People of Michigan v. Terrance Demon-Jordan Thomas Jr

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

September 13, 2016

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-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 325806

Saginaw Circuit Court

KAREEM AMID SWILLEY, JR., LC No. 14-039758-FJ

Defendant-Appellant.

Before: TALBOT, C.J., and O’CONNELL and OWENS, JJ.

PER CURIAM.

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These consolidated appeals1 arise out of the joint jury trial of four defendants for various

charges stemming from a shooting that occurred on November 21, 2012. In Docket No. 325313,

defendant John Henry Granderson appeals as of right his convictions and sentences of one count

of first-degree premeditated murder, MCL 750.316, one count of conspiracy to commit first-

degree premeditated 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

750.226, and six counts of possession of a firearm during the commission of a felony (felony-

firearm), MCL 750.227b. The trial court sentenced Granderson, as a second-habitual offender,

MCL 769.10, to concurrent terms of life without parole for murder, life with parole for

conspiracy to commit murder, 46 to 69 years’ imprisonment for each AWIM count, and 36 to 90

months’ imprisonment for carrying a dangerous weapon, to be served consecutively to six

concurrent terms of two years’ imprisonment for felony-firearm.

In Docket No. 325530, defendant Terrance Demon-Jordan Thomas, Jr. appeals as of right

his convictions and sentences 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, MCL 750.224f, and seven

counts of felony-firearm. The trial court sentenced Thomas to concurrent terms of life without

parole for conspiracy to commit murder and first-degree murder, 29 to 45 years’ imprisonment

for each AWIM count, and 60 to 90 months’ imprisonment for carrying a dangerous weapon

with unlawful intent and possession of a firearm by a felon, all to be served consecutively to

seven concurrent terms of two years’ imprisonment for each count of felony-firearm.

In Docket No. 325806, defendant Kareem Amid Swilley, Jr. appeals as of right his

convictions and sentences of first-degree premeditated murder, conspiracy to commit murder,

three counts of AWIM, one count of carrying a dangerous weapon with unlawful intent, and six

counts of felony-firearm. The trial court sentenced Swilley to concurrent terms of life without

parole for conspiracy to commit murder, 37 to 75 years’ imprisonment for first-degree murder,

18 to 36 years’ imprisonment for each AWIM count, 38 to 60 months’ imprisonment for carrying

a dangerous weapon with unlawful intent, all to be served consecutively to six concurrent terms

of two years’ imprisonment for felony-firearm.2

I. FACTS

At approximately 2:30 p.m. on November 21, 2012, DaVarion Galvin, Marcus Lively,

Willie Youngblood, and Joshua Colley were walking on the sidewalk adjacent to York Street in

1

People v Granderson, unpublished order of the Court of Appeals, entered January 27, 2016

(Docket No. 325313).

2

A fourth defendant, Derell Martin, was acquitted of all charges by the jury and is not a party to

this appeal. Granderson, Thomas, and Swilley were also found not guilty of receiving or

concealing a stolen firearm, MCL 750.535b.

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Saginaw. A dark-colored Saturn pulled up to the group. Youngblood approached the front

passenger door, and in his words, got “closer than a mug.” Youngblood looked into the vehicle

and saw four men. Thomas was seated closest to Youngblood in the front passenger seat.

Granderson was in the driver’s seat. Swilley was seated behind Thomas, and Martin behind

Granderson. Thomas bit his lip and then said, “yeah.” The men in the vehicle then opened fire.

Youngblood was struck by a bullet that crossed his stomach, but survived. Galvin was struck by

several bullets and died from his wounds. Colley and Lively were not injured.

Many of the issues raised on appeal relate to Youngblood’s identification of the

defendants. In the days that followed the shooting, Youngblood was interviewed by Saginaw

Police Detective Ryan Oberle. Oberle presented Youngblood with photographs of several men,

including those that were in the vehicle, but Youngblood did not identify anyone. However, in

2013, Youngblood was identified as a suspect in an armed robbery and carjacking that occurred

at the Cass River Market. While talking to a Michigan State Police Detective, Randy Kahn,

Youngblood identified the four men responsible for the shooting. Kahn contacted Oberle, who

spoke with Youngblood the following day. Youngblood again identified the four men while

speaking to Kahn. Youngblood, accompanied by an attorney, met with Oberle again and gave

what was referred to at trial as the proffer statement. In this statement, Youngblood again

identified Granderson, Thomas, Swilley, and Martin. Youngblood similarly identified these four

men at the preliminary examination.

A week before trial, Youngblood told the prosecutor that he did not want to testify. He

also asked what the prosecutor could do to protect Youngblood’s family. Youngblood did testify

at trial. But when asked by the prosecutor to identify those responsible, Youngblood testified

that he saw only “dreads and a gun” before turning and running away from the Saturn.

Youngblood, however, acknowledged that he had identified the men responsible on several

occasions. The prosecutor confronted Youngblood with his preliminary examination testimony.

Youngblood agreed that his preliminary examination testimony was truthful.

On cross-examination, Youngblood wavered, claiming his knowledge of who was in the

car came only from what he heard from others. But on redirect by the prosecutor, Youngblood

confirmed that he had identified the men in his conversations with Kahn and Oberle, as well as at

the preliminary examination. He also testified that he could have identified these four before he

spoke to Kahn and could identify them presently, but was unsure if he wanted to do so. The

prosecutor read portions of Youngblood’s statement to Oberle into the record, in which

Youngblood told Oberle that he had seen each of the men responsible. Youngblood agreed that

he did, in fact, make these statements. He testified that from the day of the shooting, “it looked

like them,” referring to Granderson, Thomas, Swilley, and Martin. Youngblood later testified

that his ability to identify the four men responsible was based both on what he heard from others

and on what he saw on November 21, 2012.

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II. DOCKET NO. 3253133

A. SUFFICIENCY OF THE EVIDENCE

Granderson first argues that the evidence was insufficient to support his convictions. We

disagree. A challenge to the sufficiency of the evidence is reviewed de novo on appeal.4 This

Court “reviews the evidence in the light most favorable to the prosecution.”5 This Court “must

determine whether a rational trier of fact could find that the evidence proved the essential

elements of the crime beyond a reasonable doubt.”6

Granderson first contends that there was insufficient evidence to identify him as one of

the four men in the Saturn. Although Youngblood’s testimony on this point was inconsistent, he

did eventually identify Granderson as the driver of the vehicle. His statement to Kahn, during

which he identified Granderson, was admitted as substantive evidence. Further, his preliminary

examination testimony, in which he also identified Granderson as the driver of the vehicle, could

be used as substantive evidence because it was a prior inconsistent statement made under oath.7

In addition, circumstantial evidence supported the jury’s conclusion that Granderson was

involved in the shooting. Granderson was seen in the vehicle used to commit the crime a few

hours before it occurred. His fingerprint was found on the exterior of the car. There was

extensive evidence demonstrating that the shooting was the result of retaliatory gang violence,

providing Granderson with a motive to commit the offense. Viewing the evidence in a light

most favorable to the prosecutor, as this Court must, the evidence was sufficient to identify

Granderson as one of the four men responsible for the shooting.8

Granderson also contends that there was insufficient evidence to demonstrate

premeditation. “A conviction of first-degree premeditated murder requires evidence that the

defendant intentionally killed the victim and that the act of killing was premeditated and

deliberate.”9 “Premeditation and deliberation require sufficient time to allow the defendant to

3

In a supplemental brief, Granderson raises two additional issues that we do not discuss here

because these additional issues are identical to issues raised by other defendants. We note where

Granderson has joined those positions later in this opinion.

4

People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010).

5

Id. at 175.

6

Id.

7

See MRE 801(d)(1) (a prior statement of the witness is not hearsay if “[t]he declarant testifies

at the trial or hearing and is subject to cross-examination concerning the statement, and the

statement is . . . inconsistent with the declarant’s testimony, and was given under oath subject to

the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition . . .”).

8

People v Watson, 245 Mich App 572, 594; 629 NW2d 411 (2001).

9

People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011) (quotation omitted).

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take a second look.”10 Taking the evidence in a light most favorable to the prosecutor, the record

shows that through Ricky Holmes, another member of their gang, Granderson and the other men

obtained a borrowed vehicle. They then drove in the area where they expected to find their

target or targets. When the car encountered Youngblood’s group, Youngblood approached the

car. Thomas stated, “yeah,” and the shooting began. After the attack, Thomas and Swilley

essentially celebrated Galvin’s death through a number of text messages. From this sequence of

events, a rational juror could easily conclude that the men planned the attack well in advance,

and after confirming they had found their target or targets, began firing, intending to kill one or

more of the men they encountered. There was ample evidence from which a rational juror could

find the murder was premeditated and deliberate.11

Granderson also contends that the verdict was against the great weight of the evidence

and resulted in a miscarriage of justice. But he gives no additional explanation for this assertion

other than his claim that the evidence was insufficient to sustain his convictions. For the reasons

explained, Granderson fails to demonstrate that the evidence was insufficient to support his

convictions. His claim that the verdict is against the great weight of the evidence likewise fails.

B. GANG-RELATED PHOTOGRAPHS AND OTHER EVIDENTIARY MATTERS

Granderson next argues that photographs of various individuals, including his

codefendants, making gang signs with their hands were irrelevant and unfairly prejudicial. We

disagree. A trial court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion.12 “An abuse of discretion occurs when the trial court chooses an outcome falling

outside the permissible principled range of outcomes.”13 Where the admission of evidence turns

on a question of law, “e.g., whether a rule of evidence or statute precludes admissibility of the

evidence[,]” this Court reviews that question of law de novo.14 “[I]t is an abuse of discretion to

10

Id. (quotation omitted).

11

Even if he did not fire a weapon, Granderson bears the same criminal responsibility for the

shooting under an aiding and abetting theory. See MCL 767.39 (“Every person concerned in the

commission of an offense, whether he directly commits the act constituting the offense or

procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried

and on conviction shall be punished as if he had directly committed such offense.”). Granderson

contends that if anything, the record demonstrates only that he was merely present. Certainly,

one’s mere presence is insufficient to establish that a defendant aided or abetted in the

commission of a crime. People v Norris, 236 Mich App 411, 419-420; 600 NW2d 658 (1999).

