People v. Hubbard

Decision Date09 July 1996
Docket NumberDocket Nos. 145054,175352
Citation552 N.W.2d 493,217 Mich.App. 459
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur HUBBARD, Defendant-Appellant. (After Remand) PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Arthur HUBBARD, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judith B. Ketchum, Assistant Prosecuting Attorney, for the People.

State Appellate Defender, by F. Michael Schuck, for defendant on appeal.

Before MARKEY, P.J., and HOLBROOK, and M.J. MATUZAK, * JJ.

AFTER REMAND

HOLBROOK, Judge.

A Kalamazoo Circuit Court jury convicted defendant of assault with intent to commit great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, extortion, M.C.L. § 750.213; M.S.A. § 28.410, and two counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. 28.424(2). Defendant appealed as of right and, in an unpublished order, entered December 22, 1992 (Docket No. 145054), we remanded this matter to the trial court for an evidentiary hearing. The purpose of the hearing was to allow defendant to develop a record with regard to his claim that the process used at the time of his trial to allocate prospective jurors from a master source list to the Kalamazoo Circuit Court venires violated his Sixth Amendment guarantee of an impartial jury drawn from a fair cross section of the community. On remand, the trial court found that defendant established a Sixth Amendment violation and ordered a new trial. The prosecution then filed a delayed application for leave to appeal. We granted leave and consolidated these appeals. We agree with the trial court's grant of a new trial and reverse and remand for a new trial.

I

These appeals require us to address the difficult question whether the circuit court jury that tried and convicted defendant was drawn from a venire that unconstitutionally underrepresented the African-American community in Kalamazoo County. After careful consideration of the extensive briefing performed by the parties and the evidence presented at a four-day evidentiary hearing, we conclude that the method of allocating prospective jurors to the Kalamazoo Circuit Court, which was employed at the time of defendant's trial, violated the fair-cross-section requirement of the Sixth Amendment.

A

Before we can reach the merits of the substantive question posed, we must first address several procedural issues raised by the prosecutor. Specifically, the prosecutor advances a series of presentation and preservation arguments in support of her contention that the trial court should not have reached the substantive merits of defendant's fair-cross-section challenge. For the reasons set forth below, we find that defendant's challenge was timely raised below and properly presented to us for resolution.

Initially, the prosecutor contends that the trial court should not have reached the substantive merits of defendant's challenge because defendant's oral motion made during voir dire was insufficient to place the issue before the trial court and preserve the issue for later appellate review. While this Court has ruled that a challenge to a jury array must be filed in writing before the jury is sworn, the decision announcing this rule was subsequently vacated by our Supreme Court. People v. Kelly, 147 Mich.App. 806, 814, 384 N.W.2d 49 (1985), vacated 428 Mich. 867, 400 N.W.2d 605 (1987). Moreover, our review of the two cases relied upon by this Court in Kelly reveals that neither case addressed whether a challenge to an array had to be made in writing. See People v. McCrea, 303 Mich. 213, 6 N.W.2d 489 (1942); People v. Stephen, 31 Mich.App. 604, 188 N.W.2d 105 (1971). Without the assistance of citation to meaningful authority, we decline to adopt a rule that Sixth Amendment fair-cross-section challenges must be submitted to the trial court in writing. Ward v. Frank's Nursery & Crafts, Inc., 186 Mich.App. 120, 129, 463 N.W.2d 442 (1990).

The prosecutor next contends that the trial court was precluded from considering defendant's challenge because defendant's initial motion was untimely. A challenge to the jury array is timely if it is made before the jury has been impaneled and sworn. McCrea, supra at 278, 6 N.W.2d 489, citing People v. McArron, 121 Mich. 1, 5, 79 N.W. 944 (1899), and 35 CJ, p 377. Defendant raised his initial Sixth Amendment challenge during voir dire, before the panel was sworn. We find the challenge to have been timely raised.

Our conclusion that the challenge was timely made is not changed by the prosecutor's reliance on M.C.L. § 600.1354(1); M.S.A. § 27A.1354(1), which provides in pertinent part:

Failure to comply with the provisions of this chapter shall not ... affect the validity of a jury verdict unless the party ... claiming invalidity has made timely objection and unless the party demonstrates actual prejudice to his cause and unless the noncompliance is substantial. An objection made at the day of a scheduled trial shall not be considered timely unless the objection, with the exercise of reasonable diligence, could not have been made at an earlier time.

