PEOPLE OF MI V BENNY JOHNSON JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 6, 2001
Plaintiff-Appellee,
v
No. 212482
Oakland Circuit Court
LC No. 97-156672-FC
BENNY JOHNSON, JR.,
Defendant-Appellant.
Before: O’Connell, P.J., and Kelly and Whitbeck, JJ.
WHITBECK, J. (dissenting).
I respectfully dissent. Defendant Benny Johnson, Jr., claims on appeal that he was denied
a fair trial by an impartial jury because one of the jurors in his case, juror 457, was also a
complainant in a domestic violence case, which occurred in the same county and was prosecuted
by the same division of the prosecutor’s office at the same time Johnson was prosecuted.
Johnson asserts that he did not learn about juror 457’s background until after the jury, including
juror 457, convicted him and so lacked an opportunity to challenge her for cause during voir dire.
Even when applying a narrow interpretation of relevant case law and of the applicable court rule,
I would reverse Johnson’s conviction and remand for a new trial.
I. Basic Facts And Procedural History
The lead opinion sets out the facts of the case in some detail. I repeat them here so that
any reader, including those in a reviewing court, will have the benefit of the full context of the
juror bias issue. During voir dire, the venire members learned that the prosecutor had charged
Johnson with domestic violence involving an assault and battery against his former girlfriend.
Immediately thereafter, the trial court asked the venire members “now that you have heard all of
the charges in this case do you know of any reason why you should not serve as a juror in this
case?” No one responded to this question. The trial court then asked, “Are there any among you
who have been previously a victim of a crime.” In response, a venire member who was later
identified as juror 457 responded, “I have been assaulted,” prompting the following colloquy:
THE COURT:
By virtue of that experience, would you be thinking about
that experience and would it interfere with your ability to listen to the facts of this
case and decide this case from the evidence here?
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JUROR:
No, I can keep it separate.
THE COURT:
Okay. You can keep it separate, good. Anyone else?”
The trial court also inquired, “Do [sic] each of you feel that you are, that you can be fair and
impartial and that you are fair and impartial?” The transcript does not indicate that any venire
member responded to this question.
After reminding the venire of the charges in the case, the prosecutor asked the venire
members if any one of them would “have a problem sitting on that type of jury listening to that
type of evidence.” Again, no one responded. When defense counsel asked the venire members if
any of them had been in a position where he or she felt “threatened with some type of weapon,”
juror 457 responded that she had been hit in the head with a gun as a teenager but could disregard
the experience. Defense counsel also asked whether any of the venire members had “something
weighing so heavily on your mind right now that you might not be able to give full attention to
this case” and “wouldn’t want themselves sitting as a juror if they were the Defendant in a case.”
Juror 457 did not respond to these questions. Defense counsel, after asking the trial court to
remove one venire member from the jury for cause and exercising six peremptory challenges,
expressed satisfaction with the jury.
Before sentencing, Johnson moved for a new trial on the basis of juror bias. Johnson
claimed that he did not know until after he was convicted that juror 457, at the time of the trial,
was the complainant in a domestic violence prosecution in Oakland County, making her
incompetent to serve on the jury. The prosecutor argued to the trial court that Johnson was not
entitled to a new trial because juror 457 revealed during voir dire that she had been the victim of
an assault. As a result, the prosecutor contended, juror 457 had not knowingly given false or
misleading answers to voir dire questions. Further, the prosecutor argued, a new trial was not
necessary because juror 457 stated that she would not be biased, defense counsel did not ask her
any additional questions, and the defense could have used a peremptory challenge to excuse her
from the jury. Finally, the prosecutor, who was not involved in the Oakland County domestic
violence case in which juror 457 was the complainant, added that juror 457 had not cooperated
with the prosecution in that separate case.
Defense counsel then asserted that he had learned that juror 457 had told the assistant
prosecuting attorney assigned to prosecute the Oakland County case against her abuser that she
was ready to convict Johnson in this case even before the trial began. Defense counsel also
claimed that, had he known that juror 457 was a prosecution witness in a domestic violence case,
he never would have allowed her to remain on the jury, i.e., he would have exercised a
peremptory challenge against her.
Following the hearing, the trial court entered an opinion and order denying Johnson’s
motion for a new trial, observing in relevant part:
As to the issue of juror bias, this Court finds such argument without merit.
The defendant argues that he was denied an impartial jury panel as a result of
Juror #457’s bias. There has been no showing that the Juror [sic] knowingly
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concealed, mislead [sic] or gave false information during voir dire. In fact, when
the Juror notified the Court that she was the victim of an assault, the Defense
Counsel did not conduct further inquiry and failed to exercise a preemptory [sic]
challenge or challenge for cause. Moreover, as a result of the disclosure by Juror
#457, this Court asked whether the Juror could remain fair and impartial. Juror
#457 responded that she could.
II. Standard Of Review
Johnson argues that he was denied his right to a trial by an impartial jury1 because he
could have successfully challenged juror 457 for cause under MCR 2.511(D)(3), (4), (5), and
(13). Thus, he claims, the trial court erred when it denied his motion for a new trial. This Court
reviews a trial court’s decision on a motion for a new trial for an abuse of discretion.2
III. Right To A Fair And Impartial Jury
A. Overview
This appeal has both a procedural and substantive legal context. The procedural context
relies wholly on the merit of the legal proposition at issue in this appeal, described below.
