People v. Daoust

• Decision Date: 10 February 1998
• Docket Number: Docket No. 188192
• Citation: 577 N.W.2d 179,228 Mich.App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tod Michael DAOUST, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 179

577 N.W.2d 179

228 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tod Michael DAOUST, Defendant-Appellant.

Docket No. 188192.

Court of Appeals of Michigan.

Submitted July 3, 1997, at Grand Rapids.

Decided Feb. 10, 1998, at 9:00 a.m.

Released for Publication May 5, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Joseph K. Sheeran, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for People.

Marcelyn A. Stepanski, Detroit, for Defendant-Appellant on appeal.

Before SAAD, P.J., and NEFF and REILLY, JJ.

REILLY, Judge.

Defendant was charged in separate informations with two counts of first-degree child abuse, M.C.L. § 750.136b(2); M.S.A. § 28.331(2)(2). The charges were based on separate injuries to the head and hand of Megan Hoppe, the daughter of defendant's girlfriend, Teresa Hoppe. After a consolidated trial, defendant was convicted by a jury of one count of second-degree child abuse, M.C.L. § 750.136b(3); M.S.A. § 28.331(2)(3). Defendant was sentenced to a prison term of thirty-two to forty-eight months and appeals as of right. We affirm.

In April 1994, Teresa brought Megan to the hospital where an emergency medicine specialist discovered that Megan had sustained several injuries including (1) a brain injury that caused seizures and partial paralysis, (2) numerous bruises in various stages of healing, and (3) a glove-type burn to her hand that appeared to have resulted from an intentional immersion in some hot substance. Megan was also malnourished and dirty. Because the injuries appeared to have been intentionally inflicted, the police were contacted. Initially, Teresa explained that Megan's injuries were caused by various household accidents. However, she eventually admitted that some of Megan's bruises may have resulted from her efforts at discipline. Teresa also denied having a boyfriend and insisted that she was raising Megan alone.

Teresa testified at defendant's trial while charges of first-degree child abuse for the same incident were still pending against her. She explained that she became involved with defendant in 1993 when they both lived in the city of Alpena. In order to save on the cost of child care, defendant watched Megan while Teresa worked. Defendant also assumed the responsibility of disciplining Megan. In February 1994, a Protective Services worker in Alpena informed Teresa that a friend of hers, Rebecca Chojnacki, had reported bruises on Megan. Teresa was advised to take Megan to the hospital. However, defendant warned Teresa that if she took Megan to the hospital he would "take care" of her and then "go after Megan and finish with her." Shortly thereafter, defendant and Teresa moved to Bay County.

When defendant and Teresa first arrived in Bay County, they stayed with Teresa's sister. While staying there, Teresa went out for a newspaper and, upon returning, discovered that Megan's hand was burned. Defendant told her that Megan had injured herself while washing her hands in the bathroom sink. Teresa wanted to take Megan to the hospital, but did not because defendant was afraid that "Protective Services would get involved and say that it was done intentionally." Eventually, defendant and Teresa found an apartment of their own. On April 20, 1994, defendant, Teresa, and Megan were walking in a field by their new apartment looking for deer. Teresa left Megan alone with defendant and twenty or thirty minutes later defendant returned to the apartment carrying Megan in his arms. Megan looked dazed and could not focus or stand on her own. Defendant told Teresa that Megan had tripped and fallen face-first into a culvert. Teresa wanted to take her to the hospital, but defendant would not allow it because Megan "had bruises on her butt" and defendant "was afraid Protective Services would get involved again." After a few days, however, Teresa insisted on taking Megan to the hospital because she was not getting better. As Teresa was preparing to go, defendant instructed her to tell the doctors that Megan had hurt herself climbing to get some toys. Teresa explained that she initially attempted to deflect the blame for Megan's injuries away from defendant because she was afraid of him.

Defendant denied ever taking part in Megan's discipline and explained that discipline was Teresa's responsibility. According to defendant, Megan's hand was burned while he, rather than Teresa, was out getting a newspaper. He testified that Teresa told him that Megan accidentally burned herself in the sink. Defendant also denied Teresa's story about their walk in the field and Megan's subsequent injury. He testified that on April 21, 1994, he was away from home for the entire day visiting family members. When he returned to the apartment at 2:00 a.m. the following morning, Teresa told him that Megan had fallen down and hurt herself. Defendant explained that he told Teresa to take Megan to the hospital because she did not seem to be getting any better. Defendant denied ever threatening Teresa with violence. On the basis of this evidence, the jury acquitted defendant of the charge relating to Megan's head injury, but found him guilty of second-degree child abuse for the injury to Megan's hand. Defendant then brought this appeal.

