People v. Bell

275 v BELL PEOPLE (Calendar 2). 8, Argued Decided 125375. December 2004 No. Docket No. rehearing July and denied 474 Mich 1201. 2005. Amended Court, by Wayne jury Bell was a in the Circuit Marlon convicted murder, Townsend, J., first-degree felony of two counts of Leonard robbery, conspiracy of of and one count to two counts armed selection, robbery. During jury court the trial commit armed exercising statutory right to disallowed the defendant from his challenge empaneled jurors. peremptorily Both two the trial prosecutor pe- attempted the raised the the and issue whether racially discriminatory remptory challenges prohibited were and Kentucky, and the trial court 79 they appealed. The Court of determined that were. defendant The (Zahra, J., EJ., Fitzgerald Appeals, JJ. and and and Zahra, Wilder, EJ., reconsideration, concurring), opinion in an on held Wilder, statutory improperly defendant that the trial court denied his required right peremptory challenges to two and that the error (2003). App Supreme The Court automatic 259 Mich reversal. prosecution’s application appeal. granted the 470 Mich for leave Young opinion by joined by and In an Justice Justices Corrigan, concurring opinion by a Justice and an Markman, Weaver, dissenting part concurring part Chief Justice Taylor, Court held-. may peremptory challenge juror exercised A strike a be Batson, three-step process, is the basis of race. A as outlined in on challenger improperly employed to whether a has determine challenges. First, peremptory opponent of the chal- exercised lenge showing prima facie based on must make a discrimination Second, prima showing made, facie the burden race. once party challenging come forward with a neutral shifts to challenge. Finally, explanation the trial court must decide for the challenge proven purposeful opponent of the has whether showing of discrimina- discrimination. To establish race, opponent that must show tion based cognizable group, is a member racial the defendant being of a are used to remove members Mich 275 [July- jury group pool, certain racial from the circumstances an raise inference that the exclusions are on race. based holding Appeals The Court of did not err in that a trial court may sponte. Appeals raise Batson issue sua Court did err holding prima in that it could not determine whether facie case inadequate. of discrimination was made because the record was A permit facie case was The trial did established. court the provide challenges to defendant race-neutral reasons for his and propounded the trial court found the that reasons were not perform steps required by race-neutral. The trial court did the and, therefore, improperly deny right Batson did defendant the statutorily prescribed peremptory challenges. to exercise two of his require The trial court’s initial error does not automatic reversal. opinions Miller, People (1981), The in v Mich and Schmitz, People App repudiated 231 Mich must be they right the extent that that a of hold violation the to a peremptory challenge requires right automatic reversal. The to a peremptory challenge of is not constitutional dimension. A viola- right tion the of does not warrant A automatic reversal. violation miscarriage justice preserved is reviewed for a of if the error is and plain affecting rights for error substantial if the error is forfeited. concurring, joined opinion except Justice the lead for Weaver, iy part right which whether addresses the violation of a to a peremptory challenge reversal, requires automatic and the last paragraph part y proper of which concludes that it is to address response the issue as a the dissent. This discussion is unneces- sary opinion to the and therefore is dicta. dissenting part concurring part, Chief Justice in and in Taylor, opinion statutory concurred with the lead that the denial of a peremptory challenge subject to harmless error review and that People repudiated v Schmitz must be to the extent that it held to contrary. the The is not defendant entitled to a trial new under this analysis. joined questioning He also the lead the continuing viability People of v Miller. He dissented from the lead opinion’s provided conclusion that defense counsel race-conscious challenges peremptory reasons two and concluded that the trial erroneously deprived peremptory the defendant of of his two challenges. However, to extent the that the court’s error rule, the court violated the defendant is not to a entitled new trial grant because refusal to a new trial is not inconsistent with justice. Appeals substantial The of Court decision must be re- and the versed defendant’s convictions be should reinstated. Reversed. v Bell dissenting, affirm the decision of the Justice would Kelly, by failing Appeals follow the trial court erred Court because and, fact, required by three-step procedure Batson com-

the steps. prima pleted none A facie case of discrimination was established, improperly placed the and the trial court never peremptory counsel the defense to show burden prima facie case allowed. of discrimi- should be Absent nation, require defense to offer no reason to counsel there was challenges. peremptory failure to for the race-neutral reasons disallowing peremptory procedure in chal- follow the Batson lenges error affected the fundamental was a structural trial, makeup altering and framework deliberative jury, requires process of reversal. Errors in the automatic of a infect the entire case and are not denial analysis. required subject to Automatic reversal is harmless majority’s Furthermore, in such circumstances. discussion apply People Miller, dictum Miller does not constitutes because case, legal facts no basis to overrule to the of this there is Miller. dissenting, that the trial court erred Justice stated CAVANAGH, failing collapsing steps and in into one to allow the three explana- opportunity to the defendant an articulate race-neutral challenges. The is entitled to a new trial tions for the defendant erroneously peremptory chal-

because the denied the subject lenges grounds and error is to automatic Batson majori- reversal amenable to harmless error review. The and not ty’s inappropriate given regarding the dicta Miller Schwartz is ultimately majority’s that the trial court did not err. conclusion Appeals of be affirmed. The decision of the Court should Challenges — Jury—Peremptory Racial 1. Criminal Law — Discrimination. sponte party may sua whether is A trial court raise the issue violating against peremptory prohibition race-based chal- the lenges. Challenges — — Jury Peremptory Law Racial 2. Criminal — Discrimination. challenger process employed three-step determine whether a to improperly peremptory re- has exercised race-based prima quires opponent challenge make a facie the to race; showing prima once a facie of discrimination based on made, challenging party showing is burden shifts to the finally, explanation challenge; for the come forward a neutral with challenge opponent of decide whether the the trial court must proven purposeful has discrimination. 473 MICH 275 Corrigan, J. Challenges — — — Jury Peremptory 3. Criminal Law Racial Discrimination. showing discrimination, To establish a facie of race-based opponent peremptory challenge of a must show that the defendant cognizable group, of a is a member racial chal- lenges being group are used remove a certain racial from jury pool, and that the raise an circumstances inference that are based on race. exclusions Challenges — — — Jury Peremptory Appeal. 4. Criminal Law right peremptory challenge A require violation of the does not appeal, automatic reversal on instead is but reviewed for a justice miscarriage preserved plain if of the error is and for affecting rights substantial if the error forfeited. Cox, General, Michael Attorney A. Thomas Casey, L. General, Solicitor Kym L. Worthy, Prosecuting Attor- ney, and A. Timothy Research, Chief Baughman, Training, Appeals, for people. Baker)

State Appellate (by Douglas Defender W the defendant. J. In case, this we consider whether CORRIGAN,

trial court failed to follow the three-step process Batson v Kentucky, 106 S Ct 90 L Ed 2d it prohibited when defendant from exer- cising right his to two peremptory challenges and, so, if whether and, that error is thus, structural requires Batson, automatic In reversal. the United States Su- preme Court held that a peremptory challenge to strike a juror be may not exercised on the basis race. Id. at 89, 96-98. The Court set forth a three-step process for determining whether a challenger has improperly exer- cised peremptory challenges. First, the opponent of the a prima must make showing of discrimi- nation based on race. Next, Id. at once 94-97. the prima facie showing made, is the burden then shifts to the challenging to come party forward with a neutral expla- nation challenge. for the Finally, Id. at 97. the trial Corrigan, chal- opponent must decide whether court Id. at 100. discrimination. purposeful lenge proven has made that two showing was case, a In this based on challenges were defendant’s of to allow failing initially erred The trial court race. chal- for the race-neutral reasons to provide defendant cured this subsequently court The trial lenges. chal- for the reasons provide defendant

allowing race-conscious rather were Defendant’s reasons lenges. court disal- the trial Accordingly, than race-neutral. court’s initial the trial challenges. Because lowed the defendant’s and because cured subsequently error was race-conscious, we conclude were reasons three-step proce- to follow the did not fail disallowing and did not err dure judge’s the trial further conclude We question. reversal. We require automatic initial error does Appeals. the Court of judgment thus reverse HISTORY FACTS AND PROCEDURAL I. UNDERLYING in the rob- 29, 1999, defendant was involved July On Amanda and deaths of Chanel Roberts bery shooting and trial, defendant was convicted Following jury Hodges. murder, 750.316; MCL felony first-degree two counts of 750.529; and one count MCL robbery, of armed two counts and robbery, MCL 750.529 armed to commit conspiracy to concurrent was sentenced Defendant MCL 750.157a. for parole without mandatory imprisonment life terms of life impris- murder convictions first-degree felony to commit conspiracy robbery the armed onment convictions. robbery armed African-American and the two victims

Defendant counsel selection, defense During jury were Caucasian. to strike a peremptory to exercise attempted Juror ten ten, is Caucasian. who juror number potential 473 Mich 275 [July- Opinion by Corrigan, J. stated during voir dire that three of his friends were high-ranking police officers, but that he “wouldn’t think” that this fact would ability his to be fair affect and impartial. When defense counsel attempted to excuse juror this peremptorily, the trial court disal- lowed challenge, concluding that counsel had exer- cised the the basis of race. The trial court initially refused to allow defense counsel to make a record, but reconsidered after defense counsel ex- pressed dissatisfaction with the trial court’s refusal. Defense counsel then furnished a race-conscious, rather than race-neutral, reason for the challenge and the trial court continued to disallow the challenge.

