People v. Johnson

People v Johnson 243 PEOPLE JOHNSON 15, 2000, April 6, Docket No. 212482. June at Submitted Detroit. Decided appeal sought. at 9:10 A.M. Leave Benny Johnson, Jr., by jury was convicted a in the Oakland Circuit Court, Gilbert, J., kidnapping Alice L. of two counts of and one During dire, explaining of count domestic violence. after that charge battery, an the domestic violence involved assault and jurors prospective whether, having asked the court after heard the “you any why you charges, know reason of should not serve as a juror jurors responded. in this None of case.” When the court any prospective jurors previously if asked of the a had been victim crime, responded, of a Juror 457 “I have been The assaulted.” experience then asked Juror whether that would interfere with ability presented her to decide this case from the evidence in this juror keep separate. trial. The indicated that she could the two jurors prospective When defense counsel asked of whether type weapon, responded had been threatened some Juror 457 gun teenager, that had on the a she been hit head with as a but that put experience she could that When aside. defense counsel asked “something your weighing heavily whether there was so on mind right you might give now that not be able full attention prospective case” whether “wouldn’t want juror sitting they case,” themselves a if were as the Defendant a respond. counsel, requesting did not Defense after that juror peremp- exercising the court remove one cause and six tory challenges, expressed resulting with satisfaction that Following sentencing, included Juror 457. trial and before juror bias, new defendant moved for a trial on the basis of contend- ing during that, that Juror 457 had not revealed voir dire at the time trial, complainant she was a in domestic violence case and pros- had that it been learned that Juror had told the assistant assigned ready ecutor to her case that was she to convict the prosecution argued began. defendant even before the trial The juror a new warranted not because had revealed that assaulted, knowingly given she had been had not or false mislead- ing answers, and indicated she had could remain unbiased. motion, finding showing The court denied the no there was juror knowingly concealed, given misled, that the had or false 245 counsel, learning during and that defense information voir dire assaulted, had been did not conduct voir dire that the peremptory inquiry either or seek to remove the further appealed. challenge challenge The defendant for cause. or Appeals The Court of held: Affirmed. opinion P.J., in stated: a lead O’Connell, support the claim that Juror 457 concealed 1. The record fails to Juror in from the trial court or defense counsel. information any prospective response question of to the court’s whether the crime, truthfully

jurors that she had a victim of a answered been and, response question assaulted, to defense counsel’s had been prospective had been threatened with a whether weapon, truthfully with answered that she had been hit on the head teenager. Although gun she as a Juror 457 did not volunteer that allegations against husband, violence her the had made of domestic support a conclusion that Juror 457 know- failure to do so does not sought ingly to mislead the court or concealed information or counsel. defense question to further 2. In view of the failure of defense counsel concerning indi- Juror 457 the nature of the assault after she had battery that she had been a of an assault and and the cated victim keep personal sepa- her life statement of Juror 457 that she could case, the defendant did not meet his bur- rate from the defendant’s juror’s proving disqualification. den of refusing The trial court did its discretion in to con- 3. not abuse being 457 had sider defense counsel’s claim of informed Juror prosecutor in case in which she was the com- told the assistant predisposition plainant in the defendant’s case. Even if the of her hearsay problem resolved, the court could not have consid- were impermissi- so would constitute ered the information because to do by juror. impeachment ble of a verdict inquiry to make further at voir 4. The failure of defense counsel dire did not rise to the level of ineffective assistance of counsel. of Juror 457 that she could be fair and Because of assurances probability impartial, that the there is no reasonable outcome the case would have been different had defense counsel made fur- inquiry. ther support 5. The record does not the claim of the defendant process him the trial court abused its discretion and denied due court-appointed denying request investigator. law his for a barring 6. The trial court did not abuse its discretion in introduc- by herpes tion the defendant of evidence that he had transmitted complainant. sought The defendant admission of that evidence v Johnson Opinion by O’Connell, P.J. support theory complainant his at trial that the made false alle- gations against contracting him in retaliation for her the disease. prejudicial any probative outweighed The nature of the evidence value, barring significantly hamper of that evidence did not attempt complainant’s credibility in his defendant attack the ruling materially as a witness. The trial court’s did not restrict the right defendant’s to confrontation. Kelly, only.

M. J. concurred in the result J., J., dissenting, stated that the trial court abused its dis- denying cretion in the defendant’s motion a new trial because subject challenge party seeking A to a for cause. discovery juror’s new trial reason of after trial of a bias as a juror’s question result of the in a an interest like issue that was presented in the case in which the sat must establish the exis- tence of that interest and must show that court or counsel reasonably inquiry diligent designed made a to reveal the bias. Because the failure to ascertain the bias of Juror 457 was not the reasonably inquiry diligent result of the failure to malee a but rather juror’s was the result of the failure to make a fuE disclosure of her response questions asked, situation to the that were the defen- dant is entitled to a new trial reason of bias. Granholm, Attorney M. General, Thomas Jennifer L. Casey, General, Gorcyca, Solicitor David G. Pros- Attorney, ecuting Joyce Todd, Appellate F. Chief, Divi- sion, Grden, and Thomas R. Assistant Prosecuting Attorney, people. for the

State Appellate (by Defender Smith), Susan J. appeal. defendant on Kelly P.J., and M. O’Connell, Before: and JJ. P.J. A convicted defendant of two O’Connell, counts of one kidnapping, 750.349, MCL count of violence, appeals domestic MCL 750.81(2). He as of right. We affirm. P.J. Opinion O’Connell,

I. FACTS Complainant dated in this case testified she weeks, but ended the rela- defendant for about six tionship events at issue. She had the week before the three-year-old was not related to defen- son, who arranged to have defendant’s dant, for whom she had baby-sit complainant while was at work. mother day September completion After the of her work complainant at 26, 1997, arrived defendant’s mother’s pick up police son, her when she noticed a house parked approached outside the house. As she car telling she saw defendant some house and heard police everything right officers that was all and that they police left, could not house. After enter the complainant car, took her son to her and defendant passenger followed and entered the car on the side. complainant Defendant’s mother asked to take defen- dant somewhere for a little while to cool off because fight had occurred earlier. running getting

After errands and dinner, some complainant returned to defendant’s mother’s house drop stayed Defendant, however, defendant off. complainant the car and wanted to talk with about relationship. complainant their After told defendant get together, that she did not want to back defen- changed. agitated dant’s demeanor He became began questioning given her who had about her the money payment for down on her new home. When complainant told him business, that it was none of his keys give defendant took the car and refused to them money. gave back unless she told him who her the At point, complainant left the car and went into the house to call her brother for a ride In home. People v Johnson

Opinion P.J. O’Connell, response, complainant’s defendant threatened to kill Complainant fright- if him. brother she called became began crying. and her ened, son Complainant left house with her son to find a telephone pay Shortly to her thereafter, call brother. up caught defendant with her and told her he through going not was with her he and that was complainant walking her make suffer. When started direction, another her, defendant shoved blocked her way, Complainant her and threatened with a stick. hope went back to defendant’s mother’s house in the making telephone complain- call. However, when get telephone, ant tried to defendant, who seemed yelling delusional, was at his who was mother, complainant telling him to leave alone. Complainant and her son went then back outside complainant because afraid defendant was going Running to hit his mother. to the block, next sought place she to hide. Defendant, however, up caught with and if her threatened to kill her she get complied, did car. not into the She and defendant gas to a there, drove station. Once defendant took the keys got Complainant and the car. out of testified that escape, get she tried to but was not able to her son out of the back before seat defendant returned. party

Defendant then drove to a store, asked an buy beer, individual who knew to him he some back drove to his mother’s house. Defendant drank driveway complain- the beer his mother’s and told keys ant that she have her back if could she had sex initially complainant refusing, with him. After com- plied with defendant’s demand so that she could take Afterward, her son home. defendant refused to return keys laughed complainant, the car at tell- 245 O’Connell, P.J.

Opinion mg with her and that she her that he was not done night. going was to die that complainant take Defendant then demanded threats, him to her new house. Because his com- slept plainant agreed to do so. All three on the floor night, together that defendant with his arm around complainant’s prevent complainant son to from help. seeking complainant morning, up next woke

The defendant Along and demanded that she take him to work. way, police pulled a Warren officer the vehicle over. Complainant police stated that she did not alert the officer about her situation because she was afraid empty that defendant would hit her with an beer bot- was in Afterward, tle that the car. she continued to place employment drive to defendant’s dropped defendant off between two trailers. Defen- trailers, dant went into one of the about ten feet away. complainant attempting As to back out, got defendant returned and back into the car. He told everything her that was fine and that his boss said day that he could take the off. He directed her to plant move the car to the front of the so that he could paycheck. complainant parked his collect When keys car, defendant took the and told her that he was yet. Complainant not done with her thereafter ran approached moving car, from the truck, help. complainant screamed for The driver allowed to telephone use his cellular to call her sister. When she saw that defendant her had taken son from the back walking away, complainant seat car and was left the truck and ran toward them. Defendant agreed refused to return her son to her unless she People v Johnson Opinion by P.J. O’Connell, drive him to his brother’s house. Our of fear and con- son, cern for her she agreed.

