People v. Allan, Docket No. 305283.

CourtCourt of Appeal of Michigan (US)
Writing for the CourtPER CURIAM.
Citation829 N.W.2d 319,299 Mich.App. 205
Decision Date10 January 2013
Docket NumberDocket No. 305283.
PartiesPEOPLE v. ALLAN.

299 Mich.App. 205
829 N.W.2d 319

PEOPLE
v.
ALLAN.

Docket No. 305283.

Court of Appeals of Michigan.

Submitted Dec. 11, 2012, at Lansing.
Decided Jan. 10, 2013, at 9:00 a.m.


[829 N.W.2d 321]


Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Henry C. Zavislak Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

State Appellate Defender (by Randy E. Davidson), for defendant.


Before: WHITBECK, P.J., and FITZGERALD and BECKERING, JJ.

PER CURIAM.

[299 Mich.App. 207]An unsworn jury convicted defendant, David Lee Allan, of conspiracy to commit extortion, MCL 750.157a; MCL 750.213. Defendant appeals as of right, arguing, among other things, that the trial court committed plain error that requires reversal by failing to swear in the jury. We conclude that the trial court plainly erred by failing to swear in the jury, which both court rule and statute require to protect the constitutional right to a trial by a fair and impartial jury. We also conclude that the trial court's error was structural because the absence of a sworn jury rendered defendant's trial fundamentally unfair and an unreliable vehicle for determining guilt or innocence. Finally, defendant's trial by an unsworn jury seriously affected the fairness, integrity, and public reputation of the judicial proceedings because it rendered the jury's verdict invalid under Michigan law. We, therefore, hold that defendant is entitled to relief under the plain-error [299 Mich.App. 208]framework for being tried by an unsworn jury. Accordingly, we reverse and remand for a new trial.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

The prosecution in this case charged defendant with extortion and conspiracy to commit extortion.1 It was alleged that the victim met defendant's daughter, Jennifer Allan, at a strip club in summer 2010 and that the two engaged in consensual, unprotected sexual intercourse at a motel several months later. It was further alleged that after the sexual encounter, defendant

[829 N.W.2d 322]

and Jennifer threatened to accuse the victim of raping Jennifer unless he met their continual demands for money.

Before jury selection in this case, the clerk of the court administered the following oath to the prospective jurors: “You do solemnly swear or affirm that you will truthfully and completely answer all questions about your qualifications to serve as jurors in this case, so help you God.” The prospective jurors affirmed. After the jury was selected, the case proceeded through trial without the jury taking another oath. The jury found defendant guilty of conspiracy to commit extortion but not guilty of extortion. After the jury returned its verdict, defendant requested that the trial court poll the jury. The clerk of the court then administered the following oath to the jury: “Do you jury foreperson and do each of you other jurors state on your oath that the verdict read by the judge is the verdict of this jury, so say you members of the jury.” The jury affirmed. Polling confirmed the jury's verdict. The trial court later sentenced defendant to a term of 10 to 20 years' imprisonment.

Defendant appealed as of right and filed two motions in this Court. Defendant first moved this Court to [299 Mich.App. 209]remand so that he could file a motion in the trial court for a new trial and an evidentiary hearing, arguing that (1) his trial counsel was ineffective for failing to challenge a biased juror for cause, (2) the trial court violated his due-process rights by failing to swear in the jury, and (3) his trial counsel was ineffective for not objecting to the court's failure to swear in the jury. In his second motion, defendant moved this Court to peremptorily reverse his conviction on the basis of the trial court's failure to swear in the jury. We denied defendant's motion for peremptory reversal but granted defendant's motion to remand in part “for an evidentiary hearing and determination whether the jury was sworn before trial commenced.” 2 We denied defendant's motion to remand in all other respects and retained jurisdiction.3

On remand, the trial court held an evidentiary hearing and received testimony from defendant and defendant's trial counsel. Trial counsel testified that he had no recollection of either the jury being sworn or not being sworn. The trial court then issued an order stating its factual finding that “the jury was not sworn after selection and before trial commenced.”

II. ANALYSIS
A. FAILURE TO ADMINISTER JURY OATH

Defendant argues that the trial court committed error that requires reversal by failing to give the jury its oath after jury selection.4 We agree.

[299 Mich.App. 210]Defendant did not raise this issue before the trial court; therefore, our review is for plain error. People v. Carines, 460 Mich. 750, 763–764, 597 N.W.2d 130 (1999). To avoid forfeiture of a constitutional right under the plain-error rule, defendant must prove the following: (1) there was an error, (2) the error was plain,

[829 N.W.2d 323]

i.e., clear or obvious, and (3) the plain error affected substantial rights, i.e., the outcome of the lower-court proceedings. Id. at 763, 597 N.W.2d 130. Once defendant has established these three requirements, this Court “must exercise its discretion in deciding whether to reverse.” Id. Reversal is warranted only if the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings or resulted in the conviction of an actually innocent person. Id. A plain error that affects substantial rights does not necessarily result in the conviction of an actually innocent person or seriously affect the fairness, integrity, or public reputation of judicial proceedings. See People v. Vaughn, 491 Mich. 642, 666–667, 821 N.W.2d 288 (2012) (holding that the closure of a courtroom during jury selection, a structural error, did not seriously affect the fairness, integrity, or public reputation of judicial proceedings); see also Johnson v. United States, 520 U.S. 461, 469–470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (holding that a plain error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings even when the error was assumed to have affected substantial rights).

MCL 768.14 provides that the following oath must be administered to jurors in criminal cases: “You shall well and truly try, and true deliverance make, between the people of this state and the prisoner at bar, whom you shall have in charge, according to the evidence and the [299 Mich.App. 211]laws of this state; so help you God.” MCL 768.15 permits substitution of the words “[t]his you do under the pains and penalties of perjury” for “so help you God.”