Jury selection continued. After several more defense peremptory challenges, prosecutor objected when defense counsel attempted to juror excuse number five. The prosecutor claimed defense counsel at- was tempting to juror strike five on the race, basis of contrary to Batson. The trial court excused jury order to make a record regarding the challenge. The prosecutor noted that the current challenge was de- fense counsel’s third consecutive strike on a Caucasian male and that defense counsel was attempting to ex- clude Caucasian males from the jury. Defense counsel replied that the prosecution’s argument would have some merit if no other Caucasian males remained on the jury. Defense counsel also noted that the majority of the remaining jurors was Caucasian. Defense counsel offered no other explanation for his challenge. The trial found defense explanation counsel’s race- conscious and disallowed the challenge. Consequently, jurors both five and ten sat on the jury that convicted defendant.

On appeal, defendant raised several error, claims of including the claim that the trial court failed to follow y Corrigan, mandated in Batson disal- three-step procedure ten. jurors five and lowing his decision, that the agreed in a Appeals, split Court but, procedure, follow the Batson court failed to Judges defendant’s convictions.1 nevertheless, upheld the trial court’s concluded ZAHRA WILDER dimension and not of constitutional was analysis, Judge to harmless error while subject was that the error was struc- have held FITZGERALD would reversal. required tural and automatic Ap- The Court of sought Defendant reconsideration. its prior motion and vacated granted defendant’s peals reconsideration, held that a the Court On opinion.2 statutory right peremptory to a denial of the concurred, ZAHRA and WILDER per Judges error se.3 “duty-bound” to follow stating they were Miller, 321; v 411 Mich 307 NW2d holdings People in Schmitz, Mich App 231 People 335 (1998). 586 NW2d 766 for contend- applied appeal,

The leave prosecutor statutory alleged denial of defendant’s ing jurors was not right prospective peremptorily to remove automatic reversal. requiring for leave to granted prosecution’s application We that the trial court contends appeal.4 prosecution set forth failing procedures err in to follow the did not argues that Alternatively, prosecution Batson. failing if the trial court erred follow even the error harmless. procedures, Batson was 1 (Docket curiam, 2, Unpublished opinion per October 2003 No. issued 233234). 2 30, Appeals, Unpublished entered October 2003 order of the Court of 233234). (Docket No. 3 (On Reconsideration), App 675 NW2d 894 People 259 Mich v Bell (2003). 4 (2004). 470 Mich 870

282 Mich 473 275

Opinion by Corrigan, argues Defendant that the trial court denied him his right to exercise two challenges by arbi- trarily disallowing the challenges without following the mandated procedures. Defendant further argues that the denial of this right requires automatic reversal.

II. STANDARD OF REVIEW requires This case us to determine whether the trial court failed to procedures follow the set forth in Batson disallowing two of defendant’s peremptory chal- lenges. We review de novo issues regarding a trial court’s proper application of Goldston, the law. 523, 528; 470 Mich NW2d We review clear error a trial court’s decision on the ultimate question of discriminatory intent under Batson. Her- York, nandez v New 352, 364-365; 111 S Ct 1859; 114 L Ed 2d (1991); United States v Hill, 146 (CA 1998). 337, F3d

III. ANALYSIS A. BATSON RULE Batson, In the United States Court made it clear that a peremptory challenge to strike a juror may not be exercised on Batson, the basis of race. supra at 89, 96-98. The prosecution in Batson attempted to exclude African-American jurors solely on the basis of their race. Id. at 82-83. The Court determined that the prosecution’s actions violated the Equal Protection Clause. It set forth a three-step process for determining an improper exercise of peremptory challenges. First, there must be a prima facie showing of discrimination based on race. Id. at 94-97. To establish a prima facie case of race, discrimination based the opponent of (1) challenge the must show that: the defendant is a by Corrigan, (2) group; racial cognizable member of a members of exercised to exclude being are (3) the jury pool; from the group racial certain was inference that the exclusion raise an circumstances Id. at 96. The Batson Court directed trial on race. based in deciding circumstances all relevant courts to consider made. Id. showing facie has been prima whether makes a facie challenge prima opponent Once the challenging party to the showing, the burden shifts chal- a neutral for the explanation forward with come related lenge. Id. at 97. explanation The neutral must be provide tried and must more being to the case particular in order to rebut the general than a assertion Id. fails to challenging parly If the showing. 97-98. challenge the explanation, come forward with a neutral denied. Id. at 100. will be decide whether the non-

Finally, the trial court must estabhshing has carried the burden of challenging party Batson, Id. at 98. Since purposeful discrimination. that the establishment of Court has commented to whether “comes down purposeful discrimination explanations trial court finds the ... race-neutral be Cockrell, credible.” Miller-El v 322, 339; 123 S Ct stated, L Ed The Court further 2d 931 factors, by, among other “Credibility can be measured reasonable, demeanor; or how [challenger’s] ... how are; whether improbable, explanations trial strat- accepted rationale has some basis proffered Id. at 339. If the trial court finds the reasons egy.” peremptory challenge will be proffered pretext, were a Batson, at 100. denied.

B. APPLICATION OF BATSON TO THE FACTS IN THIS CASE a peremptory to exercise Michigan, right In Accord- by court rule and statute. provided 473 MICH275 Opinion by Corrigan, J. 6.412(E)(1), ing MCR a defendant is entitled to five peremptory challenges charged unless an offense is punishable by imprisonment, in which case a defen- life dant tried being alone is entitled to twelve peremptory challenges. Further, 768.13, under MCL “[a]ny person who on trial an put punishable by for offense death or life, imprisonment shall be allowed peremptorily twenty of the persons drawn to serve as ,”5 jurors, and no more . . . rule,

The trial court followed which entitled defendant to twelve peremptory challenges because he was on trial for an punishable by offense life imprison- ment. Defendant claims that the trial court violated his right to two of the peremptory challenges by failing to follow three-step procedure mandated Batson in disallowing the challenges.

Applying the above case, rules to the facts in this we conclude that no such occurred.6

1. PRIMA FACIE SHOWING OF DISCRIMINATION BASED ON RACE

Here, defense already counsel had exercised several peremptory challenges and was attempting to challenge juror ten when the trial court interrupted and re- quested that parties counsel for both proceed to cham- in chambers, bers. While the trial court stated that it was going to disallow the challenge because defense 6.412(E) departs by reducing MCR from the statute number peremptory challenges to which defendant is entitled. We need not discrepancy resolve between the statute and the court rule because this issue is not before us. 6 Georgia McCollum, 42, 59; In 112 S Ct 120 L Ed 2d 33 (1992), on remand 262 Ga 422 SE2d 866 the United States govern Court extended the Batson rule to the conduct of (“the prohibits criminal defendants Constitution a criminal defendant engaging purposeful ground from discrimination on the of race in the peremptory challenges”). exercise of v Bell Corrigan, challenges on the race of the counsel had his based juror. because The trial court reached this conclusion excusing pattern had established defense counsel Caucasian males.7 challenge juror peremptory defense counsel’s of

After objected, reasoning juror prosecution five, the five challenges by previous and the two was Caucasian counsel of Caucasian males. The trial defense were agreed challenge. court and disallowed the argued appeal, On defendant that the trial court by raising sponte question to defense erred sua challenging juror peremptorily counsel’s reasons number ten. Defendant further maintained that nei- prosecution ther the trial court nor the prima established showing of discrimination based on race for challenge. either may Appeals

The Court of held that a trial court raise virtually sponte, noting a Batson issue all state sua may courts have concluded that a trial court raise a sponte. Appeals, however, Batson issue sua The Court of reveal the concluded that because record did not prospective jurors, racial identities of the it could not prima determine facie case of whether discrimination had been established. previously question

We have not addressed the may whether a raise a Batson issue sua sponte. underlying prog- The rationale Batson and its eny, supports Appeals position however, Court may inquiry sponte that the trial court make an sua observing purposeful after facie case of dis- through challenges. crimination the use of 7 challenge. juror defense Of ten was counsel’s ninth challenges, against the nine defense counsel exercised seven Caucasian against from males and two females whose race could not be determined the record. 473 Mich 275 Corrigan, J.

Batson and its make clear that a trial court progeny8 an authority sponte has the to raise sua such issue to equal protection rights jurors. ensure the of individual (“In Batson, heterogeneous See at 99 view of the Nation, crimi- population public respect our for our justice system nal and the rule of law strength- will be ened if that no citizen disqualified we ensure is from race.”); McCollum, jury service because of his Georgia 2348; 42,49-50; (1992), 505 US 112 S Ct 120 L Ed 2d 33 Alvarado, quoting Super State NJ (1987) (“ A2d 440 ‘Be it at the hands of the State or the defense,’ if a jurors court allows to be excluded because bias, of group willing participant ‘[it] [a] a scheme only that could undermine the very foundation of our ”). system justice citizens’ confidence in it.’ —our Court, Ohio, The United States Powers v 400, 416; L S Ct 113 Ed 2d 411 held that a object criminal defendant has standing a prosecutor’s peremptory It challenges. reasoned: by juror daunting.