At defendant’s direction, complainant began driving around. When defendant became unhappy about com- plainant’s he driving, grabbed the wheel and turned into a parking spot. He grabbed her, flipped her over, slammed her into the passenger seat, and began choke her. Complainant’s son begged defendant not kill Eventually his mother. defendant stopped.

During struggle, complainant’s kicking cracked the car’s windshield. After two visiting repair shops and a restaurant, fast-food defendant eventually calmed down, they agreed that she would drop him off at his mother’s house. When they arrived, defendant’s mother came out and told defendant police were for him looking and that complain- ant’s mother was for her waiting at the police station. En route to the station, defendant instructed com- plainant to tell police they merely had had a quarrel lover’s and that a stone had hit the windshield at place defendant’s employment. At police sta- tion, complainant spoke with the officers, told them what had happened, made a written statement, and went to a hospital. Complainant also testified that she was five weeks’ with pregnant defendant’s child at the time of the incident and that defendant knew it. At point one during the incident, defendant threatened punch to her in the stomach. prosecution

The charged defendant with first- degree criminal sexual conduct (esc i), MCL 750.520b(l)(f), assault, felonious MCL 750.82, two counts of MCL kidnapping, 750.349, and domestic vio- lence, jury MCL 750.81(2). acquitted The him of the esc i and felonious assault charges, but convicted him 245 P.J.

Opinion by O’Connell, and domestic violence. kidnapping counts of of both defendant as a second- The trial court sentenced to concurrent offender, 769.10, habitual MCL offense years for each of the kid- prison thirty terms of ten to days ninety-three for the convictions napping conviction. domestic assault

H. JUROR 457 is entitled Defendant first contends that he of the new trial because one of the members did had not reveal until after trial that she been com- prosecution. plainant in a domestic violence Accord- defendant, concealed facts from the ing them, if had led that, she revealed have defense counsel her for cause. The trial challenge court denied defendant’s for a new trial on the motion issue. We review a trial court’s on motion for ruling Jones, a new trial for an abuse of discretion. App 396, 404; 600 NW2d 652 We find requiring no error reversal. dire, learned that one

During against defendant was domestic violence charges battery. involving an assault and The trial court then jury, you have all asked heard “[N]ow you why charges this case do know of reason you juror in should not serve as a this case?” None of jurors responded. When the trial court then you asked, any pre- “Are there who have been among “I viously responded, a victim of a crime?” Juror 457 colloquy have been assaulted.” The then following occurred: you By experience,

The Court: virtue of that thinking experience about that and would it interfere with v Johnson Opinion by O’Connell, P.J.

your ability to listen to the facts of this case and decide this case from here? the evidence No, keep separate.

Juror. I can it Okay. keep separate, Anyone good. The Court: You can it else? prosecutor questioned prospective

When the they jurors, any she asked whether would have diffi- culty sitting jury on a where the defendant was charged with felonious assault and assault and bat- tery jurors responded. domestic violence. None of the questioned jurors,

When defense counsel he anyone jury every asked, “Has in this box [sic] been you you type where felt were with threatened some weapon?” responded Juror 457 that she had been gun teenager, hit in the head with a aas but stated put that she could it aside. When defense counsel prospective jurors asked whether of the had heavily “something your weighing right so mind you might give now that not be able to full attention sitting to this case” and “wouldn’twant themselves as juror they if case,” were the Defendant in a respond. 457 did not The trial also asked each newly of the seated if there were reasons why they juror should not serve as a in the case. requesting counsel, Defense after the court to remove peremptory exercising one six cause and satisfaction, challenges, expressed jury.1 with sentencing hearing, After trial, before the new defendant moved for a trial on the basis of contending bias, that Juror 457 did not reveal 1 Notably, inquiry regarding responding to when the trial court’s composition jury shortly jury sworn, before the defense coun panel. replied “very sel that he was satisfied” with the by

Opinion P.J. O’Connell, trial, she was com- at the time of the that, voir dire plainant that the case and in a domestic violence County special the office of the Oakland unit of same Prosecuting Attorney prosecuting In was that case. prosecutor response, that a new trial stated during 457 revealed warranted because Juuror not victim of an assault she had been the dire that misleading knowingly given false or not thus had juror’s emphasized prosecutor state- The answers. and the remain unbiased fact ment that she could juror question the further. counsel did not defense prosecutor, involved in Juror 457’s who was not The that she had case, further asserted domestic violence prosecution cooperated in the case not with the reply, against In defense counsel con- her husband. he had learned that the had told tended that attorney assigned prosecuting to her case assistant ready defendant even before that she was to convict began. The trial observed: the trial juror bias, argu- Court finds such As to the issue of argues merit. The Defendant that he was ment without impartial jury panel as a result of Juror #457’s denied an knowingly showing the Juror bias. There has been no concealed, gave information mislead or false [sic] fact, the voir dire. In when the Juror notified Court assault, the Defense Counsel did she was the victim of an preemp- inquiry and failed to exercise a not conduct further Moreover, tory challenge challenge or for cause. as [sic] #457, disclosure Juror this Court asked result of the impartial. fair and whether the Juror could remain responded that she could. #457 agree and decline to reverse We with the trial court reveal, Our review the record did not on this issue. asserts, that Juror 457 “concealed” infor- as defendant the court asked the mation from the trial court. When People v Johnson Opinion O’Connell, P.J. juror whether previously she had “been a victim of a crime,” responded, she “I have been assaulted.” When anyone defense counsel asked the whether had ever threatened her with a she weapon, admitted that someone had hit her on when the head with a gun not, however, she was The did teenager. reveal that she made of vio- allegations had domestic against past.2 lence her husband in Nevertheless, view, juror’s history in our as a victim of domestic violence was there for defense counsel discover to further through correctly Defendant questioning. jurors duty argues have to reveal relevant infor- even mation, the information is though personal or embarrassing. People DeHaven, v 321 327, 334; Mich 32 NW2d 468 (1948). Nevertheless, Juror 457 truth- fully answered the trial court’s question. That defense did specific counsel not ask more questions to learn juror’s past experiences full details of the not, did in our view, constitute concealment on part.3 her 2 Apparently, episode hap she later denied to authorities that the ever pened, preliminary examination, assailant, she recanted at a bonded her uncooperative prosecutor. and was with the 3 dissenting opines colleague inquired Our that defense counsel with diligence background. reasonable into Juror 457’s Our review of the record, however, contrary. simply indicates We do not consider inquire further, learning defense counsel’s failure to that the had past, diligent. opin been the victim of ion, in the violence as We are not suggests, required as the dissent that defense counsel was to read the juror’s expedition.” “engage far-flung fishing or mind in a Post at 285. However, follow-up juror’s questioning regarding response that she appropriate. reason, had been assaulted would have been For the same reject juror’s we the dissent’s assertion that the admission she had past “gave inquiry been assaulted no clue” that further was neces sary. at 286. Post dissenting colleague’s argument regarding The cornerstone of our due diligence questioning is that no evidence that additional “[t]here during voir dire would revealed that 457 been have could have chal- strenuously lenged disagree for cause.” 279. We Post at with line of ample reasoning. recognize oppor- The dissent fails to that defendant had Mich O’Connell, P.J. Opinion where DeHaven, supra, as case, is not a

