People v. Kabongo

Decision Date20 May 2021
Docket NumberDocket No. 159346,Calendar No. 3
Citation968 N.W.2d 264,507 Mich. 78
Parties PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jacques Jean KABONGO, Defendant-Appellant.
CourtMichigan Supreme Court

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jon P. Wojtala, Chief of Research, Training, and Appeals, and Deborah K. Blair, Assistant Prosecuting Attorney, for the people.

Sheldon Halpern, PC, Royal Oak (by Sheldon Halpern ) for defendant.

William J. Vailliencourt, Jr., Kym L. Worthy, and Timothy A. Baughman, Detroit, for the Prosecuting Attorneys Association of Michigan, amicus curiae.


Zahra, J. (for affirmance).

In this case, we granted leave to appeal to address the trial court's resolution of a pair of Batson1 challenges, each concerning the others’ use of peremptory challenges to remove prospective jurors on the basis of race. The prosecution first exercised its statutory right to remove a white prospective juror from the panel, and then exercised the same right to consecutively remove three black prospective jurors from the panel.2 At this point, defendant asserted a Batson challenge to the prosecution's removal of the three black prospective jurors. The trial court rejected this challenge. We conclude that the trial court did not clearly err by finding that the prosecution's race-neutral explanation was not a pretext for improper purposeful discrimination. The record evidence before us is open to interpretation regarding defendant's Batson challenge. Though some trial courts may have reached a different conclusion, our deferential review of the trial court's decision in this case does not leave us with a definite and firm conviction that the trial court erred.

The second Batson challenge at issue was raised by the prosecution upon the exercise of defendant's third peremptory challenge. The prosecution noted that all the peremptory challenges asserted by defendant excused white prospective jurors. Defendant explained that his most recent peremptory challenge was directed toward a prospective juror with extensive familial ties to law enforcement. The trial court sustained the prosecution's Batson challenge, leaving on the prospective jury panel a prospective juror whom defendant preferred to remove. We conclude that the trial court clearly erred by determining that defense counsel's race-neutral explanation was a pretext to discrimination such that defense counsel engaged in purposeful discrimination by exercising a peremptory challenge of this prospective juror. While defense counsel's comments may have suggested that he was previously engaged in purposeful discrimination against white prospective jurors during voir dire and that defense counsel perhaps even intimated an intent to continue to do so, the record does not reflect that defense counsel actually engaged in purposeful discrimination against this particular prospective white juror. This prospective juror had extensive familial ties to law enforcement, and the sole evidence against defendant was to be the testimony of law enforcement officers.

Having concluded that the trial court clearly erred by granting the prosecution's Batson challenge, we must determine whether the court's denial of defendant's peremptory challenge is a structural error under Michigan law requiring automatic reversal, or whether the error is subject to harmless-error review. A trial court's erroneous denial of a defendant's peremptory challenge is not a constitutional error, let alone a structural error requiring automatic reversal, under the federal Constitution. The Supreme Court of the United States has repeatedly recognized that states need not even provide peremptory challenges. The Sixth Amendment guarantees a right to an "impartial jury," not a right to the jury of one's choosing. The Court has explained that if a state does provide peremptory challenges, then the state is free to decide, as a matter of state law, the remedy available for a trial court's mistaken denial of a peremptory challenge.3 Michigan law provides no basis for a rule that would require automatic reversal when a trial court denies a peremptory challenge on the basis of an improperly granted Batson challenge or otherwise. Rather, Michigan law generally views peremptory challenges as a nonconstitutional right that is provided to both parties as one of the many optional means to secure the constitutional guarantee of an impartial jury. For reasons more fully discussed below, we conclude that a trial court's erroneous denial of a defendant's peremptory challenge is not a structural error that requires automatic reversal under Michigan law. Instead, the trial court's error is subject to harmless-error review.

Applying harmless-error review, we conclude that reversal is not warranted in this case. There is no record evidence that the trial court's denial of defendant's peremptory challenge resulted in a miscarriage of justice. There is no evidence that any juror, let alone the juror whom defendant hoped to excuse, harbored any bias against defendant. Because defendant received a trial from an impartial jury, no harm resulted from the trial court's erroneous denial of defendant's peremptory challenge. We would therefore affirm the Court of Appeals’ judgment holding that defendant is not entitled to a new trial.