The barriers to a suit an excluded are jurors parties jury Potential are process to the selection opportunity and have no to be heard at the time of their jurors easily exclusion. Nor can excluded obtain declara- tory injunctive or relief when discrimination occurs through prosecutor’s an individual exercise of challenges. systematic Unlike practices jury clerk and commissioners such as we considered in Co, Jury [v Carter Comm Greene 90 S Ct (1970)], 24 L Ed 2d it would be difficult for an juror individual to show a likelihood that discrimination correctly Appeals following The Court of noted that the cases have may sponte protect held that a trial court raise a Batson issue sua rights Equal Evans, secured Protection Clause: v State 100 Wash App 757, 765-767; (2000); Carson, 998 P2d 373 Commonwealth v 559 Pa 460, 476-479; (1999); Brogden State, 423, App 741 A2d 686 v 102 Md (Ala 430-432; (1994); Lemley State, App, 649 A2d 1196 2d 599 So 1992). Opinion by Corrigan, And, against stage him the at voir dire will recur. there practical barriers to exist considerable suit excluded juror because of the small financial stake and the involved litigation. reality juror burdens of The economic is that probably dismissed because of race will leave the court- possessing incentive room little to set motion the ardu- rights. process [Id. ous needed to vindicate his own (citations omitted).] 414-415

The Powers Court further stated: statutory prohibition

The on discrimination in the se- jurors, pursuant lection of enacted to the Fourteenth Clause, neutrality Enabling makes Amendment’s race visible, inevitable, jury selection a measure of the judicial system’s own commitment to the commands of the duty Constitution. The courts are under an affirmative strong statutory policies enforce the and constitutional (citation prohibition. [Id. embodied at 416 omit- ted).] allowing Court’s rationale for a defen- dant to raise a Batson supports issue our conclusion may that a trial court sua sponte raise Batson issue. Trial are in the position courts best to enforce the statutory policies and constitutional racial prohibiting Further, wrongly jurors discrimination. excluded have rights. little incentive to vindicate their own We thus conclude, foregoing reasons, for the that a trial court may sua raise a Batson sponte issue. reject Appeals

We the Court of assertion that it could not establish whether a facie case of discrimina- had regarding tion been made because of inadequacy undisputed record. It is defendant is an African-American male. the chal- While lenged jurors were not of defendant’s racial it is group, equally challenge only harmful to outside a members Powers, racial at group. supra defendant’s 415-416. specifically disallowing stated it was 473 Mich 275 Corrigan, J. counsel, part for the better challenges because defense jurors.9 had excused Caucasian male day, only of only did not that he had dispute Defense counsel Instead, he to the pointed excused Caucasian males. make-up remaining jurors justify racial his challenges. rejected challenge

The trial court defense counsel’s of juror ten had because defense counsel exercised seven of nine peremptory challenges against Caucasian males. The prosecution objected challenge to defense counsel’s juror consecutively five because defense counsel jurors. instances, excused three Caucasian male In both pattern defense counsel’s created a of strikes against Caucasian males. This was pattern sufficient raise an inference that defense counsel was indeed excluding potential jurors on the basis of their race. See (a Batson, pattern against jurors of strikes specific may of a race an give rise to inference of discrimination). We thus conclude that the Court of Appeals erred to find a facie failing showing of discrimination on race. based

2. NEUTRAL EXPLANATIONFOR THE CHALLENGE made, Once a prima showing the burden shifts to the challenger provide a neutral explanation for the challenge. Upon the trial finding court’s defense counsel’s ten juror was based on race, requested defense counsel an opportunity to make a record. The trial court denied initially defense coun- request, sel’s but reconsidered upon defense counsel’s objection. Defense counsel stated: recognize entirely We that the trial court’s statement is not accurate peremptorily challenged because defense counsel two females. We con clude, however, pattern that this fact does diminish defense counsel’s peremptorily challenging Caucasian males. People v Bell

Opinion Corrigan, J. number bring I the Court’s attention that the would to number of the panel males on that still exceeds the of white Why you talk about the panel. minorities on that don’t panel? a vast composition of that There’s still whole racial majority panel [sic] than it is of white members on that panel. black members on that by stating trial court that defense responded

The finding that supported counsel’s reason its prima on the of race challenge counsel had exercised the basis upheld challenge. its disallowance of objected to counsel’s prosecutor After defense juror five, of the trial court dis- peremptory challenge allowed the “for the same reasons as asserted challenge objected before.” Defense counsel attempted record, interrupted make a the trial court him. The but trial court then allowed defense counsel to make a record, only prosecutor approach but after the asked to The that counsel’s prosecutor bench. stated defense previous challenges, including juror three five, were of counsel re- Caucasian males. Defense sponded by race-neutral for two of the giving reasons challenges. only The trial court noted that it was concerned with for challeng- defense counsel’s reasons ing juror five. Defense counsel replied:

Judge, again, if there were no other white males on that jury, minority jury, or on that then white males were a may persuasive there [the be some force to assistant prosecutor’s] argument challenge. [sic] about a Battson simply demographics

That of that not the case. jury up challenge. do not hold kind that exercising

IAnd think I don’t a reason for have have peremptory challenge. chal- gave Defense counsel no other reason his lenge. peremptory challenges The trial court stated that 473 Mich 275 Corrigan, on race and found defense

could not be based five had been juror counsel’s peremptory and race. gender based that even if a Appeals The Court of concluded established, the trial court failed to facie case had been and three of the Batson It comply steps process. with two by denying that the trial court erred defense coun- found disallowing sel the to make record before opportunity It peremptory challenge juror ten. further found inquire the trial court failed to whether defense juror five. striking counsel had race-neutral reason for initially that trial court erred in agree deny- We ing opportunity provide defense counsel the to race- conclude, neutral for his challenges. reasons We how- ever, court, that errors were cured the trial these when immediately after each challenge, permitted almost defense counsel to make a record. It then based its challenges ultimate conclusion to disallow the on defen- dant’s race-conscious reasons. Because the trial court by Batson, did albeit perform steps required some- belatedly, improperly deny what it did not defendant statutorily two of right prescribed to exercise his peremptory challenges. reject the claim that the trial court

We failed to inquire whether defense counsel had a race-neutral striking juror reason for five because the record shows only otherwise. Defense counsel one provided reason not challenges, his which was race-neutral did not refute the facie prima showing his were on race. not exclude a challenger may based Just as race, prospective juror equally on the basis of it is for a to improper challenger engineer composition of a the race of the jury to reflect defendant. Opinion by Corrigan, Finally, defendant claims on re- appeal his sponses given were not as race-neutral reasons for his but, rather, challenges, attempts disprove as to the trial court’s and the prosecution’s prima showings of racial discrimination. are persuaded by We this argument. Defense counsel never contended that trial court and the had prosecution prima not made a facie case of racial discrimination. If he merely was attempting disprove to facie showings, de- there, fense counsel would not have stopped but would have also race-neutral provided reasons for the chal- in the the trial lenges accept event that court refused to argument. Additionally, his the record indicates that defense counsel that he provide understood was to race-neutral The prosecution objected reasons. to the juror five because defense counsel’s three previous peremptory challenges, juror five, including were of Caucasian males. then Defense counsel fur- nished race-neutral reasons for two of the challenges. juror five, But with respect merely defense counsel prosecution’s argument stated that failed because jury. Caucasian males still remained on the Defendant clearly understanding ability demonstrated his provide race-neutral reasons when needed. In juror case, five’s he failed to do so.10While defense counsel may effectively not have used his opportunity provide provide counsel’s failure Defense race-neutral reasons for his challenges, especially demonstrating so, ability provide after his to do support additional for the inference of discrimination. See Johnson v 2410; California,_US_; 125 S Ct L Ed 2d 129 in which the United States Court stated: unlikely hypothetical prosecutor In the in which the declines to

respond judge’s inquiry regarding justification ato his making strike, judge the evidence before the would consist not only original prima of the facts from which the facie case was established, prosecutor’s justify also the but refusal his strike light request. provide of the Such a refusal court’s would addi- 473 Mich 275 Opinion by Corrigan, J. challenges, for his he .had the race-neutral reasons complain Defendant cannot now that the opportunity. insufficient. opportunity was 3. TRIALCOURT’SDECISIONREGARDINGPURPOSEFUL DISCRIMINATION Finally, the trial court must determine whether opponent has carried the burden of may discrimination. This establishing purposeful decision hinge credibility challenger’s race-neutral if explanations, only challenger but race- provided Here, neutral explanations. defense counsel provided race-conscious, race-neutral, rather than reasons for his challenges. This reinforces the prima showings challenges were based on race. Consequently, the trial court did not err in clearly finding purposeful discrimina- tion. OF

IV STANDARD REVIEWFOR DENIALSOF PEREMPTORYCHALLENGES In light of our conclusion that the trial court’s initial support tional for the inference of discrimination raised [Id.,_US_n defendant’s facie case. 125 Ct n S 6.] 162 L Ed 2d n140 Kelly provide Justice claims that defendant did not race-neutral reasons for his because he was never asked for his reasons. however, transcript, provide The trial indicates that defendant did reasons, which trial court found to be race-conscious. After the prosecutor’s objection prospective juror five, exclusion of defense excluding prospec- counsel volunteered race-neutral reasons for the two jurors preceding prospective juror stated, tive five. The trial court then juror.” “That’s not an issue. The issue is the last Defense counsel responded, "Judge, again, jury, if there were no other white males on the minority jury, may or white males were on that then there be some persuasive prosecutor’s] argument [the force to [sic] about a Battson challenge.” indicated, you “[b]ut The trial court then cannot use a racial gender excusing jurors.” responded, basis or a basis for Defense counsel record, given my “And I’ve reasons on the and. .. of them none were gender.” related to race or People v Bell 293 Corrigan, J. cured, we need not error was address whether denial peremptory challenge subject of a is to automatic rever- concluded, however, dissenting sal. Had we as do our that colleagues, peremptory challenges defendant’s had denied, improperly been we would have a harm- applied error, Miller, less error to the v People standard because 321; (1981), 411 Mich 307 NW2d 335 v Schmitz, 521; 231 Mich App 586 NW2d 766 are longer binding, light no of our current harmless error jurisprudence, they to the extent that hold that a violation of the to a right peremptory challenge requires automatic reversal.

