People v. Gratz
| Decision Date | 30 June 1971 |
| Docket Number | Docket No. 9383,No. 3,3 |
| Citation | 35 Mich.App. 42,192 N.W.2d 304 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank J. GRATZ, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
John J. Lambros, Lambros & Lambros, Sault Ste. Marie, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Farrell E. Elliott, Pros. Atty., for plaintiff-appellee.
Before FITZGERALD, P.J., and HOLBROOK and LEVIN, JJ.
The defendant, Frank J. Gratz, appeals his conviction of possession or control of marijuana. M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123).
Before the trial he filed a motion challenging the array on the ground that the jury had not been selected in accordance with the provisions of chapter 12 of the Revised Judicature Act of 1961, and, specifically, the provisions of that chapter concerning the selection of jurors in the Upper Peninsula. (These statutory provisions have, subsequent to the trial of this case, been repealed and replaced by other provisions concerning jury boards and jurors. See P.A.1968, No. 326, M.C.L.A. § 600.1301, et seq. (Stat.Ann.1971 Cum.Supp. § 27A.1301, et seq.) 1
After an evidentiary hearing the trial judge found that the claimed violations were insubstantial and denied the motion challenging the array. Following the defendant's conviction, he filed a motion for a new trial which was considered by the circuit judge who succeeded the judge who presided at the trial. The successor judge filed an opinion stating that the statutory requirements had not been complied with in that:
(a) the judge of probate did not act on the jury board in accordance with R.J.A. § 1255; 2
(b) none of the members of the board signed the jury list as required by R.J.A. § 1259; 3 and
(c) the sheriff drew the names for the jury panel although R.J.A. § 1215 4 required that they be drawn by the clerk.
Nevertheless, the judge denied the motion for a new trial holding that the statements by the Supreme Court in People v. Labadie (1887), 66 Mich. 702, 33 N.W. 806, and Fornia v. Wayne Circuit Judge (1905), 140 Mich. 631, 104 N.W. 147, 'which seem to hold that any clear violation of the (jury selection) statute is good cause for challenge to the array' were superseded by the harmless error provision in the Code of Criminal Procedure:
'No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.' M.C.L.A. § 769.26 (Stat.Ann.1954 Rev. § 28.1096).
We are satisfied that a failure to comply with the statutory provisions concerning the selection of juries may not be rectified under this statutory provision, and reverse the defendant's conviction.
The legislature determined that the lists of names would be selected by a board, one of the members of which would be the judge of probate. The board is required to exercise judgment in selecting the persons who will comprise a jury list. 5 It was evidently thought that the presence on the board of the judge of probate would serve the legislative purpose.
The right to have a board constituted, to have the persons who will comprise a jury list selected in the manner required by the statute is a substantial right entitled to judicial protection and enforcement. The selection of the persons who will comprise the array is entrusted, for the most part, to officials not necessarily trained in the law; the selection does not take place under the supervision of the court and there is no opportunity except upon a challenge to the array to oversee the process and to correct error.
Unless we are prepared to reverse a conviction for failure to select a jury in accordance with the statute in a case where there has been a timely challenge, we, in effect, confer discretion on the officials charged with jury selection to cut corners, to eliminate steps in the selection process which appear to them to be unnecessary or burdensome. While we must insist that a defendant voice his challenge to the array before the jury is sworn so that any deficiency can be corrected before the trial, when a litigant makes a timely challenge to the array and on an evidentiary hearing establishes the validity of that challenge, it would be an addication of our responsibility to say, in effect, that, while the challenge is well taken, the trial court had no obligation to enforce the defendant's right to have a jury selected in accordance with the procedure established by the legislature.
To require a defendant, after conviction, to prove prejudice would be to impose on him an impossible burden of proof and, in effect, to deny enforcement of his statutory right. It would be virtually impossible in almost any case to demonstrate that prejudice resulted from an infringement of the right to have jurors selected in the manner prescribed by the statute.
The defendant's guilt or innocence and the weight of the evidence are clearly beside the point. While jurors generally bring in a verdict portended by the weight of the evidence, experience teaches us that on occasion they bring in an unanticipated verdict to the dismay and mystification of both judge and counsel.
Had the trial judge sustained, as he should have, the challenge to the array, it would have meant a delay of perhaps a month or so while a new jury panel was selected in accordance with the statute. While delay in the trial of cases is not to be encouraged, delays of a month or so commonly occur because, for example, of the absence of witnesses, the pendency of other cases having chronological or other precedence, illness of a judge or of counsel, or a mistrial. It is important that a criminal case be tried promptly, but it is also important that officials charged with the selection of jurors understand that if they fail to proceed in accordance with the statute prescribing the method of selection and this is duly challenged by a litigant, they will be made to do it over again. In no other way will compliance with the statutory requirements be obtained.
In People v. Tonnelier (1911), 167 Mich. 638, 133 N.W. 510, the statute provided for a board of three commissioners. Due to an unfortunate legal complication which made it impossible to determine with certainty who was duly qualified to act, and on the advice of the prosecuting attorney, five men acted and signed the list after participating in its composition. Three of the five who acted were the duly qualified members of the board, but it was unclear who of the five were the three who were qualified. The Supreme Court held that the challenge to the array (before the jury was sworn) should have been sustained because two persons had participated in the work of the board without lawful authority. The defendant's conviction was reversed and a new trial was ordered.
The Tonnelier Court reviewed its earlier decisions in Labadie and Fornia. In Labadie there was a challenge to the array on the ground that the sheriff drew the names from the box instead of the clerk as required by the statute. Precisely the same deviation from a requirement of the statute occurred in this case of Gratz. In reversing Labadie's conviction the Supreme Court observed (66 Mich. 703, 704, 33 N.W. 806, 807, 808):
'The statutes which establish the rule for the drawing of jurors leave no discretion in the officers designated to conduct such drawing, but plainly indicate how the proceeding shall be conducted. * * *
'The law has so apportioned the duties of the several officers who are to serve in securing the jury provided by the Constitution to try the respondent that the clerk must take the names from the box, and no officer or court can legally disregard this plain provision of the statute.'
In Fornia the Supreme Court ruled that the circuit judge correctly refused to proceed to trial where there was a challenge to the array and it appeared that the names had not been drawn from the box by the clerk as required by the statute but by some member of the board of jury commissioners. The Court expressly rejected the argument that there had been substantial compliance with the statute, saying (140 Mich. 635, 104 N.W. 149), 'the statute leaves no discretion as to the officer who shall perform the act of drawing the jury.'
In Tonnelier the Court addressed itself to the claim that the error was harmless and rejected it (167 Mich. p. 644, 133 N.W. p. 512):
'Respondent may not have been injured by the failure of the commissioners to comply with the plain statutory mandates; but we are not warranted in indulging in such a presumption.'
The Court adopted the following statement of Mr. Justice Graves in Gott v. Brigham (1881), 45 Mich. 424, 428, 8 N.W. 41, 42:
(Emphasis supplied.)
Other courts have also concluded that it would defeat the legislative purpose to require a defendant to prove that he was harmed by a failure to comply with a statute concerning the manner of selection of a jury:
'This right may not legally be denied, and if it is denied ...
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...such claims, a requirement that a defendant demonstrate prejudice would impose an often impossible burden. See People v. Gratz, 35 Mich.App. 42, 192 N.W.2d 304 (1971). A defendant is entitled to have the jury selected as provided by the rule. Where, as here, a selection procedure is challen......
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