Pursuant to MCR 6.431(B), a trial court may grant a new trial to a criminal defendant on the
basis of “any ground that would support appellate reversal of the conviction or because it
believes that the verdict has resulted in a miscarriage of justice.” The trial court denied
Johnson’s motion because, it concluded, the juror bias issue in this case would not merit reversal
on appeal or because juror 457’s service on the jury did not implicate either of these conditions
meriting a new trial.
From my perspective, the trial court erred when it denied the motion for a new trial
because it misunderstood the substantive legal context surrounding juror 457, namely whether
her presence on the jury denied Johnson his constitutional right to a fair and impartial jury.3 The
little Michigan case law that exists to define when a defendant has been denied this right
nevertheless does so in a fairly simple and complete manner. In People v Daoust,4 this Court
unequivocally stated that “a defendant is denied his right to an impartial jury when a juror
removable for cause is allowed to serve on the jury. In some circumstances, this is true even
when the information justifying the juror’s removal is not discovered until after the trial.” The
Daoust Court rooted its conclusion in the Michigan Supreme Court’s decisions in People v
1
US Const, Am VI; Const 1963, art 1, § 20; Duncan v Louisiana, 391 US 145, 149; 88 S Ct
1444, 1447; 20 L Ed 2d 491 (1968); People v Clark, 220 Mich App 240, 245-246; 559 NW2d 78
(1996).
2
People v Leonard, 224 Mich App 569, 580; 569 NW2d 663 (1997).
3
US Const, Am VI; Const 1963, art 1, § 20; see also People v Schmitz, 231 Mich App 521, 528;
586 NW2d 766 (1998) (“Without question, a criminal defendant has a constitutional right to be
tried by a fair and impartial jury.”)
4
People v Daoust, 228 Mich App 1, 9-10; 577 NW2d 179 (1998).
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Hannum5 and People v DeHaven6 and outlined the two grounds that a defendant may rely on to
establish entitlement to a new trial. Under Daoust, a defendant is entitled to relief from a verdict
“when information potentially affecting a juror’s ability to act impartially is discovered after the
jury is sworn” if the defendant can establish “(1) that he was actually prejudiced by the presence
of the juror in question or (2) that the juror was properly excusable for cause . . . .”7 By writing
this in the disjunctive, the Court made clear that a defendant need not prove both conditions
before receiving a new trial.8 The Daoust Court, in dicta, also acknowledged that when a juror
lies during voir dire, these two grounds for a new trial would not necessarily apply.9 Minimally,
this implies that if a juror, during voir dire, purposefully withholds information relevant to
whether that juror could act impartially, a defendant need not show prejudice or that the juror
could be challenged for cause under the court rules in order to receive a new trial.
B. Prejudice
Daoust expressly holds that a defendant is entitled to relief if he can establish that he was
“actually prejudiced” by the juror in question.10 Johnson briefly asserts that juror 457 intended to
convict him even before hearing all the evidence. In my view, a juror who intends to convict a
defendant regardless of the evidence demonstrates the ultimate level of prejudice possible.
Without impartiality from each and every juror who sits in judgment of a defendant, neither
courts of law nor society at large can or should have any measure of assurance that that jury will
render a just verdict. It is extremely easy for a reviewing court to conclude that a guilty verdict
may have been warranted in a particular case, regardless of whether the jurors who served as
factfinders had preexisting bias. Yet, because we humans are fallible, we must adhere to
objective standards of fairness to ensure that juries do not make grave mistakes when passing on
the question of guilt or innocence.
In this case, juror 457’s expressed intent to convict Johnson without hearing the evidence
indicates, in my view, that Johnson established sufficient prejudice to warrant a new trial.
Indeed, I would conclude that the fact that the trial court ignored such significant prejudice
demonstrates that the trial court abused its discretion in denying the motion for a new trial. Still,
the record is incomplete concerning actual prejudice and Johnson devotes significantly less effort
in arguing the prejudice issue than in arguing that he is entitled to a new trial because he could
have challenged juror 457 for cause. I therefore focus my dissent on the challenge-for-cause
issue, not in Johnson’s less-developed argument concerning actual prejudice. Contrary to the
lead opinion’s assertion, see ante at ___, n 7, I do not therefore base my dissent on the
proposition than an unsubstantiated double hearsay statement can used to disregard the
presumption of impartiality.
5
People v Hannum, 362 Mich 660; 107 NW2d 894 (1961).
6
People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948).
7
Daoust, supra at 7-8, citing Hannum, supra at 666-667, and DeHaven, supra at 330-334.
8
See Caldwell v Chapman, 240 Mich App 124, 131; 610 NW2d 264 (2000).
9
Daoust, supra at 9, n 3.
10
Id. at 7.
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C. Challenge For Cause: Interest In Another Similar Issue
A defendant establishes the second, alternative ground for a new trial under Daoust if he
can demonstrate that the juror could have been excused for cause.11 This Court decided Daoust
in 1998, after the current version of the court rule, promulgated in 1985, went into effect. Daoust,
however, does not refer to MCR 2.511(D), which lists thirteen separate grounds that justify
excusing a venire member from jury service “for cause,” because peremptory challenges were
largely at issue in that case. Nevertheless, the explicit holding in Daoust does refer to challenges
for cause, making it applicable to Johnson’s case.
The thirteen grounds identified in MCR 2.511(D) generally specify conditions or factors
that reveal that a venire member has a bias that makes that person unfit or legally incompetent to
serve on a jury.12 Johnson claims that four of these grounds would have required the trial court
to excuse juror 457 for cause. I address only the last ground, MCR 2.511(D)(13).
