People v. Russell

• Decision Date: 07 March 1990
• Docket Number: Docket No. 105077
• Citation: 182 Mich.App. 314,451 N.W.2d 625
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Jessie RUSSELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 625

451 N.W.2d 625

182 Mich.App. 314

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Jessie RUSSELL, Defendant-Appellant.

Docket No. 105077.

Court of Appeals of Michigan.

Submitted Nov. 7, 1989.

Decided Feb. 20, 1990.

Released for Publication March 7, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty. and Carrie L. Klein, Asst. Pros. Atty., for the People.

State Appellate Defender by Gail Rodwan, for defendant-appellant on appeal.

Before MAHER, P.J., and HOLBROOK and SAWYER, JJ.

MAHER, Presiding Judge.

Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f), for which he received concurrent sentences of twenty to forty years. Defendant's convictions arose from allegations pertaining to separate incidents involving his two stepdaughters, ages thirteen and sixteen. Defendant appeals as of right. We reverse.

On appeal, defendant first contends he was denied a right to a fair trial before an impartial jury because he was required to exercise three peremptory challenges at one time during a portion of the jury selection process. We agree.

Trial began on June 30, 1987, with jury voir dire. An initial panel of fourteen prospective jurors was selected and voir dire conducted. After both sides passed for cause, the trial court asked the parties to excuse by peremptory challenges up to three jurors at a time in order to move the selection process along. The court announced it was not going to hold the parties to this procedure, but requested of them that, if they knew in good faith they were going to excuse at least three jurors, it wanted them to do it at one time. No objection was raised to this procedure.

In line with the court's request, the prosecution proceeded to dismiss three jurors at the same time through peremptory challenges, immediately followed by two peremptory challenge dismissals by defense counsel. After the dismissed jurors were replaced, the above procedure was repeated. On the second round of peremptory challenges, the prosecutor peremptorily dismissed three jurors followed by three peremptory dismissals by defense counsel.

On the second day of trial, the court met with the respective attorneys in chambers and expressed concern over the length of time it was taking to select a jury. As a result, the court changed the manner in which jury selection would be conducted. The court announced:

Beginning immediately, you are limited to ten questions per juror, and when you exercise peremptory challenges, if you do not exercise three, I will treat that as a pass, meaning that you will not be permitted to perempt any juror that you pass on.

* * * * * *

You can exercise one, two or three, but if you fail to exercise three, I will treat that as a pass to the jurors in the box.

Although defense counsel immediately objected to this procedure, jury selection continued under the newly imposed rules. This procedure continued during the next three rounds of peremptory challenges wherein defense counsel exercised peremptory challenges of three, three and two jurors respectively.

Thereafter, however, the court again changed its ruling and announced it would no longer require counsel to excuse more than one juror at a time and that any pass on the panel would not be construed as an acceptance until both counsel had passed. Following this ruling, jury selection continued with defense counsel exercising single peremptory challenges during each of his next three opportunities. After exercising sixteen of his twenty peremptory challenges, defense counsel expressed satisfaction with the jury.

In support of its ruling mandating multiple peremptory challenges, the trial court announced it was relying on MCR 2.511(E)(3)(b). This court rule, however, does not authorize multiple challenges at the same time. In this regard, MCR 2.511(F) provides:

Replacement of Challenged Jurors. After the jurors have been seated in the jurors' box and a challenge for cause is sustained or a peremptory challenge exercised, another juror must be selected and examined before further challenges are made. This juror is subject to challenge as are other jurors.

Defendant contends that pursuant to our Supreme Court's decision in People v. Miller, 411 Mich. 321, 307 N.W.2d 335 (1981), the trial court's departure from this court rule mandates reversal. We agree.

In this case, there was clearly a violation of the court rule when the trial court required defendant to exercise multiple peremptory challenges. In Miller, supra, at p. 326, 307 N.W.2d 335, our Supreme Court disapproved of the "struck jury method" and held:

A defendant is entitled to have the jury selected as provided by the rule. Where, as here, a selection procedure is challenged before the process begins, the failure to follow the procedure prescribed in the rule requires reversal.