We arrive at this by recognizing conclusion the dis- tinction between a Batson error and a denial of a A peremptory challenge. Batson error occurs when a juror actually is dismissed on the of race or basis gender.11 undisputed It is type this error is of subject constitutional dimension and is to automatic contrast, reversal.12 In a denial of chal- lenge grounds other amounts to the denial of a statutory right or court-rule-based to exclude a certain jurors. improper number of An denial of a peremp- such tory challenge is not of constitutional dimension.13 Miller,

In this Court held that “a defendant is en- titled jury to have the selected as provided by the rule. Where, here, as a selection procedure challenged

11Batson, supra. 12 States, 461, 468-469; 1544; See Johnson United 520 US 117 S Ct (1997); rel T B, 137 L Ed 2d 718 J E B v Alabama ex 511 US 142 n 13; 1419; 114 S Ct 128 L Ed 2d 89 13 Martinez-Salazar, 304, 311; United States 528 US 120 S Ct Oklahoma, (2000); 81, 88; L Ed 2d 792 Ross v S Ct (1988)(the recognized L Ed 2d 80 United States Court peremptory challenges are not of constitutional dimension and are merely jury). impartial a means to achieve the end of an 473 MICH275 Opinion Corrigan, J. to follow the process begins,

before the failure reversal.14 In procedure prescribed requires the rule Schmitz, Appeals the Court of relied on Miller hold a auto- peremptory challenge requires that a denial of Schmitz, Miller and how- Following matic reversal.15 ever, error has evolved a jurisprudence our harmless deal, as has that of the United States great Supreme Carines, 750, 774; 460 Mich 597 People Court. See (1999).16 Carines, NW2d 130 Under a nonconstitutional Rather, error automatic Id. if require does not reversal. preserved, subject only the error is it is to reversal for a miscarriage justice under the “more Lukity17 prob- able than not” standard. Id. See also MCL 769.26. If the forfeited, may only plain error is it be reviewed for error affecting rights. Carines, substantial supra. right

Because the to a peremptory challenge Michigan provided by Michigan is not Constitution but, rather, by rule, conclude, statute and court we as

14 Miller, supra at 326.

15Schmitz, supra at 530-532. 16 Martinez-Salazar, See, also, 4, Supreme n 317 which the recognized Court that the rule of automatic reversal for an erroneous peremptory challenges light denial of makes little sense in of its recent jurisprudence. harmless error It stated: Relying language in Swain vAlabama ... Martinez-Salazar

urges adopt remedy the Court to of automatic reversal whenever right peremptory challenges a defendant’s to a certain number of substantially impaired.... impairment, is Because we find no we remedy appropriate do not decide this case for a what however, impairment note, substantial would be. We oft-quoted language only unnecessary in Swain was not to the any decision in that did case—because Swain not address claim challenge peremptory that a defendant had been denied a —but early long founded was on a series of our cases decided before the adoption of harmless-error review. (1999). Lukity, 484, 495-496; People v 460 Mich 596 NW2d 607 Corrigan, Court, that the is right did the United States Thus, ju- under our non-constitutional dimension.18 for a right a violation of the is reviewed risprudence, preserved if the error is and for miscarriage justice if the error affecting rights substantial plain forfeited.19 jurisdictions contrary Although courts in other have reached conclu sions, analyses unpersuasive. their are In United States v we believe

McFerron, Appeals example, the Sixth Circuit Court of held that the is a structural error. 163 F3d erroneous denial of 1998). (CA 6, predated But McFerron Martinez-Salazar and is weight. questionable therefore of Washington Supreme Court also held that the denial of a peremptory challenge in a so-called “reverse-Batson” context is struc- Vreen, tural error. State v 143 Wash 2d 26 P3d 236 While Martinez-Salazar, acknowledges Vreen the court dismisses that case with and, view, analysis. Indeed, cursory unpersuasive in our all the cases majority [of cited the Vreen court for its assertion that “the vast simply inappropriate courts] have found harmless error doctrine in such predate See id. at circumstances” Martinez-Salazar. 929. agree Appeals We with the Court of for the Seventh Circuit that significant marked a in the Martinez-Salazar shift standard of review applicable peremptory challenge. to the erroneous denial of a United States (CA Harbin, Patterson, 532, 7, 2001), citing 250 F3d 546 United States v (CA States, 7, 2000), part by 215 F3d vacated Patterson v United 531 (2000). Harbin, US 1033 In the Seventh Circuit noted that it had been “[fjreed language by from the Swain the Court’s footnote in Martinez- ____”Harbin, (holding, however, prosecu Salazar at 546 that the error). peremptory challenge of a a structural tion’s mid-trial use was (SD 2001) Jackson, 4900, Ind, Dist n 1 United States v 2001 US LEXIS *7 (“The [the] bottom line is that discussion of the need for a dear understand Underwood, ing [in of the United States v 122 F3d (CA 389, 7, 1997)] law, process good remains but the automatic reversal longer applicable.”). standard is no prevails of harmless error review that now in both Given standard Court, Supreme the United States Court and this we believe that the subject peremptory challenge is not automatic erroneous denial of a to reversal. Kelly inaccurately departing that we are from the Justice states considered harmless error trend set most other courts that have 473 Mich 275' Corrigan, TO THE

V RESPONSE DISSENT , Kelly’s Justice dissent asserts that the trial court’s failure the three-step procedures to follow Batson was requires incurable and automatic reversal. She states complete single that the trial court failed to step three-step procedures all three collapsed steps reaching conclusion, into one. In this Justice KELLYstates that the trial court failed to scrutinize carefully prima whether a facie case had been made. if prima

Even the trial court’s facie findings were inadequate, inadequacy would not be outcome determinative because defendant subsequently offered explanation an for his challenges. Further, the trial court ruled on the ultimate question of intentional York, 352, discrimination. See Hernandez v New (1991) (“Once 111 S Ct 114 L Ed 2d 395 prosecutor has offered a explanation race-neutral the peremptory challenges and the trial court ruled has on the ultimate question discrimination, of intentional the preliminary issue of whether the defendant had made a facie prima showing moot.”); becomes see also (CA 2004) (the Ortiz, 1166, 1179 Saiz v 392 F3d n 8 existence or absence of a case is moot where the trial court refused to make a finding regarding application peremptory challenges. depart to denials of doWe from trend, however, application because the trend leans toward analysis improper peremptory challenges. harmless error to denials of Kelly rely Justice on Martinez-Salazar further states that we support We, alleged departure. however, rely Michigan our on current jurisprudence support improper harmless error our conclusion that an peremptory challenge subject analysis. denial of a to harmless error We merely Martinez-Salazar discuss show that the United States jurisprudence evolving, strongly Court’s harmless error is which indi- system errors, cates that in the federal nonconstitutional such as an improper peremptory challenges, subject denial of would he to harmless analysis. error People Bell

Opinion by Corrigan, established, but facie case had been whether for the explanation hear the prosecution’s proceeded reliance on KELLYstates that our challenge). Justice notes that Hernandez misplaced. Hernandez is She the first Batson may that a defendant concede observes step. agree suggest to the second We step by moving Both the trial occurred this case. exactly that is what counsel’s objected to defense prosecutor court and the that he was challenges, claiming use of exclude Caucasian veniremembers. While using them to counsel to initially did not allow defense the trial court it challenges, al- race-neutral reasons for his provide and allowed immediately recanted its refusal most reasons, were race- which provide defense counsel defense ultimately trial court denied conscious. The that defense counsel’s challenges, finding counsel’s allegations the initial supported race-conscious reasons excluding veniremembers on basis that he had been initial refusal to allow defense of race. The trial court’s for his chal- race-neutral reasons provide counsel to a collapsing does not amount lenges Rather, anything, imperfect if it amounted to steps. court, The trial procedures. the Batson compliance with step each Batson however, ultimately conducted race- of defense counsel’s ruling made a basis Thus, have any may conscious reasons. was application trial court’s Batson occurred cured. subsequently that strict adher incorrectly KELLY assumes

Justice constitutionally man is procedures ence to the Batson of the Batson test contrary, purpose To the dated. ultimate that the “principle adherence to to ensure racial motivation rests regarding persuasion burden of from, the of the strike.” with, opponent shifts and never L 765, 768; 1769; 115 S Ct Elem, Purkett 298 473 Mich 275 Opinion by Corrigan, (1995).20 Ed 2d 834 Our research reflects that trial courts have failed to comply perfectly with Batson in past. Castorena-Jaime, See United States v 285 F3d (CA 2002) 916, 10, 929 (“Notwithstanding the district court’s failure to express findings make on the record [regarding the steps] present case, Batson district court’s ultimate conclusion on discriminatory (the Saiz, intent was not clearly erroneous.”); United States Court of inferred Appeals from the record the trial court did not find a facie prima case of discrimination).21 so, however, Their failure to do is not long error as as trial courts do not shift the burden of persuasion challenger. onto the