This falsely and otherwise questions answered have that would information to disclose failed who had commit- person relation to a revealed their they for which to the one that was similar ted a crime this case is distin- jurors. Moreover, were to sit as 660, 667; Hannum, from guishable Supreme Court our where (1961), 107 NW2d pertinent “That the lack of disclosure stated: expressly ask the to failure to be attributed fact can hardly be thought it can prospective juror about present . . . .’’In the impartial insured an have jurors whether potential ask the case, the court did crime, of a the victim them had ever been solely tunity challenge on the basis of her candid Juror 457 for cause past. Alternatively, defen had been assaulted in the admission that she posed challenged if he had further for cause could have Juror 457 dant view, granting inquiry regarding assault In our the nature of the admitted circumstances, (1) neglected where he defendant a new trial under these expressed cause, (2) challenge satisfaction with the and to exercise jury impaneled, allowing to defendant to build would be tantamount as See, process. generally, jury This we will not do. into the selection error App 459, 466; (After Remand), 552 NW2d 493 217 Mich v Hubbard jury impaneled may expression as (1996) (an with the of satisfaction composition jury); People right challenge to the waive a defendant’s DePlanche, App 685, 691; (1990) (the defendant Mich 455 NW2d 395 v 183 jury impartial right an where defense show he was denied to failed to jury panel expressed and failed to take satisfaction with the counsel appropriate the defendant claimed were not action to remove 249, 250; (1969) Acosta, impartial); People 167 NW2d 897 v jury of voir dire (defendant with the at close who announced satisfaction requested any give relating instruc to trial court’s refusal to waived error Russell, App 314, 326; venire); People 625 451 NW2d tion to “affirmatively J., (defendant dissenting) who demon (1990) (Sawyer, peremptory panel failing chal to use with the strated” satisfaction “explicitly stat(ing) he was satisfied with lenges to the trial court that and composition jury), relating rev’d 434 Mich 922 jury,” to of waived issue the (1990) forth in the dissent of Sawyer, for the reasons set People v Johnson Opinion by O’Connell, P.J. truthfully Juror answered had she been the victim of in the past.4 assault reject dissenting opinion’s suggestion We the that Juror 457 was not juror’s forthright. recognize circumstances, We that in certain wilful fail may However, ure to trial. disclose relevant information warrant a new in being questioned by the instant Juror case on the court and counsel, past. defense disclosed in the that she assaulted Conse quently, misrepresented Juror 457 cannot be to have said concealed or any sought information either trial court or defense counsel. In the our view, implication the veiled dissent’s that Juror 457 was less than forth right is untenable. Moreover, attempt present analogize dissent’s the to the case to DeHa- ven, supra, Hannum, supra, patently instance, and unsuccessful. For juror DeHaven, in the at issue was related to an individual who had been statutory rape. DeHaven, supra ques- being convicted of at 331. While dire, juror during gave misleading tioned the voir false and answers. For example, pointedly “anything after the trial court asked the about any happened your family you that has of members that would make juror, despite knowing feel different about this case than others?” the his cousin was convicted a crime to that of which the identical defendant responded charged, negative. Similarly, specif- was ically in the Id. at 330. when knowledge asked if his other case would influence his ver- dict, responded negative. Similarly, Hannum, in Id. in one of jurors, filling required questionnaire asking specifically when out a deliberately employment status, about failed to disclose that he was a township police officer. This information was not discovered supra Hannum, Conversely, presents dire. at 666. the instant case no purposeful part juror. such evidence of deceit on of a Interestingly, weight the dissent accords little to the fact that Juror 457 clearly having been admitted assaulted two different occasions. That specifically Juror 457 did not articulate that she was victim of a specifically domestic assault is attributable question more defendant’s failure to regard, her in this rather than intentional concealment on part. her implication necessary argument A of the dissent’s is that assault and separate are domestic assault distinct and find this entities. We line of rea- By very soning baffling. nature, its crime of domestic assault is com- prised 750.81(2). clearly having of an assault. See MCL Juror 457 admitted persistence illusory maintaining been The dissent’s assaulted. dis- cognizable tinction is meritless. We find no difference between assault deliberately Had domestic assault. chosen to withhold jurors DeHaven, supra, Hannum, supra, information like she presumably However, view, have could done so. in our Juror 457’s layperson’s truthfully answers reflect a concerted effort to answer the trial questions open divulging court’s court while not sensitive and no doubt embarrassing details are too often associated with domestic assault App Mich 243 256 245 O’Connell, P.J. Opinion juror’s case, facts of this the Finally, under sepa- personal matters of her life promise keep to protect case was sufficient rate from defendant’s Yount, to a fair trial. See Patton v defendant’s right L 2d 1025, 1034-1035; 2885; 104 S Ct 81 Ed US opin- with fixed (distinguishing between (1984) Dowd, without fixed Irvin v opinions); ions and those 1639; 366 US 81 S Ct 6 L Ed 2d 751 723; (1961) lay impres- sufficient if the can aside his (“It is opinion sion or and render a verdict based on evi- presented Lee, dence v court.”); App 228, 248-252; 537 NW2d 233 Jurors are (1995). presumptively competent party and the impartial, disqualification prov- bears the of alleging burden People Collins, 4, 9; its existence. v 166 Mich ing People Walker, App 60, 63; NW 78 162 Mich (1911); 412 NW2d 244 In failure light of defendant’s question further after she admitted that she had of past, been the victim an assault in the juror’s keep personal statement that she could life her separate case, from defendant’s defendant did not juror’s meet his burden of proving dis- qualification.5

verdict benefit of ings lins, supra ing on a motion for a new liams, the voir dire matters. In our sent, however, disregards (1) civilian (3) MCR a “trial court’s determination of a defendant Our is reversed juror’s attempts challenges 2.511(D)(13) dissenting colleague hindsight. at process by criticizing bears 9; Walker, supra view, for cause only the burden of and criticizes 519, 521; the dissent does a where trial, certain properly on the devotes considerable effort to a discussion 616 NW2d 710 is for an abuse of at an 63; (2) principles appellate proving us for Juror 457’s choice of words with the basis of answer juror’s ability our great failing bias, questions put basic to our juror’s disqualification, review (2000); disservice to do the same. The dis discretion, People as well finds a clear abuse to render an of a trial court’s Jones, supra as a court’s to the jurisprudence: to her impartial average at v Wil 404; Col rul rul People v Johnson 257 Opinion by O’Connell, P.J. Johnson, discretion,” App 825, 830; v 103 Mich 303 908 NW2d (1981); reviewing great superior (4) give and courts to deference the abil ity credibility, id.; People relating Eggles of the trial court in matters to v ton, App 665, 671; opinion, jurors Mich NW2d 637 In our experiences, they acknowledge with real life who that can be free of bias jurors, prejudice, and can and make trial do excellent and the was court position Lee, supra the in best to make this at determination. 251. suggests party may 2.511(D), challenge The dissent that under a MCR a juror during proceedings. However, for cause at time 281. the Post at cursory reading jury governs a even of that rule reveals it the that selec- process. prejudices tion Postverdict biases or are not determined use jury employed rule, of a selection court rule. The dissent has along information, with its assertion that Juror 457 relevant an withheld attempt justify to its conclusion. We decline 'follow dissent’s to the invita- rely dicta, analogy, implication tion to and to create a new rule lawof juror challenge that would allow defendant this case to now the for tenacity, reasoning cause. While we the admire dissent’s we find its be to unsupported. may pursuant While a defendant a move for new trial to 2.611, may challenge juror MCR we decline to hold that a a for defendant jury cause after the has rendered its verdict when the defendant to failed adequately challenge process utilize the for cause in the first instance. colleague’s opinion, post dissenting A review of footnote 54 our at opinion proposition demonstrates that he has inferred from our the juror may only during that bias be addressed dire. We find this voir to prevailing Michigan. Rather, an incorrect statement of the law in it is clear juror allegations juror’s that bias that from result a deliberate withhold- pertinent ing may grounds challenge jury’s information serve as to the any point proceedings. Hannum, supra, verdict at in the See and DeHa- ven, supra. That we decline to reverse defendant’s convictions under the present circumstances, (1) challenges where he failed to exercise for proper procedural expressed (2) unequivocal cause at the interval sat- impaneled, interpreted sug- isfaction the as with should not be as gesting cognizant proposition. we are not of this well-settled goal judgment court, dissenting In its reverse to the lower opinion juror’s minimizes the admission that she had been We assaulted. ignore questions, pre- cannot her to the we will answers court’s not juror’s past precluded rendering sume that the impartial assaults from a her fair and recognize People Daoust, App 1, 7-9; We verdict. (1998), 577 NW2d 179 states that a defendant is entitled to relief when juror challenged that the defendant could for have cause allowed to jury. However, serve on defense counsel in this case did not meet his grounds challenge establishing burden of for a for cause process, dire and we concur with conclusion that the court’s court, did not lie or conceal information. The trial which was in position juror, accepted the best to her assess the statement that she personal keep separate her life from trial. We cannot defendant’s accept process attorney failing ask would excuse defense Opinion O’Connell, P.J. hearing During a new motion for on defendant’s juror “appar that the counsel asserted trial, defense assigned ently prosecutor case that to her told the ready hang the trial [defendant] before she was questioned began . . . When the trial court even regarding source of the state defense counsel only responded was true that the statement ment, he prosecutor “according I told.” The denied to what was him. such a statement to ever made that the as further evi on this discussion Defendant seizes for a new reverse and remand dence for the need to alleged disregard that the trial. Even if we were record, matter of we would nev statement was not a accept argument. A decline to defendant’s ertheless testimony juror may impeach through a verdict or not 216 Co, v Detroit United R Mich affidavit. Beaubien People (1921); Stimer, NW 855 v 82 391, 397-398;185 Supreme (1890). Court 19; 46 NW 28 As our 17, Mich explained People Pizzino, 97, 105; 313 Mich 20 v “ permit open (1945), the [t] NW2d 824 o jury subsequent tampering to the door for with juror if the Therefore, of their verdict.” even return hearsay alleged statement to had reduced the double testimony provided affidavit had she to the form, or have considered effect, same the trial court could not .6 deny trial did not abuse its discretion it The ing, trial ing MCR that a the facts of this follow-up questions where the result under different factual circumstances. ^[6] that the We that Juror 457 was “interested after 2.511(D)(13), juror may acknowledge the defendant evidence juror case, not defense counsel did not meet its burden involves a matter and we do that a narrow impeach removable for cause. Our conclusion is limited to is thereby convicted. a verdict. A not plant in a foreclose exception inhering Therefore, assuming, question the seeds for a juror may impeach in the verdict exists to the like the issue to be possibility motion for a new without decid- and concerns of a of establish- general a verdict contrary tried,” rule People v Johnson 259 Opinion by O’Connell, P.J. l.7 ing defendant’s motion for a new tria Moreover, we do not conclude that defense coun sel’s failure to make inquiry further into the matter rose to the level ineffective assistance of counsel. First, attorney’s we note that an decisions relating to the selection of generally involve matters of v strategy, Lockhart, 212, Huls 958 F2d 214-215 8, (CA 1992); State, Palacio v 506, 516-517; SC People SE2d 62 (1999); Hebein, v 111 111App 3d 848; 444 normally NE2d 782 which we (1982), decline People evaluate with the benefit of hindsight, v Wil liams, 316, 331-332; 614 NW2d 647 Second, (2000). Juror 457 informed court that she keep could her personal life separate from defen case, dant’s and she answered affirmatively when the court asked whether she could fair impartial. juror’s On the basis of assurances, and the trial acceptance court’s assurances, her we see no rea probability sonable outcome of case acts, jurors. People Budzyn, 77, 91; overt all the accessible to v 456 Mich (1997); Graham, App 663, 666; 566 NW2d 229 270 NW2d exception apply present case, however, This does not in the allegation, because the that the had decided defendant’s guilt before subjective began, alleged feelings, the trial her involved which were not jury’s knowledge. within allege Defendant does not that the alleged preconceived opinion jurors. shared her with other colleague implies Our in dicta defendant entitled to a new trial “actually prejudiced” by question. because he was gree. We disa finding prejudice solely The of dissent’s actual is based on the hearsay by allegedly double statement made Juror 457. The statement the points prejudice by allegedly dissent to as evidence of actual one made prosecutor, repeated another, presented Juror one 457 to to and to the during hearing trial court defense counsel on defendant’s motion hearsay agree a new We trial. with the trial that this double prejudice. statement to is insufficient demonstrate actual Other than allegations, defense counsel’s unsubstantiated there is no record evidence regardless to that 457 demonstrate intended to convict defendant of view, hearsay In our evidence. double statement does not serve to presumption impartiality jurors. overcome the well-settled to accorded 243 Mich 245 260 O’Connell, P.J. Opinion Washington, Strickland have been different. (1984); L Ed 2d 674 2052; Ct 80 104 S 668, 694; US NW2d 687-688; 521 Stanaway, 643, People v (1994).8 m. OTHER ISSUES court abused the trial argues next Defendant of law process him denied due its discretion court-appointed investigator. for a request his denying specula- rests on his claim We Defendant’s disagree. retraced the would have investigator tion that an would have period and the relevant events com- testify did not that defendant witnesses to found Defendant’s alleged. prosecution acts that the mit the did not conjecture. He therefore pure on claim relies and circumstances the facts that, show under necessary afford him due an case, investigator substantially ruling court’s or that the trial process Arizona, Mason v F2d prejudiced him. defendant 9, 1974) (requiring (CA 1352-1353 “substantially prejudiced” him); show that the denial 520-521; 354 Blackburn, App 509, People v NW2d 807 the trial with defendant we