But here, the evidence demonstrated that Granderson was not merely present. Rather, he drove

the group to and from the shooting.

12

People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

13

People v Smith, 482 Mich 292, 327; 754 NW2d 284 (quotation omitted).

14

Lukity, 460 Mich at 488.

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admit evidence that is inadmissible as a matter of law.”15 A trial court’s decision on a close

evidentiary question generally cannot be an abuse of discretion.16

Granderson contends that these photographs were not admissible because the prosecutor

failed to prove that Granderson was a member of the East Side, a.k.a. Right Back Blood Gang.

Generally, all relevant evidence is admissible.17 Relevant evidence is evidence “having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”18 “Proof of

motive in a prosecution for murder, although not essential, is always relevant . . . .”19 Evidence

concerning gang membership is relevant when there is evidence that the crime is gang-related.20

But it is improper to introduce evidence “to show that, on a particular occasion, a gang member

acted in conformity with character traits commonly associated with gang members.”21

Contrary to Granderson’s contention, the prosecutor presented substantial evidence

demonstrating that he was a member of the East Side, a.k.a. Right Back Blood Gang. Several

witnesses testified to this fact. Granderson’s name was listed in Swilley’s cell phone directory

preceded by the initials “RBBG,” or Right Back Blood Gang. A document was also admitted

into evidence which listed Granderson as a member of this gang. Further, the very photographs

that Granderson takes issue with were admitted to show that he was a member of the East Side,

a.k.a. Right Back Blood Gang.

Granderson also claims that there was no evidence demonstrating that the shooting was

gang-related. This claim is equally without merit. The prosecutor introduced evidence

indicating that the shooting was in retaliation for the murder of Tay Darby. This pattern of

retaliatory violence was further reinforced by evidence that on Christmas day, Swilley’s home

was fired upon, apparently prompting Swilley, Thomas, and others to attempt to retaliate. The

trial court did not abuse its discretion by allowing photographic evidence that tended to show

Granderson was a member of the East Side, a.k.a. Right Back Blood Gang.

Granderson suggests that the evidence was unfairly prejudicial. Relevant evidence may

be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.”22 But all relevant evidence is inherently

15

Id.

16

People v Coy, 258 Mich App 1, 13; 669 NW2d 831 (2003).

17

MRE 402.

18

MRE 401.

19

People v Rice, 235 Mich App 429, 440; 597 NW2d 843 (1999).

20

People v Bynum, 496 Mich 610, 625-626; 852 NW2d 570 (2014).

21

Id. at 630. See also MRE 404(a).

22

MRE 403.

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prejudicial, and “unfair prejudice” is not akin to “damaging.”23 In this case, there was substantial

evidence indicating that the shooting was part of a pattern of retaliatory gang violence. Given

the evidence regarding Granderson’s gang membership, this evidence was likely very damaging

to his case. But Granderson has not shown any reason to believe that the evidence was unfairly

prejudicial. And in any case, the trial court instructed the jury during trial that Granderson and

his codefendants were not being charged with being in a gang; rather, the evidence was being

offered to show motive. “Jurors are presumed to follow their instructions . . . .”24 Given the

highly probative value of the evidence, and the instructions provided to the jury, in no sense was

the probative value of the evidence substantially outweighed by the risk of unfair prejudice.

Granderson further contends that the trial court erred by allowing several witnesses to

testify as fact and expert witnesses. He also claims he was entitled to a jury instruction regarding

the dual role of these witnesses. However, there is no prohibition against an expert witness

providing both fact testimony and expert opinion testimony.25 And because the trial court gave a

proper instruction with regard to expert opinion testimony, there was no need for any further

instruction.26

C. PRIOR CONSISTENT STATEMENT

Granderson next argues that the trial court erred by allowing the prosecutor to introduce

the video recording of Youngblood’s statement to Kahn as a prior consistent statement. We

disagree.

“The admission of a prior consistent statement through a third party is appropriate if the

requirements of MRE 801(d)(1)(B) are satisfied.”27 Four elements must be established to admit

the prior consistent statement:

(1) the declarant must testify at trial and be subject to cross-examination; (2) there

must be an express or implied charge of recent fabrication or improper influence

or motive of the declarant’s testimony; (3) the proponent must offer a prior

consistent statement that is consistent with the declarant’s challenged in-court

testimony; and, (4) the prior consistent statement must be made prior to the time

that the supposed motive to falsify arose.[28]

23

People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod on unrelated grounds 450

Mich 1212 (1995).

24

People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).

25

See, e.g., United States v Lopez-Medina, 461 F3d 724, 743 (CA 6, 2006) (police officer could

testify as both a fact and expert witness).

26

Lopez-Medina, 461 F3d at 743.

27

People v Jones, 240 Mich App 704, 706; 613 NW2d 411 (2000).

28

Id. at 707 (quotation marks and citations omitted).

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Granderson briefly argues that Youngblood’s statement to police was not consistent with

prior testimony, and thus, the third element is not satisfied. Youngblood’s testimony at trial was

itself inconsistent, but he did eventually identify the four men responsible for the shooting. His

statement to Kahn was consistent with these portions of his trial testimony.

The main focus of Granderson’s argument is whether, at the time of Youngblood’s

statement to Kahn, he had a motive to falsify. According to Granderson, at the time Youngblood

spoke with Kahn, Youngblood was offering any information he could in order to escape or

mitigate his potential criminal liability for the Cass River Market incident. Granderson argues

that because this motive existed, Youngblood’s statement was not admissible as a prior

consistent statement. Granderson is incorrect.

As this Court has explained, a prior consistent statement does not become inadmissible

because any motive to falsify existed at the time it was made. Rather, the question is whether the

prior statement was made before or after the specific motive alleged to have influenced the

testimony arose.29 Here, counsel for the defendants implied several motives to falsify. In

opening statements and in questions posed to Youngblood, counsel implied that Youngblood

named the individuals because he had been charged with crimes arising from the Cass River

Market incident. They also implied that Youngblood’s attorney directed Youngblood how he

should testify when Youngblood gave the proffer statement. They further suggested that his

testimony was improperly influenced by a deal he received from the prosecutor, in that if he did

not testify as the prosecutor wished, he would lose the deal.30

All of these motives arose only after Youngblood spoke to Kahn. At the time

Youngblood spoke to Kahn, he had not been charged. The proffer statement likewise occurred

after Youngblood spoke with Kahn. The deal struck with the prosecutor came about after the

proffer statement. The motive Granderson points to on appeal may have existed prior to the

statement to Kahn. But it is not enough that there be any possible motive to falsify prior to or at

the time of the statement.31 Given that there were several charges of improper influences and

motives to falsify, many of which arose only after Youngblood spoke with Kahn, the trial court

did not abuse its discretion in allowing the prosecutor to present the video recording of the

interview as a prior consistent statement.

D. CHRISTMAS DAY SHOOTING

Granderson next contends that evidence concerning events that occurred on December

25, 2012, was not relevant because he was not involved in those events. We disagree.

29

See Jones, 240 Mich App at 711 (holding that any motive is insufficient; rather, “the motive in

the second element must be the same motive in the fourth element of the four-pronged test to

admit a prior consistent statement under MRE 801(d)(1)(b)”).

30

Youngblood had not been sentenced at the time he testified in this matter.

31

Jones, 240 Mich App at 711.

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At about 10:30 p.m. on December 25, 2012, several shots were fired into Swilley’s home.

Approximately an hour later, an individual called police, reporting that she saw several men

walking near her home, armed with long guns. Police responded and spotted four or five men.

The men ran from one officer. However, three of these men, two of whom were Swilley and

Thomas, were stopped by another officer. A fourth suspect escaped, but was seen throwing a

9mm Glock pistol as he ran. Under the porch of an abandoned home located across the street

from where the Glock was found, officers recovered two assault rifles. Ballistics evidence linked

the 9mm Glock to the November 21, 2012 shooting, and DNA recovered from the gun matched

Thomas’s DNA.

Regardless of whether Granderson was involved in the events that occurred on December

25, 2012,32 the events that occurred on this date were relevant in two respects. First, it explained

how officers recovered the Glock pistol, which helped link Thomas to the shooting at issue in

this matter. Second, it further demonstrated that the November 21, 2012 shooting was part of an

overall pattern of retaliatory gang violence between rival gangs. This supported the prosecutor’s

theory of motive. Again, motive is always a relevant consideration in a murder trial.33 The trial

court did not abuse its discretion by admitting evidence of the events that occurred on December

25, 2012.

E. LIVELY’S STATEMENT

Granderson’s next claim of error arises from a statement Lively made to officer Bradley

Holp. Holp responded within minutes of the shooting and attended to Galvin. While he did so,

Lively told Holp that the suspects were in a blue or black Saturn. Granderson contends that

because Lively did not testify at trial, admission of this statement violated his Sixth Amendment

right to confront the witnesses against him. We disagree. While Granderson challenged

admission of this statement on hearsay grounds, he did not raise a constitutional challenge in the

trial court. Accordingly, we review the issue for plain error affecting substantial rights.34 To be

entitled to relief, Granderson must demonstrate that an error occurred, that the error was plain,

and that the error affected the outcome of the trial.35

The introduction of testimonial, out-of-court statements violates the confrontation clause

of the Sixth Amendment, unless the declarant appears at trial or the defendant had a prior

opportunity to cross-examine the declarant.36 However, Lively’s remark was not testimonial.

32

There was evidence indicating that Granderson was the unknown suspect who fled from police

on December 25, 2012. Cell phone records indicated that immediately after his home was fired

upon, Swilley contacted Thomas and Granderson. Given that Swilley was later found with

Thomas, one could easily infer that Granderson was the man who escaped.

33

Rice, 235 Mich App at 440.