Justice KELLY court, contends that the trial by col- lapsing the one, three Batson steps placed into burden on defense counsel to counter the trial court’s finding of purposeful discrimination. The record does not support this contention. Both the trial court and the prosecution prima made a facie showing that defense counsel had jurors excluded on the basis of race. initially refused to allow defense counsel to provide reasons, race-neutral immediately but almost reconsidered and allowed defense counsel to make a record. Defense gave counsel race-conscious reasons 20 See, also, Johnson, 7; 7; supra,_US_n 125 n S Ct 2418 162 L 7,n Ed 2d 140 in which compared the United States Court burden-shifting framework to the framework set forth McDon Green, Douglas Corp 792; 1817; nell US 93 S Ct 36 L Ed 2d 668 (1973). Mary’s Hicks, The Johnson Court cited St Honor Ctr v 509 US 502; 2742; proposition 113 S Ct 125 L Ed 2d 407 for the that the “burden-shifting [set framework forth in Batson and McDonnell Dou glas] triggered by prima essentially just a defendant’s face case is ‘a ’ ” “arranging presentation Johnson, means of supra, of evidence.” 7; 7; _US_ 7, n quoting Mary’s, 125 S Ct 2418 n L162 Ed 2d 140 n St 509-510, supra, quoting Trust, 977, Watson v Fort Bank & Worth 108 S Ct 101 L Ed 2d 827 (CA 1994). See, also, Perez, 1, United States v 35 F3d Corrigan, J. meet the Thus, he failed to challenges. regarding both explana- with race-neutral coming forward burden race-conscious proffer counsel’s Defense tions. and the pros- trial court’s rebut did not reasons showings of discrimination. ecution’s finding purpose- erred in neither Thus, the trial court defense rejecting nor erred ful discrimination challenges. counsel’s our discussion KELLYfurther asserts

Justice We inappropriate. Schmitz is Miller and regarding ad- and Schmitz need be that Miller recognize the trial court concluded that dressed, we have because peremptory defense counsel’s denying err in did not however, that our discussion disagree, challenges. We and has inappropriate Miller and Schmitz is regarding Rather, is direct such discussion legal no value. dissent, and without arguments to the response That incomplete. be response our would such discussion encompass discussion may to a dissent response legal or of no inappropriate render it dictum does not is be able otherwise, dissenting opinions would value; only and As such as Miller Schmitz22 decisions opine upon error harmless above, light of our current stated longer prece- and Schmitz are no Miller jurisprudence, KELLY’s disagree with Justice binding. We thus dentially and Schmitz discussion that our Miller conclusion inappropriate.

VI. CONCLUSION initial failure to follow that the trial court’s hold We referencing Although Miller labors hard avoid the dissent regard decisions Schmitz, puzzling why to two it would do this with it is conclusion, except obviously helpful that to reference its that are so asymmetry only of the dissent’s make obvious these decisions would majority, dissent, able to namely, should he but not position, that the analyze Miller and Schmitz. 473 Mich 275 Concurring Opinion by Weaver, J.

the three-step process set forth in Batson was subse- quently Despite cured. our ultimate conclusion that the complied requirements Batson, with the trial courts are well advised to articulate and thor- oughly analyze each of the three steps set forth in Batson, see pp 282-283 of this opinion, determining whether peremptory challenges were improperly exer- cised. In doing so, trial courts should clearly state the step they are addressing and should articu- late their findings regarding that step.23

We further hold that the trial court did not commit clear error in finding as a matter of fact that defense counsel exercised challenges on the basis of the race of the prospective jurors. Accordingly, we reverse the judgment of the Court of Appeals. JJ., J.

YOUNG and concurred with MARKMAN, CORRIGAN, I (concurring). concur in the result of the WEAVER, lead join I parts to III of the opinion. As the lead opinion explained, has the record reflects that any initial the trial court was cured when the trial court allowed defendant to provide reasons for the problems Federal courts regarding have encountered appel similar inadequate late findings. review of trial court’s Batson See Castorena Jaime, supra at 929: Although ruling, we affirm the encourage district court’s we explicit findings district courts to make factual on the record when ruling challenges. on “Specifically,... a district court proffered should state whether it challenged finds the reason for a facially strike to inherently discriminatory be race neutral or and

why given it chooses explanation.” to credit or discredit A clearly district findings court’s appellate articulated assist our ruling, review of the court’s Batson and that the trial “ensureD credibility court has indeed made the crucial determination that is great respect appeal.” afforded such [Quoting Perez, supra (citation omitted).] by C. J. Taylor, proffered the reasons and that challenges peremptory race-conscious. challenges were for the by defendant which opinion, the lead IV of join part I do right peremp- to a the violation addresses whether reversal, join nor do I automatic challenge requires tory that it is concludes V,which part paragraph the last response it inis the issue because to address proper such 292-295, my opinion, 299. In Ante at the dissent. and therefore to the unnecessary discussion is before squarely the issue is I wait until dicta. would denial of a improper determining whether us before subject to structural challenge is peremptory or the last Therefore, join part I do not IV analysis. V paragraph part

TAYLOE, concurring and (dissenting part C.J. lead opinion’s from the I dissent respectfully part). race-conscious provided defense counsel conclusion that the trial challenges for the two reasons Rather, agree I exercise. to allow him to court refused defense counsel’s dissent KELLY’s with Justice idea that challenge the only intended comments were had been made. showing of discrimination a prima legitimate were counsel’s comments Thus, defense Thereafter the step. first at Batson’s only directed Kentucky, 476 US the Batson v did not follow court requirement L Ed 2d 69 106 S Ct a race- to articulate opportunity it allow defendant I Accordingly, challenges. for the explanation neutral de- erroneously deprived court the trial conclude that challenges. of his peremptory of two fendant opinion, peremptory the lead by noted As by statute to a defendant granted are Michi- or the Constitution the United States rule-not right requires statutory Denial of gan Constitution. 302 473 Mich 275 Opinion by Taylor, C.J. if

reversal of a it in a only conviction resulted Thus, MCL I miscarriage justice. 769.26. concur statutory with the lead that denial of a opinion challenge is to peremptory subject harmless error Schmitz, 521; review and that v 231 Mich People App 586 766 repudiated NW2d must be contrary. extent that it held to the Applying this standard, I find defendant not entitled to a new specifically join trial. I 18 of footnote the lead opinion foreign I am persuaded because that cases that have concluded statutory that denial of a to a right challenge requires automatic reversal were wrongly decided. An automatic reversal should not be for the required statutory mere violation of a right just because the trial de- misperceived fense effort to peremptorily counsel’s strike two prospective jurors as a constitutional Batson viola- tion.1

To the extent that the error is considered to have rule, violated our court the denial is not grounds for granting a trial grant new unless a refusal new 2.613(A). is inconsistent justice. with substantial MCR Applying standard, this I find defendant is not entitled ato new trial. 1 do, however, recognize right I statutory if is denied in a manner equal protection process guarantees that violates or due denial such may warrant a As new trial. the United in States Court stated Lucey, (1985): 387, 401;

Evitts v 83 L S Ct Ed 2d 821 [A]lthough may any given choose it State whether will institute program, operate programs

welfare it must whatever it does establish subject protections Similarly, to the of the Due Clause. Process a State great setting policies governing parole decisions, has discretion in but it must nonetheless make those in accord decisions with the Due short, opts Process Clause. In when State act in a field its where significant elements, discretionary action has it must nonetheless act and, particular, in accord with the dictates of the Constitution — accord with the Process [Citations omitted.] Due Clause. People Dissenting Opinion Kelly, con- questioning join I the lead also Miller, 411 Mich tinuing viability NW2d harmless, here was I that the error

Because find 2.613(A), I agree with MCR under both MCL 769.26 decision opinion Appeals that the Court the lead convictions should be and defendant’s must be reversed reinstated. the J. I dissent from lead (dissenting).

KELLY, First, by failing erred judge the trial for two reasons. Kentucky, Batson v procedures required by the follow (1986). 1712; Despite 2d Ct 90 L Ed 106 S contrary, Bat- to the the opinion’s the lead contention Second, the lead opinion’s son errors were incurable. dic- and, as regarding inappropriate, Miller1 dictum no or value. There is tum, precedential has effect legal basis to overrule Miller. legal no

I. THE BATSON RULE Supreme ruled in Batson The United States Court that, may a a use a selecting jury, prosecutor when the juror to remove a because of challenge peremptory Batson, Supreme race. at 89. The Court juror’s three-step procedure a gave judges specific challenge an a has peremptory determine whether improper racial basis. a

First, the make objecting party must on the of all relevant circum- showing, totality based removing in stances, party other discriminated Second, party exercising Id. juror. at 93-94. give explanation must a neutral peremptory removal, showing it not based on race. for the that was Miller, People 411 Mich 307 NW2d 335 473 Mich 275 Dissenting Opinion Kelly, Third, trial judge Id. at 97. must determine if objecting party purposeful established discrimina- tion. Id. 98.

Although prosecutor’s dealt with exercise of peremptory challenges, Court extended the rule later For example, cases. Georgia it McCollum,2 stated that the United States Constitu- tion prohibits criminal defendant engaging from purposeful in the discrimination exercise peremptory challenges.

