PEOPLE OF MI V MARLON BELL
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
December 9, 2003
9:10 a.m.9, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
No. 233234
Wayne Circuit Court
LC No. 99-009228
v
MARLON BELL,
ON RECONSIDERATION
Updated Copy
February 13, 2004
Defendant-Appellant.
Before: Wilder, P.J., and Fitzgerald and Zahra, JJ.
FITZGERALD, J.
Following a jury trial, defendant was convicted on two counts of first-degree felony
murder, MCL 750.316; two counts of armed robbery, MCL 750.529; and one count of
conspiracy to commit armed robbery, MCL 750.529 and MCL 750.157a, arising from the July
29, 1999, robbery and shooting deaths of Chanel Roberts and Amanda Hodges. Defendant was
sentenced to concurrent terms of mandatory life imprisonment without parole for each of the
felony-murder convictions and life imprisonment for the convictions of armed robbery and
conspiracy to commit armed robbery. Defendant appeals as of right.
The most contested issue presented on appeal is whether the trial court's erroneous denial
of defendant's statutory right to peremptorily remove two prospective jurors from the jury pool
was error per se, not subject to harmless error analysis. We conclude the above described error
is error per se that is not subject to harmless error analysis. We reverse and remand for a new
trial.
I. Facts and Procedure
During jury selection, defendant's trial counsel attempted to exercise a peremptory
challenge to strike potential juror number 10, who was Caucasian. Juror 10 stated during voir
dire that three of his friends were high-ranking police officers, but that he "wouldn't think" that
this fact would make a difference to him in reaching a verdict of not guilty. When defense
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counsel attempted to peremptorily excuse this juror, the trial court concluded that defendant's
peremptory challenge was based on race and disallowed the challenge.1
Later, during voir dire conducted by the trial court, defense counsel sought to strike juror
number 5, another Caucasian juror, despite juror 5's statement that he promised to be fair to both
sides. This prompted the prosecutor to object, claiming that defendant was attempting to strike
juror 5 on the basis of his race, contrary to Kentucky v Batson, 476 US 79; 106 S Ct 1712; 90 L
Ed 2d 69 (1986). The trial court "disallow[ed] the challenge, for the same reasons as asserted
before." Consequently, juror 5 and juror 10 sat on the jury that convicted defendant,
notwithstanding defense counsel's attempts to remove these jurors peremptorily. Defendant was
convicted on two counts of first-degree felony murder, two counts of armed robbery, and one
count of conspiracy to commit armed robbery.2
II. Analysis
Defendant argues that the trial court committed error requiring reversal by sua sponte
raising Batson to question defendant's motives for exercising his peremptory challenge to juror
10. Defendant also argues the trial court committed error requiring reversal when it denied
defendant his statutory right to peremptorily remove juror 5 and juror 10. Each of these issues is
addressed separately.
A. A Trial Court Can Sua Sponte Implement the Batson Process
Although Batson does not explicitly address whether a trial court may sua sponte
question whether a litigant is removing jurors for an improper purpose, it is clear from the
reasoning of Batson and its progeny that the United States Supreme Court recognizes a trial
court's authority to unilaterally raise such an issue to ensure the integrity of the judicial process.
Specifically, Batson, supra at 87-88, recognized that the Equal Protection Clause protects not
only the rights of the criminally accused, but also the rights of individual jurors not to be
excluded from the jury pool on account of their race, and the right of society as a whole to rely
upon the integrity of the judicial system. In subsequent decisions, the Supreme Court has
forcefully reiterated these points. See Edmonson v Leesville Concrete Co, Inc, 500 US 614, 624;
111 S Ct 2077; 114 L Ed 2d 660 (1991), on remand 943 F2d 551 (CA 5, 1991) ("By enforcing a
discriminatory peremptory challenge, the court has not only made itself a party to the biased act,
but has elected to place its power, property and prestige behind the alleged discrimination"
[internal quotation marks and brackets omitted]); Georgia v McCollum, 505 US 42, 49-50; 112 S
Ct 2348; 120 L Ed 2d 33 (1992), on remand 262 GA 554; 422 SE2d 866 (1992) ("Be it at the
hands of the State or the defense, if a court allows jurors to be excluded because of group bias, it
1
Defendant is African-American, and the two victims were Caucasian.
