PEOPLE OF MI V MARLON BELL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
December 9, 2003
9:10 a.m.
Plaintiff-Appellee,
v
No. 233234
Wayne Circuit Court
LC No. 99-009228
ON RECONSIDERATION
Updated Copy
February 13, 2004
MARLON BELL,
Defendant-Appellant.
Before: Wilder, P.J., and Fitzgerald and Zahra, JJ.
ZAHRA, J. (concurring.)
I concur in the reversal of defendant's convictions because we are required to do so
pursuant to People v Miller, 411 Mich 321, 326; 307 NW2d 335 (1981), and People v Schmitz,
231 Mich App 521, 531-532; 586 NW2d 766 (1998).1 I write separately because I have serious
concerns regarding the continued viability of Miller, supra. Since Miller was decided in 1981,
our Supreme Court has set forth very specific criteria that must be established before error may
be deemed reversible per se. People v Cornell, 466 Mich 335, 363; 646 NW2d 127 (2002);
People v Lukity, 460 Mich 484; 596 NW2d 607 (1999); People v Carines, 460 Mich 750, 774;
597 NW2d 130 (1999). When error occurs in the trial court, a reviewing court must determine
whether the error was constitutional or nonconstitutional. Cornell, supra at 363. If the error is
constitutional, the reviewing court must determine whether the error is structural or
nonstructural. Id. If the error is nonconstitutional or, if constitutional, it is nonstructural, then
the error is subject to harmless error analysis. Carines, supra at 774. Applying the abovedescribed error review process, I conclude that the error in this case is nonconstitutional and,
therefore, must be subjected to harmless error analysis. I therefore urge the Supreme Court to
address whether Miller should be expressly overruled and whether the wrongful denial of the
1
The Michigan Court of Appeals is bound by Michigan Supreme Court case law until the
Supreme Court overrules or expressly modifies that case law. Boyd v W G Wade Shows, 443
Mich 515, 523; 505 NW2d 544 (1993). Further, under MCR 7.215(J)(1), this Court must follow
the rule of law established in Schmitz. Dunn v Detroit Automobile Inter-Ins Exch, 254 Mich App
256, 260-261; 657 NW2d 153 (2002).
-1-
right to remove a particular juror peremptorily amounts to structural error that is not subject to
harmless error analysis.2
I. Defendant Was Not Denied a Constitutional Right
The United States Supreme Court has repeatedly held that the right to a peremptory
challenge may be withheld altogether without impairing the constitutional guarantee of an
impartial jury and a fair trial. See Frazier v United States, 335 US 497, 505 n 11; 69 S Ct 201;
93 L Ed 187 (1948); United States v Wood, 299 US 123, 145; 57 S Ct 177; 81 L Ed 78 (1936);
Stilson v United States, 250 US 583, 586; 40 S Ct 28; 63 L Ed 1154 (1919); see also Swain v
Alabama, 380 US 202, 219; 85 S Ct 824; 13 L Ed 2d 759 (1965). The United States Supreme
Court further held in Ross v Oklahoma, 487 US 81, 88; 108 S Ct 2273; 101 L Ed 2d 80 (1988),
that the loss of a peremptory challenge does not constitute "a violation of the constitutional right
to an impartial jury," because peremptory challenges are only "a means to achieve the end of an
impartial jury."
Defendant was not denied his Sixth Amendment right to an impartial jury; an impartial
jury is guaranteed through the removal of jurors for cause. So long as the trial court conducts an
extensive and thorough voir dire and provides trial counsel a full and fair opportunity to explore
and disclose whether any member of the proposed jury panel harbors bias that would disqualify
that person from sitting on the jury, a defendant's Sixth Amendment right to a fair and impartial
jury is protected. Where the impartiality of a juror is not established, the juror must be removed.
Here, however, defendant did not challenge for cause either of the jurors in question. Thus, there
is nothing in the trial court record that supports the conclusion that defendant's Sixth Amendment
right to a fair and impartial jury was denied.
Likewise, defendant was not denied due process of law as guaranteed under the Fifth
Amendment and the Fourteenth Amendment. Due process is afforded when a litigant receives
that which state law provides. Ross, supra at 89. State law provides for the free exercise of
peremptory challenges. However, the statutory right to remove jurors peremptorily is subject to
the equal protection concerns defined in Kentucky v Batson, 476 US 79; 106 S Ct 1712; 90 L Ed
2
Preliminarily, it is worth noting that courts from other jurisdictions that have faced this issue
have often elected to remand the case for a proper application of the Batson three-step process.