A. THE PEREMPTORY CHALLENGES case, In party this each had made several challenged before counsel defense Juror No. dire, 10. During voir Juror 10No. stated that he awas close police officers, friend several including “chief.” He stated he “wouldn’t think” that his would friendships make difference in his ability to make a fair decision. responded, He also when asked if he would feel obliged apologize to should he vote to acquit defendant, “hope[d] that he not.”

When defense counsel peremptorily challenged Juror 10, No. trial judge because, the disallowed the challenge he said, previous it and defense were based on comment, race. Defense asked counsel to but the judge him opportunity. refused the Counsel then bois- objected terously refusal, to the stating that it was The “garbage.” judge then relented allowed statement.

Defense counsel that he argued had not to attempted 10, male, eliminate Juror No. a Caucasian because of pointed his race. He out that the on Caucasians the jury outnumbered exceeded the panel. minorities the 112 S Ct 120 L Ed 2d 33 v Bell Dissenting Kelly, respond, the prosecution then allowed judge The counsel, and ruled hear more from defense refused to jury. remain on the No. 10 would that Juror continued, made attorneys and the selection Jury 5 was challenges. Juror No. peremptory more When cause, and called, prosecu- objected neither side challenge. Without peremptory tion did not exercise stated, judge counsel’s asking input, for defense jury.” have a “We the bench and an off- approached

Defense counsel ensued. proceeding the-record discussion When record, on the defense counsel asked to excuse resumed that it prosecution objected, stating Juror 5. The No. making objection peremp- a Batson to the defense’s was No. 5. challenge of Juror tory input or from the parties, discussion Without challenge for the same judge peremptory disallowed the 10., Again, regarding he had Juror No. given reasons ruling on the but sought defense counsel comment some prosecution refused. After the evidenced was record, judge lack of a allowed discomfort with the presence to make a record outside counsel jury. jurors the two prosecutor then observed were No. 10 and Juror

excused between Juror No. She also indicated that Juror No. both Caucasian males. male. She offered no additional basis 5 was a Caucasian Juror objection for her 5.No. no that there had been pointed

Defense counsel out He discriminatory challenges. to his stated pattern re- minority males many at least as white males as there valid on the He insisted that were jury. mained were intervening jurors who to remove reasons police officers. One had bias towards expressed excused. 473 Mich 275 Dissenting Kelly, other, before, years The had on the resided street where alleged occurred, was the crime have and his home had broken into. The juror expressed been concern about influence the break-in would have his decision this case. judge

The stated that argument defense counsel’s unpersuasive. making was Without rulings, further he brought jury, back the and the trial continued.

B. THE TRIAL COURT’S FAILURE TO FOLLOW THE BATSON PROCEDURES judge failed to follow the three-step procedure fact, In required complete Batson. he failed to single step procedure. He did not amake finding regarding whether there had a prima been facie show- ing purposeful Instead, appears discrimination. it lumped he all three into one steps and made his ruling without regard further to Batson. judges

Trial are not at liberty disregard the Batson procedure. Batson is United States Court precedent that is binding Moreover, on state courts. may ignore courts neither step one nor combine the steps Elem, three of Batson. Purkett v 765, 768; 115 Ct L Instead, S 131 Ed 2d 834 they carefully individually must consider each. The procedure Batson designed was to carefully balance the free exercise of peremptory challenges and the evils of racial discrimination the selection of jurors. Batson, at 98-99. It was crafted specifically to enforce the of equal mandate well protection as as to further justice. ends of Id. 99. case,

In this judge when allowed defense to speak, counsel he erroneously placed the burden on counsel to that the peremptory show challenge should not be disallowed. Although provides burden- by Dissenting Opinion Kelly, J. shifting party objecting peremptory the to procedure, case the has the ultimate challenge, prosecutor, in this Purkett, discrimination. purposeful of proving burden shifting the “violates Improperly at 768. burden persuasion that the ultimate burden principle the never with, motivation rests and shifts regarding racial Id. from, Therefore, the the the strike.” opponent the disallowing trial court erred twice in and No. 10. challenges to Jurors No. 5 ruling to make a on the required The trial court was to at a The court’s failure arrive clear step. first findings to and articulate its amounted conclusion when, a trial court con- Only if, in and of itself. and does the that a facie case exists burden cludes exercising peremptory challenge. to the party shift that to court allow articulate party Then trial must challenge. race-neutral reasons for the case, step, trial over the first glossed In this the third. At the step, jumped and skipped second placed on defendant impermissibly the court step, third presumed prejudice. to rebut racial These the burden are repeated patently errors inconsistent multiple established precedent. They cannot with remain uncorrected. opinion lead that their “research”3

Those on the state comply often fail to with reflects that courts that, Batson. They because there is appear believe compliance, the generalized failure of serious- supposed Batson errors here is dimin- ness of the trial court’s is less an error. In repeated But an error often no ished. fact, draw from their research is what we should responsible hold our scrupulously must more courts we no of what “research” consisted The lead makes mention knowledge might of, I of no I have it be. know research no what subject project this Court. on this conducted 473 Mich 275 Dissenting Opinion Kelly, J. following

for Batson. The United States Court carefully steps necessary has laid out for determin- a Batson error It ing they if exists. us to see are followed.

C. THE TRIAL COURT DID CURE THE NOT ERRORS lead opinion concludes that the trial court cured by allowing its errors defense respond counsel to its Those on the lead ruling. opinion attempt to fit the facts Batson, of this case into rather than to apply Batson the They facts. conclude that defense counsel should have opportunity used his to respond to offer race-neutral for peremptory challenges. reasons the The record does support not this conclusion.

The court never that articulated Therefore, case of discrimination had been made. when it allowed counsel defense dwelt on speak, counsel the Batson first element. He the denied existence of a discriminatory in pattern his peremptory challenges. It that he appears encouraging was the court to refocus and follow the Batson procedure. Given that the court completed Batson, had not the first oí step wholly it was reasonable for defense counsel direct his comments step. to that he did just And that.

The lead opinion concludes defense counsel should have judge surmised that ignoring was Batson and his tailored accordingly.4 answers This un- opinion quotes California, The lead US_; also Johnson 125 S 2410; Ct 162 L Ed 2d 129 to contend that defendant’s failure to give support race-neutral reasons should for inference show an provide discrimination. But defendant did not refuse to race-neutral challenge. for his Therefore, reasons He was for never asked his reasons. quoted there nowas refusal to answer and the material from Johnson is Id., inapplicable to this 545 US_n case. 125 S Ct 2418 n 162 L Ed 2d 6. 140 n v Bell Dissenting Opinion by Kelly, responsible alleviating for holds defendant fairly map have a clear to follow error. Trial courts court’s when magnitude of error cases. Given the Batson hold endeavor, it is that we imperative fail in that they the Batson correctly applying for responsible courts at 99; Purkett, 768. Batson, supra supra at test. should that defense counsel lead concludes The the challenges. for race-neutral reason supplied have did respond. exists he However, good why reason gave never for a never response asked The Instead, con- to offer one. after opportunity an counsel step should have been the first cluding discussion on what his Batson, the counsel and overruled judge stopped clearly judge erroneous. was This was challenges. responses for race-neutral specifically to ask required Batson, Batson at pursuant step. supra to the second 97. all that, judge combined

Instead into one and burden defendant steps placed ruling. It is to shift impermissible counter his erroneous Purkett, manner. 768. Given the burden this itself, it cannot shifting the burden judge’s a cure other errors as the lead constitute opinion concludes. states, if the court’s opinion lead “Even

The that inadequacy facie prima findings inadequate, were because defendant would not be outcome determinative his explanation challenges.” an subsequently offered above, did simply happen. 296. As this not Ante at noted the first comments were directed to Defense counsel’s that a facie case was never step. Being Batson defendant, and established, the never shifted to burden reasons. he not to offer race-neutral required was Hence, failure must have been outcome court’s determinative.

310 Mich 275 Dissenting Kelly, opinion attempts to support position by lead its York, quoting Hernandez New 352,359; 500 US 111 S Ct (1991). 1859; L Ed 2d 395 this reliance But is First, the misplaced. quotation plurahty drawn from that, opinion decisis, under the doctrine of stare is not binding. Negri Slotkin, Mich 105, 109; NW2d 98

Second, the quotation is taken out of context. One has only to read the it sentence above to understand the meaning. quotes Court’s true It Title VII civil “ rights case: defendant ‘[WJhere the has done everything required would be of him if the plaintiff had properly a prima case, made plaintiff out whether the really ” no longer Hernandez, did so is relevant.’ 359, quoting United States Postal Service Bd Governors v Aikens, 103 S Ct L75 Ed 2d 403 (1983). The Supreme Court plurahty place in no states that, long Batson’s third step, the as as a court rules first can be step ignored. Rather, it observes that a the first may defendant concede step by moving the discussion to the step. second a far cry This is from what lead opinion claims Hernandez stands for.

But if this section of Hernandez were controlling even it precedent, Here, would not apply this case. defendant Batson step. did not Instead, concede the first counsel’s comments were specifically directed at rebutting the claim of a prima facie case. It was defendant who moved the process beyond step. the first It was the trial court that passed over the first and second steps of improperly Batson. Given this situation, the Hernandez plurahty opinion simply does not apply.

