People v. Bell

• Decision Date: 19 February 2004
• Docket Number: Docket No. 233234.
• Citation: 675 N.W.2d 894,259 Mich. App. 583
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marlon BELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

675 N.W.2d 894

259 Mich. App. 583

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marlon BELL, Defendant-Appellant.

Docket No. 233234.

Court of Appeals of Michigan.

Submitted May 7, 2003, at Detroit.

Released for Publication February 19, 2004.

Decided December 9, 2003, at 9:10 a.m Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the people.

State Appellate Defender (by Douglas W. Baker) for the defendant on appeal.

Before: WILDER, P.J., and FITZGERALD and ZAHRA, JJ.

ON RECONSIDERATION

FITZGERALD, J.

Following a jury trial, defendant was convicted on two counts of first-degree felony murder, MCL 750.316; two counts of armed robbery, MCL 750.529; and one count of conspiracy to commit armed robbery, MCL 750.529 and MCL 750.157a, arising from the July 29, 1999, robbery and shooting deaths of Chanel Roberts and Amanda Hodges. Defendant was sentenced to concurrent terms of mandatory life imprisonment without parole for each of the felony-murder convictions and life imprisonment for the convictions of armed robbery and conspiracy to commit armed robbery. Defendant appeals as of right. The most contested issue presented on appeal is whether the trial court's erroneous denial of defendant's statutory right to peremptorily remove two prospective jurors from the jury pool was error per se, not subject to harmless error analysis. We conclude the above described error is error per se that is not subject to harmless error analysis. We reverse and remand for a new trial.

I. Facts and Procedure

During jury selection, defendant's trial counsel attempted to exercise a peremptory challenge to strike potential juror number 10, who was Caucasian. Juror 10 stated during voir dire that three of his friends were high-ranking police officers, but that he "wouldn't think" that this fact would make a difference to him in reaching a verdict of not guilty. When defense counsel attempted to peremptorily excuse this juror, the trial court concluded that defendant's peremptory challenge was based on race and disallowed the challenge.¹

Later, during voir dire conducted by the trial court, defense counsel sought to strike juror number 5, another Caucasian juror, despite juror 5's statement that he promised to be fair to both sides. This prompted the prosecutor to object, claiming that defendant was attempting to strike juror 5 on the basis of his race, contrary to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court "disallow[ed] the challenge, for the same reasons as asserted before." Consequently, juror 5 and juror 10 sat on the jury that convicted defendant, notwithstanding defense counsel's attempts to remove these jurors peremptorily. Defendant was convicted on two counts of first-degree felony murder, two counts of armed robbery, and one count of conspiracy to commit armed robbery.²

II. Analysis

Defendant argues that the trial court committed error requiring reversal by sua sponte raising Batson to question defendant's motives for exercising his peremptory challenge to juror 10. Defendant also argues the trial court committed error requiring reversal when it denied defendant his statutory right to peremptorily remove juror 5 and juror 10. Each of these issues is addressed separately.

A. A Trial Court Can Sua Sponte Implement the Batson Process

Although Batson does not explicitly address whether a trial court may sua sponte question whether a litigant is removing jurors for an improper purpose, it is clear from the reasoning of Batson and its progeny that the United States Supreme Court recognizes a trial court's authority to unilaterally raise such an issue to ensure the integrity of the judicial process. Specifically, Batson, supra at 87-88, 106 S.Ct. 1712, recognized that the Equal Protection Clause protects not only the rights of the criminally accused, but also the rights of individual jurors not to be excluded from the jury pool on account of their race, and the right of society as a whole to rely upon the integrity of the judicial system. In subsequent decisions, the Supreme Court has forcefully reiterated these points. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 624, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), on remand 943 F.2d 551 (C.A.5, 1991) ("By enforcing a discriminatory peremptory challenge, the court has not only made itself a party to the biased act, but has elected to place its power, property and prestige behind the alleged discrimination" [internal quotation marks and brackets omitted]); Georgia v. McCollum, 505 U.S. 42, 49-50, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), on remand 262 Ga. 554, 422 S.E.2d 866 (1992) ("Be it at the hands of the State or the defense, if a court allows jurors to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice—our citizens' confidence in it" [internal quotation marks and brackets omitted]).