MCR 2.511(D)(13) provides that a juror can be challenged for cause if she “is interested
in a question like the issue to be tried.” Michigan’s appellate courts have not specified the
circumstances that demonstrate that a venire member “is interested in a question like the issue to
be tried” under this court rule. Nevertheless, the language in MCR 2.511(D)(13) plainly requires
the party challenging the person for cause to address only three uncomplicated lines of inquiry.13
First, what is the issue to be tried? Second, does a similar issue exist elsewhere? Third, is the
venire member being challenged for cause “interested” in that other similar issue? The party
challenging the venire member satisfies the burden of proof by identifying the issue being tried,
showing that it is similar to an issue elsewhere, and demonstrating that the venire member is
interested in that other similar issue.
Not surprisingly, the third line of inquiry is critical because it entails more legal analysis
than a raw recitation of facts. Although MCR 2.511 does not define the word “interested” in any
of its subsections, the rules of construction require that it be given an ordinary meaning because
it is a common word.14 This meaning can be determined by resorting to a dictionary.15 Random
House Webster’s College Dictionary (2d ed) defines “interested” as “having an interest or share;
concerned,” “having the attention or curiosity engaged,” or “influenced by personal or selfish
motives.” That same dictionary’s definition of the word “interest,” which plays a role in defining
the meaning of the word “interested,” is even more illuminating. The relevant definitions
suggest that to be interested simply means “the state of being affected by something in respect to
advantage or detriment” or to be “involved” in something.
11
Id.
12
See Martin, Dean & Webster, Court Rules Practice, at 172-173.
13
See, generally, People v Badour, 167 Mich App 186, 189; 421 NW2d 624 (1988), rev’d on
other grounds sub nom People v Beckley, 434 Mich 691; 456 NW2d 391 (1990).
14
Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000).
15
Popma v Auto Club Ins Ass'n, 446 Mich 460, 470; 521 NW2d 831 (1994).
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Applying this three-part inquiry to juror 457’s circumstances leads me to conclude that
she was could have been challenged for cause under MCR 2.511(D)(13). First, the issues to be
tried in this case were whether Johnson was guilty of kidnapping, first-degree domestic violence,
criminal sexual conduct, or felonious assault. Second, the domestic violence issue existed
elsewhere, in the Oakland County prosecution against juror 457’s abuser. Third, juror 457 was
“involved” in the prosecution of that case because she was the complaining witness, albeit an
allegedly uncooperative one. The Oakland County prosecution in which juror 457 was
“involved” also “affected” her because a conviction or acquittal of her abuser would influence
whether that individual would be incarcerated, which in turn would determine his ability to harm
her.
I agree with the lead opinion that it is possible to argue that there is a dispute in the record
regarding what actually occurred between juror 457 and her abuser in the incident that led to that
man’s arrest and prosecution in Oakland County. However, neither this Court nor the trial court
had to decide the merits of that other case. Rather, the pertinent questions were whether that
other case involved an issue similar to at least one issue tried in this case and if juror 457 was
interested in that case. There is no dispute that the allegations and domestic violence charge
against juror 457’s abuser was similar to the domestic violence charge in the instant case and that
juror 457 was “interested” in that other case.
Given the answers to these questions, I have no doubt that Johnson could have challenged
juror 457 for cause under MCR 2.511(D)(13).16 This Court’s opinion in McNabb v Green Real
Estate Co17 suggests that the trial court, had it been presented with a challenge for cause against
juror 457 on this basis, would have lacked any significant discretion18 to refuse to remove her
from the jury.19 As it is clear that Johnson was denied his right to an impartial jury because a
16
Although not binding, the dicta in Justice Levin’s dissent to the Michigan Supreme Court’s
order reversing the Court of Appeals in People v James, 436 Mich 851; 460 NW2d 557 (1990),
suggests that this is the correct conclusion. In James, the defendant was convicted of felony
murder, armed robbery, and felony-firearm. Id. at 851. After the guilty verdict, James learned
that one of the jurors who sat on the jury in his case was the complaining witness in another case
in which the defendant was charged with armed robbery. Id. at 855. During James’ trial, this
juror testified in the other case. Id. Though focusing primarily on other legal issues in the
appeal, Justice Levin, joined by Justices Cavanagh and Archer, intimated that this was sufficient
proof under GCR 1963, 511.4(13), the predecessor to MCR 2.511(D)(13), to justify the trial
court’s decision to grant James a new trial. Id. at 855, n 13.
17
McNabb v Green Real Estate Co, 62 Mich 500, 507; 233 NW2d 811 (1975).
18
“Currently the Michigan Court Rules implicitly provide that upon a demonstration by counsel
that a prospective juror fits one of the categories enumerated in MCR 2.511(D)(4)-(13), a trial
court is required to excuse such juror for cause. This showing is equivalent to proving a biased
or prejudicial state of mind. . . . Ultimately, however, the decision to grant or deny a challenge
for cause is within the sound discretion of the trial court. Nevertheless, in exercising this
discretion, the trial judge is not without constraint.” Poet v Traverse City Osteopathic Hosp, 433
Mich 228, 236-237; 445 NW2d 115 (1989) (emphasis supplied and citations omitted).
19
Although this Court decided McNabb under GCR 1963, 511.4(13), the relevant language in the
old court rule is identical to the current language in MCR 2.511(13). Therefore, there is every
reason to believe that McNabb applies in this case.
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juror removable for cause was allowed to serve on the jury, I conclude that the trial court abused
its discretion when it denied the motion for a new trial.
