PEOPLE OF MI V DIEP LENGOC DUONG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 2010
Plaintiff-Appellee,
v
No. 295916
Oakland Circuit Court
LC No. 2009-225403-FH
DIEP LENGOC DUONG,
Defendant-Appellant.
Before: CAVANAGH, P.J., and HOEKSTRA and GLEICHER, JJ.
PER CURIAM.
Defendant appeals by right her jury trial conviction for felonious assault, MCL 750.82.1
We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant’s conviction arose out of her assault on her then live-in boyfriend, Sheldon
Behnke, with a kitchen knife and a broken bottle. At trial, defendant maintained that she used
the items in self-defense because Behnke was attacking her. Behnke testified for the defense,
along with defendant and her cousin, Hoang Le, who lived with the couple and witnessed the
incident. The prosecution’s case essentially rested on Behnke’s statements to the police and
medical technicians who treated him directly after the assault.
Defendant first maintains that the trial court erred when it allowed the prosecution to
present evidence of Behnke’s prior statements to police officers and others concerning the
alleged attack. Defendant maintains that these testimonial statements were improperly admitted
under Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), resulting in
a violation of her right of confrontation.
This argument is without merit because Behnke testified at trial and was subject to
examination by defense counsel. Crawford, 541 US at 59 n 9 (“when the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his
prior testimonial statements.”). Behnke was called as an adverse witness by the defense. At
times during Behnke’s testimony when the prosecutor argued that defense counsel was asking a
1
Defendant was acquitted of an additional charge of assault with intent to do great bodily harm
less than murder.
-1-
leading question, defense counsel replied that it was appropriate because Behnke was an adverse
witness, and the trial court overruled the prosecutor’s objection. Defendant has not shown that
she was denied the right to fully question Behnke during trial. See MRE 611(c)(3). Defendant’s
claim is thus without merit.
Defendant, who is Asian, next argues that the trial court erred in denying her Batson2
challenge concerning two potential jurors, one male and one female, who were excused when the
prosecution exercised peremptory challenges. Our Supreme Court has provided the following
concerning review of Batson challenges:
[W]e conclude that the proper standard of review depends on which
Batson step is before us. If the first step is at issue (whether the opponent of the
challenge has satisfied his burden of demonstrating a prima facie case of
discrimination), we review the trial court’s underlying factual findings for clear
error, and we review questions of law de novo. If Batson’s second step is
implicated (whether the proponent of the peremptory challenge articulates a raceneutral explanation as a matter of law), we review the proffered explanation de
novo. Finally, if the third step is at issue (the trial court’s determinations whether
the race-neutral explanation is a pretext and whether the opponent of the
challenge has proved purposeful discrimination), we review the trial court’s ruling
for clear error. [People v Knight, 473 Mich 324, 345; 701 NW2d 715 (2005).]
“A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that a
mistake was made.” People v Shipley, 256 Mich App 367, 373; 662 NW2d 856 (2003).
The purpose of Batson is to prevent discriminatory exclusions of members of the jury
venire on the basis of race or gender. Knight, 473 Mich at 351. A defendant is not entitled to a
jury of a particular racial composition provided that no racial group is systematically and
intentionally excluded. Id. This involves a three-step process. First, the party challenging the
peremptory dismissal must make a prima facie showing of discrimination. Id. Second, if the
challenger establishes a prima facie showing of discrimination, the burden shifts to the party
exercising the peremptory challenge to articulate a race-neutral explanation for the strike. Id. at
337. Finally, “if the proponent provides a race-neutral explanation as a matter of law, the trial
court must then determine whether the race-neutral explanation is a pretext and whether the
opponent of the challenge has proved purposeful discrimination.” Id. at 337-338.
In this case, defendant essentially challenges whether the prosecutor’s proffered raceneutral explanations were race-neutral and whether they were pretextual.3
2
Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
3
While plaintiff raises the question of whether defendant could actually make a prima facie
showing concerning the female juror, this question is moot because the prosecutor offered a raceneutral explanation and the trial court ruled on the ultimate question of purposeful
discrimination. Knight, 473 Mich at 338.
-2-
Batson’s second step “does not demand an explanation that is persuasive,
or even plausible.” Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed
2d 834 (1995). Rather, the issue is whether the proponent’s explanation is
facially valid as a matter of law. Id.; Hernandez v New York, 500 US 352, 360;
111 S Ct 1859; 114 L Ed 2d 395 (1991) (plurality opinion). “A neutral
explanation in the context of our analysis here means an explanation based on
something other than the race of the juror. . . . Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race
neutral.” Id. [Knight, 473 Mich at 337.]
Here, the prosecutor contended that he was concerned that the male juror’s occupation as
an engineer would cause him to hold the prosecution to a higher standard when it came to
evaluating the facts “not related to the elements” of the offenses. Occupation has been found to
be a legitimate race-neutral reason for peremptorily challenging a prospective juror. See Hall v
Luebbers, 341 F3d 706, 713 (CA 8, 2003) (social worker); United States v Griffin, 194 F3d 808,
823 (CA 7, 1999) (discussing jurors’ social or medical work as proper factor to strike juror);
Roberts ex rel Johnson v Galen of Virginia, Inc, 325 F3d 776, 780-781 (CA 6, 2003) (finding
striking of janitor and laborer plausibly race-neutral). This rationale is facially race-neutral. As
to the female juror, the prosecutor stated that he had decided to exercise his peremptory
challenge to strike her from the jury because “she was having a difficult time following counsel’s
questions about the [reasonable doubt] presumption” and he “thought it would be difficult for her
to follow the court’s instructions and follow the court’s testimony.” This is also a facially
neutral reason to use a peremptory challenge. See Roberts, 325 F3d at 780-781.
After reviewing voir dire, we find that the trial court did not clearly err in determining
that these proffered reasons were not pretextual. When the male juror was questioned about his
understanding of the prosecutor’s burden, he appeared to express difficulty with the prosecutor’s
burden concerning questions of fact not related to the elements of the charged offenses. Given
the prosecutor’s stated concern that the jurors focus on the elements of the offense, and whether
the prosecutor proved only those elements beyond a reasonable doubt, as opposed to proving all
of the facts in the case beyond a reasonable doubt, and the male juror’s somewhat unclear answer
to the prosecutor’s question, we find that the trial court did not clearly err when it determined
that the prosecutor’s rationale was not pretextual.
As to the female juror, the record provides support for the prosecutor’s stated reason for
using a peremptory challenge to strike her from the jury. While we may not have found her
hesitation unusual given the lack of the public’s familiarity with the technical aspects of
reasonable doubt generally, we do not find the trial court’s decision to credit the prosecutor’s
rationale clearly erroneous. The trial court was in a better position to observe the demeanor of
both the juror, and the prosecutor, than is this Court on appeal.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
/s/ Elizabeth L. Gleicher
-3-
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