People v. Armstrong, Docket No. 312301.
| Decision Date | 13 May 2014 |
| Docket Number | Docket No. 312301. |
| Citation | 851 N.W.2d 856,305 Mich.App. 230 |
| Parties | PEOPLE v. ARMSTRONG. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David E. Gilbert, Prosecuting Attorney, and Marc Crotteau, Assistant Prosecuting Attorney, for the people.
Daniel D. Bremer, Burton, for defendant.
Before: FITZGERALD, P.J., and SAAD and WHITBECK, JJ.
Defendant, Parys Antwon Armstrong, appeals by leave granted his conviction, following a jury trial, of third-degree criminal sexual conduct (CSC III) 1 and his sentence of 10 to 15 years' imprisonment. We affirm Armstrong's conviction. But because the trial court improperly scored Offense Variable (OV) 3,2 we vacate Armstrong's sentence and remand for resentencing.
According to the complainant, on June 27, 2011, she visited a park with her friends between 4:00 and 5:00 p.m. She was 14 years old at the time. The complainant testified that when her friends left, she remained in the park to speak with a boy. After a couple of hours, the boy told her that he would return shortly and left.
After she waited about 15 minutes, Armstrong approached her and began talking to her. She did not know him, and he told her that he had been kicked out of his house. She went with him to the other side of the park, where Armstrong told her that he liked her and tried to kiss her. She turned away and told Armstrong that she had a boyfriend. While she had her back to Armstrong, he reached around and touched her undershorts, twice putting his finger in her vagina.
The complainant testified that she was frightened and in shock. She told Armstrong to stop and that she had to go meet a friend. Armstrong asked where she lived and gave her his phone number, which she recorded in her phone. The complainant testified that she left the park at about 7:00 or 8:00 p.m. While walking home, she called a friend and told him that she thought that she had been molested. The friend told her to call the police.
According to the complainant's mother, the complainant was frightened and crying when she got home. The complainant testified that she did not tell her mother what had happened because she was afraid that her mother would “flip out,” and that her father would hurt Armstrong and get in trouble. The complainant called her sister. The complainant's sister testified that the complainant was “a little hysterical,” confused, and crying, and the complainant stated that she may have been molested. According to the complainant, she told her mother what happened after her sister told her to do so, and described Armstrong to her parents.
The complainant's father testified that he began calling friends and went to the park to look for Armstrong. Dustin Wade, a friend of the complainant's father, testified that he found Armstrong in the park and followed Armstrong until the complainant's father arrived. According to the complainant's father, he asked Armstrong if he had touched the complainant and told him to stay where he was until the police arrived. Armstrong became angry and tried to punch the father. Wade grabbed Armstrong around the neck and wrestled him to the ground. People who lived across the street thought that the complainant's father and Wade were attacking Armstrong, came over, and ordered Wade to let Armstrong get up. The father told Wade to let Armstrong up. The police were just rounding the corner, and Armstrong ran away.
During jury selection, the trial court asked the jurors if any of them had personal issues that would interfere with their ability to pay attention to the case. Juror Two responded that he had three children, ages two, three, and five, and that he had to pick one of his children up at school at 3:30 p.m. Juror Two stated that his wife worked from 3:30 to 11:30 p.m., they were new to the area and did not have a babysitter, and his wife would have to take the day off if the trial went past 3:30 p.m.
The prosecutor used a peremptory challenge to excuse Juror Two. The trial court briefly removed the jury from the courtroom before it was sworn in so that defense counsel could place an objection on the record. Defense counsel contended that the prosecutor had inappropriately excused Juror Two because Armstrong is black and Juror Two was the only black juror in the jury pool. The prosecutor responded that Juror Two was a stay-at-home parent who was new to the community and who had issues concerning his availability to provide childcare.
The trial court reasoned that the prosecutor's use of a single peremptory challenge did not show a pattern of discrimination and that Juror Two, who was responsible to care for his young children, had concerns about childcare. The trial court found that the prosecutor did not excuse Juror Two for the purpose of racial discrimination.