Virtually all state courts addressing whether a trial court may sua sponte raise a Batson issue have concluded that, subject to the Equal Protection Clause, it is within the discretion of the trial court to conduct a Batson hearing, even absent an objection. See State v. Evans, 100 Wash. App. 757, 767, 998 P.2d 373 (2000) (a trial judge has the discretion to raise a Batson issue sua sponte to protect the rights secured by the Equal Protection Clause); Commonwealth v. Carson, 559 Pa. 460, 477, 741 A.2d 686 (1999) (to allow the trial court to sua sponte raise the issue of a discriminatory peremptory challenge would be consistent with Batson, because "dictum appearing in Batson and its progeny suggests the existence of an affirmative trial court duty to prevent the discriminatory use of peremptory challenges");³ Brogden v. State, 102 Md.App. 423, 649 A.2d 1196 (1994) (a trial court may exercise its discretion in raising Batson sua sponte, since "[a] trial judge need not sit idly by when he or she observes what he [or she] perceives to be racial discrimination in the exercise of peremptory challenges"); Lemley v. State, 599 So.2d 64, 69 (Ala.Crim.App., 1992) (the trial judge, as the presiding officer of the court, was authorized to conduct a Batson hearing absent an objection to ensure that discrimination did not mar the proceedings in his courtroom). The weight of authority and the persuasiveness of the reasoning clearly support the position that a trial court may sua sponte raise a Batson issue.

Defendant argues that Clarke v. Kmart Corp., 220 Mich.App. 381, 382-384, 559 N.W.2d 377 (1996), holds that it is error for a trial court to raise a Batson issue "on its own initiative." A review of the Court's analysis, however, does not support defendant's contention. Clarke merely references that the trial court raised the issue on its own initiative. Clarke does not definitively hold that the trial court's raising of the issue sua sponte was improper. Rather, Clarke is premised upon the conclusion that the plaintiff did not establish a prima facie showing of discrimination.

B. The Trial Court Committed Error Requiring Reversal When It Denied Defendant His Statutory Right To Peremptorily Remove Jurors

Defendant also argues that the court committed error requiring reversal by denying him his right to peremptorily remove juror 5 and juror 10. Defendant acknowledges that the right to remove jurors peremptorily is restricted by Batson. However, defendant maintains that the trial court failed to follow the three-step process mandated by Batson.

In Batson, supra at 89, 96-98, 106 S.Ct. 1712, the Supreme Court made clear that a prosecutor may not exercise peremptory challenges to strike jurors solely on the basis of their race and set forth a three-step process for determining whether there has been an improper exercise of peremptory challenges in criminal or civil proceedings.⁴ The United States Supreme Court has reaffirmed Batson's three-step process for determining whether there has been an improper exercise of peremptory challenges in criminal or civil proceedings. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), on remand 330 F.3d 690 (C.A.5, 2003); McCollum, supra. Under Batson, supra at 96-98, 106 S.Ct. 1712, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination (step three). Id.; Hernandez v. New York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

Defendant maintains that the first step of Batson was not satisfied because there was not a prima facie showing of discrimination based on race. We agree. To establish a prima facie case of discrimination based on race, the opponent of the challenge must (1) show that members of a cognizable racial group are being peremptorily removed from the jury pool and (2) articulate facts to establish an inference that the right to remove jurors peremptorily is being used to exclude one or more potential jurors from the jury on the basis of race. Batson, supra at 96,106 S.Ct. 1712. It is not apparent from the trial record in this case whether there was a pattern of discrimination evinced by defense counsel's exercise of peremptory challenges that would give rise to an inference that prospective Caucasian jurors were being excluded on account of race. The trial court record simply does not reveal the racial identities of the prospective jurors.⁵ Thus, we are unable to determine whether a prima facie case of discrimination was established.

Even assuming that a prima facie case of...