Defendant first argues that the trial court deprived him of his right to exercise his peremptory challenges in an intelligent and effective manner when it refused to remove a juror during the course of the trial. We disagree. On the morning of the second day of defendant's trial, during a break in Teresa's testimony, one of the jurors indicated to a bailiff that he may have attended junior high school with Teresa. The juror remembered her as being "quiet and to herself," but assured the judge that he could "put aside" his perceptions in reaching a verdict. Defense counsel conceded that there were no circumstances justifying a discharge for cause, but argued that he would have exercised a peremptory challenge to remove the juror if he had known the information during voir dire. The trial court denied defendant's request to remove the juror.

A criminal defendant has a constitutional right to be tried by a fair and impartial jury, U.S. Const., Am. VI; Const. 1963, art. 1, § 20; Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968); People v. Clark, 220 Mich.App. 240, 245-246, 559 N.W.2d 78 (1996). There is, however, no constitutional right to exercise peremptory challenges. People v. Juarez, 158 Mich.App. 66, 71, 404 N.W.2d 222 (1987). In Michigan, the right to peremptory challenges is granted by statute and court rule. M.C.L. § 768.12; M.S.A. § 28.1035; MCR 6.412(E)(1). This right exists only until the jury is sworn. Jhons v. People, 25 Mich. 499, 503 (1872); see also People v. Lee, 212 Mich.App. 228, 252, 537 N.W.2d 233 (1995). Accordingly, defendant's contention that he should have been allowed to exercise one of his remaining peremptory challenges is without merit.

Defendant also asserts that if he was not entitled to exercise a peremptory challenge during the course of the trial, the trial court should nonetheless have removed the juror because defendant would have exercised one of his peremptory challenges during voir dire had he known of the juror's past association with Teresa. ¹ This Court has reasoned that when information potentially affecting a juror's ability to act impartially is discovered after the jury has been sworn, and the juror is allowed to remain on the jury, the defendant is entitled to relief on appeal if it can be established either (1) that the juror's presence on the jury resulted in actual prejudice, (2) that the defendant could have successfully challenged the juror for cause, or (3) that the defendant would have "otherwise dismissed" the juror by exercising a peremptory challenge had the information been revealed before trial. See People v. Smith, 106 Mich.App. 203, 212-213, 307 N.W.2d 441 (1981), (After Remand), 122 Mich.App. 202, 332 N.W.2d 401 (1981); People v. Johnson, 103 Mich.App. 825, 831, 303 N.W.2d 908 (1981); People v. Graham, 84 Mich.App. 663, 668, 270 N.W.2d 673 (1978). Here, because defendant does not allege actual prejudice and concedes that the juror in question was not excusable for cause, only the third alternative (that the juror would have been "otherwise dismissed") could arguably justify a grant of relief. ² However, we decline to follow the "otherwise dismissed" language contained in the earlier cases, because (1) it is not based on the defendant's right to an impartial jury and (2) its application requires the trial court to undertake what is essentially a futile task.

A defendant is not denied his right to an impartial jury simply because he is unable to make the most effective use of his peremptory challenges. See People v. Badour, 167 Mich.App. 186, 188-190, 421 N.W.2d 624 (1988), rev'd on other grounds 434 Mich. 691, 456 N.W.2d 391 (1990); see also People v. Crowell, 186 Mich.App. 505, 509, 465 N.W.2d 10 (1990), remanded 437 Mich. 1004, 469 N.W.2d 305 (1991). On the other hand, a defendant is denied his right to an impartial jury when a juror removable for cause is allowed to serve on the jury. In some circumstances, this is true even when the information justifying the juror's removal is not discovered until after the trial. See People v. Hannum, 362 Mich. 660, 666-667, 107 N.W.2d 894 (1961); People v. DeHaven, 321 Mich. 327, 330-334, 32 N.W.2d 468 (1948). Accordingly, the "otherwise dismissed" language is not based on the defendant's right to an impartial jury. The language also raises practical concerns. We think it would be difficult for a court to reliably determine, in hindsight, whether a defendant possessing different information would have elected to exercise a peremptory challenge. For these reasons, we hold that when information potentially affecting a juror's ability to act impartially is...