People v. Colon

• Decision Date: 29 December 1998
• Docket Number: Docket No. 185694
• Citation: 233 Mich.App. 295,591 N.W.2d 692
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas James COLON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 692

591 N.W.2d 692

233 Mich.App. 295

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas James COLON, Defendant-Appellant.

Docket No. 185694.

Court of Appeals of Michigan.

Submitted Oct. 7, 1998, at Grand Rapids.

Decided Dec. 29, 1998, at 9:45 a.m.

Released for Publication March 12, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John G. McBain, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Ashford & Associates (by Linda D. Ashford), Detroit, for the defendant on appeal.

Before CORRIGAN, C.J., and DOCTOROFF and FITZGERALD, JJ.

FITZGERALD, J.

Following a jury trial, defendant was convicted of unlawfully driving away an automobile (UDAA), M.C.L. § 750.413; MSA 28.645, breaking and entering an occupied dwelling, M.C.L. § 750.110; MSA 28.305, assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; MSA 28.279, armed robbery, M.C.L. § 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28 .424(2). Defendant was sentenced as a third-offense habitual offender, M.C.L. § 769.11; MSA 28.1083, to prison terms of 80 to 120 months for the UDAA conviction, 240 to 360 months for the breaking and entering conviction, 160 to 240 months for the assault conviction, 360 to 540 months for the armed robbery conviction, and two years for the felony-firearm conviction. ¹ Defendant appeals as of right. We reverse and remand for a new trial.

This case arises out of a break-in at the home of James Coss in the late evening hours of September 14, 1994. During the break-in, Coss was severely beaten and robbed. The prosecution's theory was that defendant and Richard Coopes broke into Coss' home looking for money, and when Coss indicated that he had no money, defendant and Coopes tied up and brutally beat Coss and ransacked his home. The prosecution claimed that defendant and Coopes eventually loaded Coss' radio, television, videocassette recorder, computer, and answering machine into Coss' automobile and drove away. Defendant's theory was that although he admitted his participation in the robbery, his consumption of alcohol and crack cocaine prevented him from forming the requisite intent necessary to be guilty of all the charges.

I

Defendant argues that the trial court's method of jury selection violated MCR 2.511(F), thus entitling him to a new trial.

A

Before jury selection began, the trial court stated:

Before we pick the jury, I told you I was going to try something different. I should try it in a few more civil cases rather than changing it on a criminal case. We're going to seat 13 jurors .... [A]nd then we're going to seat six jurors on the bench over there, and we'll have voir dire of all 19 jurors. I will seat 13 jurors. After jury voir dire, we'll have challenge for cause. You'll challenge any juror from 1 to 19 that you want for cause.

When we have peremptory challenges, you will only challenge 1 through 13 as a peremptory challenge. If a juror is removed for cause or peremptory, the next juror on the bench will take that juror's seat, and we'll continue going until we have 12 jurors remaining.

Then I'll call out seven more jurors. We'll have a voir dire of only those seven jurors, not of the other 12 that were there before.

* * * * * *

When we call up a new juror, we're not reopening voir dire. It's voir dire for that juror.

Defense counsel objected to the proposed jury selection procedure at a pretrial hearing and then subsequently, at the same hearing, appears to have approved the procedure. However, before voir dire on the first day of trial, defense counsel again objected to the procedure used. During jury selection, defense counsel exercised all but one of his peremptory challenges provided by MCR 6.412(E). At the conclusion of voir dire, defense counsel did not express satisfaction with the jury as impaneled and indicated that he found one of the impaneled jurors unsatisfactory. Defense counsel noted that because of the way the jury was selected, he was confident that he knew which potential juror would be called had he exercised his final peremptory challenge. He stated that, "there was a reason that I did not exhaust my peremptories ... the juror I would have ended up with would have been highly objectionable, there would be more reasons to object to him more than anybody I had dismissed previously."

B

As a general rule, it is necessary for a defendant to exhaust his peremptory challenges in order to preserve an objection to the jury selection procedure. People v. Taylor, 195 Mich.App. 57, 59-60, 489 N.W.2d 99 (1992). This is not, however, an absolute requirement. See, e.g., People v. Miller, 411 Mich. 321, 326, 307 N.W.2d 335 (1981), wherein the Court stated:

[G]iven the fundamental nature of the right to trial by an impartial jury, and the inherent difficulty of evaluating such claims, a requirement that a defendant demonstrate prejudice [resulting from the jury selection procedure used] would impose an often impossible burden. A defendant is entitled to have the jury selected as provided by the rule. Where, as here, a selection procedure is challenged before the process begins, the failure to follow the procedure prescribed in the rule requires reversal. [Citation omitted.]