See Edmonds v State, 372 Md 314, 340-341; 812 A2d 1034 (2002); State v Donaghy, 171 Vt
435, 442; 769 A2d 10 (2000); McKenzie v State, 223 Ga App 108, 114; 476 SE2d 868 (1996);
State v Pharris, 846 P2d 454, 465 (Utah App, 1993). Remand is a desirable course of action
because great deference must be given to the trial court's credibility findings in assessing the
reasons proffered in support of peremptory challenges. People v Rice, 468 Mich 919-920
(2003); People v Knight, 468 Mich 920 (2003). If, after proper application of the three-pronged
Batson process, the court determines on remand that the defendant's exercise of peremptory
challenges violated Batson, there would be no error resulting from the denial of the right to
remove the challenged juror peremptorily. Remand is not a viable option in this case because it
does not appear likely that the glaring deficiencies in the record can be cured on remand.
-2-
2d 69 (1986), and its progeny.3 Significantly, state law also provides a standard for reviewing
procedural errors in criminal cases. The Michigan Legislature, which granted defendant the
right to peremptory challenges, has also stated that a criminal conviction ought not be set aside
for a procedural error except where, "after an examination of the entire cause, it shall
affirmatively appear that the error complained of has resulted in a miscarriage of justice." MCL
769.26.4 The statutory provision granting peremptory challenges must be read in context with
the statutory directive on procedural error in a criminal case. It is apparent that, to the extent that
the statutory right to peremptory challenges is impaired, state law guarantees that a criminal
conviction will only be set aside where the error results in a miscarriage of justice.5 Thus,
because state law dictates that a harmless error analysis must apply to procedural errors, such as
errors involving peremptory challenges, the erroneous denial of the statutory right to remove a
particular juror peremptorily, without more, cannot be a violation of the constitutional guarantee
of due process of law.6
II. Nonconstitutional Error is Subject to Harmless Error Analysis
3
The only constitutional limitation on the statutory right of a peremptory challenge is the
prohibition against exercising peremptory challenges on the basis of gender, ethnic origin, or
race, which is violative of the Equal Protection Clause. United States v Martinez-Salazar, 528
US 304, 315; 120 S Ct 774; 145 L Ed 2d 792 (2000) citing JEB v Alabama ex rel TB, 511 US
127; 114 S Ct 1419; 128 L Ed 2d 89 (1994), on remand 641 So 2d 821 (Ala Civ App, 1994)
(gender); Hernandez v New York, 500 US 352; 111 S Ct 1859; 114 L Ed 2d 395 (1991) (ethnic
origin); and Batson, supra (race). However, in the present case, defendant claims he never
exercised his peremptory challenges in an unconstitutional manner. Rather, defendant claims he
was denied his right to the actual use of his peremptory challenges. Thus, this case does not turn
on the equal protection concerns of Batson. Instead, the question presented is whether the
erroneous denial of the right to remove specific jurors peremptorily "for any reason, not just an
incorrect application of Batson—results in a violation of federal constitutional . . . law."
Haywood v Portuando, 2003 US Dist LEXIS 4190, * 37 (SD NY, March 21, 2003).
4
Interestingly, this Court in Schmitz, supra at 531, recognized that the Legislature mandated a
harmless error approach to setting aside criminal convictions on the basis of procedural error in
the trial court. Nonetheless the Schmitz panel ignored this legislative mandate, apparently
because it concluded it would be difficult to establish prejudice relating to errors in the
peremptory challenge process. Id.
5
Our Supreme Court has interpreted the statutory phrase "miscarriage of justice" to require
reversal of a criminal conviction only where " 'after an examination of the entire cause, it shall
affirmatively appear' that it is more probable than not that the error was outcome determinative."
Lukity, supra at 495-496, quoting MCL 769.26.
6
While I agree with the observation made in the majority opinion that the erroneous denial of
the right to remove a particular juror peremptorily is a greater infringement on the statutory right
of peremptory challenge than is a dilution of that right, I do not conclude that this distinction
converts a statutory right into a constitutional right. Not all important rights are constitutionally
guaranteed. Likewise, not all violations of important rights rise to constitutional violations.