Finally, disagree that com- evidence to establish barring court erred prosecutor trial, Before herpes. had plainant rule, subsequently that these accusations claims that we avoid offensive a defendant other In “speakjing] things, part is the dissent’s claim ignoring IV from ever discovered of his are failing the truth” defendant’s endorsing opinion, are seeking to address evidence completely (emphasis our that we have arguments a new trial after voir dire process dissenting colleague of bias. A review of this the relevant unfounded. omitted). adopted effectively appeal. at 285. Post law, overlooking a court The dissent accuses rule that permits on the basis of opinion Perhaps us, among precludes reveals further most People v Johnson PJ. Opinion by O’Connell, to

moved exclude evidence that defendant had herpes complainant. transmitted The trial court granted apparently concluding motion, that the theory evidence was irrelevant. Defendant’s at trial complainant allegations against that made false contracting him in retaliation for her the disease. Therefore, the evidence would been have relevant for purposes establishing complainant of was biased testimony. and had fabricated her Nevertheless, our against inflammatory view, when balanced nature complainant’s alleged contraction of evidence— sexually transmitted disease—we conclude that the prejudicial outweighed any nature of the evidence probative 750.520j(l)(a), (b). See value. MCL Further, our review of the record indicates that coun- defense complainant thoroughly sel cross-examined over a two-day period attempt impeach in an her testi- mony and discover whether she fabricated her testi- inability mony. Defendant’s to introduce evidence of complainant’s alleged contraction of disease from significantly hamper attempt defendant did not his complainant’s credibility attack as a witness. argues appeal Defendant for the first time ruling excluding complainant’s the court’s evidence alleged disease violated the Clause, Confrontation US Const, Am VI. Because defendant did not raise this plain argument below, our review for error that rights. affected defendant’s substantial Carines, 460 Mich 597 NW2d On 750, 774; foregoing analysis, basis our we do con not ruling materially that the clude trial court’s restricted right to defendant’s confrontation and therefore we requiring no find error reversal.

Affirmed. J. Whitbeck, only. I in the result J. concur J. Kelly, M. respectfully (dissenting). I dissent. appeal Benny Johnson, Jr., claims on Defendant impartial jury because a fair trial an he was denied also a case, in his Juror was one of the complainant case, which

in a domestic violence county prosecuted and was occurred in the same prosecutor’s office at the the same division prosecuted. asserts Johnson same time Johnson background about Juror 457’s that he did not learn jury, including 457, convicted until after opportunity challenge her lacked an him, and so applying a nar- for cause voir dire. Even when interpretation of relevant case law and of the row applicable I would reverse Johnson’s con- rule, court viction and remand for a new trial.

I. BASIC FACTS AND PROCEDURAL HISTORY opinion sets out the facts of the case in The lead any repeat reader, some detail. I them here so that including reviewing will have court, those in a issue. Dur- benefit of the full context of the ing bias that the dire, the venire members learned prosecutor charged with domestic vio- had Johnson battery involving against an assault and his for- lence Immediately girlfriend. the trial court thereafter, mer you have heard asked the venire members “now that you any charges know of rea- all of the this case do why you not serve as a in this case?” son should responded question. No one to this The any among you asked, then previously “Arethere who have been response, In a venire a victim of a crime.” who was later identified as Juror 457 member People v Johnson responded, prompting “I have assaulted,” been the fol- colloquy: lowing By you experience,

The Court: virtue of that experience thinking about that and would it interfere with your ability to listen to the facts this case and decide this case from evidence here? No, keep separate. I can

Juror. it Okay. keep Anyone separate, good. The You Court: can it else?” inquired, you

The [sic] trial court also “Do each of you you impartial are, feel that can be fair and you impartial?” transcript and that are fair and The responded does not indicate that venire member question. to this reminding charges

After the venire of the in the prosecutor case, the asked venire members if problem sitting one of them would “have on that type jury listening type Again, to that of evidence.” responded. no one When defense counsel asked the any venire if members of them had ever been made to type weapon,” feel “threatened with some responded that she had been hit on the head with gun teenager disregard experi- as a could but ence. Defense counsel also asked whether of “something weighing heavily venire members had so your right you might on mind now not be able to give full attention to this case” and “wouldn’t want sitting they themselves as a if were Defen- respond dant in a case.” Juror did not to these questions. asking counsel, Defense after the trial court to one remove venire member from the exercising peremptory challenges, cause and expressed six jury. satisfaction with the sentencing, for a new trial moved Johnson Before that he claimed bias. Johnson the basis of that Juror until after he was convicted not know did complainant in a trial, was 457, at the time County, prosecution in Oakland violence domestic jury. incompetent making on the The to serve her prosecutor argued that Johnson to the Juror 457 revealed to a new trial because not entitled the victim of an voir dire that she had been prosecutor contended, Juror result, assault. As misleading knowingly given false or 457 had not pros- questions. Further, voir dire answers to necessary argued, because ecutor a new trial was not biased, that she would not be Juror 457 stated ques- did not ask her additional defense counsel peremptory could have used a tions, and the defense jury. Finally, challenge excuse her from the prosecutor, who was not involved the Oakland County violence case in which Juror 457 domestic complainant, added that Juror 457 had not was the cooperated prosecution separate with the in that case. then asserted that he had learned

Defense counsel prosecuting that Juror 457 had told the assistant attorney prosecute County assigned the Oakland ready against that she was to convict case her abuser began. case even before the trial Johnson in this that, also claimed had he known that Defense counsel prosecution witness in a domestic Juror 457 was never would have allowed her to case, violence he jury, i.e., he have exercised a remain on the peremptory challenge against her. People v Johnson by the trial

Following hearing, court entered an opinion denying and order Johnson’s motion for a trial, observing part: new relevant juror bias, argu- As to the issue this Court finds such argues merit. ment without The Defendant he impartial jury panel an denied as a result of Juror #457’s showing knowingly been bias. There has no that the Juror concealed, gave mislead or false information [sic] fact, the voir dire. In when the Juror notified the Court that assault, she was the victim of an did Defense Counsel inquiry preemp- conduct further not and failed to exercise a tory challenge challenge Moreover, or for cause. as a [sic] #457, result the disclosure Juror this Court asked impartial. whether the Juror could fair remain responded that #457 she could.