2
At the close of the prosecution's case, the trial court granted defendant's motion for a directed
verdict of acquittal on the charges of first-degree premeditated murder, MCL 750.316, and
conspiracy to commit first-degree premeditated murder, MCL 750.316 and MCL 750.157a, but
denied the motion with respect to the remaining charges.
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is a willing participant in a scheme that could only undermine the very foundation of our system
of justice—our citizens' confidence in it" [internal quotation marks and brackets omitted]).
Virtually all state courts addressing whether a trial court may sua sponte raise a Batson
issue have concluded that, subject to the Equal Protection Clause, it is within the discretion of
the trial court to conduct a Batson hearing, even absent an objection. See State v Evans, 100
Wash App 757, 767; 998 P2d 373 (2000) (a trial judge has the discretion to raise a Batson issue
sua sponte to protect the rights secured by the Equal Protection Clause); Commonwealth v
Carson, 559 PA 460, 477; 741 A2d 686 (1999) (to allow the trial court to sua sponte raise the
issue of a discriminatory peremptory challenge would be consistent with Batson, because
"dictum appearing in Batson and its progeny suggests the existence of an affirmative trial court
duty to prevent the discriminatory use of peremptory challenges");3 Brogden v State, 102 Md
App 423, 649 A2d 1196 (1994) (a trial court may exercise its discretion in raising Batson sua
sponte, since "[a] trial judge need not sit idly by when he or she observes what he [or she]
perceives to be racial discrimination in the exercise of peremptory challenges"); Lemley v State,
599 So 2d 64, 69 (Ala Crim App, 1992) (the trial judge, as the presiding officer of the court, was
authorized to conduct a Batson hearing absent an objection to ensure that discrimination did not
mar the proceedings in his courtroom). The weight of authority and the persuasiveness of the
reasoning clearly support the position that a trial court may sua sponte raise a Batson issue.
Defendant argues that Clarke v Kmart Corp, 220 Mich App 381, 382-384; 559 NW2d
377 (1996), holds that it is error for a trial court to raise a Batson issue "on its own initiative." A
review of the Court's analysis, however, does not support defendant's contention. Clarke merely
references that the trial court raised the issue on its own initiative. Clarke does not definitively
hold that the trial court's raising of the issue sua sponte was improper. Rather, Clarke is
premised upon the conclusion that the plaintiff did not establish a prima facie showing of
discrimination.
B. The Trial Court Committed Error Requiring Reversal When It
Denied Defendant His Statutory Right To Peremptorily Remove
Jurors
Defendant also argues that the court committed error requiring reversal by denying him
his right to peremptorily remove juror 5 and juror 10. Defendant acknowledges that the right to
remove jurors peremptorily is restricted by Batson. However, defendant maintains that the trial
court failed to follow the three-step process mandated by Batson.
In Batson, supra at 89, 96-98, the Supreme Court made clear that a prosecutor may not
exercise peremptory challenges to strike jurors solely on the basis of their race and set forth a
three-step process for determining whether there has been an improper exercise of peremptory
3
Despite the Pennsylvania Supreme Court's statements regarding the trial court's sua sponte
raising of the Batson issue, the court in Carson, supra at 478, declined "to step into the morass of
'peremptory challenge jurisprudence,'" and disposed of the case by concluding that any error in
the trial court's sua sponte raising of Batson did not prejudice the defendant.
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challenges in criminal or civil proceedings.4 The United States Supreme Court has reaffirmed
Batson's three-step process for determining whether there has been an improper exercise of
peremptory challenges in criminal or civil proceedings. See, e.g., Miller-El v Cockrell, 537 US
322; 123 S Ct 1029; 154 L Ed 2d 931 (2003), on remand 330 F3d 690 (CA 5, 2003); McCollum,
supra. Under Batson, supra at 96-98, once the opponent of a peremptory challenge has made out
a prima facie case of racial discrimination (step one), the burden of production shifts to the
proponent of the strike to come forward with a race-neutral explanation (step two). If a raceneutral explanation is tendered, the trial court must then decide whether the opponent of the
strike has proved purposeful racial discrimination (step three). Id.; Hernandez v New York, 500
US 352, 358-359; 111 S Ct 1859; 114 L Ed 2d 395 (1991).
