People v. Harrell

Decision Date21 December 1976
Docket NumberNo. 3,A,3
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter HARRELL, Jr., Defendant-Appellant. pril Term. 398 Mich. 384, 247 N.W.2d 829
CourtMichigan Supreme Court

State Appellate Defender Office by Marshall S. Redman, Asst. Defender, Detroit, for appellant.

COLEMAN, Justice.

Defendant was convicted by a jury of assaulting a police officer, M.C.L.A. § 750.479; M.S.A. § 28.747, and fleeing and eluding a police officer, M.C.L.A. § 750.479a; M.S.A. § 28.747(1). On December 23, 1971, defendant was sentenced to 6 months in jail and $150 costs, or an additional 30 days in jail on one count, and a suspended sentence The Court of Appeals affirmed the conviction. 1 This Court granted leave to appeal limited to the two questions considered herein. 2

of $100 fine and $100 costs on the other count.

Defendant is a young black man and most of the police officers involved in the incident are white. Prior to trial, defense counsel submitted 120 questions to be asked during voir dire. In lieu of the defendant's 120 questions, the trial judge announced that he would utilize seven of the defendant's questions to cover any bias or racial prejudice in the proposed jurors.

ISSUES

1. Did the trial court's refusal to submit 120 questions to the jury on voir dire deny defendant a trial by a fair and impartial jury by preventing a meaningful exercise of challenges for cause?

2. Did the trial court's refusal to submit 120 questions to the jury on voir dire deny defendant a trial by a fair and impartial jury by preventing the intelligent use of peremptory challenges?

DISCUSSION

In Michigan, the examination of prospective jurors may be conducted by the court or, in its discretion, by the attorneys. 3 The scope of voir dire examination of jurors is within the discretion of the trial judge and his decision will not be set aside absent an abuse of that discretion. 4 Voir dire affords attorneys an opportunity to elicit sufficient information to develop a rational basis for excluding veniremen whether for cause or by peremptory challenges. 5

Relying on Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) and related Federal appellate decisions, the defendant maintains he had a constitutional right to voir dire the veniremen further on racial prejudice. Although it is true that the Ham decision held that the 14th amendment required the trial judge to interrogate jurors upon the subject of racial prejudice after the defendant's timely request, Ham does not stand for the proposition that the trial judge must ask every question dealing with racial prejudice that the defense might wish to be heard.

Justice Rehnquist, writing for the Court, stated:

'We agree with the dissenting justices of the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner. The Court in Aldridge was at pains to point out, in a context where its authority within the federal system of courts allows a good deal closer supervision than does the Fourteenth Amendment, that the trial court 'had a broad discretion as to the questions to be asked,' 283 U.S., at 310, 51 S.Ct., at 471. The discretion as to form and number of questions permitted by the Due Process Clause of the Fourteenth Amendment is at least as broad. In this context, either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.' 409 U.S. 527--528, 93 S.Ct. 850--851.

While concurring in part and dissenting in part with the majority's decision in Ham, Justice Marshall stated:

'I do not mean to suggest that a defendant must be permitted to propound any question or that limitless time must be devoted to preliminary Voir dire. Although the defendant's interest in a jury free of prejudice is strong, there are countervailing state interests in the expeditious conduct of criminal trials and the avoidance of jury intimidation. These interests bulk larger as the possibility of uncovering prejudice becomes more attenuated. The trial judge has broad discretion to refuse to ask questions that are irrelevant or vexatious. Thus, where the claimed prejudice is of a novel character, the judge might require a preliminary showing of relevance or of possible prejudice before allowing the questions.' 409 U.S. 533, 93 S.Ct. 853.

Footnote 2 at 409 U.S. 533, 93 S.Ct. 853 specifically holds:

'I also agree with the majority that the judge may properly decline to ask the question in any particular form or ask any particular number of questions on a subject.'