H. STANDARD OF REVIEW Johnson argues he was denied his to a right jury1 an impartial because he could have suc- cessfully challenged Juror 457 for cause MCR under Thus, 2.511(D)(3), (4), (5), (13). claims, he trial court in denying erred his motion for a trial. new This Court reviews a trial court’s decision on a motion for a new trial an abuse of discretion.2

HI. TO A FAIR AND RIGHT IMPARTIAL JURY

A. OVERVIEW appeal procedural This has both a and substantive procedural legal wholly context. The context relies App 240, 245-246; US 145, 149; US Const, 88 S Ct Leonard, Am 559 NW2d 78 VI; 1444; Const 20 Ed 2d 491 L (1996). App 569, 580; art 1, § (1968); 20; 569 NW2d 663 Duncan v People v Clark, Louisiana, 220 Mich App 245 Mich 243 266 by J. Dissent Whitbeck, legal proposition in this at issue merit of the 6.431(B), appeal, a MCR Pursuant to below. described may grant defen- to a criminal a new trial support “any ground that would the basis dant on appellate it or because of the conviction reversal miscarriage ain verdict has resulted that the believes justice.” motion court denied Johnson’s The trial juror in this case bias issue concluded, the because, it appeal or because Juror reversal on not merit jury implicate either of did not 457’s service meriting a new trial. these conditions deny- my perspective, erred in the trial court From ing because it misunder- for a new trial the motion surrounding legal context stood the substantive jury presence namely, denied her on the 457, whether impartial right a fair and Johnson his constitutional Michigan jury.3 that exists to define case law The little right never- has been denied when a defendant fairly complete simple and man- so in a theless does unequivocally People v this Court Daoust,4 ner. In right to an is denied his “a defendant stated that juror impartial jury cause a removable for is when jury. circumstances, In some to serve on the allowed justifying when the information this is true even juror’s after the trial.” is not discovered until removal in the Michi- Court rooted its conclusion The Daoust People Supreme gan v Hannum5 decisions in Court’s grounds People the two v DeHaven6 and outlined jury.”). 231 Mich nal defendant has a constitutional ^[3] People Daoust, People People US Const, v v Hannum, DeHaven, 521, 528; Am VI; Const 362 Mich 586 NW2d 766 App 1, 8-9; 327; 660; right art 32 NW2d 468 107 NW2d 894 1, (1998) (“Without to be tried by § 577 NW2d 179 20; see also (1961). a fair and People question, (1998). v Schmitz, impartial a crimi v Johnson may rely that a on to defendant establish entitlement a Daoust, to a new trial. Under defendant entitled potentially to relief a “when from verdict information juror’s affecting ability impartially to act is discov- ered after the is sworn” if the can defendant actually “(1) prejudiced establish that he was presence juror question (2) or properly By writing cause.”7 excusable for this in disjunctive, made Court clear that defendant prove receiving need both not conditions before new trial.8 Court, The Daoust in dicta, also acknowl- edged that when a lies dire, these grounds necessarily two for a new trial would not apply.9Minimally, implies juror, during that if a purposefully dire, withholds information relevant juror impartially, to whether could act a defen- juror prejudice dant need not show or that the could challenged cause under court in order rules to new receive a trial.

B. PREJUDICE expressly Daoust holds that a is defendant entitled “actually to relief if he can establish that he was prejudiced” by juror question.10 briefly in Johnson asserts that Juror 457 intended to him even convict hearing my before all the In view, evidence. a regardless who intends to convict a defendant prejudice evidence demonstrates the ultimate level of 9, Daoust, supra citing Hannum, supra 666-667, DeHaven, at at supra at 330-334 Chapman, App 124, 131; See Caldwell 610 NW2d 264 9 Daoust, 9, supra at n 3. 10Id. at 9. 245 every impartiality possible. from each and Without judgment defendant, neither in who sits society large should have at can or of law nor courts any will render of assurance that measure easy reviewing extremely just for a is verdict. It may guilty war- have been that a verdict to conclude particular regardless of whether case, ranted preexisting bias. factfinders had who served as fallible, we must adhere we humans are Yet, because juries objective to ensure that of fairness standards passing grave mistakes when not make do question guilt or innocence. expressed intent convict case, In this Juror 457’s hearing indicates, the evidence Johnson without my prejudice sufficient view, that Johnson established Indeed, I would conclude that to warrant a new trial. ignored significant the trial court such the fact that prejudice that the trial court abused its demonstrates denying Still, a new trial. the motion for discretion prejudice, incomplete concerning actual the record significantly argu- less effort in and Johnson devotes prejudice arguing ing that he is enti- issue than in challenged could have tled to a new trial because he my I therefore focus dissent on Juror 457 for cause. challenge-for-cause issue, not on Johnson’s less- prejudice. developed concerning argument actual Contrary opinion’s at assertion, the lead see ante my 7,n I do not therefore base dissent on hearsay proposition than an unsubstantiated double presumption disregard can be used to statement impartiality. of IN SIMILAR ISSUE

C. CHALLENGE FOR CAUSE: INTEREST ANOTHER, alternative second, A defendant establishes the ground if he can demon- for a new trial under Daoust v Johnson that strate could have been excused for cause.11This Court decided in 1998, Daoust after the promulgated current version rule, 1985, went into effect. Daoust, however, does not 2.511(D), separate refer MCR which lists thirteen grounds justify excusing a venire member from peremptory cause,” service “for because chal- lenges largely were at issue in that case. Neverthe- explicit holding less, the in Daoust does refer to chál- lenges making applicable for cause, it to Johnson’s case. grounds 2.511(D)

The thirteen identified in MCR generally specify conditions or factors that reveal that person a venire member has a bias that makes that incompetent legally jury.12 unfit or to serve on a John- grounds son claims that four these would have required the trial court to excuse 457 for cause. only ground, 2.511(D)(13). I address the last MCR provides 2.511(D)(13) MCR can be chal- lenged question for cause if “is she interested in a like Michigan’s appellate issue be tried.” courts specified have not the circumstances demon- ques- that a strate venire member “is interested in a tion like the issue to tried” under this court rule. language 2.511(D)(13) Nevertheless, in MCR plainly requires party challenging person only uncomplicated cause to address three lines of inquiry.13First, is the what issue to be Second, tried? Third, does a similar issue exist elsewhere? is the 11Id.

pp 172-173. 691; 13 See, generally, People Badour, (1988), 456 NW2d 391 See 3 Dean rev’d on other & Longhofer, Michigan v grounds sub nom 167 Mich Court Rules People Beckley, App 186, 189; Practice, 421 NW2d § 2511.5, 270 243 245 by Whitbeck, J. Dissent challenged being cause “inter- member venire party challeng- issue? The other, ested” similar proof ing the venire member satisfies the burden of by identifying being showing tried, the issue that it is demonstrating elsewhere, to an similar issue other, the venire member is interested in that similar issue. inquiry surprisingly, line of analysis is critical

Not the third legal it entails more than a raw reci- because Although tation of facts. MCR 2.511 does not define subsections, the word “interested” in of its require given rules of construction that it be an ordi- nary meaning because it is common word.14This by meaning resorting can be determined to diction- ary.15 College Dictionary Random House Webster’s (2d ed) “having an defines “interested” as interest or curiosity “having share; concerned,” the attention or engaged,” personal or “influenced or selfish dictionary’s motives.” That same definition of the plays defining word a role in “interest,” which meaning “interested,” of the word is even more illumi- nating. suggest The relevant definitions that to be simply being interested means “the state of affected by something respect advantage or detriment” or something. to be “involved”in Applying three-part inquiry to Juror 457’s cir- cumstances leads me to conclude that she could have challenged 2.511(D)(13). been for cause under MCR First, the issues to be tried in this case were whether guilty kidnapping, first-degree Johnson was domes- violence, conduct, tic criminal sexual or felonious NW2d 116 Popma Grievance Administrator v (2000). v Auto Club Ins Ass’n, Underwood, 462 Mich 470; 188, 193-194; 521 NW2d 831 People v Johnson

assault. Second, the domestic issue violence existed County prosecution against elsewhere, in Oakland Juror Third, 457’sabuser. “involved” prosecution of that case because she was the complaining allegedly uncoopera- witness, albeit an County prosecution tive one. The Oakland in which Juror 457 “involved” was also “affected” her because acquittal a conviction or of her abuser would influ- ence whether that individual be incarcerated, would ability which in turn would determine his to harm her. agree opinion possible

I with the lead it is that to argue dispute regarding that is a there in the record actually what occurred between Juror and her abuser in the incident that led that man’s to arrest prosecution County. and in Oakland However, neither this Court nor the court had decide the merits pertinent questions of that other Rather, case. the were whether that other case an involved issue simi- lar to at least one issue tried in this case and whether Juror 457 in was interested that There is case. no dis- pute allegations the and domestic violence charge against Juror 457’sabuser were similar to the charge domestic in violence the instant case and Juror 457 was “interested” in that other case. questions,

