PEOPLE OF MI V JONATHON CARL SCHEIDLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 19, 2005
Plaintiff-Appellee,
v
No. 250977
Ogemaw Circuit Court
LC No. 02-002091-FH
JONATHON CARL SCHEIDLER,
Defendant-Appellant.
Before: Saad, P.J., and Smolenski and Cooper, JJ.
COOPER, J. (dissenting).
I respectfully dissent from the majority opinion of my colleagues. Defendant was denied
his constitutional right to a fair and impartial jury by the impaneling of juror Burgher. This juror
was properly excusable for cause under People v Daoust,1 and would have been excused had she
disclosed her actual prior relationship with Jason Kruger during voir dire. Accordingly, I would
reverse the trial court’s order denying defendant’s motion for a new trial and remand for further
proceedings.
Ms. Burgher admitted in affidavits submitted after defendant’s trial that Mr. Kruger, a
participant in the film that is the subject of this case,2 was her ex-boyfriend and that he raped her.
She admitted that she was afraid of Mr. Kruger and avoids contact with him. She also stated that
she broke up with Mr. Kruger because he and his friends were always in trouble, and asserted
that Mr. Kruger and his friends once stood outside her place of employment, mocking her. Ms.
Burgher’s judgment was certainly clouded by her admittedly strong negative feelings about Mr.
Kruger and his friends. In fact, Ms. Burgher stated that, if she understood Mr. Kruger’s role in
defendant’s case, she would not have said that she could be an impartial juror.
The trial court asked Ms. Burgher how she knew Mr. Kruger. Although the majority
states that Ms. Burgher truthfully disclosed that she knew Mr. Kruger, she merely responded that
she went to school with the witness in the eighth grade. By her own admission, Ms. Burgher
knew Mr. Kruger much more intimately than she indicated. She failed to further elaborate on
1
People v Daoust, 228 Mich App 1, 9; 577 NW2d 179 (1998).
2
Although Mr. Kruger is present in the film, he does not participate in any sexual activity.
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this relationship when asked if she knew of any reason that she could not be fair and impartial or
whether she would give Mr. Kruger’s testimony different weight. If these facts had been
disclosed during voir dire, the trial court clearly would have excused Ms. Burgher for cause.
This conclusion is unaffected by Ms. Burgher’s claim that she failed to disclose accurate
information regarding her relationship with Mr. Kruger because she was not questioned in more
detail during voir dire. In People v DeHaven,3 the Michigan Supreme Court found that the
defendant’s constitutional right to be tried by a fair and impartial jury was violated when two
jurors knowingly withheld relevant information, when directly asked, during voir dire.4
Subsequently, in People v Hannum,5 the Court found that the defendant’s rights were violated
when a juror failed to disclose that he was a police officer.6 “That the lack of disclosure of the
pertinent fact can be attributed to failure to expressly ask the prospective juror about it can hardly
be thought to have insured an impartial trial. . . .”7 Ms. Burgher’s failure to disclose highly
pertinent information that directly affected her ability to impartially consider Mr. Kruger’s
participation in the underlying crimes involved in defendant’s trial clearly prevented her being
excused for cause.
Without regard to the Michigan Supreme Court’s explicit holding in Hannum, the
majority relies on nonbinding caselaw to find that defendant waived his right to challenge the
presence of Ms. Burgher on the jury, as his attorney failed to question her further on voir dire.
However, as the majority concedes in their analysis of defendant’s ineffective assistance of
counsel challenge, defense counsel had no reason to suspect that Ms. Burgher had a prior
acrimonious relationship with Mr. Kruger. As defendant’s trial occurred in a rural area with a
small population, it was not unusual that two jurors knew Mr. Kruger. Therefore, Ms. Burgher’s
limited response likely would not have elicited further questions from a defense attorney.
Accordingly, I would find, pursuant to longstanding precedent, that defense counsel’s failure to
further question Ms. Burgher does not prevent defendant from challenging her presence on the
jury.
The majority also finds that defendant was not prejudiced by Ms. Burgher’s presence on
the jury as Mr. Kruger’s role in defendant’s trial is “far too tangential” to find prejudice. I
disagree. The evidence reveals that Mr. Kruger operated the camera at times, and Mr. Kruger
3
People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948).
4
Id. at 331-334.
5
People v Hannum, 362 Mich 660; 107 NW2d 894 (1961).
6
Id. at 666.
7
Id. at 667.
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appears in the film that is the subject of this trial. This young female juror could not have been
impartial watching an ex-boyfriend, who raped her, participate in such activities. Accordingly, I
would reverse and remand.
/s/ Jessica R. Cooper
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