-3-
The error in this case is, in my opinion, nonconstitutional error that is subject to harmless
error analysis.7 My conclusion is not altered by the United States Supreme Court's archaic dicta
in Swain v Alabama, 380 US 202, 219; 85 S Ct 824; 13 L Ed 2d 759 (1965), overruled in part by
Batson, supra, that the denial or impairment of the statutory right to peremptorily strike jurors
constitutes error not subject to harmless error analysis. Significantly, the United State Supreme
Court has recently retreated from Swain. In United States v Martinez-Salazar, 528 US 304, 317
n 4; 120 S Ct 774; 145 L Ed 2d 792 (2000), on remand 278 F3d 1357 (CA 9, 2002), the Supreme
Court noted that "the oft-quoted language in Swain was not only unnecessary to the decision in
that case . . . but was founded on a series of our earlier cases decided long before the adoption of
harmless-error review."8
The Supreme Court's observations in Martinez-Salazar caused the United States Court of
Appeals for the Seventh Circuit to reject the automatic reversal rule involving claims of error
arising from the dilution of the right to peremptorily challenge jurors. United States v Patterson,
215 F3d 776, 781 (CA 7, 2000), vacated in part on other grounds 531 US 1033; 121 S Ct 621;
148 L Ed 2d 531 (2000), on remand 241 F3d 912 (CA 7, 2001) (stating "Martinez-Salazar . . .
pulls the plug on the Swain dictum and requires us to address the harmless-error question as an
original matter"). Unrestrained by the dicta of Swain, the United States Court of Appeals for the
Seventh Circuit rejected the traditional view that errors concerning peremptory challenges
always affect a substantial right, and instead applied a harmless error analysis:
A right is "substantial" when it is one of the pillars of a fair trial. Trial
before an orangutan, or the grant of summary judgment against the accused in a
criminal case, would deprive the defendant of a "substantial" right even if it were
certain that a jury would convict. For the same reason, a biased tribunal always
deprives the accused of a substantial right. Deprivation of counsel likewise so
undermines the ability to distinguish the guilty from the innocent that it always
leads to reversal. But "if the defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any other errors that may have
occurred are subject to harmless-error analysis." Rose v Clark, 478 US 570, 579;
92 L Ed 2d 460; 106 S Ct 3101 (1986). It is impossible to group an error
concerning peremptory challenges with the denial of counsel or trial before a
bribed judge. When the jury that actually sits is impartial, as this one was, the
defendant has enjoyed the substantial right. Peremptory challenges enable the
defendants to feel more comfortable with the jury that is to determine their fate,
7
Defendant properly preserved this issue for appellate review. Pursuant to Carines, supra at
774, defendant carries the burden of establishing that the preserved nonconstitutional error
resulted in a miscarriage of justice under a "more probable than not" standard.
8
I am also not troubled that, as observed in the majority opinion, the great weight of federal
authority supports the conclusion that errors affecting the right to peremptory challenge are not
subject to harmless error analysis. None of the federal cases cited in the majority opinion
discuss whether the Supreme Court's retreat from Swain supports a departure from the error per
se rule.
-4-
but increasing a litigants' comfort level is only one goal among many, and
reduced peace of mind is a bad reason to retry complex cases decided by impartial
juries. [Patterson, supra at 781-782 (citations omitted; emphasis in original).][9]
Before Martinez-Salazar, the District of Columbia Court of Appeals initially followed
the Swain dicta and assumed that a defendant's right to peremptory challenge was so
fundamental that any infringement of that right resulted in reversal as a matter of law without the
need to show actual bias. E.g., Wells v United States, 515 A2d 1108, 1111 (DC App, 1986),
overruled by Lyons v United States, 683 A2d 1066 (DC App, 1996) (en banc). But in Lyons v
United States, 683 A2d 1066 (DC App, 1996) (en banc), the court reconsidered this issue after
the Supreme Court's decision in Arizona v Fulminante, 499 US 279, 310; 111 S Ct 1246; 113 L
Ed 2d 302 (1991), which distinguished trial errors from structural errors and concluded that only
structural errors may never be deemed harmless. In Lyons, supra at 1071, the District of
Columbia Court of Appeals rejected the automatic reversal rule and instead adopted a harmless
error standard of review for errors alleging a dilution of the right to peremptorily challenge
jurors. In concluding that a harmless error analysis applies, the court reasoned:
Critical to the [Supreme] Court's distinction between these two types of
errors is that the category of "structural defect" discussed in Fulminante is limited
to fundamental constitutional errors. The Court repeatedly referred to those
defects it deemed "structural" as "constitutional errors," "constitutional
deprivations," or "constitutional violations." Subsequent decisions have made
clear that Fulminante's discussion of "structural defects" applied only to certain
constitutional errors that were too fundamental to be harmless. . . .
Since it has been settled for decades that the right of peremptory challenge
is not a constitutional right at all, let alone a "basic" or "fundamental"
constitutional right, it follows from Fulminante that any error relating to the use
of peremptory challenges cannot be regarded as a "structural defect." [Lyons,
supra at 1071 (citations omitted).]