Given the answers to these I have no challenged doubt that could Johnson have Juror 2.511(D)(13).16 for cause under MCR This Court’s 16Although binding, the dicta in Justice Levin’s dissent to the Michi not gan Supreme reversing Appeals Court’s order the Court of decision in Peo ple James, 851; suggests (1990), 436 Mich 460 NW2d 557 that this is the James, felony correct der, In conclusion. the defendant convicted of was mur robbery, felony-firearm. guilty verdict, armed Id. After the James jury learned that one of the who sat on the his case was the complaining charged witness in another case in which defendant was robbery. trial, During with armed at 855. Id. James’ testified in Though focusing primarily legal the other case. Id. other issues by Whitbeck, Co17 suggests in McNabb v Green Real Estate opinion presented with a chal- court, that the trial had it been against basis, for cause Juror 457 on this lenge to refuse to significant have lacked discretion18 it is clear that Johnson jury.19 remove her from the As impartial his to an because a right was denied was allowed to serve on removable for cause jury, I conclude that the trial court abused its dis- for a new trial. denying cretion motion factually emphasize I there are two relevant cases on this were decided before subject, long which Michigan Supreme promulgated Court the current in 1985. These cases served version court rules as the foundation for this Court’s decision in Daoust. case, DeHaven, supra, prosecutor In the first statutory rape charged the defendant with the of his thirteen-year-old stepdaughter.20 Not until after he had Cavanagh joined appeal, Justice Justices intimated Levin, Archer, proof 1963, 511.4(13), predecessor that this sufficient under GCR 2.511(D)(13), justify grant MCR the trial court’s decision to James 855, trial. at n new Id. 13. Co, App 500, 507; McNabb v Green Real Estate 62 Mich 233 NW2d 811 18Currently implicitly Michigan by provide upon Court Rules a prospective juror demonstration counsel that a fits one of the categories 2.511(D)(4)-(13), enumerated MCR trial court is required showing equivalent to excuse such cause. This proving prejudicial a biased or state of mind. Ultimately, however, grant deny challenge the decision to or is within for cause theless, the sound discretion the trial court. Never- of discretion, exercising judge this the trial is not without Osteopathic Hosp, City constraint. v Traverse [Poet 236; supplied (1989) (emphasis 445 NW2d 115 and citations omitted)]. 19Although 1963, 511.4(13), this Court decided McNabb under GCR language language in the identical relevant old court rule is to the current every 2.511(13). Therefore, in MCR there is reason to believe McNabb applies in this case. 20DeHaven, supra at 329. People v Johnson by jury did

been convicted the defendant learn that two of who convicted him were related to a man who had been in a convicted neighboring county statutory rape of the daughters, five his including years one who was thirteen old.21One jury, Haverdink, on DeHaven’s William was the con- rapist’s cousin juror, victed and the other John Bouws, rapist’s was the brother-in-law.22 During voir dire the trial court, following exchange occurred: you my Haverdink, questions?

“The Court: Mr. heard I “Mr. Haverdink: did. you anything

“The Court: And know about case? [do] “Mr. I Haverdink: do not. any parties?

“The Court: Know of the “Mr.Haverdink: No. any attorneys? any

“The Court: Have business with No, “Mr. Haverdink: I don’t. you anything might “The Court: Do know of interfere your impartial fair

with trial of this kind of case? I “Mr.Haverdink: don’t nothing anything hap-

“The Court: There is about that has pened your family you members of that would make feel different about this than case others?

“Mr.Haverdink: No. you

“The Court: feel You in this case sit in case could fairly impartial? I

“Mr. Haverdink: can. you “The Court: There is no case or other heard about your way. know about would influence verdict in [that] “Mr. Haverdink: No. you daughter, you?

“The Court: Do have a do 21 at 331. Id. 22Id. 243 245 by Whitbeck, they daughters, but are all

“Mr. Haverdink: I have married. any Well, you think that would make dif-

“The Court: [do] in this ference case?

“Mr. It Haverdink: wouldn’t. you parties I

“The Court: Do know of these have named here as witnesses? No,

“Mr. Haverdink: I don’t. you any challenge now? “The Court: Have No.[23] Ray: “Mr

When the defendant moved for new trial because biased, Haverdink was the trial court denied the commenting motion, that Haverdink had not been explicitly asked the offense his relative had about committed, he had he would remain stated that unbi- ased, and bias he had would have inured to the defendant’s benefit.24The trial court also denied the alleged motion for a new trial based on Bouws’ bias by relying reasoning.25 on “similar” appeal, Supreme citing in DeHaven,

On Court pp implicitly rejected § Jur, 108, 638, 31 Am reasoning trial court’s that a new trial was not neces- sary jurors they gave because the assurances that impartially.26 acknowledged could act The Court jurors question likely good the two had reasons not relationship rapist.27 to want reveal their with quoted Nevertheless, the Court two earlier cases28for proposition must not have an interest 23 Id. at 330-331.

24Id. at 331.

25Id. 26Id. at 332. 27Id. at 334. 332-333, State, 577; quoting at Durham v 182 Tenn 188 SW2d 555 Id. (1945), Troy, 530; NW People v Johnson by Whitbeck, Dissent J. they may judge

in a similar so case that the facts of fairly impartially the case at hand on the basis of presented, viewpoints the not on evidence cultivated Applying principle in the similar case. to this the relationship facts, the Court held “the that of these jurors two to one who had committed similar crime deprived capacity was such that it them of the to act impartially.”29 legal reasoning

Under the advanced in DeHaven, binding precedent,30 I which hasten to add is plainly 457 was biased because she interested in prosecution. the other domestic violence Moreover, if implies degree relationship DeHaven that of juror between the and another matter is relevant, plainly passes Certainly, Juror 457 this sort of test. complainant woman who is in a similar domestic prosecution occurring violence time, at the same prosecuted by county, governmen- the same the same closely, closely, tal unit as case is as if not more jurors to her related abuser than the two in DeHaven rapist. were related convicted Therefore, reasoning deprived relationship in DeHaven that this “capacity impartially” applies of act equally well in this case.

The second relevant case on which this Court supra, Hannum, relied Daoust in which the charged defendant was with and convicted man slaughter killing her husband.31One of the

[29] DeHaven, supra at 334. 30People Beasley, App 548, 559; (“An (2000) 239 Mich 609 NW2d 581 jurisprudence, decisis, provides elemental tenet of stare our a deci majority justices Michigan Supreme binding sion of the Court is courts.”). on lower 31Hannum, supra at 661-662. special police officer and was a her who convicted deputy com area where the defendant sheriff for the Relying DeHaven, the Hannum mitted the crime.32 capacity juror lacked the concluded that Court aspect impartial.33 interesting of Hannum is One specifically question was not manslaughter case as a law in another involved is there indication enforcement officer. Nor affinity person to another was related blood or he committing manslaugh charged with or convicted of Supreme inferred that his inter Rather, the Court ter. general cases in involvement in criminal est or predisposed being I him to biased. One lesson draw opinion a loose association from the Hannum is that with another similar case34is sufficient establish impartial, particular juror even with a cannot be that juror in a evidence that the acted biased out concrete just deciding there was Here, when the case. fashion relationship Juror 457 and the other such a between County prosecution violence in Oakland domestic was which she involved. DIRE

D. DISCLOSURE DURING VOIR present reasoning and Hannum that fits DeHaven provide grounds well here and also the narrower explicitly in this case. In addition to which I dissent arguably noting the effect that bias had on each juror’s capacity impartially, in to act the Court DeHa- jurors’ pondered biased failure and Hannum ven ^[32] Id. at 666.

[33] Id. cally disqualified I do not suggest as jurors. all law enforcement officers should be automati v Johnson by Whitbeck, to disclose information would have their revealed reaching individual biases in the conclusion that the in defendants those cases were entitled to a new trial. testimony DeHaven, In the Court discussed the “ jurors gave during noting dire, [i]t voir can read- ily why they acknowledge be seen did not want to relationship rapist, obligation to a confessed but their duty importance as transcends in hes- their itancy admitting relationship.”35 such Thus, jurors’ they failure to reveal that were related to rapist played part more than a minor in the Court’s decision.

Similarly, coming before to the conclusion that the defendant was to a new trial, entitled Court each Hannum noted that member of the required questionnaire fill out a with information employment about his as well as other but matters question that the did not reveal that he was briefly outlining law enforcement officer.36After including in DeHaven, circumstances the fact that challenged jurors lied dire, had the Han- posed hypothetical ques- num Court and answered a thereby disposing tion, of the issue: any experienced lawyer, matter, or,

Would for that public generally, differently capacity as feel to the police impartially local officer to sit as a and consider charged the case of a defendant with crime committed in community? We think not. That the lack disclosure of pertinent expressly to to can be attributed fact failure juror prospective hardly thought ask the about it can impartial have insured an trial so than in more 35 DeHaven, supra at 334. 36 Hannum, supra at 666. 243 panel members denied

DeHaven, merely there the because qualification.[37] such capacity to be essential while the

Thus, certainly major impartial consideration was fair and paid significant attention the Court also Hannum, in reaching holding. its of voir dire substance to the emphasized Though that whether Daoust was central to to serve was allowed biased it trial, to a new was entitled the defendant whether potential juror implied must address that courts also becomes available information that based on bias known and what remained What was voir dire. after during becomes relevant voir dire undisclosed determining a constitutional viola- there was whether many Although Daoust words, in so not stated tion.38 points a matter of trial which, as to a situation specifically strategy, knows of the venire a defendant explicitly to have that but chooses bias member’s jury. People v Carter39 serve on the Under individual would be consid- decision a defendant that tactical impartial jury fair and waiver of the a technical ered unlikely require trial. A new and would be issue might a defendant chose not arise if situation similar possibility all, at or failed into the of bias to delve reasonably. how the defense Whether and do so inquired in this sort of case.40 bias is relevant into

38Daoust, supra at 9 Id. at 666-667 (emphasis supplied). because voir dire is irrelevant defense counsel 40 Itis reasonably court’s they possible questioning during Carter, had calculated or the defendant that a case already if a venire member to reveal the been asked. might voir dire is 206, 215; did not need to arise in which the I also note that bias, i.e., lies. relevant to whether the NW2d 144 ask additional circumstances prosecutor’s diligence questions in which inquiry or the People v Johnson by Whitbeck, Dissent J.