Similarly, MCR 6.412(F) provides that “[a]fter the jury is selected and before trial begins, the court must have the jurors sworn.” Under MCR 6.412(A), MCR 2.511 governs the procedure for impaneling the jury. MCR 2.511(H)(1) states the following:

The jury must be sworn by the clerk substantially as follows:

“Each of you do solemnly swear (or affirm) that, in this action now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God.”

We have opined that the oath that must be administered at the beginning of trial pursuant to statute and court rule protects the fundamental right to a trial by a fair and impartial jury. People v. Pribble, 72 Mich.App. 219, 224–225, 249 N.W.2d 363 (1976); see also, generally, U.S. Const., Am. XIV; Groppi v. Wisconsin, 400 U.S. 505, 509, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971).


In this case, the trial court did not administer the oath to the jury as provided for by statute and court rule. The trial court's obligation to do so was clearly established by law. Thus, the trial court's failure to swear in the jury was plain error. See Carines, 460 Mich. at 763, 597 N.W.2d 130.

With respect to whether the trial court's error affected defendant's substantial rights, defendant argues that the trial court's failure to swear in the jury satisfies the third prong of the plain-error test without regard to its effect on the outcome of his trial because the error was structural. Constitutional error is classified as [299 Mich.App. 212]either structural or nonstructural. People v. Duncan, 462 Mich. 47, 51, 610 N.W.2d 551 (2000). Nonstructural errors are typically trial errors “occur[ing] during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence

[829 N.W.2d 324]

presented....” Arizona v. Fulminante, 499 U.S. 279, 307–308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In contrast, “[s]tructural errors are defects that affect the framework of the trial, infect the truth-gathering process, and deprive the trial of constitutional protections without which the trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” People v. Watkins, 247 Mich.App. 14, 26, 634 N.W.2d 370 (2001), aff'd 468 Mich. 233, 661 N.W.2d 553 (2003). The United States Supreme Court has found error to be structural “only in a very limited class of cases,” Johnson, 520 U.S. at 468, 117 S.Ct. 1544, including in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), for a total deprivation of the right to counsel; in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), for the lack of an impartial trial judge; in Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), for the unlawful exclusion of grand jurors of the defendant's race; in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), for the deprivation of the right to self-representation at trial; in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31...

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4 practice notes
  • People v. Cain, Docket No. 149259.
    • United States
    • Supreme Court of Michigan
    • July 23, 2015
    ...granted in an order, stating, “The failure to properly swear the jury is a structural error requiring a new trial. People v. Allan, 299 Mich.App. 205, 829 N.W.2d 319 (2013).” People v. Cain, unpublished order of the Court of Appeals, entered May 2, 2014 (Docket No. 314342). The Court remand......
  • Calloway v. McQuiggin, CASE NO. 2:11-CV-10005
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 6, 2013
    ...No. 239350, 2003 WL 22017813, at *1 (Mich. Ct. App. Aug. 26, 2003)).Page 9 In his objections, Calloway relies on People v. Allan, 299 Mich. App. 205, 219 (2013), where the Michigan Court of Appeals held that the trial court's failure to swear in the jury at all amounted to plain error, whic......
  • Gilmore v. Harry, Case No. 2:09-cv-10110
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 1, 2016
    ...it deliberated to a guilty verdict in a criminal case absent objection. Cain overruled other Michigan cases, such as People v. Allen, 299 Mich. App. 205, 219 (2013), on which Petitioner relies. Whether or not the claim would have found support under Michigan law at the time of his direct ap......
  • People v. Allan, Docket No. 146789.
    • United States
    • Supreme Court of Michigan
    • June 5, 2013
    ...Lee ALLAN, Defendant–Appellee/Cross–Appellant.Docket No. 146789.COA No. 305283.Supreme Court of Michigan.June 5, 2013. Prior report: 299 Mich.App. 205, 829 N.W.2d 319. [831 N.W.2d 241]Order On order of the Court, the application for leave to appeal the January 10, 2013 judgment of the Court......
4 cases
  • People v. Cain, Docket No. 149259.
    • United States
    • Supreme Court of Michigan
    • July 23, 2015
    ...granted in an order, stating, “The failure to properly swear the jury is a structural error requiring a new trial. People v. Allan, 299 Mich.App. 205, 829 N.W.2d 319 (2013).” People v. Cain, unpublished order of the Court of Appeals, entered May 2, 2014 (Docket No. 314342). The Court remand......
  • Calloway v. McQuiggin, CASE NO. 2:11-CV-10005
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 6, 2013
    ...No. 239350, 2003 WL 22017813, at *1 (Mich. Ct. App. Aug. 26, 2003)).Page 9 In his objections, Calloway relies on People v. Allan, 299 Mich. App. 205, 219 (2013), where the Michigan Court of Appeals held that the trial court's failure to swear in the jury at all amounted to plain error, whic......
  • Gilmore v. Harry, Case No. 2:09-cv-10110
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 1, 2016
    ...it deliberated to a guilty verdict in a criminal case absent objection. Cain overruled other Michigan cases, such as People v. Allen, 299 Mich. App. 205, 219 (2013), on which Petitioner relies. Whether or not the claim would have found support under Michigan law at the time of his direct ap......
  • People v. Allan, Docket No. 146789.
    • United States
    • Supreme Court of Michigan
    • June 5, 2013
    ...Lee ALLAN, Defendant–Appellee/Cross–Appellant.Docket No. 146789.COA No. 305283.Supreme Court of Michigan.June 5, 2013. Prior report: 299 Mich.App. 205, 829 N.W.2d 319. [831 N.W.2d 241]Order On order of the Court, the application for leave to appeal the January 10, 2013 judgment of the Court......

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