PEOPLE OF MICHIGAN V OTIS CLARK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 9, 1996
Plaintiff-Appellee,
v
No. 185008
LC No. 90-001462-FC
ON REMAND
OTIS CLARK,
Defendant-Appellant.
Before: Markey, P.J., and Holbrook, Jr., and M.J. Matuzak,* JJ.
PER CURIAM.
This is the second time this appeal has been before this Court for a determination of the question
of whether defendant was deprived of his constitutional right to a jury drawn from a representative
cross-section of the community. We previously found that defendant was not deprived of this
constitutional right. People v Clark, unpublished opinion per curiam of the Michigan Court of Appeals,
issued April 26, 1994 (Docket No. 142293). The Supreme Court has remanded this case to us,
however, so that we might reconsider this case in light of our decisions in People v Hubbard, ___ Mich
App ___; ___ NW2d ___ (Docket Nos. 145054, 175352, issued __/__/96), and People v Smith,
unpublished per curiam opinion of the Michigan Court of Appeals, issued ______ __, 1996 (Docket
Nos. 134469, 175350). 448 Mich 884. On reconsideration, we reluctantly conclude that indeed
defendant was deprived of his Sixth Amendment right to a jury drawn from a fair cross-section of the
community. Accordingly, we reverse and remand for a new trial.
A criminal defendant is entitled to an impartial jury drawn from a fair cross-section of the
community, but not to a petit jury that mirrors the community and reflects the various distinctive groups
in the community's population. Taylor v Louisiana, 419 US 552, 526-531, 538; 95 S Ct 692; 42 L
Ed 2d 690 (1975). Instead, the Sixth Amendment guarantees an opportunity for a representative jury
* Circuit judge, sitting on the Court of Appeals by assignment.
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by requiring that jury wheels, pools of names, panels, or venires from which juries are drawn must not
systematically exclude distinctive groups in the community and thereby fail to be reasonably
representative of the community. Id.; United States v Jackman, 46 F3d 1240, 1244 (CA 2, 1995).
To establish a prima facie violation of the fair-cross-section guarantee, the defendant must demonstrate
"(1) that the group alleged to be excluded is a distinctive' group in the community; (2) that the
representation of this group in venires from which juries are selected is not fair and reasonable in relation
to the number of such persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process." Duren v Missouri, 439 US 357, 364;
99 S Ct 664; 58 L Ed 2d 579 (1979).
Defendant argues that the process used by Kalamazoo County at the time of his trial to allocate
prospective jurors from a general source list to the circuit court venires systematically excluded African
Americans from those venires. Defendant further argues that the level of racial disparity present in the
venires was of sufficient magnitude to constitute substantial underrepresentation under the Sixth
Amendment. We agree.
We interpret the Supreme Court's order of remand as requiring us to adopt the evidentiary
record created in Hubbard and Smith1 for the purpose of re-examining the issue before us. In those
cases, we concluded that the evidence established that the juror allocation process used by the county
before July 1992 resulted in a constitutionally significant underrepresentation of African Americans in the
circuit court venires. Hubbard, ___ Mich App at ___; Smith, slip op at _. We further concluded that
the evidence established that this underrepresentation resulted from a systematic exclusion of significant
duration. Hubbard, ___ Mich App at ___; Smith, slip op at .
Defendant was tried after defendant Smith, but before defendant Hubbard. Given that the
evidentiary record created in Hubbard and Smith established that the juror allocation system was
constitutionally flawed during the period relevant to this case, we must conclude that the jury that tried
and convicted defendant was drawn from a venire that unconstitutionally underrepresented the African
American community in Kalamazoo County.
Accordingly, we vacate defendant's convictions and sentences and remand to the circuit court
for a new trial.
/s/ Jane E. Markey
/s/ Donald E. Holbrook, Jr.
/s/ Michael J. Matuzak
1
We remanded Hubbard and Smith by separate orders on motions of these defendants to the trial
court for the purpose of allowing these defendants the opportunity to create an evidentiary record with
respect to their claims that they were denied an impartial jury. Unpublished order of the Court of
Appeals, entered March 11, 1993 (Docket No. 134460); unpublished order of the Court of Appeals,
entered December 22, 1992 (Docket No. 145054). On remand, the trial court consolidated Hubbard
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and Smith and conducted a joint evidentiary hearing.
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