II. A BATSON ERROR IS STRUCTURAL The lead concedes that Batson errors are 311 v Dissenting Opinion Kelly, J. I reversal, important find it to but subject automatic considered the why nearly every court has explain This includes the reached the same conclusion.5 issue Court, Batson itself Supreme States because United Batson, 100. an automatic reversal. ordered gave reasoning requiring this Supreme The Court has petit jury been “[W]hen automatic reversal: exposed criteria or has been upon improper selected required reversal of the we have prejudicial publicity, the cannot be the effect of violation conviction because 263; 254, v 106 Hillery, 474 US S Vasquez ascertained.” (1986). line 617; 88 Ed 2d 598 This is in with Ct L handling errors. of all structural appropriate Court articulated the difference be- v error Arizona tween error structural L Fulminante, 111 Ct 113 Ed 2d S error during presentation A trial occurs 302 quantitatively can be assessed jury. of the case to It purpose evidence for the of in the context of other it reason- determining beyond whether was harmless doubt. Id. at 307-308. able hand, error, other

A structural on the affects more than a framework of the trial It is proceeding. /d. at 310. presenting proofs guilt. mere error in of occurs, a trial cannot a structural error criminal When of guilt. as a vehicle for the determination serve rehable be fair if punishment criminal could structural No framework the trial. Id. existed guarantee exists with Although no constitutional them, resulting Batson errors denial regard 5 (CA 6, 1998), McFerron, 952, United F3d States 163 955-956 See (CA Hall, 381, 1998), 5, United States v 152 408 F3d Tankleff (CA 2, Senkowski, States v Under 235, 1998), United F3d 249-250 135 Norris, (CA 162, wood, 1997), and Ford v 389, 7, 67 F3d 122 F3d (CA 1995). 170-171 Mich Dissenting Kelly, of peremptory challenges

the use must be structural. They attack fundamental framework the trial proceeding. They change very makeup of the jury. they And do not during presentation occur Given do they evidence, evidence. that they involve cannot be assessed in quantitatively the context of other is a evidence. This fact further indicator that they are not in the nature of trial errors. Id.

Structural errors require automatic reversal. Id. at 309-310; Cornell, People 335, 466 Mich 16-17; ns (2002). Therefore, 646 NW2d 127 once we conclude that error existed, must automatically we reverse a conviction. Because is exactly this what the Court of did, I Appeals would affirm its decision.

Automatic reversal leaves no room error on part But, of trial courts. as the United States Court of for the Appeals stated, Ninth referring Circuit to Bat- son:

It is true that heavy trial courts bear a burden in enforcing given Batson’s anti-discrimination principle, party’s that the erroneous denial of peremptory traditionally However, has warranted automatic reversal. by this concern was alleviated a recent Supreme Court offering guidance decision to trial courts faced with decid- ing particular peremptory challenge whether has a dis- criminatory [United motive. Annigoni, States v 96 F3d (CA 9, 1996), Burkett, citing supra at 767-768.] The Supreme carefully Court has laid procedure out the to required satisfy Batson. We must that insist adhere to it. courts

III. PEREMPTORY CHALLENGES AND AUTOMATIC REVERSAL Had no Batson errors occurred here and were the errors under more scrutiny wrongful no than the denial y Dissenting Kelly, issue nonetheless 6weshould challenge, a peremptory attempt opinion’s The lead reversal. automatic an to the decisions contrary is error review harmless apply the issue. that have reviewed courts most other is unworkable simply error review Moreover, harmless on rulings peremptory apply logically and cannot challenges. most set from the trend departs

The lead aof application that have considered courts other It challenges. analysis harmless Martinez-Salazar,7 to demonstrate States v cites United here. Use analysis appropriate is a harmless error that relying dangers authority illustrates of this dictum.8 dictum language the cited undeniable

It is it need not Court concedes that the given for the remedy appropriate of an reached the issue have dowe impairment, we find no error. “Because claimed remedy for the appropriate in case what not decide this I Id. at 317 n 4. be.” would impairment a substantial the assertion opinion’s the lead disagree with significant “a can constitute of this footnote dictum in the law. shift” course, assumption I believe that disagree this because I with Of assumption question for the reason the occurred. But I also Batson errors deny deciding considering the judge Batson when was challenges, judge denying that, challenges. in defendant’s This means jury race. If the because of their specifically on the left certain individuals erroneously challenges, peremptory em denying he

judge erred that defendant was jurors under the belief panelled of their race because jurors’ does not The issue before us targeting race. members challenge. has peremptory The lead typical denial of a involve the made this distinction. (2000). 304; 774; 145 L Ed 2d 792 120 S Ct 528 US opinion’s this irony reliance on in-the lead There is unavoidable of dicta purpose is to criticize the existence The footnote’s footnote. Alabama, 13 L Ed 2d 759 85 S Ct Swain v Martinez-Salazar, supra 317 n 4. 473 Mich 275 Dissenting Opinion Kelly, opinion’s

The lead reliance on Martinez-Salazar is misplaced given further that the case dealt with an peremptory issue distinct from the denial of the use of challenges. Martinez-Salazar, In the trial court errone- ously juror refused to remove a for cause. The defen- peremptory challenge dant then used a to remove the juror. Id. at 307. The defendant was not denied the use peremptory challenges. of his fact, In he exercised one objectionablejuror judgment so that the did not insit Therefore, him. Martinez-Salazar did not deal with the peremptory challenge, denial of a and its dictum should not be read as a comment on the issue before us. peremptory

The distinction between denial cases and Martinez-Salazar makes a real difference when we applies. consider whether harmless error review In only existing Martinez-Salazar, the error was the trial denying challenge court’s error in for cause. It was peremptory challenge cured when the defendant used a juror. Consequently, juror to remove the took no part proceedings. in the trial The error arose and was began. cured before the trial peremptory hand, On the other when a challengedjuror stays jury denied, on the and sits in judgment presence perme- of the defendant. His or her trial, ates the and the error infects the entire case.9 all-encompassing penetration of the error ex- plains why analysis place a harmless error is out of wrongful review of the denial of a challenge. accurately analy- To make a harmless error sis, the court would have to determine the effect that challenged juror had on the verdict. In a case directly point, Appeals the United States Court of expressed problem the Ninth Circuit in these words: Vreen, See State v (2001); People Wash 2d 26 P3d 236 2000). Lefebre, (Colo, 5 P3d 295 Dissenting Opinion Kelly, J. challenge to of a subject the denial “To courts require appellate would analysis harmless-error in went on to reconstruct what impossible: to do the post-trial more than through nothing deliberations jury Annigoni, supra hearings speculation.” and sheer 1145. injury record of what is said courts have no

Appellate influ- subtle potentially and no record of what rooms Therefore, no device juror had on the others. ences one of the error. magnitude plumb exists with which harmless error subject error typical Unlike Fulminante, in indi- leaving in errors review discussed in be assessed jury quantitatively viduals on a cannot Fulminante, presented. the context of the evidence or mea- comparison at 308. Without means surement, analysis impos- is meaningful harmless reason, illogical it to rule as sible. For this of courts in future majority ignores plight does. It ruling. to follow its attempt cases in TAYLOR demonstrates his Chief Justice concurring part difficulty dissenting part the harmless error standard. trying apply faced harmless, no he finds the error he offers Although there analysis Likely, for his conclusion. is because this mere legitimate analysis, beyond speculation, nois fact, In the Chief Justice has demon- applied. can be is a majority the rule now created strated that appellate affirmance. It defies fair rule of automatic scrutiny. requiring that a rule auto- opinion implies

The lead 769.26.10This is matic reversal would contradict MCL provides: MCL 769.26 judgment or reversed or a new or verdict shall he set aside No case, any granted by any criminal On of this state in trial be 473 Mich 275 [July- Dissenting Opinion Kelly, inaccurate. Allowing peremptory stand would always amount to a miscarriage justice. of A miscarriage justice of if it affirmatively exists appears the error undermines the reliability of the verdict. v People Lukity, 484, 495; 460 Mich 596 NW2d 607 (1999).

Given that an error in denying a peremptory chal- lenge changes the makeup jury, of the it potentially changes the jury verdict. It alters the deliberation interaction process. The of a point peremptory chal- is to lenge remove someone appears who biased but who might not be removed for cause. Rejecting the peremp- tory challenge leaves this potentially biased or preju- juror diced jury, undermining the validity of the verdict.

Requiring automatic reversal for peremptory chal lenge errors is consistent with the plain error standard of review articulated Carines, by this Court People 460 Mich 597 NW2d 130 Carines gave three (1) requirements plain for error: the error must have (2) occurred, (3) obvious, must be clear or must affect substantial Id. rights. Peremptory 763. chal lenge errors would always meet this standard.

A peremptory challenge error becomes obvious after the trial court rules on an objection to it. The error that either a juror who should not be on a jury remains or one who should remain does not.

These errors affect substantial rights they because shape jury. Peremptory are a of means eliminating extreme partiality beliefs or jury. from a ground jury, of improper misdirection of the or the admission rejection evidence, any or pleading or for error as to matter of or procedure, court, unless in the after an examination cause, affirmatively of the entire appear it shall the error complained justice. miscarriage of has resulted Dissenting Opinion Kelly, J. chal- Batson, right at 91. The who, jurors although to strike lenge parties enables cause, or appear biased necessarily excusable Therefore, way. right implicates hostile some impartial to a fair and trial. right defendant’s they require Those errors reversal because plain “ ‘ fairness, or “seriously integrity public [affect] Carines, su judicial proceedings” ....’” reputation Olano, 725, 763, United States v 507 US pra quoting at L 736; 1770; quoting S 123 Ed 2d 508 113 Ct Atkinson, 157, 160; 391; 297 US 56 S Ct United States (1936). L the fundamental nature of 80 Ed 555 Given raises jury process, having unfairly jury the an chosen questions regarding integrity public serious Therefore, judicial proceedings.11 of the reputation automatic reversal. Id. require errors gauge Because we no tools to the effect of errors have a challenges, in harmless denying peremptory Therefore, analysis of them is unworkable. such simply errors must result automatic reversal.