The jury ultimately found Armstrong guilty of one count of CSC III.
At the sentencing hearing, defense counsel challenged the use of Prior Record Variable (PRV) 1,3 which concerns previous felony convictions. Defense counsel asserted that the trial court should use PRV 3,4 which concerns previous juvenile adjudications, instead of PRV 1 because, though a previous court had tried Armstrong as an adult, it had sentenced him as a juvenile. The trial court concluded that it should score PRV 1 because the previous court had tried Armstrong as an adult.
Defense counsel then challenged the scoring of OV 3, which concerns physical injury. Defense counsel asserted that the trial court should not assess 10 points for OV 3 because the complainant did not suffer an injury or receive medical treatment. The prosecutor responded that the SANE (sexual assault nurse examiner) report, following the complainant's examination, indicated that her hymen was reddened and tender. Relying on the SANE report, the trial court assessed Armstrong 10 points under OV 3.
Defense counsel also challenged the scoring of OV 4,5 which concerns psychological injury. Defense counsel asserted that the complainant's injury did not require medical treatment because she did not receive counseling. In the complainant's impact statement, the complainant detailed her emotional difficulties following the assault, but stated that she did not want counseling. The complainant's father stated at the hearing that the complainant would receive counseling when she was ready for it. The trial court concluded that the complainant's statements that she did not want counseling did not mean that she would not need counseling, and it assessed Armstrong 10 points under OV 4.
Before sentencing, Armstrong filed a motion for a new trial on the basis of newly discovered evidence. Following the sentencing hearing, Armstrong attached three affidavits to his supplemental motion for a new trial. The affiants stated that the complainant had a poor reputation for truthfulness and provided potential impeachment material.
Defense counsel indicated in his motion that he had searched for these witnesses on Facebook on December 7, 2011, the day before trial began, but he was not able to obtain their proposed testimony until after the trial. The trial court found that Armstrong did not show that he could not have discovered the evidence by using reasonable diligence before trial. The trial court noted that defense counsel should not have waited until the night before trial to attempt to discover witnesses. Alternatively, the trial court concluded that newly discovered impeachment evidence cannot support a motion for a new trial.
A defendant's preserved challenge to the prosecutor's use of a peremptory challenge on the basis that it violated the Equal Protection Clause is a mixed question of fact and law.6 When reviewing whether a defendant has shown a prima facie case of discrimination, we review for clear error the trial court's findings of fact and review de novo whether those facts constitute discrimination as a matter of law.7 The trial court's findings are clearly erroneous if, after we have reviewed the entire record, we are definitely and firmly convinced that it made a mistake.8
A prosecutor violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution when he or she uses a peremptory challenge to remove a prospective juror solely because of the juror's race.9 The trial court uses a three-step process to determine whether the defendant has shown impermissible discrimination. 10 First, the defendant must show a prima facie case of discrimination.11 Second, the prosecutor may rebut the defendant's prima facie case with a race-neutral reason for dismissing the juror. 12 Third, the trial court must determine whether the prosecutor's explanation is a pretext for discrimination.13
Armstrong contends that the trial court erred when it concluded that he did not establish a prima facie case of discriminatory purpose. We disagree.
A defendant must show three things to establish a prima facie case of discrimination based on race:
(1) he [or she] is a member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a member of a certain racial group from the jury pool; and (3) all the relevant circumstances raise an inference that the proponent of the challenge excluded the prospective juror on the basis of race.[14]
The defendant must offer facts that at least give rise to an inference that the prosecutor had a discriminatory purpose for excluding the prospective juror.15
In this case, Armstrong established the first two elements of a prima facie case of discrimination. However, the trial court concluded that he did not establish the third element. The trial court found that the prosecutor had only used a single peremptory challenge...
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...(1999)."A criminal defendant is entitled to have a properly instructed jury consider the evidence against him," People v. Armstrong, 305 Mich.App. 230, 239, 851 N.W.2d 856 (2014) (citation and quotation marks omitted), and the jury instructions "must include all the elements of the charged ......
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