Miller requires that a defendant object to the jury selection procedure before the process begins, but made no mention of a requirement that a defendant exhaust all peremptory challenges. ²

In People v. Russell, 182 Mich.App. 314, 451 N.W.2d 625 (1990), rev'd 434 Mich. 922, 456 N.W.2d 83 (1990), this Court reversed the defendant's conviction of first-degree criminal sexual conduct because of a defective jury selection procedure. This Court held, over Judge Sawyer's dissent, that the trial court's procedure was a clear violation of the court rule and that the defendant's failure to exercise all his peremptory challenges did not preclude reversal. Id. at 319-320, 451 N.W.2d 625.

In dissent, Judge Sawyer agreed that the trial court's methods at the beginning of jury selection were improper and that the defendant effectively objected to the erroneous procedure. He concluded, however, that reversal was not required for two reasons. First, the trial court changed the procedure early enough to correct the error, and second, the defendant failed to use four of the twenty peremptory challenges he was allotted and expressed satisfaction with the jury. Id. at 324-326, 451 N.W.2d 625. However, Judge Sawyer, noting that a common trial tactic is to save one's last peremptory challenge to avoid replacing the last removed prospective juror with a juror who "may be worse" and having no remedy to the situation, stated he might concede that a defendant need not exercise his last peremptory challenge solely to preserve the issue for appeal. Id. at 325, n. 5, 451 N.W.2d 625.

In People v. Paasche, 207 Mich.App. 698, 702-703, 525 N.W.2d 914 (1994), this Court was confronted with the issue whether a challenge to the jury selection procedure was waived because only four of five allowable peremptory challenges were used. This Court, being unable to determine how many peremptory challenges were allocated to the defendant and how many were allocated to the jointly tried codefendant, concluded that if the defendant used all but one peremptory challenge, it would not deem the issue waived because of the "commonly followed trial strategy" of using all but one peremptory challenge. Id. at 703, 525 N.W.2d 914, citing Russell, supra (Sawyer, J., dissenting).

Although defense counsel did not exercise one remaining peremptory challenge, we find that Russell is distinguishable. First, defendant objected to the jury selection procedure. Second, defense counsel did not express satisfaction with the jury. Under these circumstances, we find the specific language in Paasche and the dissent in Russell regarding the common trial strategy of preserving one peremptory challenge to be persuasive. Thus, we conclude that defendant has sufficiently preserved his challenge to the trial court's method of jury selection.

C

MCR 2.511(F) provides:

Replacement of Challenged Jurors. After the jurors have been seated in the jurors' box and a challenge for cause is sustained or a peremptory challenge exercised, another juror must be selected and examined before further challenges are made. This juror is subject to challenge as are other jurors.

MCR 2.511(F) is applicable to criminal trials through MCR 6.412(A).

In Miller, supra at 324, 307 N.W.2d 335 the Court decided the validity of the following jury selection procedure:

Seventy-three jurors were initially called and questioned as a group by the trial judge. None was excused for cause. The prosecutor and three defense attorneys then exercised peremptory challenges in rotation until only 11 jurors remained, at which point an additional 37 jurors were called and questioned. The peremptory challenge process continued until there were no further challenges and the 14 remaining jurors with the lowest numbers were selected to hear the case.

Our Supreme Court stated that GCR 1963, 511.6, the predecessor of the similarly worded MCR 2.511(F), "contemplates the seating and examination of a panel of potential jurors equal in size to the jury that will hear the case. As a juror is challenged, either peremptorily or for cause, another will be seated before further challenges are exercised." Miller, supra at 325-326, 307 N.W.2d 335. The Court further noted that "[a] defendant is entitled to have the jury selected as provided by the rule" and where "a selection procedure is challenged before the process begins, the failure to follow the procedure prescribed in the rule requires reversal." Id. at 326, 307 N.W.2d 335.

The jury selection procedure utilized in this case is clearly not the procedure described in and contemplated by MCR 2.511(F). The panel of...