Defendant maintains that the first step of Batson was not satisfied because there was not
a prima facie showing of discrimination based on race. We agree. To establish a prima facie
case of discrimination based on race, the opponent of the challenge must (1) show that members
of a cognizable racial group are being peremptorily removed from the jury pool and (2) articulate
facts to establish an inference that the right to remove jurors peremptorily is being used to
exclude one or more potential jurors from the jury on the basis of race. Batson, supra at 96. It is
not apparent from the trial record in this case whether there was a pattern of discrimination
evinced by defense counsel's exercise of peremptory challenges that would give rise to an
inference that prospective Caucasian jurors were being excluded on account of race. The trial
court record simply does not reveal the racial identities of the prospective jurors.5 Thus, we are
unable to determine whether a prima facie case of discrimination was established.
Even assuming that a prima facie case of discrimination was established, the trial court
also failed to comply with steps two and three of the Batson process. The court did not give
defense counsel an opportunity to state race-neutral reasons for his peremptory challenge before
disallowing the peremptory challenge.6 Rather, the court collapsed all three steps into one,
ruling without a hearing that the juror had to be seated because "racism is being used in jury
selection." This was error. See Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d
834 (1995), on remand 64 F3d 1195 (CA 8, 1995) (deciding that the court erred by combining
4
Although the Court declined in Batson to express a view "on whether the Constitution imposes
any limit on the exercise of peremptory challenges by defense counsel," id. at 89 n 12, later cases
have held that under the Equal Protection Clause, a defendant may not exercise a peremptory
challenge to remove potential jurors solely on the basis of the juror's gender, ethnic origin, or
race. See, e.g., United States v Martinez-Salazar, 528 US 304, 315; 120 S Ct 774; 145 L Ed 2d
792 (2000), on remand 278 F3d 1357 (CA 9, 2002).
5
While the prosecution claims on appeal that there was a pattern of discrimination because "[o]f
seven defense peremptory challenges made, five were against white males," we cannot find
support for the conclusion that defendant's counsel was acting with a discriminatory motive
because the trial court did not make a record of the racial identities of the members of the jury
pool.
6
The court did not allow defense counsel to make a record until after the court had ruled that it
was denying defendant's attempts to remove the jurors in question.
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Batson's second and third steps into one step). The trial court further erred by placing the burden
of persuasion on defendant, the proponent of the strike. While "the burden of production shifts
to the proponent of the strike to come forward with a race-neutral explanation," United States v
McFerron, 163 F3d 952, 954 (CA 6, 1998), the burden of persuasion never shifts to the party
exercising the challenge. Id. at 955. Accordingly, we conclude that the trial court erred when it
disallowed defendant's peremptory challenge of juror 10 without proper implementation of the
three-step Batson process.
The trial court also failed to follow the Batson process when denying defense counsel's
peremptory challenge to juror 5. The prosecutor objected to defendant's proposed strike of juror
5. The trial court denied the challenge "for the same reasons as asserted before." The trial court
failed to inquire whether there was a prima facie showing of discrimination and whether defense
counsel had a race-neutral explanation for striking this prospective juror.7 In short, the trial court
simply failed to apply Batson as mandated by the United States Supreme Court. Because the
trial court failed to follow the Batson process, it also erred in disallowing defendant's peremptory
challenge to juror 5.
Having concluded that the trial court erred in failing to adhere strictly to the three-step
Batson process, we must next consider whether this error supports reversal of defendant's
convictions. Preliminarily we note that there are two types of errors affecting the statutory right
to remove jurors peremptorily. One type of error may be referred to as a dilution of the
peremptory challenge right. This type of error typically occurs when the trial court erroneously
modifies the jury selection process such that a litigant is denied the full array of peremptory
challenges afforded by statute or court rule. The other type of error may be referred to as a
denial of the right to remove a particular juror peremptorily. Under this scenario, the aggrieved
litigant is afforded the full array of peremptory challenges provided by law. However, the
litigant attempting to exercise a peremptory challenge is not permitted to remove the challenged
juror. Thus, the challenged juror will sit in judgment of the challenging litigant's claims.8 This
case involves the wrongful denial of the right to remove a particular juror peremptorily.9
7
It was only after the trial court disallowed defendant's peremptory challenge of juror 5 that the
prosecutor explained that she objected to the strike because, unlike prior peremptory challenges
exercised by the defense, there was no basis for defense counsel to challenge juror 5. Even if we
assume that the prosecutor's explanation established a prima facie case of discrimination, defense
counsel was never given an opportunity to provide a race-neutral explanation for his strike.