I emphasize that there are two factually relevant cases on this subject, which were decided
long before the Michigan Supreme Court promulgated the current version of the court rules in
1985. These cases served as the foundation for this Court’s decision in Daoust. In the first case,
DeHaven, supra, the prosecutor charged the defendant with statutory rape of his thirteen-year-old
stepdaughter.20 Not until after he had been convicted by a jury did the defendant learn that two
of the jurors who convicted him were related to a man who had been convicted in a neighboring
county of statutory rape of five of his daughters, including one who was thirteen years old.21 One
juror on DeHaven’s jury, William Haverdink, was the convicted rapist’s cousin and the other
juror, John Bouws, was the rapist’s brother-in-law.22 During voir dire in the trial court, the
following exchange occurred:
The Court:
Mr. Haverdink, you heard my questions?
Mr. Haverdink:
The Court:
And [do] you know anything about the case?
Mr. Haverdink:
The Court:
I do not.
Know any of the parties?
Mr. Haverdink:
The Court:
I did.
No.
Have any business with any of the attorneys?
Mr. Haverdink:
No, I don’t.
The Court:
Do you of anything that might interfere with your fair and impartial
trial of this kind of case?
Mr. Haverdink:
I don’t
The Court:
There is nothing about anything that has happened to any members
of your family that would make you feel different about this case than others?
Mr. Haverdink:
The Court:
No.
You feel in this case you could sit in this case fairly and impartial?
Mr. Haverdink:
I can.
The Court:
There is no other case you heard about or know about [that] would
influence your verdict in any way.
20
DeHaven, supra at 329.
21
Id. at 331.
22
Id.
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Mr. Haverdink:
No.
The Court: Do you have a daughter, do you?
Mr. Haverdink: I have daughters, but they are all married.
The Court: Well, [do] you think that would make any difference in this case?
Mr. Haverdink: It wouldn't.
The Court: Do you know any of these parties I have named here as witnesses?
Mr. Haverdink: No, I don't.
The Court: Have you any challenge now?
Mr. Ray: No.[23]
When the defendant moved for a new trial because Haverdink was biased, the trial court denied
the motion, commenting that Haverdink had not been explicitly asked about the offense his
relative had committed, he had stated that he would remain unbiased, and any bias he had would
have inured to the defendant’s benefit.24 The trial court also denied the motion for new trial
based on Bouws’ alleged bias by relying on “similar” reasoning.25
On appeal, the Supreme Court in DeHaven, citing 31 Am Jur pp 638, 639, § 108,
implicitly rejected the trial court’s reasoning that a new trial was not necessary because the jurors
gave assurances that they could act impartially.26 The Court acknowledged that the two jurors in
question likely had good reasons not to want to reveal their relationship with a rapist.27
Nevertheless, the Court quoted two earlier cases28 for the proposition that jurors must not have
an interest in a similar case so that they may judge the facts of the case at hand fairly and
impartially based on the evidence presented, not on viewpoints cultivated in the similar case.
Applying this principle to the facts, the Court held that “the relationship of these two jurors to
one who had committed a similar crime was such that it deprived them of the capacity to act
impartially.”29
23
Id. at 330-331.
24
Id. at 331.
25
Id.
26
Id. at 332.
27
Id. at 334.
28
Id. at 332-333, quoting Durham v State, 182 Tenn 577, 188 SW2d 555 (1945) and People v
Troy, 96 Mich 530; 56 NW 102 (1893).
29
Id.
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Under the legal reasoning advanced in DeHaven, which I hasten to add is binding
precedent,30 juror 457 was plainly biased because she was interested in the other domestic
violence prosecution. Moreover, if DeHaven implies that the degree of relationship between the
juror and another matter is relevant, juror 457 plainly passes this sort of test. Certainly, a woman
who is a complainant in a similar domestic violence prosecution occurring at the same time, in
the same county, prosecuted by the same governmental unit as this case is as closely, if not more
closely, related to her abuser than the two jurors in DeHaven were related to the convicted rapist.
Therefore, the reasoning in DeHaven that this relationship deprived the juror of the “capacity to
act impartially” applies equally well in this case.
The second relevant case upon which this Court relied in Daoust is Hannum, in which the
defendant was charged with and convicted of manslaughter for killing her husband.31 One of the
jurors who convicted her was a police officer and special deputy sheriff for the area where the
defendant committed the crime.32 Relying on DeHaven, the Hannum Court concluded that the
juror lacked the capacity to be impartial.33 One interesting aspect of Hannum is that the juror in
question was not specifically involved in another manslaughter case as a law enforcement officer.
Nor is there any indication that he was related by blood or affinity to another person charged with
or convicted of committing manslaughter. Rather, the Supreme Court inferred that his interest or
involvement in criminal cases in general predisposed him to being biased. One lesson I draw
from the Hannum opinion is that a loose association with another similar case34 is sufficient to
establish that a particular juror cannot be impartial, even without concrete evidence that the juror
acted in a biased fashion when deciding the case. Here, there was just such a relationship
between juror 457 and the other Oakland County domestic violence prosecution in which she
was involved.
D. Disclosure During Voir Dire
DeHaven and Hannum present reasoning that fits well here and also provide the narrower
grounds on which I explicitly dissent in this case. In addition to noting the effect that bias
arguably had on each juror’s capacity to act impartially, the Court in DeHaven and Hannum
pondered the biased jurors’ failure to disclose information that would have revealed their
individual biases in reaching the conclusion that the defendants in those cases were entitled to a
new trial. In DeHaven, the Court discussed the testimony the jurors gave during voir dire, noting
that “[i]t can readily be seen why they did not want to acknowledge relationship to a confessed
rapist, but their obligation and duty as jurors transcends in importance their hesitancy in
30
People v Beasley, 239 Mich App 548, 559; 609 NW2d 581 (2000) (“An elemental tenet of our
jurisprudence, stare decisis, provides that a decision of the majority of justices of the Michigan
Supreme Court is binding on lower courts.”).