34

People v Henry (After Remand), 305 Mich App 127, 152-153; 854 NW2d 114 (2014).

35

People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

36

People v Nunley, 491 Mich 686, 698; 8231 NW2d 642 (2012).

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“Statements are testimonial if the ‘primary purpose’ of the statements or the questioning that

elicits them ‘is to establish or prove past events potentially relevant to later criminal

prosecution.’ ”37 As the United States Supreme Court has explained:

Statements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.[38]

Lively’s remark was entirely unsolicited. It also appears that it was made in an effort to

assist Holp in responding to an ongoing emergency. The still-armed suspects were likely in the

immediate area, and Lively’s description would have helped police find the men, who may have

been a threat to others. Under the circumstances, Lively’s remark cannot be considered

testimonial, and the confrontation clause is not implicated.39

F. INSTRUCTIONAL ERROR

Granderson argues that the trial court erred by refusing to give several instructions he

requested. We disagree. “Claims of instructional error are generally reviewed de novo by this

Court, but the trial court’s determination that a jury instruction is applicable to the facts of the

case is reviewed for an abuse of discretion.”40 Even if an instructional error occurred, “[m]ere

error alone in instructing the jury is insufficient to set aside a criminal conviction. Instead, a

defendant must establish that the erroneous instruction resulted in a miscarriage of justice.”41

Granderson’s fingerprint was recovered from the exterior of the Saturn. Granderson

contests the trial court’s refusal to provide Mich Crim JI 4.15, which instructs a jury with respect

to fingerprint evidence:

The prosecutor has introduced evidence about fingerprints. You may

consider this evidence when you decide whether the prosecutor has proved

beyond a reasonable doubt that the defendant was the person who committed the

37

People v Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009), quoting Davis v Washington,

547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006).

38

Davis, 547 US at 822.

39

In any event, the remark caused no prejudice to Granderson. There was no genuine dispute

regarding the identity of the vehicle used in the shooting, and thus, Lively’s statement was of

little additional relevance at trial.

40

People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).

41

People v Schaefer, 473 Mich 418, 441-442; 703 NW2d 774 (2005), overruled in part on other

grounds People v Derror, 475 Mich 316 (2006) (quotation marks and citation omitted).

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alleged crime. However, fingerprints matching the defendant’s must have been

found in the place the crime was committed under such circumstances that they

could only have been put there when the crime was committed.

The reason for this instruction is to comport with the general rule that where fingerprint

evidence is the sole evidence of identity, it is sufficient to establish identity only if the

fingerprints are found at the scene of the crime and could only have been made at the time of the

commission of the crime.42 Thus, the use note accompanying the instruction directs the trial

court that this instruction “should be given only where the sole evidence of identity comes from

fingerprints.” Here, Granderson’s fingerprint was only one small part of the substantial evidence

identifying him as the driver of the Saturn. Accordingly, the instruction was not warranted.

Granderson’s next claim of error arises out of a requested modification of the instruction

on mere presence, Mich Crim JI 8.5. This instruction is found in the chapter of the model

instructions regarding aiding and abetting a crime. In its standard form, this instruction provides:

“Even if the defendant knew that the alleged crime was planned or was being committed, the

mere fact that [he / she] was present when it was committed is not enough to prove that [he / she]

assisted in committing it.”43 In other words, the instruction explains to the jury that one is not

guilty under an aiding and abetting theory simply because they are present during the

commission of the crime. Granderson requested that the instruction be modified to include an

instruction that mere association with criminals is likewise insufficient, but the trial court

declined to give the instruction. Instead, it provided the model instruction.

“[I]nstructions do not create error if they fairly presented the issues for trial and

sufficiently protected the defendant’s rights.”44 The import of Granderson’s requested alteration

was that it would be improper to convict him under an aiding and abetting theory simply because

he associated with the other men. On appeal, Granderson argues that the instruction was

warranted by our Supreme Court’s holdings in People v Sobczak45and People v Blakes,46 both of

which stand for the premise that one’s mere association with criminals is insufficient to support a

conspiracy conviction.47 Granderson’s requested modification to Mich Crim JI 8.5 conflated an

aiding and abetting theory of criminal liability with the charge of conspiracy that he faced. The

issue the trial court was addressing when it provided Mich Crim JI 8.5 was the aiding and

abetting theory that was placed before the jury. The trial court’s instructions properly instructed

the jury on this theory, and accordingly, reversal is not warranted.

42

People v Himmelein, 177 Mich App 365, 374-375; 442 NW2d 667 (1989); People v Ware, 12

Mich App 512, 515; 163 NW2d 250 (1968).

43

Mich Crim JI 8.5.

44

People v Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997).

45

People v Sobczak, 344 Mich 465; 73 NW2d 921 (1955).

46

People v Blakes, 382 Mich 570; 170 NW2d 832 (1969).

47

Sobczak, 344 Mich at 469; Blakes, 382 Mich at 571-576.

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Granderson also challenges the trial court’s refusal to give an instruction on voluntary

manslaughter. A trial court must instruct the jury regarding cognate lesser offenses of the same

class or category, so long as the evidence adduced at trial would support a conviction of the

lesser offense.48 “[V]oluntary manslaughter is a cognate lesser included offense of murder.”49

However, the evidence adduced at trial would not support a voluntary manslaughter conviction.

Unlike murder, voluntary manslaughter occurs when one kills in a “heat of passion,” “caused by

adequate provocation.”50 “There cannot be a lapse of time during which a reasonable person

could control his passions.”51 There was no evidence that would support a theory that the

shooting was conducted in a heat of passion that resulted from adequate provocation.

Accordingly, a voluntary manslaughter instruction was not warranted.

G. PROSECUTORIAL ERROR

Granderson raises several alleged instances of prosecutorial error. We find no error

warranting relief. Generally, this Court reviews claims of prosecutorial error “case by case,

examining the remarks in context, to determine whether the defendant received a fair and

impartial trial.”52 Unpreserved claims of prosecutorial error are reviewed for plain error

affecting substantial rights.53 And if the prejudicial effect of a prosecutor’s comments could

have been cured by a timely instruction, no error requiring reversal may be found.54

Granderson’s first assertion of error, the only instance of alleged error he raised in the

trial court, is that the prosecutor misrepresented the evidence by arguing that Youngblood was

shown only one lineup. Granderson’s counsel believed that Youngblood had been shown two

lineups, and objected to the prosecutor’s statement for that reason. The trial court addressed the

objection by stating that “the jury will recall the facts.” It is true that a prosecutor should not, in

closing arguments, “mischaracterize the evidence presented . . . .”55 This is because doing so

may mislead the jurors into believing facts that are not true.56 No such risk arose here. The trial

court’s statement that the jurors would “recall the facts” clearly informed the jurors that it was

their responsibility to make this factual determination. Thus, even assuming the prosecutor was

incorrect, any risk that Granderson would not receive a fair trial was alleviated.

48

People v Hendricks, 446 Mich 435, 444; 521 NW2d 546 (1994).

49

People v Pouncey, 437 Mich 382, 388; 471 NW2d 346 (1991).

50

Id.

51

Id.

52

People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).

53

Id.

54

Id.

55

Id. at 588.

56

See Washington v Hofbauer, 228 F3d 689, 700 (CA6, 2000).

-12-

Granderson’s second contention is that the prosecutor improperly argued facts not in

evidence by suggesting that Granderson may have been involved in the December 25, 2012

incident. A prosecutor may not argue facts that are not in evidence, but is permitted to “argue

reasonable inferences from the evidence.”57 As the prosecutor pointed out to the jury, cell phone

records indicated that Swilley called Granderson shortly after someone shot at Swilley’s home

and spoke with him for nearly a minute. From this evidence, it was a reasonable inference to

conclude that Granderson was the man that escaped from police later that evening. Accordingly,

the prosecutor’s argument was proper.

Third, Granderson contends that the prosecutor “unfairly elicited” from Colley the fact

that the defense wanted Colley to testify and that he was housed in jail with the defendants.

Granderson claims that the prosecutor’s questions that elicited these facts were arguments not

based in evidence. Granderson’s position is entirely illogical because the prosecutor was not

making an argument when he made these statements. Rather, he was asking questions of Colley,

thereby introducing these very facts into evidence. The prosecutor was entitled to impeach

Colley’s testimony by implying that it was influenced by the four defendants. The prosecutor’s

questions were proper.

Granderson’s final argument pertains to the prosecutor’s comments regarding Holmes.

Outside of the presence of the jury, and under questioning from his own attorney, Holmes

testified that he would exercise his right to remain silent under the Fifth Amendment if called to

testify. Thus, Holmes was not called as a witness. In closing arguments, Swilley’s counsel

discussed Holmes in relation to the case. Counsel stated, “It’s got to – you got to wonder where

is Ricky Holmes. Why wasn’t he charged?” In rebuttal, the prosecutor stated:

Let me go through – Ricky Holmes’[s] name was brought up primarily by

Mr. Swilley through [c]ounsel, and there was a question thrown out suggesting

that somehow the People had to produce Ricky Holmes in this trial. Where is

Ricky Holmes? And it’s – I mean each defendant and their counsel know that

Ricky Holmes is represented by [c]ounsel. He can’t be called here, that it was an

impossibility for that to have occurred.

Granderson first claims that it was unclear that attorneys for the defense knew Holmes

was represented by counsel and could not be called to testify, and thus, the prosecutor

misrepresented facts. By the time of closing arguments, that Holmes was represented and would

not testify was made abundantly clear to all except the jury. The prosecutor’s statement was

accurate.

Granderson also claims that it was improper for the prosecutor to mention that Holmes

would not testify because this implied that Holmes would incriminate himself. Granderson

correctly notes that “[a] lawyer may not . . . call a witness knowing that he will claim a valid

privilege not to testify.”58 This is because there is a risk that the jury will treat the invocation of

57

Watson, 245 Mich App at 588.

58

People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977).

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the privilege as a confession of guilt, one that cannot be disputed through cross-examination.59

Granderson contends that the prosecutor’s comment had essentially the same effect, in that it

encouraged the jury to conclude that Holmes, and by extension, Granderson, was guilty.

