*1 v Miller PEOPLE v MILLER PEOPLE v EWING PEOPLE v DAVIS 62902, 62903, 62906, Docket Nos. 62935. Decided June 1981. On application by appeal Supreme the defendants for to the leave Court, granting appeal, judg- in lieu of leave to reversed the ment of the Court of and remanded the case to Recorder’s Court Detroit for a new trial. Miller, Dwjuan Ewing, jointly Kevin and Michael Davis were first-degree robbery tried murder and three counts of armed Detroit, Gillis, Joseph J.; in the Recorder’s Court of A. Miller Ewing and Davis all were convicted counts and was con- on second-degree victed of murder and one count of armed rob- bery. judge jury Before entered order that the by system jury would be selected similar the "struck” system used in sometimes Federal courts and courts of other states, large jurors in which a number of are seated and together, challenges examined and after all for cause are exercised, rotation, peremptory challenges are exercised in and top remaining jurors seating 14 of the in order of are the objected procedure for trial. Defense counsel to the on the ground calling many jurors so at once would make it keep given by difficult to track of the answers individual questions, objection to voir dire but the was overruled. The Allen, P.J., Townsend, Appeals, (Maher, J., Court of and dissenting part), found a violation of the procedure required by rules, the court but declined to reverse (Docket 77-824, 77-825, in the circumstances of the case Nos. 77-945). 77-939, apply appeal. and The defendants for leave per opinion signed by Kavanagh, In a curiam Justices Wil- liams, Levin, Fitzgerald, Supreme Court held: A provided defendant is entitled to have the selected as challenged the rule. Where a selection is before begins, procedure prescribed failure to follow the requires any the rule reversal. The method” or "struck system patterned disapproved after is not be used in the future. contemplates 1. The court rule and examination 411 Mich Opinion of the Court panel potential jurors equal of a in size to the that will challenged, peremptorily hear the case. As a either or cause, another will be seated further *2 compli- exercised. The used in this case was not in ance with the rule. 2. Given the fundamental nature of the to trial impartial jury, evaluating and the inherent a claim prejudice process, requirement from the selection that a prejudice impose impos- defendant demonstrate would an often
sible burden. Reversed and remanded for a new trial. Moody, joined by Justice Chief Justice Coleman and Justice
Ryan,
They
dissented.
would hold that in the circumstances of
this case the method of
selection does not mandate rever-
sal,
agree
but
that it
not be used hereafter.
(1979)
App 210;
88 Mich
Lawrence R. Greene for defendant Miller. ,
Gerald S. Surowiec for defendant Ewing. Thomas A. Law for defendant Davis. The defendants were charged with
Per Curiam. one count of first-degree murder and three counts of armed robbery as the result of a holdup of a restaurant in which the owner was shot to death. Defendants Miller and Davis were convicted on all counts, and defendant Ewing was found guilty second-degree murder and one count of armed robbery. Court of Appeals affirmed the convic- People Miller v Miller, 210; tions. (1979). NW2d 558 under request
Each defendant
filed a
for review
1977-4,
I
More than
weeks
five
scheduled start
of the
judge
the trial
entered an order de-
scribing the manner
which
would
*3
part:
be conducted.
It said in
"It
is further ordered that
the struck
method
will
be used to select
of 14. This method is
States,
396;
described
Ct
Pointer v United
151
14
US
S
410;
(1894),
Alabama,
Before the jury began, defense counsel objected to this procedure ground on the calling so jurors many at once would make it difficult to keep track of the given by answers individual jurors to voir questions. dire The trial judge rejected this argument, noting that he had used the a number of times and that is used in jurisdictions. other 411 Mich initially jurors Seventy-three called and were group judge. questioned the trial None was as prosecutor cause. The and three de excused for peremptory attorneys then chal fense lenges exercised jurors only remained, in rotation until at point jurors an additional 37 were which called challenge process questioned. peremptory challenges, until there no further continued were remaining jurors and the with the lowest selected to hear the case. numbers were
II The Court of affirmed the defendants’ convictions.2 The Court found a violation of the procedure provided by particular, 511. In selection did not com ply 511.6: with Rule challenge peremp- "After a is sustained cause or a exercised, challenge
tory another shall be selected and examined before further are made. Such subject challenge jurors.” shall be as are other However, the Court declined to reverse. It found against overwhelming, the evidence and noted the failure of the defendants to raise the defendants just until issue before the selection began, despite given by the substantial notice judge’s preju- trial order. The defendants’ claim of premised remembering dice was on the responses jurors, of the various but the Court *4 Appeals sys- of found the of use similar selection jurisdictions tems the other sufficient to establish practicability procedure. Finally, of the 1 1963, Including provision jurors. for two alternate 511.2. GCR 2Judge points, Maher dissented as to a number of but did not disagree majority with the as to this issue. People v Miller 325
Court said that while there was a violation of Rule 511.6, the method used here did not violate the purpose interpreted of the rule. The Court provision light practice in the of the usual of starting panel potential jurors. with a of In that parties circumstance, subrule .6 ensures that required peremptory will not be to exercise chal- lenges against panel protecting a 12, of fewer than against right peremp- dilution of the to exercise tory challenges. parties In case, this were always panel faced 12, with a of at least and for larger most of the selection with a far one. permitted identify This them to all of the they challenge exercising any wished to challenges. following
The Court concluded with the caution judges: to trial "Although the use of the struck method did not case,
warrant reversal this opinion our should not be read as an endorsement of the method. Supreme Our provided Court has for a method of impaneling a jury, way avoiding error, the surest particularly in the sensitive follow the area defendant’s to a is to accepted App method.”3 88 Mich 218-219.
III As the Court of noted, contemplates and examination of a panel potential jurors equal in size to the issue, In involving a more recent case the same the Court of Appeals again declined to reverse because of this procedure, but said: would, however, "We against reading caution trial' courts our Indeed, decision as an indorsement for the struck method. in the efficiency, interest prohibit of order and we would its use and the confusion it any tends to create in the trial of future cases.” Stein, 159, 165; NW2d *5 Mich by Dissenting Opinion Moody, Jr., J. Blair challenged, is case. As a hear the that will cause, another will be or peremptorily either exercised. are further before seated was not in this case used procedure the Obviously, the rule. with compliance in in of confusion claims defendants’ Although the not we implausible, process the selection that there is Appeals of agree with one could affir- from which in this record nothing the the defendants from to prejudice find matively fundamental However, the given process. impartial jury, trial by the to nature of evaluating such of inherent and the demon- claims, that a defendant requirement a impossible an often impose would prejudice strate Gratz, 42; 192 v See burden. entitled to have A defendant is NW2d Where, rule. the provided by as the selected challenged is here, procedure as a selection the proce- to follow begins, the failure requires rule reversal. prescribed dure patterned any system method” or "struck not be used in may disapproved thereafter is the future. issue, we find of this disposition
In view of the pre- questions the other to reach unnecessary applications. in these sented 853.2(4), Accordingly, pursuant of judgment granting appeal, lieu of leave reversed, and the case Appeals the Court of City to the Recorder’s Court remanded for a new trial. Detroit Fitzgerald,
Kavanagh, Williams, Levin, JJ., concurred. (dissenting). We would J. Moody, Jr.,
Blair People Miller by Dissenting Opinion Moody, Jr., Blair reached the Court of affirm the result under applied method the circumstances of this case does not mandate reversal. selection, agree
We such however, not be used hereafter.
Coleman, C.J., J., Ryan, concurred with Moody, Jr., Blair