31
Hannum, supra at 661-662.
32
Id. at 666.
33
Id.
34
I do not suggest that all law enforcement officers should be automatically disqualified as
jurors.
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admitting such relationship.”35 Thus, the jurors’ failure to reveal that they were related to a rapist
played more than a minor part in the Court’s decision.
Similarly, before coming to the conclusion that the defendant was entitled to a new trial,
the Court in Hannum noted that each member of the jury was required to fill out a questionnaire
with information about his employment as well as other matters but that the juror in question did
not reveal that he was a law enforcement officer.36 After briefly outlining the circumstances in
DeHaven, including the fact that the challenged jurors had lied during voir dire, the Hannum
Court posed and answered a hypothetical question, thereby disposing of the issue:
Would any experienced trial lawyer, or, for that matter, the public generally, feel
differently as to the capacity of a local police officer to sit as a juror and consider
impartially the case of a defendant charged with a crime committed in the
community? We think not. 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 any more so than in DeHaven,
merely because there the panel members denied such qualification.[37]
Thus, while the essential capacity of the juror to be fair and impartial was certainly a major
consideration in Hannum, the Court also paid significant attention to the substance of voir dire in
reaching its holding.
Though Daoust emphasized that whether the biased juror was allowed to serve was
central to whether the defendant was entitled to a new trial, it also implied that courts must
address potential juror bias based on information that becomes available after voir dire. What
was known and what remained undisclosed during voir dire becomes relevant in determining
whether there was a constitutional violation.38 Although not stated in so many words, Daoust
points to a situation in which, as a matter of trial strategy, a defendant specifically knows of the
venire member’s bias but explicitly chooses to have that individual serve on the juror. Under
People v Carter,39 that tactical decision by a defendant would be considered a technical waiver of
the fair and impartial jury issue and would be unlikely to require a new trial. A similar situation
might arise if a defendant chose not to delve into the possibility of bias at all, or failed to do so
reasonably. Whether and how the defense inquired into bias is relevant in this sort of case.40
35
DeHaven, supra at 334.
36
Hannum, supra at 666.
37
Id. at 666-667 (emphasis supplied).
38
Daoust, supra at 9
39
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
40
It is possible that a case might arise in which the prosecutor or trial court’s questioning during
voir dire is relevant to whether the inquiry was reasonably calculated to reveal the bias, i.e.,
circumstances in which defense counsel or the defendant did not need to ask additional questions
because they had already been asked. I also note that diligence during voir dire is irrelevant if a
venire member lies.
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With these considerations in mind, the rule of law I prefer would require a defendant
relying on the second ground for a new trial that this Court articulated in Daoust – that a juror
could have been challenged for cause under MCR 2.511(D)(13) – to support that argument by
showing that the defense conducted voir dire with reasonable diligence.41 Stated another way,
the questioning during voir dire must attempt to discover bias in a reasonable manner. The lead
opinion focuses exclusively on whether, during voir dire, juror 457 told the truth. In one sense,
this is a diligence inquiry at the extreme because it goes beyond examining whether any of the
parties or the trial court ever could have elicited newly discovered information revealing bias.
Fortunately, I need not decide whether the heavy weight the lead opinion gives this
truth/diligence inquiry determines whether Johnson is entitled to a new trial as a matter of law.
In this case, it is clear that the trial court and defense counsel made a reasonably diligent inquiry
into juror 457’s background and she either minimized or entirely failed to disclose facts that
would have shown her “interest” in the same charge for which Johnson was being tried. There is
no evidence that any additional questioning during voir dire would have revealed that juror 457
could have been challenged for cause. As a result, under the circumstances surrounding this
case, I conclude that Johnson is entitled to a new trial.
IV. The Lead Opinion
A. Overview
The lead opinion relies on four interlocking premises: (1) the real legal issue in this case
is whether juror 457 technically told the truth during voir dire, (2) she told the truth, (3) any
failure to elicit “additional truth” from her was solely due to defense counsel’s performance
during voir dire, and (4) as a result, Johnson failed to overcome the presumption that jurors are
impartial and competent to serve. While I admit that this is a tidy approach to the appeal, I
believe these premises are not well-grounded.
B. The Legal Issue
The statement of the issues presented in Johnson’s appellate brief asks “where it was not
revealed until after the verdict that one of the jurors was a complainant in a domestic violence
prosecution at the time of trial, is defendant entitled to a new trial[?]” This is a general statement
of the issue, which Johnson then analyzes in greater detail. The facts Johnson relates in his
discussion of this issue, including the contrast between juror 457’s actual statements during voir
dire and the information she failed to reveal, merely explain why he did not challenge her for
41
Of course, actual prejudice in terms of having a juror who is biased and acts on that bias
appears to be the type of structural, constitutional error that would be subject to a rule of
automatic reversal. See People v Duncan, 462 Mich 47, 51-52; 610 NW2d 551 (2000). Whether
a defendant is entitled to a new trial because prejudice is presumed from juror’s eligibility for a
challenge for cause under the court rules presents a separate question. Whether a rule of
automatic reversal is wise or necessary in such a case is debatable and need not be resolved here.