Granderson’s argument fails for several reasons. First, the prosecutor never informed the

jury that Holmes invoked the right against self-incrimination. Rather, the prosecutor only stated

that it was impossible for Holmes to appear without explaining why this was the case.

Accordingly, Granderson’s comparison to circumstances where a witness actually is called and

raises the privilege is inapt. Second, the prosecutor was responding to the suggestion that the

jury question why Holmes did not appear. “[A]n otherwise improper remark may not rise to an

error requiring reversal when the prosecutor is responding to the defense counsel’s argument.”60

And in any event, this argument was not raised in the trial court. Had Granderson raised such an

objection, the trial court could have instructed the jury not to infer that Holmes was guilty of a

crime because he did not testify. Such an instruction would have cured any possible prejudice to

Granderson. Accordingly, Granderson is not entitled to relief.61

III. DOCKET NO. 325530

A. PRIOR CONSISTENT STATEMENT

In his brief on appeal, Thomas first contends that the trial court erred by admitting

Youngblood’s statement to Kahn as a prior consistent statement because the statement was made

after Youngblood had a motive to fabricate. For the same reasons explained in section II(C) of

this opinion, we find no error.

Thomas also contends that Youngblood’s first statement to Oberle was made when there

was a motive to fabricate, and thus, the admission of portions of this statement was an abuse of

discretion. Minimally, this statement was made prior to the proffer statement, during which it

was implied Youngblood was coached by counsel to identify the men at trial, and before

Youngblood was offered and accepted a sentence agreement with regard to his own criminal

charges, which was also argued to have improperly influenced Youngblood’s testimony.

Accordingly, Youngblood’s statements to Oberle were properly admitted by the trial court.

B. EVIDENTIARY ERROR - RELEVANCE

Thomas contends that the trial court admitted several pieces of irrelevant evidence. We

disagree.

59

Id.

60

People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1997). While it appeared that

defense counsel was alluding more toward the question of why Holmes was not charged, the

question, “where is Ricky Holmes[,]” could also have been interpreted by the jury as asking why

he was not called to testify.

61

Watson, 245 Mich App at 586.

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Thomas first contends that the trial court should not have admitted evidence that two

assault rifles were found near where the Glock pistol was recovered on December 25, 2012.

Thomas contends that this evidence was admitted only to inflame the jury, violating MRE 401,

402, 403, and 404(b).

Under MRE 401, relevant evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Under MRE 402, relevant evidence is

admissible unless otherwise prohibited by law. Under MRE 403, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” MRE 404(a) provides that evidence of a

person’s character “is not admissible for the purpose of proving action in conformity therewith

on a particular occasion,” subject to a variety of exceptions not relevant to this appeal. MRE

404(b)(1) similarly prohibits evidence of “other crimes, wrongs, or acts . . . to prove the

character of a person in order to show action in conformity therewith.” But the rule notes that

such evidence “is admissible for other purposes, such as proof of motive . . . [or] knowledge . . .

or absence of mistake or accident when the same is material . . . whether such other crimes,

wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the

case.”62

The threshold question is whether evidence of the existence of these firearms was

relevant. Text messages indicated that the 9mm Glock pistol used in the November 21, 2012

shooting was in Thomas’s possession. It was undisputed that the Glock pistol was stolen. That

Thomas was part of a group that appeared to be in possession of multiple stolen firearms,

including the Glock, on December 25, 2012, was circumstantial evidence that Thomas had actual

knowledge that the Glock itself was stolen, and thus, relevant to the charge of possession of a

stolen firearm that Thomas faced at trial.63 Further, the fact that Thomas and others appeared to

be out seeking to retaliate with assault rifles immediately after Swilley’s home was fired upon

was relevant to the prosecutor’s theory of motive. The prosecutor’s theory was that the

November 21, 2012 shooting was part of a pattern of retaliatory gang violence, and the fact that

Thomas and others seemed to be seeking to retaliate was relevant to this theory. The existence

62

MRE 404(b)(1).

63

MCL 750.535b requires a showing that the person charged with a violation had knowledge

that the firearm was stolen. In the trial court, the prosecutor noted that in People v Granderson,

unpublished opinion per curiam of the Court of Appeals, issued August 25, 2011 (Docket No.

297838), unpub op at 5, this Court held that proof of actual knowledge that a firearm was stolen

was required to sustain a conviction under MCL 750.535b. The parties treated Granderson as

binding, and the trial court instructed the jury that actual knowledge was required.

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of the assault rifles helped to demonstrate what motive the men had in traveling to the area where

they were found. Thus, MRE 401 and 402 were satisfied.64

Thomas contends that the admission of this evidence violated MRE 403 because it “was

only introduced to suggest to the jury that [Thomas] was a bad person.” He similarly contends

that this evidence violated MRE 404(b) because it was not admitted for a proper purpose under

that rule. The prosecution offered the evidence for different reasons, i.e., knowledge and motive

– both proper purposes under MRE 404(b)(1). Further, the trial court provided a specific

instruction cautioning the jury to be “very careful to consider” evidence of other crimes or

improper acts “for certain purposes.” The court instructed the jury that it could not use the

evidence to conclude that “the defendant is a bad person or that he is likely to commit crimes.”

Jurors are presumed to follow their instructions.65 Given the relevance of the evidence and the

trial court’s instructions, we cannot conclude that the trial court abused its discretion when it

admitted evidence of the assault rifles found on December 25, 2012.

Thomas next contends that the fact that Teresa Jurdem loaned her Saturn to Holmes was

irrelevant. This fact was clearly relevant, as it helped establish how defendants acquired the

vehicle, which was then used in the shooting. There was evidence that Holmes was a member of

the same gang as defendants. Thus, the jury could infer that Holmes acquired the vehicle for use

in the crime, a fact that tended to show that the crime was a planned act.66

Like Granderson, Thomas contends that photographs of him and others making gang

signs were irrelevant. As was the case with Granderson, these photographs were admitted to

show Thomas’s membership in a particular gang, which was relevant to the issue of motive. The

trial court did not abuse its discretion when it admitted the photographs.

C. SENTENCING ERROR

Thomas contends that the trial court erred by sentencing him to life without the

possibility of parole for conspiracy to commit murder. The prosecutor concedes error in this

regard. And indeed, our Supreme Court has held that one sentenced for conspiracy to commit

64

Thomas relies heavily on this Court’s opinion in People v Drake, 142 Mich App 357; 370

NW2d 355 (1985). In Drake, this Court reversed a murder conviction, concluding that evidence

that the murder weapon was stolen, and that two other weapons, one unregistered and one stolen,

were found in the defendant’s possession was irrelevant, unfairly prejudicial, and admitted only

to show bad character. Id. at 359-360. Drake is distinguishable, both in that the defendant in

Drake was not charged with possession of a stolen firearm, and because there was no suggestion

that the shooting was motivated by retaliation or gang activity. Id. at 358-362.

65

People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).

66

Thomas also contends that the fact that he had himself borrowed the same vehicle on earlier

occasions was irrelevant. This evidence tended to show that Thomas was likely involved in the

decision to borrow a car from Jurdem to use later that day.

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murder must be sentenced to life with the possibility of parole.67 Accordingly, we remand the

matter for correction of Thomas’s sentence for conspiracy.68

D. PERJURED TESTIMONY69

Thomas contends that Youngblood committed perjury when he identified Thomas and

the other men at trial, and that a new trial is required because, although perhaps innocently, the

prosecutor presented this false testimony. We disagree.

It is a violation of due process for the prosecutor to knowingly use false testimony to

obtain a conviction or to allow testimony that the prosecutor knows is false to stand

uncorrected.70 However, there is no evidence that the prosecutor knowingly presented false

testimony or allowed testimony he knew to be false to go uncorrected. It appears that the

prosecutor expected Youngblood, consistent with his most recent statements to police and his

preliminary examination testimony, to identify the defendants at trial. When Youngblood

hesitated, the prosecutor confronted him with his prior statements, and Youngblood agreed that

he had identified Thomas on many prior occasions. The jury was left to decide whether

Youngblood’s identification of Thomas was credible. The record does not support the

contention that the prosecutor knowingly presented false testimony or left false testimony

uncorrected.

E. GREAT WEIGHT OF THE EVIDENCE

Thomas contends that Youngblood was not credible, and that because he was not

credible, the verdict was against the great weight of the evidence. We disagree. “It is the

province of the jury to determine questions of fact and assess the credibility of witnesses.”71

Thus, as a general matter, questions regarding the credibility of a witness are not sufficient

grounds for granting a new trial.72 This Court must defer to the jury’s credibility determinations

“unless it can be said that directly contradictory testimony was so far impeached that it was

deprived of all probative value or that the jury could not believe it, or contradicted indisputable

67

People v Jahner (After Remand), 433 Mich 490, 504; 446 NW2d 151 (1989). As is discussed

later in this opinion, we have doubts regarding whether the holding of Jahner remains good law

in light of recent amendments to MCL 750.316. However, we leave it to our Supreme Court to

decide whether to overrule Jahner.

68

Resentencing, however, is not required, as this is an administrative task. People v Herndon,

246 Mich App 371, 393; 633 NW2d 376 (2001).

69

This and Thomas’s remaining issues have been raised in a brief filed pursuant to

Administrative Order 2004-6, Standard 4.

70

Herndon, 246 Mich App at 417.

71

People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998).

72

Id. at 643.

-17-

physical facts or defied physical realities . . . .”73 It was for the jury to decide whether

Youngblood’s identification of Thomas was credible. Thomas fails to show that Youngblood’s

testimony was deprived of all probative value, entirely unbelievable, or defied physical realities.

He thus fails to demonstrate error requiring reversal.