In its most recent pronouncement in this area, the Supreme Court of the United States, by Justice Powell, held that voir dire about racial prejudice is not constitutionally required absent circumstances comparable in significance to those existing in Ham, supra. Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). Defendant Ross was a black man who was charged with two other blacks for the armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder of a white man employed by Boston University as a security guard. The trial judge refused to pose a question directly related to racial prejudice during the voir dire of the veniremen.

The Court's opinion said Ham 'reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice' the jury would not be impartial:

'The circumstances in Ham strongly suggested the need for Voir dire to include specific questioning about racial prejudice. Ham's defense was that he had been framed because of his civil rights activities. His prominence in the community as a civil rights activist, if not already known to veniremen, inevitably would have been revealed to the members of the jury in the course of his presentation of that defense. Racial issues therefore were inextricably bound up with the conduct of the trial. Further, Ham's reputation as a civil rights activist and the defense he interposed were likely to intensify any prejudice that individual members of the jury might harbor. In such circumstances we deemed a Voir dire that included questioning specifically directed to racial prejudice, when sought by Ham, necessary to meet the constitutional requirement that an impartial jury be impaneled.'

Unlike Ham, 'the need to question veniremen specifically about racial prejudice' did not rise 'to constitutional dimensions' in Ristaino.

Although the questions were not constitutionally required in Ristaino, footnote 9 of the opinion said 'the wiser course generally is to propound appropriate questions designed to identify racial pejudice if requested by the defendant'. The states 'are free to allow or require questions not demanded by the Constitution'.

In the instant case, the following colloquy took place between defense counsel and the trial judge in chambers:

'MR. HAYES: Could you indicate to me which ones you are going to use?

'THE COURT: 25, 26 and 27, 91 and 92, 105 and 106 with additions making them to conform to the Court rulings.

'MR. HAYES: May I ask--why you have rejected all the questions which I believe go to the essence of the matter, Your Honor?

'THE COURT: The Court will give the voir dire. I think the Court's voir dire will cover any bias or prejudice any jurors may have--that is the purpose of it--it is not to choose a jury which is biased or (sic) your viewpoint or the prosecution's, but to get a jury which is unbiased and unprejudiced, and I think the court's voir dire will fairly cover it. Knowledge of your instructions are (sic) contained in the Court questionnaire signed by the Jurors, and it would be repetitious to go into them--many of them are of the nature not proper for voir dire. These are not given.'

During the voir dire, the trial court asked the following questions:

'Have any of you had any dealings or experiences with black persons that might make it difficult for you to sit in impartial judgment on this case? By 'you' I mean also members of your immediate family, your spouse, your children?

(none)

'THE COURT: Will the fact that Defendant is black in any way affect your judgment in this cause?

(none)

'THE COURT: Would any of you give more credence to the testimony of a white person than you would give to the testimony of a black person, everything else being equal?

(none)

'THE COURT: That is give two persons of equal stature and so forth upon the stand, equal appearance, and one is a white skin, one has a black skin, would that in any way prejudice you in either way?

(none)

'THE COURT: Would any of you give the police officers any more credence in their testimony than you would a person who is not a police officer, because of the fact that the witness was a police officer?

(none)

Our examination of the 120 questions proposed by counsel discloses that many are repetitive of the Court questionnaire 6 and many are not proper for voir dire. 7

In the instant case, the trial court followed the course of action recommended by the United States Supreme Court in Ristaino, supra. We find no abuse of the trial court's discretion. The trial court's voir dire contained questions regarding racial prejudice which were sufficient to afford defense counsel information necessary to challenge prospective jurors, either peremptorily 8 or for cause. Defendant's right to be tried by an impartial jury was protected by the judge's questioning.

The defendant's conviction is affirmed.

FITZGERALD, RYAN and LINDEMER, JJ., concur.

LEVIN, Justice (dissenting).

We all agree that the purpose of voir dire, as expressed in the...

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