Instead, the trial court decided to "stand on the record" in leaving juror 5 on the jury.
8
In order to preserve a claim of error arising from the dilution of the right to remove jurors
peremptorily, the aggrieved litigant must exhaust all peremptory challenges afforded to the
litigant in the jury selection process. One ought not be heard to complain of the dilution of the
peremptory challenge right where it is evident from the facts of the case that the litigant would
not have used the full array of challenges had they been available. However, a person alleging a
wrongful denial of the right to exercise a peremptory challenge need not exhaust all peremptory
challenges in order to preserve the issue, because the challenged juror will remain on the jury
(continued…)
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In People v Miller, 411 Mich 321; 307 NW2d 335 (1981), our Supreme Court addressed
a challenge to the "struck jury method" of jury selection. Under this method of jury selection,
the court would sit as many as eighty prospective jurors in the jury pool and require the litigants
to review the entire jury pool for cause and for peremptory challenges. Id. at 323. Thereafter,
the jury is selected in order of seating. Id. In Miller, supra at 324-325, this Court observed that
this method of jury selection was inconsistent with the requirements of the then existing court
rule on jury selection and amounted to a dilution of the right to exercise peremptory challenges.
Nonetheless, this Court affirmed defendant's conviction in light of the overwhelming evidence of
defendant's guilt. Id. The Supreme Court reversed this Court and granted the defendant a new
trial. Id. at 326. The Supreme Court acknowledged that there was nothing in the trial court
record that would support the conclusion the defendant was prejudiced by the jury selection
method under review. Id. Nonetheless, the Supreme Court rejected the harmless error approach
embraced by this Court, concluding: "given the fundamental nature of the right to trial by an
impartial jury, and the inherent difficulty of evaluating such claims, a requirement that a
defendant demonstrate prejudice would impose an often impossible burden." Id.
More than twenty-five years later, in People v Schmitz, 231 Mich App 521, 531-532; 586
NW2d 766 (1998), this Court addressed whether the erroneous denial of the right to remove a
juror peremptorily amounted to error per se, not subject to harmless error analysis.10 Relying on
Miller, this Court reluctantly set aside the defendant's conviction. Schmitz, supra at 531-532.
The Schmitz panel concluded that, pursuant to Miller, the wrongful denial of the right to remove
a particular juror peremptorily amounts to error per se, not subject to harmless error analysis.
Schmitz, supra at 531-532.
While this Court has subsequently questioned the Miller Court's conclusion that the
dilution of the right of peremptory challenge is error per se, see People v Green (On Remand),
241 Mich App 40, 46; 613 NW2d 744 (2000) (Griffin J., noting that in the years following
Miller our Supreme Court has "distanced itself from the principle of error per se and embraced
the notion that 'rules of automatic reversal are disfavored' " [citation omitted]), we are unaware
(…continued)
regardless of whether the litigant utilizes all remaining peremptory challenges.
Schmitz, 231 Mich App 521, 527; 586 NW2d 766 (1998).
People v
9
Generally speaking, the erroneous denial of the right to remove a specific juror peremptorily
may fairly be characterized as a greater infringement on the statutory peremptory challenge right
than is a dilution of that right. When a wrongful denial occurs, a juror declared undesirable for
jury service by a litigant is nonetheless placed on the jury over that litigant's objection. By
contrast, the dilution of the statutory peremptory challenge right, while significant, usually
results in a litigant being forced to select a jury with fewer peremptory challenges than the
litigant is actually entitled to exercise under the law. While a litigant subjected to a dilution of
the peremptory challenge right may not draw the jury the litigant would have drawn if permitted
to utilize the full array of peremptory challenges afforded by law, that litigant will rarely be
required to accept a juror after the litigant declares the juror undesirable for jury service.