F. INEFFECTIVE ASSISTANCE OF COUNSEL

Thomas contends that trial counsel was ineffective for failing to seek separate trials. We

disagree. A claim of ineffective assistance of counsel “is a mixed question of fact and

constitutional law. A judge first must find the facts, and then must decide whether those facts

constitute a violation of the defendant’s constitutional right to effective assistance of counsel.”74

A trial court’s factual findings are reviewed for clear error, while the ultimate constitutional issue

is reviewed de novo.75 However, because Thomas failed to preserve his claim of ineffective

assistance of counsel, our review is limited to the existing record.76

Criminal defendants do not have the right to separate trials.77 “A strong public policy

favors joint trials in the interest of justice, judicial economy, and administration.”78 Severance is

only mandated upon a showing that a defendant’s substantial rights will be prejudiced, and that

severance is necessary to avoid such prejudice.79 Thomas contends that counsel should have

sought separate trials because this allowed evidence that was irrelevant to the question of his

guilt or innocence to be admitted in his trial, causing the jurors to become confused. However,

he fails to identify what evidence would not have been admitted at his trial, had it been

conducted separately from that of his codefendants. In any event, incidental spillover prejudice,

which is essentially inevitable in a joint trial, is insufficient to mandate severance.80

Thomas also suggests that severance was appropriate because his codefendants suggested

that Thomas was one of the men in the Saturn. While mutually exclusive or irreconcilable

defenses between codefendants warrants severance, mere finger-pointing does not.81 Thomas

has not shown the existence of mutually exclusive defenses. As he fails to demonstrate that a

73

Id. at 645-646 (quotation marks and citation omitted).

74

People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

75

Id.

76

People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001).

77

People v Harris, 201 Mich App 147, 152; 505 NW2d 889 (1993).

78

Id.

79

MCR 6.121(C).

80

People v Hana, 447 Mich 325, 349; 524 NW2d 682 (1994).

81

Id. at 349-350.

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motion for severance would have been successful, he cannot demonstrate that counsel was

ineffective for failing to seek severance.82

G. JUDICIAL BIAS

Thomas contends that he was denied a fair trial because the trial court’s questioning of

Colley and detective John Beyerlein deprived him of a fair trial. We disagree. With regard to

the trial court’s questioning of Colley, because the issue was preserved, “[t]he question whether

judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court

reviews de novo.”83 “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. Rather, the judgment must be reversed and the case remanded for a new trial.”84

Further, this Court should not evaluate Thomas’s claims of error standing alone, “but rather

consider the cumulative effect of the errors.”85

In People v Stevens, our Supreme Court clarified the scope of an appellate court’s inquiry

when deciding whether alleged judicial bias warrants a new trial. Ultimately, the issue is

determined by considering “the totality of the circumstances, to determine whether the judge

demonstrated the appearance of advocacy or partiality on the whole.”86 A variety of factors

should be considered, 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.”87 A reviewing court is not limited

to these factors, and may also “consider additional factors if they are relevant to the

determination of partiality in a particular case.”88

Where, as here, the claim of bias pertains to judicial questioning of witnesses, this

Court’s analysis must begin with the recognition that as a general matter, a trial court is

permitted to question witnesses.89 “[T]he central object of judicial questioning should be to

82

See People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003) (“Ineffective assistance of

counsel cannot be predicated on the failure to make a frivolous or meritless motion.”).

83

People v Stevens, 498 Mich 162, 168; 869 NW2d 233 (2015).

84

Id. at 164.

85

Id. at 171-172. Because Thomas failed to preserve his challenge with respect to the Court’s

questioning of Beyerlein, that portion of the issue is reviewed for plain error affecting substantial

rights. Carines, 460 Mich at 763-764, 774.

86

Stevens, 498 Mich at 172.

87

Id.

88

Id.

89

Stevens, 498 Mich at 173. See also MRE 614(b).

-19-

clarify.”90 Thus, “it is appropriate for a judge to question witnesses to produce fuller and more

exact testimony or elicit additional relevant information.”91 The trial court’s ability to question

witnesses is not without its limits, however. The court must be careful not to exhibit disbelief of

a particular witness, even if unintentional.92 The court must also refrain from allowing its

personal views on disputed factual issues to become apparent to the jury.93

Second, this Court must consider the tone of the questioning, a task that can be difficult

given that this Court does “not have the benefit of viewing a trial judge’s tone and demeanor first

hand.”94 The Court should examine the “nature of the words used by the judge” to see if the

record indicates the existence of “hostility, bias, or incredulity.”95 But in this regard, it is worth

noting that “[j]udicial questioning might be more necessary when a judge is confronted with a

difficult witness who refuses to answer questions posed by attorneys or repeatedly responds to

those questions with unclear answers . . . .”96

Third, this Court must “consider the scope of judicial intervention within the context of

the length and complexity of the trial, or any given issue therein.”97 Judicial intervention is more

appropriate in a long or complex trial.98 “Fourth, and in conjunction with the third factor, a

reviewing court should consider the extent to which a judge’s comments or questions were

directed at one side more than the other.”99

Finally, “the presence or absence of a curative instruction is a factor . . . .”100 Jurors are

presumed to follow their instructions, and “a curative instruction will often ensure a fair trial

despite minor or brief inappropriate conduct. Depending on the circumstances, an immediate

curative instruction may further alleviate any appearance of advocacy or partiality by the

90

Stevens, 498 Mich at 173.

91

Id.

92

Id. at 174.

93

Id.

94

Id. at 174-176.

95

Id. at 176.

96

Id. at 175-176.

97

Id. at 176.

98

Id.

99

Id. at 176-177.

100

Id. at 177.

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judge.”101 But there are cases where judicial conduct is so egregious that a curative instruction

cannot “erase the appearance of partiality.”102

Beginning with the first factor, it is clear that Colley was much more willing to answer

questions posed by defense attorneys than by the prosecutor. It appears that the trial court

wished to clarify certain parts of Colley’s testimony, mainly in areas where he evaded the

prosecutor’s questions by denying knowledge. We do not believe that the trial court intended to

express an opinion on Colley’s veracity. However, certain questions posed by the trial court may

well have suggested to the jury that the trial court did not believe Colley was forthcoming with

the prosecutor.103 Even if unintentional, the trial court should not have given the jury the

impression that it did not believe Colley. With regard to Beyerlein, the trial court clearly

intended only to clarify the timeline of the events that occurred on December 25, 2012. Nothing

in the trial court’s questioning gave even the slightest hint of bias or partiality.

The second factor, the tone and demeanor of the judge, is difficult to discern from the

record. This Court cannot evaluate the tone of voice used by the judge below. However, it is

worth noting that no objection was raised to the trial court’s tone.104 The record does

demonstrate that the trial court pressed Colley on a particular point – whether he had explained

to officers that he had no personal knowledge of the information he was providing.105 But this

appears to be due to the fact that Colley gave evasive answers to the trial court’s questions on the

subject before finally acknowledging that he had not so informed the officers. It is true that a

trial court “should avoid questions that are intimidating, argumentative, or skeptical.”106 But as

our Supreme Court has explained, “[j]udicial questioning might be more necessary when a judge

is confronted with a difficult witness who refuses to answer questions posed by attorneys or

repeatedly responds to those questions with unclear answers . . . .”107 Colley was precisely such

a witness, and as such, the manner of the questioning by the trial court was proper. With regard

to Beyerlein, nothing in the record implies that the trial court’s tone was improper. The trial

101

Id.

102

Id. at 177-178.

103

For example, the trial court’s questions regarding whether Colley informed police that he was

only relaying information he heard from others would tend to cast doubt on the explanation

Colley had given to the prosecutor. The pursuit of this line of questioning may have lead jurors

to believe that the trial court found suspicious Colley’s attempt to explain the discrepancies

between his trial testimony and his statement to police.

104

See Stevens, 498 Mich at 176 (“[A]n objection by trial counsel may specifically note the

inappropriateness of the judge’s demeanor in the courtroom, further aiding the appellate court in

understanding the tenor of judicial involvement.”).

105

The record demonstrates that the trial court posed this question to Colley, and then interrupted

Colley before he could state his answer, asking, “[t]hat wasn’t your answer, was it?”

106

Stevens, 498 Mich at 175.

107

Id. at 175-176.

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court answered straightforward questions, which Beyerlein answered in a direct manner. No

objections were raised to the trial court’s tone.

Turning to the third and fourth factors, trial in this matter spanned 18 days, involved four

defendants, and a large amount of evidence and testimony. This included eyewitness testimony,

expert witnesses, DNA evidence, scientific analysis of bullet casings and weapons, and evidence

of other events that bore relevance to this matter. Thus, it was precisely the type of trial, i.e., a

long and complex one, in which judicial questioning is more appropriate.108 Nor was it any

surprise that the trial court questioned Colley or Beyerlein, as it had done the same with the

majority of those who preceded these men as witnesses, all of whom were called by the

prosecution. The trial court’s questioning of these witnesses was consistent with what was an

established pattern by the trial court. No juror would have found it unusual that the trial court

questioned Colley or Beyerlein.

Most importantly, the trial court repeatedly instructed the jury not to consider its

questions as providing any sort of indication of the court’s opinion of the evidence. In its

preliminary instructions to the jury, given before any testimony was heard, the trial court

instructed the jury, “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.” When the suggestion that the trial

court’s questioning of Colley was improper was raised, the trial court immediately responded by

reminding the jury that it had no stake in the matter and was not interested in the outcome. It

gave a similar instruction before asking any questions of Beyerlein, despite the absence of an

objection. And in its final instructions, the trial court further explained that it did not intend to

exhibit any opinion on the matter, and that if the jurors believed the court had expressed such an

opinion, it must be disregarded.

In sum, it is possible that the trial court may have unintentionally exhibited some

disbelief of Colley’s testimony. However, and with regard to both witnesses, none of the

remaining factors lend support for the conclusion that Thomas was deprived of a fair trial.

Particularly given the trial court’s multiple curative instructions, which the jury is presumed to

have followed,109 considering the totality of the circumstances, Thomas was not denied a fair

trial.

IV. DOCKET NO. 325806

A. SUFFICIENCY OF THE EVIDENCE

In his brief on appeal, Swilley first contends that because Youngblood was not credible,

the evidence against him was insufficient to support his convictions. It is the province of the jury

108

Id. at 176.

