People v. Howard

Citation226 Mich.App. 528,575 N.W.2d 16
Decision Date25 November 1997
Docket NumberDocket No. 172633
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Connell Lensey HOWARD, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Appeals, Research, and Training, and Morris Kent and Janet McLaren, Assistant Prosecuting Attorneys, for People.

State Appellate Defender by Chari K. Grove, for Defendant-Appellant on appeal.


GAGE, Judge.

After defendant's first trial ended in a mistrial, defendant was retried and convicted by a jury of two counts of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and one count of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to two concurrent terms of life imprisonment without parole, to be served consecutively to a two-year term for felony-firearm. He appeals as of right. We affirm.

This case stems from the November 12, 1992, shooting deaths of David and Terry Lamb, a husband and wife real estate team who were fatally shot while inside defendant's mother's house. Defendant admitted shooting the Lambs but claimed self-defense and diminished capacity. According to the defense theory, defendant shot the Lambs after they became threatening and abusive while confronting defendant about some delinquent house payments. On the basis of the defendant's description of the events, a defense expert concluded that defendant experienced "brief reactive psychosis" as a result of emotional stress and trauma caused by the Lambs' conduct, thereby rendering him "diminished in capacity to formulate specific intent as it relates to this offense."


Defendant, who is African-American, raises three issues on appeal regarding the jury selection: (1) he was denied his constitutional right to an impartial jury drawn from a fair cross section of the community where only one African-American juror served on his jury and where African-Americans were underrepresented in his particular jury array, (2) the prosecutor used peremptory challenges in a discriminatory manner to strike African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and (3) the trial court erred in denying his request for additional peremptory challenges.


We reject defendant's fair cross-section claim. While a criminal defendant is entitled to an impartial jury drawn from a fair cross section of the community, U.S. Const., Am. VI, he is not entitled to a petit jury that exactly mirrors the community. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975); People v. Hubbard (After Remand), 217 Mich.App. 459, 472, 552 N.W.2d 493 (1996). To establish a prima facie violation of the fair cross-section requirement, a defendant must show

"(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." [Id. at 473, 552 N.W.2d 493, quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).]

Although defendant asserts that African-Americans were underrepresented in his particular array, he presented no evidence concerning the representation of African-Americans on jury venires in general. Merely showing one case of alleged underrepresentation does not rise to a "general" underrepresentation that is required for establishing a prima facie case. Timmel v. Phillips, 799 F.2d 1083, 1086 (C.A.5, 1986). Defendant also failed to show that any alleged underrepresentation was due to systematic exclusion, i.e., an exclusion resulting from some circumstance inherent in the particular jury selection process used. Duren, supra at 366, 99 S.Ct. at 669; Hubbard (After Remand), supra at 481, 552 N.W.2d 493. Following a defense objection during jury selection, the trial court summoned the county's deputy court administrator, who stated that jurors were selected from a source list of residents with driver's licenses or state identification cards. Defendant did not elicit any other details regarding the selection process, nor did he present any evidence showing that the selection process resulted in the systematic exclusion of African-American residents. It is well settled that "[o]ne incidence of a jury venire being disproportionate is not evidence of a 'systematic' exclusion." Timmel, supra at 1087; see also Hubbard (After Remand), supra at 481, 552 N.W.2d 493.


Defendant also argues that the trial court erred in finding that the prosecutor's reasons for peremptorily dismissing three African-American jurors 1 were sufficient to overcome a showing of discriminatory purpose under Batson, supra. We disagree.

To overcome a prima facie showing of discriminatory purpose, the prosecution must come forth with a racially neutral explanation for challenging African-American jurors. Batson, supra at 97, 106 S.Ct. at 1723. Mere statements of good faith or denial of a discriminatory motive are insufficient; rather, the prosecutor must articulate a neutral explanation related to the particular case being tried. Id. at 98, 106 S.Ct. at 1724. The trial court must then determine if the defendant has established purposeful discrimination. Id. This Court reviews a trial court's Batson ruling for an abuse of discretion. Harville v. State Plumbing & Heating, Inc., 218 Mich.App. 302, 319-320, 553 N.W.2d 377 (1996).

The prosecutor dismissed one of the African-American jurors because she was a renter, explaining that he preferred not to have any renters on the jury, regardless of race. Although defendant asserts that this is a "patently ridiculous" reason for dismissal, it is a reason related to the circumstances of this case, inasmuch as the Lambs were shot while inquiring about overdue house payments, a situation more commonly associated with renters. Under the circumstances of the case, it was reasonable for the prosecutor to believe that a renter might be more sympathetic to defendant's situation. 2 Defendant asserts that a second African-American juror was dismissed solely on account of perceived "defensiveness," a reason defendant contends is too subjective and tenuous to rebut a presumption of purposeful discrimination. However, the record reveals that the juror was dismissed primarily because he had an uncle with whom he was close who had been tried for murder, a race-neutral reason. The final juror in question was dismissed because she was a circuit court probation officer, she was familiar with criminal laws and procedures, and she had previously expressed a desire to be excused from jury service because of job concerns. Although defendant asserts that dismissal of this juror was not justified because she was not familiar with any of the parties and because the trial court alleviated her job concerns, these arguments are more directed toward a dismissal for cause. The prosecutor's burden of providing a race-neutral reason for exercising a peremptory challenge does not rise to the level of requiring the prosecutor to justify the exercise of a challenge for cause. Batson, supra at 97, 106 S.Ct. at 1723; People v. Barker, 179 Mich.App. 702, 706, 446 N.W.2d 549 (1989), aff'd. 437 Mich. 161, 468 N.W.2d 492 (1991).

The trial court accepted the prosecutor's race-neutral explanations for dismissing the three African-American jurors in question and concluded that the prosecutor did not excuse the jurors on account of their race. We are satisfied that the trial court did not abuse its discretion in rejecting defendant's claim of purposeful discrimination. 3


A trial court may grant additional peremptory challenges on a showing of good cause. MCR 6.412(E)(2). A decision denying a request for additional peremptory challenges is reviewed for an abuse of discretion. People v. Lee, 212 Mich.App. 228, 252, 537 N.W.2d 233 (1995).

In this case, the trial court granted an initial request by defendant for additional peremptory challenges, awarding him six additional challenges, but denied a second request for additional peremptory challenges. Defendant's second request was premised, for the most part, on his allegations of systematic exclusion of African-Americans from the jury array and discriminatory use of peremptory challenges by the prosecutor, claims that the trial court rejected below and which we have now rejected on appeal. We find no abuse of discretion in the denial of defendant's second request for additional peremptory challenges.


Defendant next challenges the admissibility of certain statements that he made to the police, contending that they were illegally obtained and, therefore, should have been suppressed.


Defendant first argues that he was improperly subjected to a custodial interrogation by Officer Charles Wright at the crime scene, without having been advised of his Miranda 4 rights. Although defendant raised this issue in a written motion to suppress, he failed to pursue the issue at the Walker 5 hearing that was conducted in this matter and, consequently, a factual record supporting defendant's claim was never developed. Under the circumstances, we conclude that the issue has been abandoned. See People v. Riley, 88 Mich.App. 727, 731, 279 N.W.2d 303 (1979). Regardless, we find no basis for reversal because Officer Wright did not testify at trial regarding any statements made by defendant, nor has defendant identified any particular statement made to Officer Wright that allegedly was improperly admitted...

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