10
In Schmitz, supra at 525, the trial court erroneously concluded, contrary to the express
language of MCR 2.511(F), that the defendant could not peremptorily challenge a juror that the
defendant had previously declined to remove peremptorily earlier in the selection process.
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of any Michigan Supreme Court case that has overruled or otherwise expressly modified the
conclusion in Miller.11 In fact, as observed by Judge Griffin in Green, supra at 46, Miller "still
remains viable [law.]"
Moreover, the United States Supreme Court long ago observed that "[t]he denial or
impairment of the right [of peremptory challenge] is reversible error without a showing of
prejudice." Swain v Alabama, 380 US 202, 219; 85 S Ct 824; 13 L Ed 2d 759 (1965), overruled
on other grounds by Batson, 476 US at 92-93.12 Additionally, the great weight of federal
authority addressing this issue suggests that errors relating to the right to remove jurors
peremptorily are not subject to harmless error analysis. See, e.g., United States v Gibbs, 182 F3d
408, 435 (CA 6, 1999) (denial of right to peremptory challenge "amounts to reversible error,
there is no requirement of a showing of prejudice" [citation omitted]); United States v Hall, 152
F3d 381, 408 (CA 5, 1998), abrogated on other grounds by United States v Martinez-Salazar,
528 US 304; 120 S Ct 774; 145 L Ed 2d 792 (2000)13 (noting circuits that hold that harmless
error does not apply to denial or impairment of right to exercise peremptory challenges); Tankleff
v Senkowski, 135 F3d 235, 248 (CA 2, 1998) (holding that harmless error analysis is
inappropriate for Batson errors); United States v Annigoni, 96 F3d 1132, 1141 (CA 9, 1996)
(declining to adopt a harmless error standard for the erroneous deprivation of the right to
peremptory challenge); Ford v Norris, 67 F3d 162, 170 (CA 8, 1995) (holding that Batson error
is not amenable to harmless error review); cf. Kirk v Raymark Industries, Inc, 61 F3d 147, 159
(CA 3, 1995) (holding that remedy for impairment or denial of right to peremptory challenges is
reversal).
11
In Green, supra at 42, this Court originally concluded that that it was duty-bound by MCR
7.215(H)(1), now 7.215(J)(1), to follow People v Colon, 233 Mich App 295; 591 NW2d 692
(1998). Colon relied on Miller to conclude that a deviation in the jury selection process provided
in MCR 2.511(F) required reversal even in the absence of actual prejudice. The Supreme Court
vacated this Court's original opinion in Green, and remanded for consideration "of whether the
jury selection method utilized was fair and impartial under MCR 2.511(A)(4)." People v Green,
461 Mich 975 (2000). On remand, this Court observed that the jury selection court rule at issue
in Miller was different from the jury selection court rule at issue in Green. Green, supra at 47.
This Court further concluded that the jury selection process at issue in Green was indeed fair and
impartial and thus complied with MCR 2.511(F). Green, supra at 47-48. Thus, while the
Supreme Court's remand order in Green adds fuel to the debate whether Miller remains viable
law, the remand order does not vacate, modify, or otherwise change the rule of law established in
Miller.
12
Although Batson reversed parts of Swain, Batson never addressed this issue. For that reason,
Batson left intact that portion of Swain that set forth the remedial rule for such errors.
13
Martinez-Salazar abrogated the holding in Hall that a defendant's rights under a rule
governing entitlement to peremptory strikes were not diluted when the defendant exercised a
peremptory challenge to remove a potential juror after the trial court erroneously refused to
dismiss the potential juror for cause.
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We therefore conclude that the trial court's wrongful disallowance of the exercise of
peremptory challenges to remove juror 5 and juror 10 was error requiring reversal, even in the
absence of a showing of prejudice. Defendant's convictions are vacated.14
Reversed and remanded for a new trial. We do not retain jurisdiction.
Wilder, P.J., and Zahra, J., concurred.
/s/ E. Thomas Fitzgerald
14
In light of our disposition above, we need not address defendant's other arguments on appeal.
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