109

Stevens, 498 Mich at 177.

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to determine questions of fact and assess the credibility of witnesses.”110 Thus, when reviewing

a claim that the evidence was insufficient to support a conviction, this Court “will not interfere

with the trier of fact’s role of determining the weight of the evidence or the credibility of

witnesses.”111 Youngblood’s credibility was for the jury to determine, and we decline to

interfere with its decision.112

B. GANG-RELATED EVIDENCE

Swilley contends that photographs and other evidence of gang activity were irrelevant

because there was no evidence that he was associated with any particular gang. Contrary to

Swilley’s position, the prosecutor presented substantial evidence and testimony demonstrating

that Swilley was, like the other defendants, a member of the East Side, a.k.a. Right Back Blood

Gang. The prosecutor also admitted substantial evidence tending to demonstrate that the

November 21, 2012 shooting was gang-related. Accordingly, photographic and other evidence

of gang signs and activity was relevant.

C. EXPERT WITNESS TESTIMONY

Swilley contends that for various reasons, Oberle should not have been allowed to testify

as an expert in Saginaw gang territory, membership, and related areas.113 We disagree.

At trial, Oberle explained that he had been an officer for 19 years, the last 18 in Saginaw.

He explained that nearly his entire career involved investigations into gang activity. He

estimated that in the past 10 years, he had investigated 150 to 200 homicides, and that at least

half of those were gang-related. He had been part of the Gang Task Force in Saginaw. He also

worked as a liaison with a task force operated by the FBI, which focused on gang activity,

mainly in Saginaw. In this capacity, he was assigned a particular gang, the North Side gang, and

had a “book with all the people that [he] knew to be gang members, their affiliations, the cars

they drove, any time they were stopped, what type of car they were in, who they may have been

with, who their girlfriend was, who their baby mama was, anything like that.” His work resulted

in 95 federal indictments and an award recognizing his contributions. He received another award

as the result of a long-term investigation into well-known gangs of Saginaw. Oberle explained

110

Lemmon, 456 Mich at 637.

111

People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

112

In his Standard 4 brief on appeal, Swilley contends that the evidence admitted at trial was

insufficient because after trial, Youngblood recanted his testimony, stating in an affidavit that he

lied every time he identified Swilley as one of the men involved. The fact that Youngblood

recanted his trial testimony after trial does not demonstrate that the evidence admitted at trial

was insufficient in any regard. We address later in this opinion Swilley’s contention that a new

trial is required due to Youngblood’s recantation.

113

In a supplemental brief, Granderson adopts Swilley’s argument verbatim. Our analysis

applies equally to both defendants.

-23-

that he had received education through training programs when he was working with the FBI

task force.

Swilley first contends that Oberle’s qualifications were insufficient. Pursuant to MRE

702, “[i]f the court determines that scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education may testify thereto

in the form of an opinion or otherwise . . . .” Swilley contends that Oberle “cited no specific

training in Saginaw gang territory,” and that his only qualification was through his work with the

Gang Task Force. Swilley apparently ignores the bulk of Oberle’s qualifications, such as his

work with the FBI, his educational training, and his awards. He also essentially ignores Oberle’s

extensive experience as a police officer who investigated illegal gang activity in Saginaw for 18

years. Given Oberle’s extensive experience, knowledge, and training, the trial court did not

abuse its discretion when it found Oberle qualified to testify as an expert in the area of Saginaw

gang activity.

Swilley next contends that Oberle’s opinion testimony was inadmissible because it was

derived from unreliable data. MRE 702 requires that an expert’s testimony “be based on

sufficient facts or data[.]” Oberle’s knowledge of the meaning of different gang signs came from

his experience working in Saginaw. He explained that his opinion regarding the gang affiliations

of individual people was based on “the people that they hangout [sic] with, areas that they

hangout [sic], signs that they’ve flashed, signs that they flashed up, signs that they flashed down.

That’s indicative of where they live, who they affiliate with and who they’re not friendly with . .

. .” Oberle was also able to provide a detailed account of the history of gang activity in Saginaw,

which was clearly derived from his experience as an officer. Oberle’s testimony was sufficiently

grounded in reliable facts and data.

Swilley further contends that the trial court erred when it did not perform a “searching

inquiry” of the data he relied on to determine whether Oberle’s interpretations from that data

were reliable. He argues that the record “is devoid of anything to establish the scientific

methodology behind Oberle’s expertise.” Swilley’s argument is misplaced because Oberle’s

opinions were not based on a scientific analysis of data, i.e., the application of a scientific

methodology to established facts. Rather, as Oberle explained, his opinions were derived from

his extensive experience with Saginaw gang activity.114 Oberle’s experience provided a

sufficient basis for his opinions.

114

Swilley seems to contend that the trial court was required to apply the factors described in

Daubert v Merrell Dow Pharm, Inc, 509 US 579, 589; 113 S Ct 2786; 125 L Ed 2d 469 (1993),

before admitting Oberle’s opinion. These factors generally describe questions relevant to expert

testimony based in scientific methodology, such as whether the methods utilized have been

tested and subject to peer review, whether the methods have a known error rate, whether there

are applicable standards governing the application of the methods, and the like. Id. The trial

court’s gatekeeping function must be considered in context. Lenawee Co v Wagley, 301 Mich

App 134, 163; 836 NW2d 193 (2013). Here, Oberle’s opinion was not based in science, but in

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Swilley also contends that the areas in which Oberle provided his opinions were common

knowledge, and thus, his opinion was unnecessary. In a similar vein, he contends that Oberle’s

opinions were irrelevant. If an average juror does not need the assistance of an expert to

understand the evidence or determine a fact in issue, expert testimony on the issue is not

admissible.115 It is also true that “an expert witness may not testify about matters that are

irrelevant.”116 Our Supreme Court has explained that “expert testimony about gang membership

is of little value to a fact-finder unless there is a connection between gang membership and the

crime at issue.”117 “Sometimes, however, identifying whether a crime is gang-related requires an

expert to establish the significance of seemingly innocuous matters—such as clothing,

symbolism, and tattoos—as features of gang membership and gang involvement.”118 Expert

testimony may also be necessary to explain gang territories, because such evidence may help

explain that a crime was motivated by gang affiliations.119 “In other words, understanding the

connection between the crime and gang activity is sometimes beyond the ken of common

knowledge.”120 Oberle’s opinions clearly assisted the jury in this matter. His testimony

provided necessary context that allowed the jury to fully understand the motive for the crime. It

was both relevant and helpful to the jury, and thus, was properly admitted.

Finally, Swilley argues in a conclusory fashion that Oberle’s testimony was likely to

confuse the jury and thus should have been excluded under MRE 403. To the contrary, Oberle’s

testimony clarified and explained the circumstances that motivated the crime. The probative

value of the evidence was in no way substantially outweighed by any danger of confusion.

D. PRIOR CONSISTENT STATEMENT

Like his codefendants, Swilley argues that it was improper to admit the recording of

Youngblood’s statement to Kahn as a prior consistent statement because Youngblood had a

motive to lie at the time the statement was given. For the same reasons discussed in section II(C)

of this opinion, we reject the argument.

E. RELEVANCY

Also much the same as his codefendants, Swilley argues that gang-related evidence was

irrelevant and therefore inadmissible. As has been explained, this evidence was relevant to the

his experience. Where an opinion is not based in a scientific methodology, it would usually

make little sense to apply the Daubert factors. See id. Rather, the relevant reliability concerns

“may focus upon personal knowledge or experience.” Id. (quotation marks and citations

omitted).

115

People v Bynum, 496 Mich 610, 624; 852 NW2d 570 (2014).

116

Id.

117

Id. at 626.

118

Id.

119

Id.

120

Id.

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prosecutor’s theory of motive. Evidence that Swilley was a member of a particular gang

explained his motive for participating in the crime.

Swilley also contends that the events that occurred on December 25, 2012 were not

relevant. As we have noted, these events explained how police came to find the Glock pistol.

The incident also provided further support for the prosecutor’s theory that the November 21,

2012 incident was part of an ongoing pattern of retaliatory gang violence. And while this

evidence was certainly prejudicial to Swilley, there was no danger of unfair prejudice that would

warrant its exclusion. The mere fact that the evidence was damaging is not sufficient to

demonstrate error in admitting that evidence.121

F. NEWLY DISCOVERED EVIDENCE

After trial, Youngblood authored an affidavit in which he stated he lied when he

identified Swilley as one of the men involved, and that in fact, he did not see who was in the

Saturn. Colley authored an affidavit in which he explained that Youngblood saw nothing and

lied in order to gain favor with the prosecutor in regard to the Cass River Market incident. This

Court remanded the matter to allow Swilley to pursue this claim in the trial court.122 The trial

court held an evidentiary hearing. After hearing Youngblood, Colley, and others testify, the trial

court denied the motion for a new trial. Swilley contends that he was entitled to a new trial and

that the trial court abused its discretion by holding otherwise. We disagree.123 A trial court’s

decision on a motion for a new trial is reviewed for an abuse of discretion.124

To be entitled to a new trial because of newly-discovered evidence, a defendant must

demonstrate:

(1) the evidence itself, not merely its materiality, was newly discovered; (2) the

newly discovered evidence was not cumulative; (3) the party could not, using

reasonable diligence, have discovered and produced the evidence at trial; and (4)

the new evidence makes a different result probable on retrial.[125]

The trial court concluded that the second and fourth elements were not satisfied. Neither

conclusion was an abuse of discretion. At trial, Youngblood initially testified that he did not see

who was in the car. Thus, Youngblood’s affidavit and testimony at the evidentiary hearing, in

which he claimed not to have seen Swilley in the car, merely duplicated portions of

121

People v Murphy (On Remand), 282 Mich App 571, 582-583; 766 NW2d 303 (2009).

122

People v Swilley, unpublished order of the Court of Appeals, issued February 23, 2016

(Docket No. 325806).