With these in mind, considerations the rule of I law prefer require relying would a defendant the sec- ground ond for a new trial that this Court articulated challenged a Daoust—that could have been support 2.511(D)(13) for cause under MCR —to argument showing defense conducted voir diligence.41 way, dire with reasonable Stated another questioning during attempt voir dire must to dis- opinion cover bias in a reasonable manner. The lead exclusively focuses on whether, voir dire, Juror 457 told the truth. In sense, one this is a dili- gence inquiry beyond goes at the extreme because it examining parties whether or the trial newly court ever could have elicited discovered infor- revealing mation bias.

Fortunately, heavy I need not decide whether the opinion weight gives truth/diligence lead this inquiry determines whether is a Johnson entitled to new trial as a matter of law. In it case, this is clear that the trial court and defense counsel made a rea- sonably diligent inquiry background into Juror 457’s entirely and she either or minimized failed to disclose facts that would have shown her “interest” in the charge being same for which Johnson was tried. questioning There is no evidence additional during voir dire would have revealed that Juror 457 challenged could have been for cause. As a result, Duncan, bility entitled to a new trial because question. such error that acts on that bias and Of for a case is debatable course, 462 Mich Whether a rule of automatic challenge actual subject for cause 51-52; appears prejudice 610 NW2d 551 to a need not be resolved here. prejudice under in terms of rule be reversal type automatic reversal. See presumed having rules structural, is wise Whether a presents from or a who is biased constitutional necessary defendant is juror’s eligi separate surrounding I case, con- under the circumstances to a new trial. that Johnson is entitled clude IV. THE LEAD OPINION

A. OVERVIEW prem- opinion interlocking The lead relies on four legal (1) in this case is whether ises: the real issue technically during dire, voir told the truth Juror 457 (2) (3) “addi- truth, failure to elicit she told solely truth” from her was due to defense coun- tional performance (4) during result, as a dire, sel’s and presumption that Johnson failed to overcome the jurors impartial competent While I are and to serve. tidy approach appeal, I admit that this is premises well-grounded. are not believe these

B. THE LEGAL ISSUE presented in Johnson’s The statement of the issues appellate until brief asks “where it was not revealed after the verdict that one of the com- plainant prosecution at in a domestic violence a new trial, triai[?]” time of is defendant entitled to general issue, This is a statement of the which John- analyzes greater son then detail. The facts Johnson including issue, relates in his discussion of this during contrast between Juror 457’sactual statements reveal, failed to voir dire and the information she merely explain why challenge he did not her for inflammatory during facts, voir dire.42These as cause the case which Juror 457 son’s brief on The trial court record does not appeal and exhibits to that brief do relate was the clearly complaining relate all the facts witness. quite Although surrounding a few John addi- People v Johnson by Whitbeck, they may legal be,

as do not Johnson’s constitute argument. argue legally not Johnson does that he is merely trial entitled to a new because Juror 457 con- prosecution cealed her bias involvement in the against Rather, her abuser. Johnson states in his brief argument legal that his substantive that “had the information been revealed voir dire, [Juror challenged 457] would have been and excused for 2.511(D)(3), (4), (5), MCR cause” based on specific legal argument grounded This in the court supports overarching theory rules Johnson’s that he have must a new because 457 cannot presumed impartial. Thus, in order to determine arguments arguments whether his have those merit, centerpiece and MCR must 2.511 remain the analysis in this case. opinion

Yet, the lead fails to examine MCR 2.511(D)(13), or the other subsections Johnson argu- cites, order to determine whether Johnson’s By examining ments have merit. not this court rule, opinion point 6.431(B) the lead misses the that MCR permits argue a defendant to that an error occurred stage proceedings at some earlier of merits including during trial, new an error voir dire as By plain language, defined 2.511. MCR its MCR 2.511(D) attempt question not does to limit the juror solely Allowing of effect bias to dire. voir biased to serve at trial and if verdict, taints the objections to could not be bias ever raised fol- lowing appellate dire, voir courts would be forced to tional Transamerica Ins facts, this Court Corp, cannot consider them on App 9, 18; 527 NW2d appeal. ^[13] See Isagholian 282 by Whitbeck, jury

accept the bias because verdicts tainted all such beyond question review. would By trial, raising for a new in the motion MCR2.511 arguing should the trial court was not Johnson jury The at that time. 457 from remove Juror guilty already and had been verdict rendered had a new discharged moved the time Johnson arguing was his trial was Johnson Rather, trial. jury’s Juror unreliable because verdict and the unfair in MCR term is defined biased, as that was judgment 2.511(D), Further, him. John- sat in having recognized from was excused claimed, son he during was not Juror 457 voir dire because the bias questioned. forthcoming when arguments, incumbent on it is facts and Given these 457 was whether, all, 2.511(D) if at Juror examine this Court to meaning in order of MCR within the biased grounds for a new there were whether to determine opinion, 6.431(B). however, The lead MCR trial under appeal solely of what in terms the issue on defines doing during so, the lead dire.43In 457 said any meaningful opinion examination eschews biased be considered Juror 457 could whether subject cause under to removal for because she opinion 2.511(D). in a foot- observes The lead MCR eventually cooperate to refused note that Juror per- prosecution against I am not her abuser. with the cooperation with the level of that Juror 457’s suaded reveal ing stance impartially explain, the issues and DeHaven Hannurn pertinent have made a difference of those statements or dissect and to show addressed information jurors’ that no additional those during involved in the case. statements. explain appeals, voir dire. The jurors why The Court addressed did not questioning who either lied or those Supreme attempt Court, could rationalize, voir dire failed the sub in fram not act People v Johnson 283 by Whitbeck, prosecution against her abuser obviates the interest unequivocally case, she had in the other much less obviates that interest to an extent that excuses this examining legal appeal. Court from basis for this 2.511(D) I also note that MCR as a whole does not require improper purpose a venire member have an failing in to reveal biases order conclude that jury’s subject party verdict is to reversal.44The challenging prove the venire member must that these may reality, do In biases exist. Juror 457 have had completely withholding understandable reasons for obscuring information voir dire and the truth responding questions.45 when certain However, Juror 457 not on trial case, in this and this Court why does not need to resolve she withheld certain pieces only satisfy of information. The Court need light itself that the information came to time of the motion for a new trial reveals that she challenged could have been for cause had she Again, revealed information. because the lead opinion separate does not the four address grounds under the cites, court rule that Johnson opinion having lead avoids to address whether the facts of this case demonstrated that Juror 457 was Minimally, reading biased. and under a narrow challenged rule, Juror 457 could have been 2.511(D)(13) cause under MCR if even there were no par- other evidence that she had an inclination to be prosecutor against tial toward the Johnson.46The he found out that she for a new trial ^[44] Note that even For See DeHaven, supra instance, reasoning she though exposed may at 334. have feared the trial court in DeHaven denied the motion his violent that her bias was history abuser would harm her if the defendant’s open court. favor, J.

Dissent Whitbeck, was the com- Juror 457 information that fact that the plaining came violence case in the domestic witness merely Johnson’s failure excuses out voir dire after object presence time at an earlier the her analysis proper legal provides in basis and this case. THE

C. TRUTH major premise, following opinion’s lead second The its conclusion that whether Juror on the heels of truthfully legal issue, Juror defines the is that testified actually dire. If this was the truth told only truth, it the lead not the whole was truth necessary. opinion was believes While is no reason to believe that Juror there assaulted, had been lied when she admitted that she response implied that she had been the victim her only the trial court’s follow- Indeed, a crime one time. expe- up “[b]y question, asking whether virtue that experience you thinking rience, about that ability your would it interfere with listen to facts of this case from the evi- this case decide under- here,”47 dence indicates that the only previous 457 had one stood Juror suffered assault. Yet 457 failed to describe or mention the recent incident led to the other Oakland prosecution County was Cer- which she involved. tainly, concerning there was debate in the record 457 and her abuser what occurred between Juror Deliaven, supra Supreme 334. nevertheless reversed. at Court party suggests question is the bias favored one This that the not whether another, simply whether over there was bias. but 47 Emphasis supplied. People v Johnson This mean, however, that case. does not that prosecution threatening subsequent incident and the happen. implication Critically, did not that Juror only simply 457 had been victim of one crime not true.