IV PRIMA FACIE CASE OF DISCRIMINATION Batson’s failing The trial court erred to follow subject and the error is to automatic three-step process, Hence, prima facie case of reversal. issue whether actually technically irrelevant discrimination existed is respond I that it my appropriate dissent. But feel prima that a facie case majority’s to the conclusion existed. juror that the exclusion of even one The lead itself concedes 293, system. public Ante at confidence the fairness of the

undermines T B, citing 142 n 114 S Ct Alabama ex rel J E B v necessity Therefore, L 2d it has conceded Ed automatic reversal. 473 Mich 275 Dissenting Opinion by Kelly, J.

To reach the majority’s requires conclusion not only a strained of the reading existing regarding Batson, law but reading also strained of the factual record in this case. The majority members of the attempt to save the trial judge’s ruling by using twenty-twenty hindsight to fit his actions into the Batson procedure. Initially, they that, conclude the fact that despite judge never ruled that occurred, discrimination had his comments equated ruling. such

The trial stated that he judge disallowed the peremp- tory challenges because defense using counsel was his challenges for the purpose excluding white males. The record not support First, does his conclusion. least two of the jurors that challenged defense counsel were Second, female. the race challenged of each juror is not in Therefore, the record. we do not know many how challenged jurors male Third, were Caucasian.12 we know from defense counsel’s regarding comments jurors challenged between Jurors No. 10 and 5No. that valid reasons existed to some jurors. Caucasian male Finally,, we can tell from the record that the number of Caucasian males left on the jury equal was either to or exceeded the number of minorities on the jury.

Considering facts, all these a prima facie case of discrimination did not exist. Batson a requires court to carefully examine all relevant factors as well as the totality of the in making circumstances its decision. Batson, 93-94, 96-97. The record indicates that 12 opinion The lead bases its contention that the race of the excused jurors judge’s is determinable on the statement that defense counsel had repeatedly jurors. Obviously, excused Caucasian male this statement is unclear. It challenged jurors is well established that at least two of the Hence, simply were female. the statement is too inexact to determine the chállenged jurors, inappropriate opinion race of the and it is for the lead rely heavily on it. People 319 v Dissenting Opinion Kelly, J. scrutiny. careful here failed exercise that judge a hearing a before Instead, he rushed to conclusion making adequate and an without thorough discussion investigation. one racial against a of strikes pattern

It is true that an inference of might support jury selection group this at 97. But defendant countered Id. discrimination. He respond.13 allowed to finally when alleged pattern challenges fit intervening peremptory that his indicated of Caucasian large The fact that a number pattern. no he demonstrates jury, argued, males remained on Our courts have targeting jurors. he such that was racial showing challenged group that held that jury on the strong representation to have a continued discriminatory intent ex- evidence no significant 379, 387-388; Eccles, 260 Mich 677 App v People isted. Williams, 132, (2004); App 174 Mich 76 NW2d (1989).14 137; 435 NW2d 469 and the fact pattern the weak evidence of a Given significant portion Caucasian males constituted jury, prosecution failed to make Therefore, did defense counsel case of discrimination. peremp- for his not need to offer race-neutral reasons The burden never shifted to him. tory challenges. Hence, step. concluded the first Batson judge never 10 and No. 5 to remain allowing he erred Jurors No. jury. on the 13 immediately” judge contends that the trial “almost The lead respond. The record does not counsel to Ante at 290. allowed defense prosecution support and had to demand that this. Defense counsel belatedly judge only judge to make a record. The allow them speak. reluctantly defense counsel to allowed 14 1501, Sangineto-Miranda, 859 F2d 1521- United States v See also (CA (CA 143, 4, Grandison, 6, 1988), F2d 147 States v 885 United 258, 280; Clark, 1989), A2d 31 551 Pa Commonwealth 1998). (Colo, People, P2d Valdez v

320 473 MICH 275 Dissenting Opinion Kelly, J. LEAD THE DICTUM MILLER

V OPINION’S REGARDING Part IV Justice CORRIGAN’S opinion concerns our Miller, decision and the supra, Court of Appeals Schmitz, decision in People 231 Mich App 586 (1998). out, NW2d 766 As Justice points WEAVER entire section is dictum. Miller, In the trial court diluted the defendant’s peremptory challenge rights by using the jury struck Miller, method.15 323. The case before us does not deal with the dilution of a defendant’s right peremptory challenges. It deals with denial of his peremptory challenges. reason, For this Miller clearly distinguishable from this case.

The lead opinion concedes that its discussion of Miller is dictum by that stating “we have concluded the trial court did not err in denying defense counsel’s peremptory challenges.” Ante at 299. Because it concludes that Miller does not apply decision, to its any discussion of Miller must be obiter dictum. Part IV lacks the force adjudication of an and is not binding under the principles of stare People decisis. v Borchard- Ruhland, 460 Mich n 1 NW2d Therefore, it is of no value. The issue raised in Miller is us, not before and the lead has legal offered no basis to overrule precedent this or support a conclu- sion that some former case overruled precedent. this

Oddly enough, the lead opinion claims that I “la- []” bor to avoid reference to Miller and Schmitz. Ante at 299 n Nothing 22. can be further from the truth. Even cursory reading my this section of dissent indicates jury method, Under jury array the struck all members of the are They called into questioned collectively, the courtroom at once. are individually. parties preemptory challenges, After the exhaust their judge jury using remaining array, assembles the members of the starting Miller, supra with the lowest numbers. at 323-324. v Bell Dissenting Kelly, Miller deals with a struck- I find Miller irrelevant. inapplicable jury I to this case. Nor do method, which is referencing simply I found other Schmitz. labor to avoid authority. persuasive and more may they opinion reach lead state that Those on the above, I I it. As stated would Miller because reference if the lead either Miller or Schmitz not reference attempted them. had not to overrule nothing Contrary opinion’s statement, in to the lead revisiting my'opinion prohibit the Court from would raising actually a struck- If a case Miller the future. jury Court, the issue in method come before should it. and the Court could address Miller couldbe relevant nothing my legal it conclusion that is There is novel precedent inappropriate in a to overrule case precedent. it irrelevant to the But addresses issues inappropriate, plurality here, of the Court does to as precedent attempt signal the future demise of the dictum. explicitly Miller. And the case has ever overruled

No nothing opinion’s attempt today more lead amounts Therefore, remain valid law. than dictum. Miller should

VI. CONCLUSION judge by failing to followthe Batson The trial erred by shifting steps to defendant to dis- and burden presumption prove of discrimination. He also erred concluding that a facie case of discrimination these errors. Batson errors existed. He did not cure subject are erroneous denials of Therefore, I affirm the would to automatic reversal. Appeals, defendant’s the Court of reverse decision of convictions, remand the case for retrial.

322 Mich Dissenting Opinion by Cavanagh, J.

Also, no legal basis exists to overrule this Court’s Any in the Miller case. comment here on Miller decision is mere dictum I precedential without value. would leave Miller unmolested. I from (dissenting). majori- dissent CAVANAGH, I

ty’s agree decision and with the result reached in Justice dissent. would likewise conclude that Kelly’s I the trial erred by collapsing the three steps 79; Batson v 476 US L Ed Kentucky, S Ct See, e.g., Elem, 2d 69 into one. Purkett v 765, 768; 115 S Ct 131 L Ed 2d 834 Further, the trial court erred when it failed to allow defendant an opportunity to articulate race-neutral explanations challenges. for the When defense counsel finally opportunity was allowed an I speak, agree with Justice and Chief Justice TAYLOR that de- KELLY fense counsel’s comments were directed at Batson’s Thus, first I would conclude step. that the trial court’s failure to follow Batson was error and defendant was denied the improperly use of his because the trial misapplied that decision. erroneously

Because the trial court denied pe- remptory challenges grounds, on Batson and Batson subject error is to automatic reversal and not amenable review, to harmless error I would conclude that defen- dant See, is entitled to a new trial. e.g., United States v (CA 1998) (“[W]e McFerron, 952, 163 F3d find analysis that harmless error applicable is not to the district application court’s erroneous of the three-step improper Batson test denial of [the defendant’s] peremptory challenges.”).

Further, I agree with Justices WEAVER and KELLY majority’s Miller, dicta regarding People v Mich (1981), Schmitz, 307 NW2d 335 People Dissenting Cavanagh, Mich App 586 NW2d 766 is inappropriate given majority’s conclusion that the trial court did ultimately not err. reasons,

For these I respectfully must dissent from majority’s I Accordingly, decision. would affirm the decision of the Appeals. Court of

Case Details

Case Name: People v. Bell

Court Name: Michigan Supreme Court

Date Published: Sep 23, 2005

Citation: 702 N.W.2d 128

Docket Number: Docket 125375

Court Abbreviation: Mich.