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cause during voir dire.42 These facts, as inflammatory as they may be, do not constitute
Johnson’s legal argument. Johnson does not argue that he is legally entitled to a new trial merely
because juror 457 concealed her bias and involvement in the prosecution against her abuser.
Rather, Johnson states in his brief that his substantive legal argument is that “had the information
been revealed during voir dire, [juror 457] would have been challenged and excused for cause”
based on MCR 2.511(D)(3), (4), (5), and (13). This specific legal argument grounded in the
court rules supports Johnson’s overarching theory that he must have a new trial because juror 457
cannot be presumed impartial. Thus, in order to determine whether his arguments have merit,
those arguments and MCR 2.511 must remain the centerpiece of the analysis in this case.
Yet, the lead opinion fails to examine MCR 2.511(D)(13), or any of the other subsections
Johnson cites, in order to determine whether Johnson’s arguments have merit. By not examining
this court rule, the lead opinion misses the point that MCR 6.431(B) permits a defendant to argue
that an error occurred at some earlier stage of the proceedings that merits a new trial, including
an error during voir dire as defined by MCR 2.511. By its plain language, MCR 2.511(D) does
not attempt to limit the question and effect of juror bias solely to voir dire. Allowing a biased
juror to serve at trial taints the verdict and, if objections to juror bias could not ever be raised
following voir dire, appellate courts would be forced to accept all such tainted jury verdicts
because the bias question would be beyond review.
By raising MCR 2.511 in the motion for a new trial, Johnson was not arguing that the
trial court should remove juror 457 from the jury at that time. The jury had already rendered the
guilty verdict and had been discharged by the time Johnson moved for a new trial. Rather,
Johnson was arguing that his trial was unfair and the jury’s verdict unreliable because juror 457
was biased, as that term is defined in MCR 2.511(D), and sat in judgment of him. Further,
Johnson claimed, he was excused from having recognized the bias during voir dire because juror
457 was not forthcoming when questioned.
Given these facts and arguments, it is incumbent on this Court to examine whether, if at
all, juror 457 was biased within the meaning of MCR 2.511(D) in order to determine whether
there were grounds for a new trial under MCR 6.431(B). The lead opinion, however, defines the
issue on appeal solely in terms of what juror 457 said during voir dire.43 In doing so, the lead
opinion eschews any meaningful examination of whether juror 457 could be considered biased
because she was subject to removal for cause under MCR 2.511(D). The lead opinion observes
in a footnote that juror 457 eventually refused to cooperate with the prosecution against her
abuser. I am not persuaded that juror 457’s level of cooperation with the prosecution against her
42
The trial court record does not clearly relate all the facts surrounding the case in which juror
457 was the complaining witness. Although Johnson’s brief on appeal and exhibits to that brief
do relate quite a few additional facts, this Court cannot consider them on appeal. See Isagholian
v Transamerica Ins Corp, 208 Mich App 9, 18; 527 NW2d 13 (1994).
43
DeHaven and Hannum involved jurors who either lied or failed to reveal pertinent information
during voir dire. The Supreme Court, in framing the issues addressed in those appeals, did not
attempt to rationalize, explain, or dissect the jurors’ statements. The Court addressed the
substance of those statements to explain why those jurors could not act impartially and to show
that no additional questioning during voir dire would have made a difference in the case.
-12-
abuser obviates the interest she unequivocally had in the other case, much less obviates that
interest to an extent that excuses this Court from examining the legal basis for this appeal.
I also note that MCR 2.511(D) as a whole does not require a venire member to have an
improper purpose in failing to reveal biases in order to conclude that the jury’s verdict is subject
to reversal.44 The party challenging the venire member must prove that these biases do exist. In
reality, juror 457 may have had completely understandable reasons for withholding information
during voir dire and obscuring the truth when responding to certain questions.45 However, juror
457 is not on trial in this case and this Court does not need to resolve why she withheld certain
pieces of information. The Court need only satisfy itself that the information that came to light
by the time of the motion for a new trial reveals that she could have been challenged for cause
had she revealed this information. Again, because the lead opinion does not address any of the
four separate grounds under the court rule that Johnson cites, the lead opinion avoids having to
address whether the facts of this case demonstrated that she was biased. Minimally, and under a
narrow reading of the court rule, juror 457 could have been challenged for cause under MCR
2.511(D)(13) even if there were no other evidence that she had an inclination to be partial toward
the prosecutor and against Johnson.46 The fact that the information that juror 457 was the
complaining witness in the domestic violence case came out after voir dire merely excuses
Johnson’s failure to object to her presence on the jury at an earlier time and provides the basis for
the proper legal analysis in this case.
C. The Truth
The lead opinion’s second major premise, following on the heels of its conclusion that
whether juror 457’s testified truthfully defines the legal issue, is that juror 457 actually told the
truth during voir dire. If this was not the whole truth, it was the only truth the lead opinion
believes was necessary.
While there is no reason to believe that juror 457 lied when she admitted that she had
been assaulted, her response implied that she had been the victim of a crime only one time.
Indeed, the trial court’s follow-up question, asking whether “[b]y virtue of that experience, would
you be thinking about that experience and would it interfere with your ability to listen to the facts
of this case and decide this case from the evidence here,”47 indicates that the trial court
understood that juror 457 had suffered only one previous assault. Yet juror 457 failed to describe
or mention the recent incident that led to the other Oakland County prosecution in which she was
involved. Certainly, there was debate in the record concerning what occurred between juror 457
44
See DeHaven, supra at 334.