On October 15, 2016, defendant was working on a rental property he owned on Monte Vista Avenue in Detroit. Two Detroit police officers, Royer Hernandez and Alexander Collrin, saw defendant openly carrying a holstered handgun outside the house as they drove by on patrol. Officer Hernandez looked in his rearview mirror as he passed and saw defendant walk to the rear door on the driver's side of a pickup truck parked in the street. Officer Hernandez testified that while defendant appeared to be taking tools from the back seat of the truck, he covered the gun with a blue shirt he was wearing. Officer Collrin also saw defendant conceal the weapon. The officers returned to the property to ask defendant if he had a concealed pistol license (CPL). Defendant produced an expired CPL.

The officers immediately arrested defendant for unlawfully carrying a concealed weapon, a felony.

After a somewhat contentious jury-selection process, defendant was tried and convicted on the sole count of carrying a concealed weapon. The trial court later sentenced him to nonreporting probation for one year and 50 hours’ community service. Defendant appealed by right. The Court of Appeals affirmed in an unpublished per curiam opinion.4 Defendant sought leave to appeal in this Court, and we granted the application with respect to the following issues:

(1) whether the prosecution's exercise of a peremptory challenge against prospective juror no. 2 violated Batson v. Kentucky , 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (1986) ; (2) whether the trial court erroneously precluded the defendant from exercising a peremptory challenge against prospective juror no. 5; (3) if so, whether such an error should be subject to automatic reversal or harmless error review ...; and (4) if so, whether reversal is warranted in this case.[5 ]

The Fourteenth Amendment of the United States Constitution provides that no state shall deny "any person within its jurisdiction the equal protection of the laws."6 The Michigan Constitution provides the same protection.7 In Batson , the Supreme Court of the Unites States held that a "State's privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause."8 Specifically, the Supreme Court held:

Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.[9 ]

To assist courts in resolving Batson challenges, the Supreme Court implemented a three-part burden-shifting analysis to be used in resolving Batson challenges. The process starts with the assertion of a challenge under Batson . The party bringing the Batson challenge must first "make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose."10 Upon an initial showing of a prima facie case of purposeful discrimination, the burden then shifts to the proponent of the peremptory challenge " ‘to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strike[ ]."11 Once the proponent of the peremptory challenge articulates a race-neutral explanation, the trial court must determine whether it was more likely than not that the challenge was improperly motivated;12 that is, whether the proponent's "race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination."13

Moreover, while the facts of Batson were limited to a criminal defendant's challenge to the prosecution's use of a peremptory challenge to remove a juror on the basis of race, the United States Supreme Court has also held that the prosecution may challenge a defendant's use of a peremptory challenge for the same reason. In Georgia v. McCollum , the Supreme Court held that "the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges."14 Notably, the same framework from Batson applies to cases in which the prosecution opposes a defendant's use of a peremptory challenge on the basis of...

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8 cases
  • State v. Booth
    • United States
    • Washington Court of Appeals
    • May 31, 2022
    ...Wash.2d 823, 831, 613 P.2d 1139 (1980) ).96 Id. (quoting Cunningham, 93 Wash.2d at 831, 613 P.2d 1139 ).97 See People v. Kabongo, 507 Mich. 78, 137, 968 N.W.2d 264, 300 (2021) (concluding erroneous denial of a peremptory challenge was a nonconstitutional harmless error and noting "for all i......
  • Bauserman v. Unemployment Ins. Agency
    • United States
    • Michigan Supreme Court
    • July 26, 2022
    ... ... the state was rejected as was her assertion that the state ... could not be held vicariously liable. People who have been ... deprived of a constitutional right may seek redress through ... the courts, regardless of whether the harm was ... [ 68 ] People ex rel Sutherland v ... Governor , 29 Mich. 320, 330-331 (1874) ... [ 69 ] People v Kabongo , 507 Mich ... 78, 135; 968 N.W.2d 264 (2021) (opinion by Zahra, J.), ... quoting Oxford Dictionary of Law (8th ed) ... [ 70 ] ... ...
  • Waterfront Petroleum Terminal Co. v. Detroit Bulk Storage, Inc.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • August 25, 2021
    ...time that the defendant could dock vessels over the plaintiff's bottomlands.7 534 N.W.2d at 216 ; see also , People v. Kabongo , No. 159346, 507 Mich. 78, 135, 968 N.W.2d 264 (2021), reh'g denied (recognizing "Ubi jus, ibi remedium, the principle that where one's right is invaded or destroy......
  • State v. Booth
    • United States
    • Washington Court of Appeals
    • May 31, 2022
    ...v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). [96] Id, (quoting Cunningham, 93 Wn. 2d at 831). [97] See People v. Kabongo, 507 Mich. 78, 137, 968 N.W.2d 264, 300 (concluding erroneous denial of a peremptory challenge was a nonconstitutional harmless error and noting "for all inte......
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