D. THE “ADDITIONAL” TRUTH opinion distinguishes The lead “the between truth” by presuming, and “additional truth” effect, duty had a defense counsel to read Juror 457’smind personal experiences to learn about her in order to questions pointed ask her that she could not evade. In opinion apparently endorsing instance, this the lead is process permits proceeding in a evasion literally “speak means truth.”48 any questions

While there are number of that either attorneys or trial court in this case could have members, asked the venire there was no manifest engage far-flung fishing expedition need to in a and, DeHaven, under Hannum, Daoust, no such effort required. Rather, I it think sufficient if the trial reasonably court or defense counsel conducts a dili- gent inquiry potential into the for bias and the venire question member in who becomes a either mini- entirely mizes or fails disclose facts that would have shown that member’s “interest” in a similar issue in another case or matter. DeHaven,

In the trial asked Haverdink, presumably open-ended questions Bouws, that were quite questions similar was asked to added). See Black’s Law Dictionary (6th ed) (defining voir dire, emphasis 245 questions asked the These nondirective here.49 answer and this case to reveal in DeHaven venire members personal enough that, lives about their information per- bias, a reasonable been even a hint of had there inquired case, In this when would have further. son they may gave indication that members some venire permit experience that would them to be have had an attorneys challenged the trial court cause, the or problem up individuals. The followed with those simply respective this case is that the DeHaven and in attorneys had no reason to believe and trial courts to dis- further evidence of bias that there though instance, even the trial court asked cover. For of a of the venire members knew reason whether why they jury, not serve on the Juror 457

should responded. dire, Her statements never including assaulted, been

her statement that she had incident and did not relate to domestic violence attorneys gave no clue to the trial court or the necessary. inquiry was further reasonably inquiry diligent that seeks to Given legitimate I see no reason to make voir bias, discover questioning process that examines dire an exhaustive every in a venire member’s life from the event that a defendant will be moment of birth onward so right to an entitled to enforce his constitutional impartial jury. rules nor the Neither the court require process. Supreme precedents Court such process be, event, This useless dis- covering jurors biases, of their who are unaware jurors matter who intend to conceal their biases no questioning during sophisticated probing how ^[49] DeHaven, supra at 330-331. v Johnson jurors develop is,

voir dire or who biases after the impaneled. only However, is this sort exhaus- questioning tive would have elicited evidence of Juror assuming case, 457’s interest the other she would responded question have ato direct about whether currently complaining she was witness in another domestic violence case.

E. PRESUMPTIVE IMPARTIALITY opinion’s analysis The final element the lead presumption impartial, relies on a that Juror addressing contrary. without ever the evidence to the impartial.50 True, courts assume that are How- contrary opinion’s suggestion, ever, to the lead is proposition, may an assailable and a defendant over- presumption by proving par- come this that a is my surrounding view, tial.51In the facts Juror 457’s prove circumstances that she was biased within the meaning give the court rules term while articu- lating grounds that serve as the basis for a chal- lenge Though for cause. the record reflects separate feeling 457 said that she could her surround- ing the one assault she dire, mentioned keep experience she said never that she could her separate with domestic violence from her role aas juror.52 impartial Nor does her claim that she could be persuasive weight contrary given hold evidence.53

tates incompetent ^[51] Id. People Walker, ^[50] Id. at 334. ^[53] More to the to determine her own last point, person likely DeHaven, supra to admit bias is impartiality. 60, 63; at 412 NW2d 244 makes clear that a Common sense biased person. also dic by J. Dissent Whitbeck, opinion’s not be that defendants concern The lead my rings impeach to hollow verdict to allowed contrary in Despite to the statements the clear ear. opinion lead Hannum, DeHaven, and Daoust, applies ever from that bars a defendant of law a rule juror seeking bias of based on evidence a new trial to This is untenable voir dire ends.54 after discovered law is to a rule of cost of such unstated me. The by hiding jury the taint verdicts to stand tainted allow only impartiality. presumption Not of behind deny the fair tri- defendants of law would such a rule they would undermine entitled, are it to which als only system. judicial integrity a minus- There is of defendants all, risk at there is risk, cule if juror allegations fabricating con- if voir dire is of bias may diligence. Whatever costs with reasonable ducted allowing a new with a defendant associated be by comparison jury pale impartial to the a fair and validity ignoring in the a fundamental defect costs jury more with one or a a verdict rendered biased members. THE LEAD OPINION’S FOOTNOTES

F. opinion 5, 256, at n states, see ante The lead pursu- may a new trial move for “[w]hile a defendant that a to hold [sic], 2.611 we decline ant to MCR may challenge for cause after defendant jury 253, at n also ante its verdict.” See has rendered opinion “granting defen- lead states in which the dict, dict, addressed juror’s qualifications If the lead it does not make I infer from the only during voir dire. opinion rest of the lead after the point attempting explicitly. Despite jury is sworn and after opinion distinguish the reference to between a it renders a ver bias challenge may a ver be People v Johnson

dant a new trial under these where circumstances, he (1) neglected challenge cause, exercise for jury (2) expressed impaneled, satisfaction with the as allowing tantamount to defendant to build process.” opin- error into the selection The lead authority ion no conclusion, cites its nor could it. Although primarily peremptory Daoust involved chal- lenges, holding directly broad Daoust challenges for a addressed cause in situation which potentially juror’s ability affecting information a to act impartially was discovered after voir dire concluded and trial commenced.55The Daoust Court cited Han- support only holding num and its DeHaven prejudice juror when is there evidence of or the could challenged have been for is a cause defendant enti- a tled to new trial because both Hannum and DeHa- juror

ven involved information about bias that came light dire, voir indeed, after the rendered after causing a verdict, the defendants to move for new trial.56

Again, grounds Daoust did not discuss for chal- lenge 2.511(D) depth under MCR with because peremptory challenges. the case involved However, indisputably Daoust held that a defendant who can prove challenged that a could have been participated cause in the verdict entitled to relief. clearly, grounds Rather this makes the identified in 2.511(D) ruling MCR relevant to a trial court on a motion for relief, such as a new under MCR 6.431(B), allegations based on of bias.57

55 Daoust, supra at 6. 9. Id. at 57 Id. at 8-9. by opinion 4, n that I 255, ante at states, see The lead implication” suggested that Juror 457 “veiled have “great forthright I disser- and that do was less than by criticizing words with 457’s choice of vice” only emphasize again hindsight. I can the benefit of dire that disclose did not that Juror 457 complainant case, in a violence domestic she was county, prosecuted was in the same which occurred by prosecutor’s office, and division of the the same apparently pending as the voir at the same time judicial facts, and no amount of dire. These are embroidery change them. If there is disser- will respectfully suggest being here, I it is vice done concept of a fair trial. I also note to the analysis very appellate review, all the nature of hindsight. through the of 20/20 this Court is done use 4, footnote, ante at n the lead In the same “necessary implication” my opinion suggests that a argument is a between assault is that there difference my “persistence” and that and domestic assault illusory “maintaining is meritless. I this distinction” such a dis- distinction, no such nor do I mention see imply I that such a distinction exists. tinction, nor do contrary simply opinion’s is The lead assertion to the nothing wrong it. more need be said about opinion In the lead has announced its true essence, holding in a series of foot- silentio, in this case sub contrary my holding view, In that to Daoust notes. purposes practical overrules it. In so and for all opinion transgresses 7.215(H)(1), doing, MCR the lead requires this Court follow a rule of law which published on established in an earlier decision or importantly, 1, 1990. More the lead after November opinion ignores apply Hannum, which DeHaven v Johnson directly doing, opinion In to this case. so lead effectively these as overrules two cases well. This misapprehends appellate our role as an intermediate court.58

V. CONCLUSION analysis proper sum, In I believe that the in this case should focus on whether the trial court abused denying its discretion in motion for a new trial subject challenge because Juror 457 was to a Although opinion cause. the lead initial builds its premise appeal that the issue on around revolves narrowly whether Juror 457 told a dur- defined truth ing part analy- I dire, conclude that each of that sis misses the mark. emphasize although possible that,

I must it is DeHaven, read Hannum, Daoust, and MCR 2.511(D)(13)broadly, employ I think it wiser to a two- part approach interpret that would the court rule in light part of the relevant case law. Under of the first approach, party claiming an such to a entitlement new trial because under MCR bias only 2.511(D)(13) revealed after voir would be dire required to establish what the issues were to be tried bar, in the case at that a similar issue existed else- juror being challenged where, and that the for cause “interested” that other similar Under the issue. part approach, party second such an required establish court or counsel reasonably diligent inquiry designed made a to reveal question, response bias. If See Beasley, supra at 559. 245 by reasonably inquiry, diligent or either minimized entirely have facts that would failed to disclose juror’s in the similar issue in the “interest” shown party entitled matter, then the would be case or other rule, I this rather narrow new trial. Even under to a the trial court abused its discre- here that conclude by denying motion for a new Johnson’s tion given 457’sbias. the evidence of Juror though perfect right trial— a fair not The trial— impartial jury the central canons of an is one of may right jurisprudence. Ensuring this be incon- our particularly impopular, in circumstances venient or allegedly terri- here, as a defendant committed where, ample guilt. Never- and there is evidence ble acts jurist paraphrase in a different theless, to another upon right fair trial we staked context, to a have I reverse and remand for a Therefore, our all.59 new trial. (SD Learned NY, 1943), wrote: Hand, X, in United States v Associated Press, F Supp 362, exclusively, primarily, are the either nor even interests [N] industry

newspaper industry conclusive; one of the for that serves general dissemination from most vital of all interests: of news many sources, many as different and with as different facets closely to, possible. akin if it is colors as is That interest indeed Amendment; as, protected the same the interest the First it not likely gathered presupposes right more conclusions are tongues, through out of a multitude of than kind of authorita- many is, always be, folly; tive selection. To will but we upon [Emphasis supplied.] it our all. have staked

Case Details

Case Name: People v. Johnson

Court Name: Michigan Court of Appeals

Date Published: Jun 6, 2001

Citation: 631 N.W.2d 1

Docket Number: Docket 212482

Court Abbreviation: Mich. Ct. App.