45
For instance, she may have feared that her abuser would harm her if he found out that she
exposed his violent history in open court.
46
Note that even though the trial court in DeHaven denied the motion for a new trial reasoning
that any juror bias was in the defendant’s favor, the Supreme Court nevertheless reversed.
DeHaven, supra at 331, 334. This suggests that the question is not whether the bias favored one
party over another, but simply whether there was bias.
47
Emphasis supplied.
-13-
and her abuser in that case. This does not mean, however, that this threatening incident and the
subsequent prosecution did not happen. Critically, the implication that juror 457 had been the
victim of only one crime simply was not true.
D. The “Additional” Truth
The lead opinion distinguishes between “the truth” and “additional truth” by presuming,
in effect, that defense counsel had a duty to read juror 457’s mind to learn about her personal
experiences in order to ask her pointed questions that she could not evade. In this instance, the
lead opinion is apparently endorsing a process that permits evasion in a proceeding that literally
means to “speak the truth.”48
While there are any number of questions that either the trial court or the attorneys in this
case could have asked the venire members, there was no manifest need to engage in a far-flung
fishing expedition and, under DeHaven, Hannum, and Daoust, no such effort is required. Rather,
I think it sufficient if the trial court or defense counsel conducts a reasonably diligent inquiry into
the potential for bias and the venire member in question who becomes a juror either minimizes or
entirely fails to disclose facts that would have shown his or her “interest” in a similar issue in
another case or matter.
In DeHaven, the trial court asked Haverdink, and presumably Bouws, open-ended
questions that were quite similar to the questions juror 457 was asked to answer here.49 These
nondirective questions asked the venire members in DeHaven and this case to reveal enough
information about their personal lives that, had there been even a hint of bias, a reasonable
person would have inquired further. In this case, when venire members gave some indication
that they may have had an experience that would permit them to be challenged for cause, the
attorneys or the trial court followed-up with those individuals. The problem in DeHaven and in
this case is simply that the respective attorneys and trial courts had no reason to believe that there
was any further evidence of bias to discover. For instance, even though the trial court asked
whether any of the venire members knew of a reason why they should not serve on the jury, juror
457 never responded. Her statements during voir dire, including her statement that she had been
assaulted, did not relate to this domestic violence incident and gave no clue to the trial court or
the attorneys that further inquiry was necessary.
Given a reasonably diligent inquiry that seeks to discover bias, I see no legitimate reason
to make voir dire an exhaustive questioning process that examines every event in a venire
member’s life from the moment of birth onward so that a defendant will be entitled to enforce his
constitutional right to an impartial jury. Neither the court rules nor the Supreme Court
precedents require such a process. This process would be, in any event, useless in discovering
jurors who are unaware of their biases, jurors who intend to conceal their biases no matter how
sophisticated and probing the questioning during voir dire is, or jurors who develop biases after
the jury is impaneled. However, only this sort of exhaustive questioning would have elicited
48
See Black’s Law Dictionary (6th ed) (defining voir dire).
49
DeHaven, supra at 330-331.
-14-
evidence of juror 457’s interest in the other case, assuming she would have responded to a direct
question about whether she was currently a complaining witness in another domestic violence
case.
E. Presumptive Impartiality
The final element of the lead opinion’s analysis relies on a presumption that juror 457
was impartial, without ever addressing the evidence to the contrary. True, courts assume that
jurors are impartial.50 However, contrary to the lead opinion’s suggestion, this is an assailable
proposition and a defendant may overcome this presumption by proving that a juror is partial.51
In my view, the facts surrounding juror 457’s circumstances prove that she was biased within the
meaning the court rules give to that term while articulating the grounds that serve as the basis for
a challenge for cause. Though the record reflects that juror 457 said that she could separate her
feeling surrounding the one assault she mentioned during voir dire, she never said that she could
keep her experience with domestic violence separate from her role as a juror.52 Nor does her
claim that she could be impartial hold any persuasive weight given the contrary evidence.53
The lead opinion’s concern that defendants not be allowed to impeach the verdict rings
hollow to my ear. Despite the clear statements to the contrary in Daoust, DeHaven, and
Hannum, the lead opinion applies a rule of law that bars a defendant from ever seeking a new
trial based on evidence of juror bias discovered after voir dire ends.54 This is untenable to me.
The unstated cost of such a rule of law is to allow tainted jury verdicts to stand by hiding the taint
behind the presumption of impartiality. Not only would such a rule of law deny defendants the
fair trials to which they are entitled, it would undermine the integrity of the judicial system.
There is only a minuscule risk, if there is any risk at all, of defendants fabricating allegations of
juror bias if voir dire is conducted with reasonable diligence. Whatever costs may be associated
with allowing a defendant a new trial by a fair and impartial jury pale in comparison to the costs
of ignoring a fundamental defect in the validity of a verdict rendered by a jury with one or more
biased members.
F. The Lead Opinion’s Footnotes
The lead opinion states, see ante at ___, n 5, that “[w]hile a defendant may move for a
new trial pursuant to MCR 2.611 [sic], he may not challenge a juror for cause after the jury has
50
People v Walker, 162 Mich App 60, 63; 412 NW2d 244 (1987).
51
Id.
52
More to the point, DeHaven, supra at 332, makes clear that a juror is incompetent to determine
her own impartiality. Common sense also dictates that the last person likely to admit bias is the
biased person.
53
Id. at 334.
54
If the lead opinion is attempting to distinguish between a challenge to a juror’s qualifications
after the jury is sworn and after it renders a verdict, it does not make that point explicitly.
