this issue
was preserved by Granderson in the trial court, and because the structural error in this case is clear,
Granderson, like Thomas, is entitled to a new trial. Accordingly, we reverse Granderson’s
convictions and sentences, and remand to the trial court for a new trial.
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IV. CONCLUSION
We conclude that given the totality of the circumstances, it is reasonably likely that the
trial judge’s questioning of Colley improperly influenced the jury by “creating the appearance of
advocacy or partiality against” Thomas and Granderson. Swilley, 504 Mich. at 392. To be clear,
we conclude,
The nature of the judicial questioning, the judge’s tone and demeanor, the scope of
the intervention in light of the relatively straightforward testimony at issue, and the
imbalanced direction of the intervention all support our conclusion that the judge
pierced the veil of judicial impartiality. Although the judge issued several curative
instructions to the jury, these instructions were not enough to overcome the
partiality the judge exhibited against defendant throughout the trial. [Id. at 392.]
Accordingly, in Docket No. 325313, we reverse defendant Granderson’s convictions and
sentences, and remand this matter to the trial court for a new trial. We do not retain jurisdiction.
Likewise, in Docket No. 325530, we reverse defendant Thomas’ convictions and sentences, and
remand this matter to the trial court for a new trial. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
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