The record establishes that the circuit court possessed no data from which defendant could ascertain the minority representation on the source list or in the venire. Absent such data, defendant could not ascertain whether there was a need to challenge the juror allocation process before defendant actually viewed the array. Accordingly, we decline to disturb the trial court's determination that defendant's challenge could not have been made earlier than during voir dire and that defendant's objection was timely made within the meaning of M.C.L. § 600.1354; M.S.A. § 27A.1354. People v. Oliphant, 399 Mich. 472, 501, 250 N.W.2d 443 (1976).

The prosecutor also contends that defendant waived his right to pursue his challenge by expressing satisfaction with the jury as impaneled. An expression of satisfaction with a jury made at the close of voir dire examination waives a party's ability to challenge the composition of the jury thereafter impaneled and sworn. This rule first arose in cases involving challenges to the manner in which voir dire was conducted and continues to be applied in such cases. See, e.g., People v. Rose, 268 Mich. 529, 531, 256 N.W. 536 (1934); Snyder v. Mathison, 196 Mich. 378, 386, 163 N.W. 104 (1917); People v. DePlanche, 183 Mich.App. 685, 691, 455 N.W.2d 395 (1990); People v. Acosta, 16 Mich.App. 249, 250, 167 N.W.2d 897 (1969). In People v. Mann, 49 Mich.App. 454, 463, 212 N.W.2d 282 (1973), a case relied heavily upon by the prosecutor, this Court extended this waiver rule, without explanation, to a case wherein the defendant claimed that he was denied due process because the petit jury array may have excluded an allegedly substantial class of the community. We find the prosecutor's reliance on Mann to be misplaced.

In Leslie v. Allen-Bradley Co., Inc., 203 Mich.App. 490, 493, 513 N.W.2d 179 (1994), this Court concluded that a party's expression of satisfaction with the jury on the record before the jury did not constitute a waiver where the record demonstrated that the party was not satisfied with the jury and where the party's expression of satisfaction was "a necessary part of trial strategy, designed to avoid alienating prospective jurors." We find nothing in the trial record to support a conclusion that defendant's expression of satisfaction with the jury was intended as a relinquishment of his belief that the venire was selected in an unconstitutional manner or that such expression was anything more than an exercise in practicality, given the trial court's earlier adverse ruling and the potential for jury alienation. Accordingly, we find that defendant did not waive his fair-cross-section challenge by expressing satisfaction with the jury as impaneled.

Finally, the prosecutor contends that defendant forfeited consideration of his challenge by failing to exhaust his peremptory challenges. Generally, a party must exhaust that party's peremptory challenges to prevent a challenge to the composition of a jury from being deemed forfeited. Rose, supra at 531, 256 N.W. 536. This rule is usually applied in cases where a party challenges the composition of the jury on the basis of a defect in the voir dire process that allowed a juror or jurors to be seated when juror impartiality is at question. Id.; People v. Taylor, 195 Mich.App. 57, 59-60, 489 N.W.2d 99 (1992). To the extent that this rule applies in cases involving Sixth Amendment fair-cross-section challenges, cf. Mann, supra at 463, 212 N.W.2d 282, the rule is not absolute in its application. Taylor, supra at 60, 489 N.W.2d 99. Appellate courts do not require a party to exercise peremptory challenges in an unintelligent and pointless manner. Id. A peremptory challenge is exercised unintelligently and pointlessly when the exercise would not prevent error, eliminate its prejudice, or further demonstrate the error and its prejudice. Id.

The record establishes a complete absence of African-Americans in defendant's jury array. Defendant challenged the array on the ground that the juror allocation process employed by Kalamazoo County excluded African-American jurors from the venire and deprived him of his right to a jury drawn from a fair cross section of the community. Under these circumstances, to have required defendant to exhaust his peremptory challenges would have been to require defendant to engage in an unintelligent and pointless exercise of the challenges. Defendant could not have cured any defect in the juror allocation process through the use of additional peremptory challenges. Nor would the use of additional peremptory challenges have increased...

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