People v. Miller
| Decision Date | 19 June 1981 |
| Docket Number | Docket Nos. 62902,62903,62906 and 62935 |
| Citation | 307 N.W.2d 335,411 Mich. 321 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwjuan MILLER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kevin EWING, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael DAVIS, Defendant-Appellant. 411 Mich. 321, 307 N.W.2d 335 |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Timothy Scallen, Asst. Pros. Atty., Detroit, for the people in Miller and Davis.
Anne B. Wetherholt, Asst. Pros. Atty., Detroit, for the people in Ewing.
Lawrence R. Greene, Detroit, for defendant Miller.
Gerald S. Surowiec, Detroit, for defendant Ewing.
Thomas A. Law, Farmington Hills, for defendant Davis.
The defendants were charged with one count of first-degree murder and three counts of armed robbery as the result of a holdup of a restaurant in which the owner was shot to death. Defendants Miller and Davis were convicted on all counts, and defendant Ewing was found guilty of second-degree murder and one count of armed robbery. The Court of Appeals affirmed the convictions. People v. Miller, 88 Mich.App. 210, 276 N.W.2d 558 (1979).
Each defendant filed a request for review under Administrative Order 1977-4, 400 Mich. lxvii (1977). We ordered the trial court to appoint counsel for the defendants to prepare and file applications for leave to appeal, directing that certain issues be briefed. The applications have been filed, raising several issues. We reach only one, and reverse because of the use of an improper jury selection procedure.
More than five weeks before the scheduled start of the trial, the trial judge entered an order describing the manner in which jury selection would be conducted. It said in part:
Before the jury selection began, defense counsel objected to this procedure on the ground that calling so many jurors at once would make it difficult to keep track of the answers given by individual jurors to voir dire questions. The trial judge rejected this argument, noting that he had used the procedure a number of times and that it is used in other jurisdictions.
Seventy-three jurors were initially called and questioned as a group by the trial judge. None was excused for cause. The prosecutor and the three defense attorneys then exercised peremptory challenges in rotation until only 11 jurors remained, at which point an additional 37 jurors were called and questioned. The peremptory challenge process continued until there were no further challenges, and the 14 1 remaining jurors with the lowest numbers were selected to hear the case.
The Court of Appeals affirmed the defendants' convictions. 2 The Court found a violation of the jury selection procedure provided by GCR 1963, 511. In particular, the jury selection did not comply with Rule 511.6:
However, the Court declined to reverse. It found the evidence against the defendants overwhelming, and noted the failure of the defendants to raise the issue until just before the selection process began, despite the substantial notice given by the trial judge's order. The defendants' claim of prejudice was premised on the difficulty of remembering the responses of the various jurors, but the Court of Appeals found the use of similar selection systems in other jurisdictions sufficient to establish the practicability of the procedure. Finally, the Court said that while there was a violation of Rule 511.6, the method used here did not violate the purpose of the rule. The Court interpreted that provision in the light of the usual practice of starting with a panel of 12 potential jurors. In that circumstance, subrule .6 ensures that the parties will not be required to exercise peremptory challenges against a panel of fewer than 12, protecting against dilution of the right to exercise peremptory challenges. In this case, the parties were always faced with a panel of at least 12, and for most of the selection process with a far larger one. This permitted them to identify all of the jurors they wished to challenge before exercising any challenges.
The Court concluded with the following caution to trial judges:
As the Court of Appeals noted, GCR 1963, 511 contemplates the seating and examination of a panel of potential jurors equal in size to the jury that will hear the case. As a juror is challenged, either peremptorily or for cause, another will be seated before further challenges are exercised. Obviously, the procedure used in this case...
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