9
After Patterson, the United States Court of Appeals for the Seventh Circuit found structural
error arising from the improvident use of a peremptory challenge by the prosecution. United
States v Harbin, 250 F3d 532 (CA 7, 2001). Harbin is factually distinguishable from the present
case. In Harbin, supra at 547, "[t]he government used that peremptory challenge, presumably
for the purpose of obtaining a jury more favorable to the prosecution, on the sixth day of an
eight-day trial, at which point [the prosecution] would have had significant opportunity to
observe the demeanor of the juror, and to assess whether the alternate juror would be more
favorable to its case." The Harbin court concluded that defendant was denied a fair and
impartial jury because the prosecution manipulated the jury mid-trial to favor the prosecution.
Id. The Harbin court also concluded defendant was denied due process because the prosecution
was afforded a procedure that was not made available to the defense. Id. at 547-548. Thus, the
Harbin court found structural error. Id. Because Harbin involved the manipulation of the jury
by a litigant in the middle of trial, it may fairly be categorized as belonging to the limited class of
cases involving the infringement of a substantial right. See Patterson, supra at 781-782.
-5-
In sum, recent directives from the United States Supreme Court support the conclusion
that any error infringing upon the statutory right to peremptory challenge is subject to harmless
error review.10 Having determined that this case presents a preserved nonconstitutional error
subject to harmless error analysis, reversal is warranted only if defendant establishes under a
"more probable than not" standard that a miscarriage of justice occurred. Lukity, supra at 495.
Defendant carries the burden of demonstrating that it is "more probable than not that the
outcome would have been different without this error." Lukity, supra at 497. However,
defendant produces no evidence that the two jurors who were not peremptorily removed from the
jury at defendant's request were in any way biased or precluded him from receiving a fair trial.
Defendant never attempted to challenge these jurors for cause, which he could have done had he
thought that these jurors exhibited bias or a state of mind that would prevent the jurors from
rendering a just verdict. MCR 2.511(D). Defendant has made no claim that the jury that sat was
biased in any way, or that answers given in voir dire by these two jurors prohibited him from
having a fair trial or impartial jury. Rather, the crux of defendant's argument is that he was
denied peace of mind that the jurors selected would not only be impartial, but also favorably
disposed to his defense. However, as observed by the Seventh Circuit Court of Appeals,
"reduced peace of mind is a bad reason to retry complex cases decided by impartial juries."
Patterson, supra at 782. Consequently, because there is no evidence to establish that the denial
of defendant's right to remove the jurors in question affected the verdict, I would conclude that
10
Neither the Michigan Supreme Court nor the United States Supreme Court has found
structural error from error that is not of constitutional dimension. Furthermore, errors that
require automatic reversal, i.e., "structural errors" have only been applied to certain
constitutional errors in a "limited class" of cases. People v Duncan, 462 Mich 47, 51; 610
NW2d 551 (2000), quoting Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35
(1999), on remand 197 F3d 1122 (CA 11, 1999). The Court in Neder stated several examples of
structural error:
"Indeed, we have found an error to be 'structural' and thus subject to
automatic reversal, only in a 'very limited class of cases.' Johnson v United
States, 520 US 461, 468; 117 S Ct 1544; 137 L Ed 2d 718 (1997) (citing Gideon v
Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (complete denial of
counsel); Tumey v Ohio, 273 US 510; 47 S Ct 437; 71 L Ed 749 (1927) (biased
trial judge); Vasquez v Hillery, 474 US 254; 106 S Ct 617; 88 L Ed 2d 598 (1986)
(racial discrimination in selection of grand jury); McKaskle v Wiggins, 465 US
168; 104 S Ct 944; 79 L Ed 2d 122 (1984) (denial of self-representation at trial);
Waller v Georgia, 467 US 39; 104 S Ct 2210; 81 L Ed 2d 31 (1984) (denial of
public trial); Sullivan v Louisiana, 508 US 275; 113 S Ct 2078; 124 L Ed 2d 182
(1993) (defective reasonable-doubt instruction). [Duncan, supra at 52, quoting
Neder, supra at 8.]
The dilution or denial of the right to peremptory challenge has yet to fall under the
"limited class of constitutional errors [that] are structural and subject to automatic reversal."
Duncan, supra at 51, citing Neder, supra at 8.
-6-
the trial court's erroneous denial of defendant's right to peremptorily remove the jurors in
question was harmless as a matter of law. However, I am duty-bound to follow the Michigan
Supreme Court opinion in Miller and this Court's opinion in Schmitz, which reluctantly relied on
Miller. I urge the Supreme Court to grant any application for leave filed in this case, and address
this very significant question of law.
Wilder, J., concurred.
/s/ Brian K. Zahra
/s/ Kurtis T. Wilder
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