In line with this decision, this Court has repeatedly held that reversal is required for failure to follow the court rule relating to the jury selection procedure. People v. Key, 121 Mich.App. 168, 179, 328 N.W.2d 609 (1982); People v. Adkins, 117 Mich.App. 583, 586-587, 324 N.W.2d 88 (1982); also see People v. Glover, 154 Mich.App. 22, 44, 397 N.W.2d 199 (1986), lv. den. 430 Mich. 867 (1988).

While the people correctly argue that reversal is not required when a defendant fails to object to the procedure, People v. Lewis, 160 Mich.App. 20, 32, 408 N.W.2d 94 (1987), lv. den. 429 Mich. 860 (1987); People v. Lawless, 136 Mich.App. 628, 636, 357 N.W.2d 724 (1984), lv. den. 422 Mich. 881 (1985), we cannot agree with their contention that defendant's failure to object to the jury selection process at the beginning of trial precludes reversal.

Although the court initially expressed its desire that multiple peremptory challenges be exercised if the parties knew they were going to dismiss more than one juror, it did not make this procedure mandatory. Thus, any decision to deviate from the court rule was left to the discretion of the parties, and they were perfectly free to exercise only one peremptory challenge if they so chose. Because the exercise of multiple peremptory challenges was merely permissive, an objection was not necessary. An objection only became necessary when the trial court, midway through the selection process, made the exercise of multiple peremptory challenges mandatory. At that point, defendant timely objected to the procedure.

The people also contend that because defendant only exercised sixteen of his allotted twenty peremptory challenges and expressed satisfaction with the makeup of the jury, there is no indication he was deprived of a fair and impartial jury.

In Miller, supra, our Supreme Court rejected the notion that a showing of prejudice was required in order to reverse a conviction for violation of the court rule. The Court noted that given the fundamental nature of the right to trial by an impartial jury, and the inherent difficulty of evaluating such claims, a requirement that a defendant demonstrate prejudice would impose an often impossible burden. Miller, 411 Mich. at p. 326, 307 N.W.2d 335. The Court specifically stated that failure to follow the rule in the face of a challenge to the improper procedure requires reversal. Id. Also see Adkins, supra.

Although defendant did not use all twenty peremptory challenges, the potential for prejudice was nevertheless present as a result of the mandatory requirement that multiple challenges be exercised. The court indicated that a failure to exercise three peremptory challenges constituted a pass as to the remaining jurors in the box who could not then be later peremptorily dismissed. If defendant wanted to peremptorily dismiss one juror but was unsure about dismissing another juror, he was denied the opportunity to make a comparison between the first juror's replacement and the other existing juror then on the panel. In order to avoid the risk of not being able to later dismiss this juror, defendant was required to exercise a peremptory challenge even though a replacement juror might prove less favorable. The ability of defense counsel to effectively exercise his peremptory challenges was therefore reduced.

Finally, a different result is not required because the improper selection procedure existed for only a portion of the jury selection process. A defendant's fundamental right to be tried by an impartial jury entitles him to have the jury selected in accordance with the court rule procedure during the entire selection process. Accordingly, defendant's convictions are reversed and defendant is entitled to a new trial.

Although our reversal on this first issue renders defendant's remaining issues moot, we will nevertheless review them for purposes of completeness.

Defendant next contends the court erred when it instructed the jury that they could consider the stepparent relationship as a factor in determining whether the complainants suffered mental anguish. In People v. Petrella, 424 Mich. 221, 270-271, 380 N.W.2d 11 (1985), our Supreme Court indicated that one of the factors a jury could consider in determining whether a complainant suffered mental anguish as a result of alleged criminal sexual conduct was whether the defendant was the complainant's father. The Court reasoned that greater mental anguish can be expected in such a situation given the societal taboo on incest and loss of a healthy relationship with one's father. Id., at p. 273, 380 N.W.2d 11. We believe that where the evidence showed defendant had been married to the complainants' mother for ten years, that complainants had lived in the same household with defendant for that period and that defendant was viewed as a father-figure, the trial court did not err in allowing the jury to consider the stepparent relationship as one factor in determining the presence of mental...