Despite the reference to a verdict, I infer from the rest of the lead opinion that juror bias may be
addressed only during voir dire.
-15-
rendered its verdict.” See also ante at ___, n 3, in which the lead opinion states “granting
defendant a new trial under these circumstances, where (1) he neglected to challenge for cause,
and (2) expressed satisfaction with the jury as impaneled would be tantamount to allowing
defendant to build error into the juror selection process.” The lead opinion cites no authority for
its conclusion, nor could it. Although Daoust primarily involved peremptory challenges, the
broad holding in Daoust directly addressed challenges for cause in a situation in which
information potentially affecting a juror’s ability to act impartially was discovered after voir dire
concluded and trial commenced.55 The Daoust Court cited Hannum and DeHaven to support its
holding that only when there is evidence of prejudice or the juror could have been challenged for
cause is a defendant entitled to a new trial because both Hannum and DeHaven involved
information about juror bias that came to light after voir dire, indeed, after the jury rendered a
verdict, causing the defendants to move for a new trial.56
Again, Daoust did not discuss the grounds for challenge under MCR 2.511(D) with any
depth because the case involved peremptory challenges. However, Daoust indisputably held that
a defendant who can prove that a juror could have been challenged for cause participated in the
verdict is entitled to relief. Rather clearly, this makes the grounds identified in MCR 2.511(D)
relevant to a trial court ruling on a motion for relief, such as a new trial under MCR 6.431(B),
based on allegations of juror bias.57
The lead opinion states, see ante at ___, n 4, that I have suggested by “veiled implication”
that juror 457 was less than forthright and that I do a “great disservice” by criticizing juror 457’s
choice of words with the benefit of hindsight. I can only emphasize again that juror 457 did not
disclose during voir dire that she was a complainant in a domestic violence case, which occurred
in the same county, was prosecuted by the same division of the prosecutor’s office and was
apparently pending at the same time as the voir dire. These are the facts and no amount of
judicial embroidery will change them. If there is any disservice being done here, I respectfully
suggest that it is to the concept of a fair trial. I also note that by the very nature of appellate
review, all the analysis of this Court is done through the use of 20/20 hindsight.
In the same footnote, the lead opinion suggests that a “necessary implication” of my
argument is that there is a difference between assault and domestic assault and that my
“persistence” in “maintaining this illusory distinction” is meritless. I see no such distinction, nor
do I mention such a distinction, nor do I imply that such a distinction exists. The lead opinion’s
assertion to the contrary is simply wrong and nothing more need be said about it.
In essence, the lead opinion has announced its true holding in this case sub silentio, in a
series of footnotes. In my view, that holding is contrary to Daoust and for all practical purposes
overrules it. In so doing, the lead opinion transgresses MCR 7.215(H)(1), which requires that
this Court follow a rule of law established in an earlier decision published on or after November
1, 1990. More importantly, the lead opinion ignores DeHaven and Hannum, which apply directly
55
Daoust, supra, at 6.
56
Id. at 9.
57
Id. at 8-9.
-16-
to this case. In so doing, the lead opinion effectively overrules these two cases as well. This
misapprehends our role as an intermediate appellate court58
V. Conclusion
In sum, I believe that the proper analysis in this case should focus on whether the trial
court abused its discretion in denying the motion for a new trial because juror 457 was subject to
a challenge for cause. Although the lead opinion builds on its initial premise that the issue on
appeal revolves around whether juror 457 told a narrowly-defined truth during voir dire, I
conclude that each part of that analysis misses the mark.
I must emphasize that, although it is possible to read DeHaven, Hannum, Daoust, and
MCR 2.511(D)(13) broadly, I think it wiser to employ a two-part approach that would interpret
the court rule in light of the relevant case law. Under the first part of such an approach, a party
claiming entitlement to a new trial because of juror bias under MCR 2.511(D)(13) revealed only
after voir dire would be required to establish what the issues were to be tried in the case at bar,
that a similar issue existed elsewhere, and that the juror being challenged for cause was
“interested” in that other similar issue. Under the second part of such an approach, the party
would be required to establish that the trial court or counsel made a reasonably diligent inquiry
designed to reveal this bias. If the juror in question, in response to that reasonably diligent
inquiry, either minimized or entirely failed to disclose facts that would have shown that juror’s
“interest” in the similar issue in the other case or matter, then the party would be entitled to a
new trial. Even under this rather narrow rule, I conclude here that the trial court abused its
discretion when it denied Johnson’s motion for new trial given the evidence of juror 457’s bias.
The right to a fair trial – though not a perfect trial – by an impartial jury is one of the
central canons of our jurisprudence. Ensuring this right may be inconvenient or unpopular,
particularly in circumstances where, as here, a defendant allegedly committed terrible acts and
there is ample evidence of guilt. Nevertheless, to paraphrase another jurist in a different context,
upon the right to a fair trial we have staked our all.59 Therefore, I would reverse and remand for
a new trial.
/s/ William C. Whitbeck
58
See People v Beasley, supra.
59
United States v Associated Press, 52 F Supp 362, 372 (SD NY, 1943) (Hand, J.) (“[N]either
exclusively, nor even primarily, are the interests of the newspaper industry conclusive; for that
industry serves one of the most vital of all general interests: the dissemination of news from as
many different sources, and with as many different facets and colors as is possible. That interest
is closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it
presupposes that right conclusions are more likely to be gathered out of a multitude of tongues,
than through any kind of authoritative selection. To many this is, and always will be, folly; but
we have staked upon it our all.”) (emphasis supplied).
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