123

In his supplemental brief, Granderson raises the same issue, relying on the testimony adduced

at the evidentiary hearing. Our analysis of the issue applies equally to Granderson’s argument.

124

People v Grissom, 492 Mich 296, 312; 821 NW2d 50 (2012).

125

Id. at 313, quoting People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003).

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Youngblood’s trial testimony. It was also duplicative of Colley’s testimony, in which he claimed

that Youngblood never saw anyone in the car. Thus, the second element above was not satisfied.

Nor did the trial court abuse its discretion when it found that the fourth element was not

satisfied. “[W]here newly discovered evidence takes the form of recantation testimony, it is

traditionally regarded as suspect and untrustworthy.”126 Thus, “Michigan courts have expressed

reluctance to grant new trials on the basis of recanting testimony.”127 This Court must give “due

regard . . . to the trial court’s superior opportunity to appraise the credibility of the recanting

witness and other trial witnesses.”128 The trial court found that a different result was not

probable because, after hearing Youngblood and Colley testify in an evidentiary hearing, neither

was credible. Rather, the trial court found that Youngblood’s statement to Kahn, which was

admitted as substantive evidence at trial, was, “without question,” more credible than

Youngblood’s testimony at the hearing. It was also fairly obvious why Youngblood would seek

to recant his testimony – his fear that he and his family might be subject to retaliation. Given the

trial court’s superior ability to judge Youngblood’s credibility, we cannot conclude that the trial

court abused its discretion when it denied the motion for a new trial.

G. JUDICIAL BIAS

Swilley contends that the trial court denied him a fair trial by exhibiting bias when it

questioned Colley, Alesha Lee, and Phillip Taylor. We disagree.

Swilley presented an alibi defense at trial. Lee, Swilley’s guardian and grandmother, and

Taylor, who is Lee’s fiancé, testified that Swilley was with them during the time of the shooting.

According to these witnesses, Lee, Taylor, Swilley, and Swilley’s sister went to City Hall to

execute and record a quit-claim deed for a parcel of property at about 2:00 p.m. on November 21,

2012.

As explained by our Supreme Court, it is entirely proper for a court to question a witness

in an effort to “produce fuller and more exact testimony or elicit additional relevant

information.”129 That appears to have been the trial court’s purpose with regard to Lee. The

subject of the property transfer had been discussed during Lee’s testimony, but no details

regarding the transaction were elicited. The trial court sought to elicit these details. The trial

court’s questioning of Lee did not display disbelief. Nor does the record reveal a tone or

demeanor that exhibited any bias to the jury.130

126

People v Canter, 197 Mich App 550, 559; 496 NW2d 336 (1992).

127

Id. at 560.

128

Id.

129

Stevens, 498 Mich at 173.

130

See id. at 174-176.

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The trial court’s questioning of Taylor was much more extensive. Much like the trial

court’s questioning of Colley, it certainly appears that the trial court’s intentions were valid.

Taylor’s own testimony had been confusing, and there were many unclear points. The trial

court’s desire to clear up these issues was understandable and entirely valid. However, many of

the trial court’s questions could have been interpreted as challenging Taylor’s memory and

veracity. Although likely unintentional, there is a possibility that the jury could have viewed the

trial court’s questioning of Taylor as having expressed an opinion on his veracity. That said,

nothing in the record indicates that the trial court’s tone with Taylor was argumentative or

skeptical.

On consideration of the totality of the circumstances, however, Swilley was not deprived

of a fair trial. As has been explained, the trial court questioned many witnesses, nearly all of

whom were called by the prosecutor. The jury should not have been surprised that the court

questioned Lee, Taylor, or Colley. And, importantly, the trial court provided instructions to the

jury on multiple occasions that its questions were not meant to convey any opinions or to sway

the jury. Such instructions were given while the trial court questioned both Colley and Taylor in

response to objections that the trial court might be exhibiting bias. On this record, we cannot

conclude that the trial court’s conduct was so extreme that “no instruction [could] erase the

appearance of partiality.”131 Accordingly, Swilley is not entitled to a new trial.

H. GREAT WEIGHT OF THE EVIDENCE132

Swilley contends that the verdict was against the great weight of the evidence because

evidence of gang activity and Swilley’s connections thereto distracted the jury from the true

issue, the shooting that left Galvin dead and Youngblood wounded. We disagree. “An appellate

court will review a properly preserved great-weight issue by deciding whether the evidence

preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the

verdict to stand.”133 As has been explained, evidence of gang activity and Swilley’s ties to the

East Side, a.k.a. Right Back Blood Gang, was relevant to demonstrate motive. This did not

distract the jury from the question of who participated in the shooting; rather, it helped the jury

determine who was responsible. Swilley’s contention is without merit.

I. SENTENCING ERROR

Swilley, who was 16 at the time of the shooting, contends that his sentences for first-

degree murder and conspiracy to commit first-degree murder violate MCL 769.25 and the United

States Supreme Court’s decision in Miller v Alabama, 576 US___, ___; 132 S Ct 2455, 2464;

183 L Ed 2d 407 (2012). Because Swilley’s existing sentence for first-degree murder complies

with MCL 769.25 and Miller, no relief is warranted regarding this sentence. With regard to

131

Id. at 177-178.

132

This and the remaining issues were raised in a brief filed pursuant to Administrative Order

2004-6, Standard 4.

133

Cameron, 291 Mich App at 616-617 (quotation omitted).

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Swilley’s sentence for conspiracy, the trial court erred by sentencing Swilley to life without

parole for this conviction because under existing precedent from our Supreme Court, Swilley’s

sentence must be life with the possibility of parole. Correcting Swilley’s sentence in this regard

alleviates any error under MCL 769.25 or Miller. That said, we doubt whether, in light of recent

amendments to MCL 769.25, the penalty for conspiracy to commit first-degree murder remains

life with the possibility of parole.

In Miller v Alabama, the United States Supreme Court held that “mandatory life-without-

parole sentences for juveniles violate the Eighth Amendment.”134 After Miller, juveniles may

still receive sentences of life without the possibility of parole. However, before imposing such a

sentence, the trial court must “take into account how children are different, and how those

differences counsel against irreovocably sentencing them to a lifetime in prison.”135

In response to Miller, our Legislature enacted MCL 769.25, which provides, in relevant

part:

(1) This section applies to a criminal defendant who was less than 18 years of age

at the time he or she committed an offense described in subsection (2) if either of

the following circumstances exists:

(a) The defendant is convicted of the offense on or after the effective date of the

amendatory act that added this section [(March 4, 2014)].

* * *

2) The prosecuting attorney may file a motion under this section to sentence a

defendant described in subsection (1) to imprisonment for life without the

possibility of parole if the individual is or was convicted of any of the following

violations:

* * *

(b) A violation of . . . MCL 750.16, 750.18, 750.316, 750.436, and 750.543f.

* * *

(d) Any violation of law involving the death of another person for which parole

eligibility is expressly denied under state law.

(3) If the prosecuting attorney intends to seek a sentence of imprisonment for life

without the possibility of parole for a case described in subsection (1)(a), the

134

Miller, 576 US at ___; 132 S Ct at 2464.

135

Id. at ___; 132 S Ct at 2469.

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prosecuting attorney shall file the motion within 21 days after the defendant is

convicted of that violation.

(4) If the prosecuting attorney does not file a motion under subsection (3) within

the time periods provided for in that subsection, the court shall sentence the

defendant to a term of years as provided in subsection (9).

* * *

(9) If the court decides not to sentence the individual to imprisonment for life

without parole eligibility, the court shall sentence the individual to a term of

imprisonment for which the maximum term shall be not less than 60 years and the

minimum term shall be not less than 25 years or more than 40 years.

At sentencing, Swilley was sentenced to life without parole for both first-degree murder

and conspiracy to commit first-degree murder. This was despite counsel’s suggestion that these

sentences were improper in light of MCL 769.25 and Miller. The trial court later resentenced

Swilley, but only in regard to his murder conviction. Because the prosecutor had not sought a

life-without-parole sentence, the trial court, in accordance with MCL 769.25(4) and (9),

sentenced Swilley to a term of 37 to 75 years’ imprisonment for first-degree murder. This

sentence comports with MCL 769.25 and Miller, and thus, was not in error.

However, Swilley’s sentence for conspiracy was not altered. As explained previously in

this decision, under existing precedent from our Supreme Court, the proper sentence for

conspiracy to commit first-degree murder is life with the possibility of parole.136 Pursuant to

Jahner, we remand the matter for correction of the judgment of sentence to clarify that Swilley’s

sentence for conspiracy to commit murder is life with the possibility of parole.

The remaining question is whether Swilley’s sentence for conspiracy is subject to MCL

769.25. A violation of the conspiracy statute, MCL 750.157a, is not one of the offenses listed in

MCL 769.25(2). However, pursuant to MCL 769.25(2)(d), the statute applies to “[a]ny violation

of law involving the death of another person for which parole eligibility is expressly denied

under state law.” Thus, the first question to be answered is whether Swilley’s conspiracy

conviction is a “violation of law involving the death of another person . . . .”137 Here, the

conspiracy resulted in the death of a person. Thus, we conclude that the conspiracy to commit

the murder was a violation of law that involved the death of another.

The second question is whether a defendant convicted of conspiracy to commit first-

degree murder is expressly denied parole eligibility under state law. Having corrected Swilley’s

sentence to comport with Jahner, Swilley is eligible for parole. Thus, his sentence for

conspiracy to commit murder does not fall under MCL 769.25, and there is no error under that

statute. Nor is there error under Miller, which holds only that mandatory sentences for juveniles

136

Jahner, 433 Mich at 504.

137

MCL 769.25(2)(d).

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of life without parole violate the Eighth Amendment.138 However, we believe that recent

amendments to the relevant statutes lead to the conclusion that conspiracy to commit first-degree

murder is now a nonparolable life offense.

In People v Fernandez, our Supreme Court considered whether a defendant convicted

only of conspiracy to commit first-degree murder must receive a life sentence, and if so, whether

that sentence must be with or without the possibility of parole.139 Our Supreme Court first

examined MCL 750.157a. Under this statute, one who conspires to commit an offense that is

punishable by imprisonment of one year or more in prison “shall be punished by a penalty equal

to that which could be imposed if he had been convicted of committing the crime he conspired to

commit . . . .”140 The Fernandez Court explained that “the plain meaning of the language of

[MCL 750.]157a and the legislative history of the provision support the conclusion that a person

convicted of conspiracy should receive the same penalty as someone convicted of the target

offense.”141 The Court then turned to MCL 750.316, which, at the time, stated that one

convicted of first-degree murder “shall be punished by imprisonment for life.”142 Reading these

two statutes together, the Court reached “the inescapable conclusion” that “a person convicted of

conspiracy to commit first-degree murder must be sentenced to life imprisonment.”143

The Court then turned to the question of whether an individual convicted of conspiracy to

commit first-degree murder is eligible for parole. Here, the Court looked to MCL 791.234(4),

the “lifer law.” Our Supreme Court noted that while this statute excluded those sentenced for

first-degree murder from parole eligibility, it did not contain any such “exclusion for those

sentenced to life for conspiracy to commit first-degree murder . . . .”144 The Court saw “no

apparent reason in the ‘lifer law’ itself that would preclude the possibility of parole” for one

convicted only of conspiracy to commit first-degree murder.145 However, it was the then-current

practice of the parole board to deny parole to those convicted of conspiracy to commit murder,

based on a belief that such individuals were, “like those convicted of first-degree murder, barred

from parole.”146 Rather than decide this specific issue, which had not been briefed by the parties,

the Supreme Court remanded the matter for further proceedings in this Court.147

138

Miller, 576 US at ___; 132 S Ct at 2464.

139

People v Fernandez, 427 Mich 321, 326; 398 NW2d 311 (1986).

140

MCL 750.157a; Fernandez, 427 Mich at 327.

141

Fernandez, 427 Mich at 329.

142

Id. at 330, quoting the then-current version of MCL 750.316 (emphasis in original).

143

Id.

144

Id. at 331 and n 4.

145

Id. at 331.

146

Id. at 333.

147

Id.

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The question of parole eligibility for those convicted of conspiracy to commit first-degree

murder returned to our Supreme Court in Jahner.148 Examining the same statutes discussed in

Fernandez, the Court concluded that because the defendants in Jahner were not convicted of

first-degree murder, but only of conspiracy to commit first-degree murder, those defendants were

eligible for parole. This was because MCL 791.234(4) did not specifically provide that

conspiracy to commit first-degree murder was a crime for which parole was not available.149

The lifer law, MCL 791.234, underwent several revisions after Jahner. However, even in

its current form, the statute does not explicitly mention conspiracy as an offense for which parole

is not available.150 Thus, although the specific statutory language relied on in Jahner has been

altered, arguably, the underpinnings of Jahner are not implicated by the various revisions to

MCL 791.234.

However, MCL 750.316 has also been revised since Jahner. Until 2014, MCL 750.316

simply stated that, as it had at the time of Fernandez and Jahner, one convicted of first-degree

murder “shall be punished by imprisonment for life.”151 But in 2014, our Legislature added

crucial language to MCL 750.316. Effective March 4, 2014, MCL 750.316(1) now reads:

Except as provided in sections 25 and 25a of chapter IX of the code of criminal

procedure, 1927 PA 175, MCL 769.25 and 769.25a, a person who commits any of

the following is guilty of first degree murder and shall be punished by

imprisonment for life without eligibility for parole . . . .[152]

Pursuant to MCL 750.157a(a), if a person conspires to commit an offense that is itself

“punishable by imprisonment for 1 year or more, the person convicted under this section shall be

punished by a penalty equal to that which could be imposed if he had been convicted of

committing the crime he conspired to commit . . . .” As explained in Fernandez, this language

demonstrates that “a person convicted of conspiracy should receive the same penalty as someone

convicted of the target offense.”153 But unlike the language contained within MCL 750.316 at

the time Fernandez and Jahner were decided, pursuant to the current language of MCL

750.316(1), first-degree murder “shall be punished by imprisonment for life without eligibility

148

Jahner, 433 Mich 490.

149

Id. at 497-504.

150

MCL 769.234(6).

151

See, e.g., 2013 PA 39.

152

MCL 750.316(1), as enacted by 2014 PA 23 (emphasis supplied). As is evident from the

additional language referencing MCL 769.25, this amendment coincides with our Legislature’s

creation of the juvenile sentencing procedure provided by MCL 769.25. 2014 PA 23 was tie-

barred to the passage of the bill that became 2014 PA 22. Both were enacted and became

effective on the same day, March 4, 2014.

153

Fernandez, 427 Mich at 329.

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for parole[.]” Were it not for Jahner, we would follow the same analytical model utilized by our

Supreme Court in Fernandez, and read the current versions of MCL 750.157a and MCL 750.316

together. Doing so leads to the inescapable conclusion that one convicted of conspiracy to

commit first-degree murder is not eligible for parole.154

This Court is mindful, however, that it lacks the authority to overrule our Supreme

155

Court. Rather, this Court “is bound to follow decisions by [the Supreme Court] except where

those decisions have clearly been overruled or superseded, and is not authorized to anticipatorily

ignore [the Supreme Court’s] decisions where it determines that the foundations of a Supreme

Court decision have been undermined.”156 This Court “may properly express its belief that a

decision of [the Supreme Court] was wrongly decided or is no longer viable,” but is not excused

“from applying the decision to the case before it.”157 Jahner has not been overruled. Whether it

has been superseded is a closer question. Although we are of the opinion that the 2014

amendment to MCL 750.316 compels a conclusion that conspiracy to commit first-degree

murder is a nonparolable offense, we decline to deviate from Jahner’s holding unless and until it

is overruled by our Supreme Court.

Following Fernandez and Jahner, the penalty for conspiracy to commit first-degree

murder is a mandatory sentence of life with the possibility of parole. Because Swilley is eligible

for parole, MCL 769.25 is not implicated. For the same reason, Miller is not implicated. As

explained, the trial court satisfied MCL 769.25 with respect to Swilley’s sentence for first-degree

murder. Accordingly, other than the administrative correction of Swilley’s sentence for

conspiracy to life with parole, there is no error warranting relief.158

154

One might imagine that if the phrase “without eligibility for parole” had existed in MCL

750.316(1) at the time of Fernandez, our Supreme Court would never have looked to the “lifer

law” as it then existed to decide whether one convicted of conspiracy to commit first-degree

murder was entitled to parole.

155

See Associated Builders & Contractors v Lansing, 499 Mich 177, 191-192; 880 NW2d 765

(2016).

156

Id. (emphasis in original).

157

Id. at 192 n 33 (quotation and citation omitted).

158

This result, however, demonstrates the incongruity of Jahner in the post-Miller landscape.

Prior to Miller and the enactment of MCL 769.25, a defendant of any age convicted of

conspiracy to commit first-degree murder in this state was subject to a lesser penalty than one

who committed first-degree murder. In the post-Miller landscape, and with the understanding

that conspiracy to commit first-degree murder is a parolable offense, a juvenile convicted of

first-degree murder is entitled to the protections of MCL 769.25, and in most cases, will receive

a term-of-years sentence. A juvenile who conspires to commit first-degree murder will be

subject to the more severe, mandatory penalty of life in prison, albeit with the possibility of

parole. This underscores the need for our Supreme Court to revisit Jahner.

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J. INSTRUCTIONAL ERROR

Swilley raises several claims of instructional error, each of which lack merit. Swilley

first contends that the trial court erred by failing to provide Mich Crim JI 4.12. This instruction,

which is titled as an “optional clarifying instruction,” allows the trial court to clarify precisely

what crime a defendant is charged with by describing the crime and approximating the date the

crime is alleged to have occurred.159 There was little need for such an instruction at trial, given

that there was no dispute that the shooting occurred on November 21, 2012. Regardless, the trial

court instructed the jury multiple times that the crimes were alleged to have occurred on

November 21, 2012. Providing an additional instruction regarding the time of the offense would

have been a needless exercise in redundancy.

Swilley next contends that the trial court’s instructions regarding the crime of conspiracy

failed to express the need for the prosecutor to establish that the defendants formed an

agreement. The trial court instructed the jury that in order to convict any of the defendants of

conspiracy, the very first element that must be established is that “the defendant and someone

else knowingly agreed to commit first-degree premeditated murder.” Clearly, the trial court did

instruct the jury regarding the need for an agreement to commit the underlying crime.

Finally, Swilley contends that the trial court failed to properly instruct the jury regarding

the elements of first-degree premeditated murder. Swilley claims the trial court’s instructions

failed to “set forth the alleged act causing the death.” He contends that without such an

instruction, the jury was not properly instructed that to convict on this charge, Swilley must have

intended Galvin’s death. The trial court instructed the jury that to convict on this charge, it must

find that “the defendant intended to kill DaVarion Galvin.” Thus, although the trial court did not

include the specific act causing death in its instructions, it clearly instructed the jury that it must

conclude that the defendants intended to kill Galvin. Further, there was no dispute regarding the

cause of Galvin’s death. The lack of a specific statement regarding the cause of death was of no

consequence.

K. JURY OATH

Finally, Swilley contends that a new trial is required because the jury was not properly

sworn before it began hearing testimony. Contrary to Swilley’s contention, the record

demonstrates that the jury was sworn. Swilley’s argument lacks merit.

V. CONCLUSION

In Docket No. 325313, we affirm Granderson’s convictions and sentences.

In Docket No.’s 325530 and 325806, we remand for the administrative correction of

Thomas’s and Swilley’s sentences for conspiracy to commit first-degree murder. The sentence

159

See Mich Crim JI 4.12.

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for conspiracy to commit first-degree murder must be life with the possibility of parole. We

affirm in all other respects. We do not retain jurisdiction.

/s/ Michael J. Talbot

/s/ Peter D. O’Connell

/s/ Donald S. Owens

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